Turner and Comcare - [2000] AATA 676

DECISION AND REASONS FOR DECISION [2000] AATA 676

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/317

GENERAL ADMINISTRATIVE DIVISION          )
           Re      ANDREW JOHN TURNER
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member Dr Michael Miller, AO, Member

Date8 August 2000
PlaceCanberra

Decision      The tribunal affirms the decision under review
  .......................(Sgd.).......................
  Pamela Burton   Senior Member
CATCHWORDS
WORKERS' COMPENSATION – lower back condition – chronic pain – depression - three incidents at work – whether temporary aggravations of pre-existing condition - whether present lower back condition is natural progression of pre-existing condition or work-related – whether depression is pain-related – whether incapacity is compensable.
Legislation
Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

8 August 2000 Pamela Burton, Senior Member Dr Michael Miller, AO, Member

The applicant seeks a review of the respondent's decision of 24 August 1999, which varied a determination dated 7 April 1999, ceasing liability for his lower back injuries and his depressive disorder on and from 20 March 1992 pursuant to the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
Mr Ian Nash represented Mr Turner, the applicant, and Mr John Wallace represented Comcare, the respondent. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents") and various medical reports, clinical medical notes, and other documents tendered by the parties. The applicant gave evidence. Dr Myer, general practitioner, and Ms Bogner, a friend of the applicant, gave evidence on his behalf. Mr Beswick, industrial physiotherapist, gave evidence on behalf of the respondent.
The issue before the tribunal is whether the applicant's current conditions, namely lower back pain and depression, are work-related and therefore compensable under the Act, and if so, what if any capacity the applicant has to work.
Background
The applicant is a 39 year old man who commenced employment as a gardener in the 1980s with an ACT Government Department, then known as Parks and Gardens ("the Department"). He had a period overseas and recommenced work with the Department in about February 1987. He suffered injury to his lower back in three incidents between May 1990 and March 1992.
On 21 May 1990, whilst working near the suburb of Chifley in Canberra spreading soil on the bank of an underpass, the applicant slipped, twisted and injured his back. The respondent accepted liability for "back strain" (T12). On 6 August 1991 the applicant injured his back whilst clearing trees from a road. He slipped and fell backwards onto a curb, again injuring his back. Again the respondent accepted liability for "lower back injury" (T12). On 19 March 1992 the applicant injured his back when the ride-on "Hustler" brand lawn mower he was driving went into a hole as he was mowing an oval in the suburb of Mawson. The respondent accepted liability for this injury (T3). Following this incident he requested, and was given, light duties.
In 1994 the applicant acted in the position of "Leading Hand". This required him to organise work gangs for various jobs, and to travel around to supervise their work. The position allowed him to avoid most of the heavy labour he had previously performed as a gardener. The depot from which he worked was as Pearce.
The applicant's uncontested evidence is that in March of 1997 the Pearce depot closed down and was amalgamated with the Department's depot at Mawson. As a result of the amalgamation the applicant lost his acting position of Leading Hand, and he returned to his previous labouring duties as a gardener. His duties included mowing with the use of a ride-on mower, chain sawing, pruning trees and hedges by hand with the use of long handled secateurs and on two occasions he was required to use a jack hammer for half a day each time for landscaping. During this period the applicant suffered lower back pain in the course of moving some furniture at home.
The applicant had more trouble with his lower back and sought medical assistance for his back pain and for depression. He ceased work in July 1998. He was medically certified as unfit for work and sought compensation for his back condition and depression. The respondent rejected the applicant's claim on the basis that his conditions were neither work-caused nor work-related.
Contentions
The respondent contends that the applicant's current back problems are unrelated to his work-related back strains in 1990, 1991 and 1992. This, it is submitted, is borne out by the fact that between 1992 to 1998 the applicant failed to consult doctors with any frequency about back pain. The respondent contends that in any event the applicant's depressive condition arose as a result of his marital and associated financial problems in 1998, and not by reason of back pain.
The applicant contends that he was fully fit and symptom free prior to the injuries he sustained at work between 1990 and 1992, and that his lower back pain never went away between 1992 and 1997. He says that in this period he was able to manage the pain because he was on light duties or working in a supervisory capacity which allowed him to avoid the heavy duties that caused pain. He contends that his return in 1997 to his previous heavy manual work caused an increase in the pain he suffered. The applicant claims that he frequently consulted doctors, physiotherapists, and a chiropractor. He contends that his depressive condition arose as a reaction to his chronic pain.
Counsel for the respondent raised the issue of the applicant's credit. He suggested that the applicant was not pain free prior to commencing work with the Department; that the applicant exaggerated his pain when being examined by doctors; that the interest he showed in taking a redundancy package after the closure of the Pearce depot belied his evidence that he wanted to continue to work; and that he ceased work in 1998 because of his depressive condition which was not connected to his back pain. It was further contended that this depressive condition arose out of his marital and financial problems, not out of his employment.
In response, the applicant said that the offers of redundancy were directed to many workers, of whom he was one. His back pain made the package an attractive option for him. He denied that his earlier marital problems contributed to his depressive condition, which he said he suffered after the more severe onset of back pain in 1997. He maintained that because of his financial problems he wanted to keep working, but that by 1998 he could not cope with his work in the presence of increasing lower back pain.
The applicant's evidence
The applicant described the three incidents in detail in which he had injured his back in the course of his work with the Department. He recalled that after the accident of 21 May 1990 he was off work for a few days. He said that between this incident and the injury he sustained in August 1991 he continued to undertake his normal duties but he was not pain free. He said that the pain flared up from time to time in his lower back. As a consequence of the injury he sustained in August 1991, he said that he was in pain for some weeks.
In relation to the incident which occurred on 19 March 1992 whilst driving the "Hustler" mower at Mawson, he said that when the wheel of the mower went into a hole, he was bounced around on the seat. He said that he nearly passed out because of the jabs of pain he experienced. He was unable to stop or stabilise the machine quickly. He was driven back to the depot and he had about one week off work.
The applicant said that when he returned to work he was placed on light supervisory duties. He still suffered back pain which had by then only eased a little. He was able to stop work when the pain was severe.
In about 1994, the applicant became an acting Leading Hand. The supervisory duties this entailed allowed him to avoid heavy duties and to rest or do only light duties if he was having a bad day. In this way he said that he was able to manage his pain. If he "stepped over the mark" and suffered excessive pain he went home. Once the Pearce depot closed in 1997 the applicant was required return to his pre 1994 position. From that time on, he said that he was unable to manage his pain or work in a manner to accommodate it.
The applicant said that between March 1997 and July 1998 the pain in his lower back worsened daily. He said that he tried to block it out mentally and used analgesics during the day. He found that he was unable to concentrate because of pain. He referred to the time when he was required to use a jackhammer and said that it "nearly killed me".
In relation to the applicant's marital difficulties, he gave evidence that he and his wife separated in 1992, reconciled in 1993, and finally separated in 1996. He said that this was not a source of such distress as to give rise to a depressive condition. He said that his depressive condition came later, after the onset of more severe pain in 1997 and 1998. He agreed that it was about this time that he and his former wife had to sort out finances and that on his return to work at Mawson he received a lower salary and was suffering financial strain. He said that he therefore needed to continue to work, and that he did so despite the increase in his pain.
The applicant saw Dr Faulkner, general practitioner with a special interest in depressive conditions, in respect of his mental state in 1997. He said that he had had depressed feelings since about this time, which got worse as he got back to normal duties and his pain level increased. He said that he tried to get through the day and cope with pain and on a few occasions he "blew a few fuses". Dr Faulkner prescribed anti-depression medication.
In May 1998 the applicant expressed interest in taking a redundancy package. There was talk about the Mawson depot closing and of an interstate contractor taking over and that people might lose their jobs. He said that he was not in a financial position to do without his job. Then, in July 1998 he woke one morning and was unable to move or walk. His body was stiff and he had spasms. He felt crippled. He saw Dr Meyer that day and was prescribed analgesics. On 3 July 1998 Dr Meyer certified him unfit. The applicant ceased work on 3 July 1998 and has not returned to work for the Department since. It was after this time, in August 1998, that he was informed that he was not going to be offered a redundancy package.
The applicant was cross-examined at length by counsel for the respondent about the various histories he gave to his treating practitioners following the 1990 incident, about back pain he had suffered prior to the three incidents at work. It was suggested to the applicant that he had suffered constant back pain prior to his employment with the Department, at least from his twenties. The applicant denied that he had any ongoing back problems from the accident in which he was involved as a child. He denied that he had chronic pain of the kind he has now, when he was in his twenties. The applicant said that the histories recorded to the contrary were wrong. He explained that he might have given inaccurate histories to doctors on the occasions he was suffering severe pain.
Counsel for the respondent put to the applicant that he suffered only strain injuries in the three incidents that occurred at work between 1990 and 1992, and that he made a full recovery from them, before his health deteriorated in 1997. Counsel for the respondent suggested that in 1997 and 1998 the applicant had financial troubles, and that he had wanted to take a redundancy package to relieve the financial pressure, and that he had ceased work with that expectation. It was further suggested that at the time he ceased work he was suffering from a depressive condition, and that he made no complaints then of back pain. The applicant denied these suggestions and referred to Ms Bogner's evidence to verify that he was in constant pain which progressively worsened in 1997, causing him to cease work.
Counsel for the respondent put to the applicant that if he had really suffered pain in the course of his work at the Mawson depot from 1997 on, he was likely to have complained about it or reported it. The applicant had knowledge of, and experience with, compensation procedures. The applicant said that he did in fact complain to his work colleagues, particularly when he was moving furniture at the depot, but that generally he buttoned his mouth and kept working.
The applicant was questioned about his present capacity to work. He admitted that he has done some gardening, describing this as "a little bit of gardening for friends, that's about it". He was questioned about other work he had done that he had mentioned to some doctors. He eventually conceded that he did some painting in about 1997 for a friend. He said that he was given $20 here and there for such work.
Counsel for the respondent challenged the applicant's evidence as to the level of pain he felt. He put to the applicant that he exaggerated his pain, and in particular on the occasion that the applicant attended upon Mr Beswick, industrial physiotherapist, on 6 March 2000 for the purpose of undergoing a full Key functional assessment. The applicant asserted that the duration and nature of the ordeal at Mr Beswick's office caused an increase in his pain to the extent that Mr Beswick had to help him down the stairs with the aid of a support belt. He said that Ms Bogner then drove him straight to Dr Meyer for pain medication. The applicant said that after receiving treatment from Dr Meyer he was driven home by Ms Bogner, and he went to bed and saw Dr Meyer again the next day.
Ms Bogner's evidence
According to the applicant, he and Ms Bogner lived together between March 1997 and 1999, for about 18 months, and since that time they have simply been close friends. Ms Bogner gave evidence corroborating the applicant's evidence with respect to his complaints of lower back pain at the time he ceased work. She said that when the applicant left work in July 1998 he said "I can't go on with that pain any more". She was cross-examined as to the reason she specifically recalled the date on which this occurred. She said that she recalled that the applicant said this at the time he left work. She was aware that he had constant pain and recalls him saying he could not go on. Ms Bogner also gave evidence of the part she played in assisting the applicant to get from Mr Beswick's office to Dr Meyer's surgery when he was in pain. Dr Meyer's recall of this incident is consistent with the evidence given by both the applicant and Ms Bogner in this respect.
Impression of the applicant
As to the applicant's pre-employment health, we discuss the medical and other evidence and the conclusions we draw from it more fully below. We accept that the applicant genuinely perceives that he did not suffer in his twenties, the chronic pain that he now suffers. However, he made many references to the problems he suffered in his twenties when giving medical histories to his treating medical practitioners. The histories he gave were likely to have been accurate to the best of his recall at the time. The applicant's denial in giving evidence to the tribunal of the accuracy of these reports reflects his eagerness to convince the tribunal, consistent with his genuine belief, that the problems he had in the past which were not then disabling, are not associated with the chronic pain from which he now suffers.
The tribunal accepts that there are some obvious inaccuracies of the applicant's evidence. He is unable to satisfactorily explain some of his actions and, in particular, why he did not attend more frequently on his medical practitioners for treatment between 1992 and 1997 if the level and persistence of pain was as he describes it. Despite this, we have no doubt that the applicant is genuine in his attribution of his current pain.
On the applicant's evidence we conclude that for financial and other reasons he was keen to keep working and, but for the chronic back pain, he would like to work now. We do not doubt that he suffered more pain in 1997 and 1998 while doing more strenuous work than between 1992 and 1997 when he was on lighter duties. Ms Bogner verifies that when the applicant ceased work in 1998 he had been and was suffering chronic lower back pain. Her recall of his comment "I can't go on with that pain any more", rings true. The statement is consistent with the applicant developing depression as a reaction to his chronic pain, and his resultant inability to cope with work. The link between the applicant's back pain in 1997-1998 with the onset of his depression is also consistent with the medical evidence.
Dr Meyer said in evidence that he was aware of the applicant's family problems and he confirmed that the applicant did not develop any depressive disorder at the time the applicant and his wife finally separated, although Dr Meyer thought that family problems may have played a role.
That is not to say that the primary incapacity from which the applicant suffered at the time he ceased work was not his depressive condition. Dr Meyer saw both the applicant's physical and psychological conditions as playing a role and said in evidence that one cannot say which injury "tipped the scales". On the evidence it seems that it is likely that the applicant's depressive condition worsened to the point that it incapacitated him for work in July 1998.
We accept that the applicant is currently suffering chronic pain. In his evidence he tended to describe the pain in dramatic terms. But it seems that the applicant genuinely experiences the level of pain he describes. Dr Meyer accepts the applicant's complaints as genuine. He said that the applicant's presentation of his pain is not unusual, that is, it is in his personality to express himself in that way. Dr Meyer accepts that the applicant's pathology in itself is not sufficient to account for that level of pain, in that according to the MRI, while there is a disrupted L4/5 disc it was not encroaching on the nerve at the time the MRI was done. Dr Meyer explained that pathology, however, can only suggest what might cause pain. The pathological appearance does not necessarily correlate with the severity of symptoms. Dr Meyer also expressed the opinion that pain can easily contribute to a depressive disorder. In the applicant's case, he thought that the pain existed first, and the depressive disorder came after it. We accept this analysis.
In relation to Mr Beswick's conclusion drawn from his assessment results that the applicant was not truthful in his description of pain, we say more about the value of that assessment below. However, Dr Meyer, in evidence, verified that the applicant and Ms Bogner arrived at his surgery after attending Mr Beswick's office. Dr Meyer recalled that he attended the applicant whom he saw in the passenger seat of the car in obvious pain, and he administered a morphine injection without the applicant alighting from the car.
Medical History
The applicant had a car accident at age 6, which resulted in a head injury and left sided-paralysis. The applicant gave this history on 21 November 1990 and 17 May 1991 to staff at the Woden Valley Hospital ("the Hospital") Physiotherapy Department, and on 12 July 1993 to the Hospital's Emergency Department (Exhibit 4). The history given on 17 May 1991 included leg length discrepancy and resultant spinal scoliosis. The history he gave on 12 July 1993 was that since age 20 he suffered from chronic back pain and indicated that he had had many episodes of back pain, and has seen physiotherapists and chiropractors many times.

On 17 May 1991 he attended the Hospital's Physiotherapy Department presenting with lower back pain radiating to the left calf, and thoracic pain radiating around the chest (Exhibit 4). It was noted that the applicant had a history of increasing back pain over the past 9 years on bending, lifting and so forth, that is, prior to the 1990 incident at work.
We conclude from this that the applicant had chronic back pain since the age of 20 (that is, since 1980), presenting with recurring problems involving the lower back as well as some thoracic pain, for which he had repeated physiotherapy and chiropractic treatment.
The next significant history is the incidents at work. After the May 1990 incident, the applicant attended the hospital for an x-ray on 22 May 1990. No abnormality in his lumbo-sacral spine was seen. He then saw Dr Neubauer on 24 May 1990 and reported that he had suffered pain to the left lower back from a twisting action while shovelling dirt. He was prescribed Naprosyn (an analgesic) and was certified unfit for work that day (Exhibit D).
The applicant presented to Dr Neubauer on 20 November 1990 with lower back pain. Dr Neubauer noted a past history of trauma (Exhibit D), and that the applicant had excessive curvature of the lumbar spine. He referred the applicant for physiotherapy (Exhibit 4). On 21 November 1990, the physiotherapist noted "scoliosis, pain on flexion worsening" (Exhibit 4).
On 1 March 1991 the applicant again attended on his doctor on referral from the physiotherapist with lumbar L2/3 pain especially on the left side, and also with thoracic pain. Dr Neubauer referred him for an x-ray (Exhibit D). Miss Schellenberger, surgeon, reported on 1 December 1998 (T46), that the x-ray dated 6 March 1991 was reported as normal for his age.
On 17 May 1991 the applicant attended for physiotherapy for lower back pain radiating to his left calf as well as for thoracic pain. Thus, the applicant was still suffering lower back pain from time to time for some 12 months after the 1990 incident at work. It is therefore open to us to conclude, and it is probably the case, that the May 1990 aggravation was still present in May 1991 (Exhibit 4), and possibly until the next incident at work in August of that year.
The next significant event was 6 August 1991. The applicant attended his doctor, probably Dr Rosendahl, at the South-side 24-hour clinic at Erindale ("Erindale") on 7 August 1991 (Exhibit E). The attending doctor noted that the applicant had been removing a fallen tree when he fell backwards and struck the curb with his back. Orudis SR, a non-steroidal anti-inflammatory, was prescribed. The doctor wrote, "fit for normal duties apart from heavy lifting" (Exhibit E). On 1 October 1991 Dr Rosendahl certified that the applicant suffered sprain of the lumbo-sacral spine on 6 August 1991, for which he had no time off work (Exhibit E).
On 30 September 1991 two separate entries record the applicant's attendance at Erindale. One, being the next entry after 7 August 1991, records that the applicant was tender over L3/4 and had limitation of flexion and extension. It is not clear whether he was certified unfit for work or not (Exhibit E). The entry records that the applicant is to be reviewed by Dr Rosendahl. A further entry, which we presume was a subsequent attendance, apparently written by Dr Rosendahl, is dated 30 September, though in an out of date sequence in the clinical notes. It reads "back now fine and fully functional".
There is no evidence of any further attendance by the applicant for treatment until the next incident which occurred at work on 19 March 1992. The applicant attended Dr Meyer that day (Exhibit D). The applicant told him that he had injured his back at work from a jarring action on a mower. Dr Meyer certified the applicant as unfit for one day by reason of muscular strain. The applicant said in evidence that he was off work for one week. However Dr Neubauer certified that he was fit to resume duties on 23 March 1992 (T4). Thus we assume that he had up to 4 days off work. The applicant said that on his return to work he asked the overseer for lighter work. He obtained a different position away from the mower and heavy tasks. He says that he continued with light duties until 1994 when he obtained higher duties as acting Leading Hand.
The applicant says that he saw his medical practitioners from time to time after the 1992 incident. However, this is not borne out by the medical records. On 26 May 1992 he saw Dr Neubauer complaining of a cramp in the left hip. We do not think this episode is related to the aggravations he sustained to his lower back. The applicant suggested that the hip cramp was sciatic pain coming from his lower back. This is not supported by his treating practitioners, and did not conform to the applicant's pattern of previously experienced pain. For example, he told Dr Neubauer that this "usually happens in winter", implying that it has occurred before (Exhibit D). Dr Neubauer noted no obvious restriction on examination, diagnosed the condition as "cramp", and prescribed appropriate medication. No reference is made in the notes to the applicant's lower back problems.
It is relevant to note that, in his report dated 30 July 1992 (T6), Dr Neubauer states that the applicant did not suffer from any specific back condition. He referred to the muscular strain episode of 1992 and gave a prognosis for a complete recovery. He opines that the injury sustained in 1990 was also a muscular strain of the lower back. He saw these injuries as being of a temporary nature which resolved within a few days. At this time he certified the applicant as fit for normal work. Dr Neubauer advised the applicant that he should follow correct posture and lifting procedures to prevent straining other muscles. He did not certify the need for light duties.
Dr Neubauer had no record of the 1991 incident and saw no direct continuity of the 1990 and 1992 strain conditions. We have already found that the 1990 strain episode aggravated the applicant's pre-existing spinal condition, which aggravation probably lasted until the 1991 incident. However, the medical records do not support any ongoing problems arising much beyond 30 September 1991, until the next incident on 19 March 1992.
On 29 June 1993 the applicant attended Erindale complaining of spasm of pain left side of his back and under his arm. He reported "similar episodes before" (Exhibit E). Examination revealed marked thoracic scoliosis and he was prescribed Panadeine Forte and Valium. Early on 12 July 1993 the applicant attended Erindale complaining of continuing back and chest pain (Exhibit E). He reported that he had two to three more severe attacks of chest and back pain since 29 June 1993. He gave a history of having similar pain "for years". The clinical examination did not reveal any restriction in movement or any muscle spasm. The applicant was prescribed medication appropriate for the treatment of gastritis. He was advised to attend the hospital if pain became worse. The applicant attended the emergency department of the Hospital at 9:15 am on the same morning (Exhibit 4). He complained of a two-week history of back and chest pain. Reduced movements of the lumbar spine were noted, due to pain and some tenderness over the thoracic spine. It was noted that the applicant showed distress due to pain. A diagnosis of chronic back pain was made and pethidine was administered for pain relief. X-rays were taken of the chest and lumbo-sacral spine and revealed no abnormalities (Exhibits 4 and D).
The same day the applicant then attended Dr Neubauer complaining of continuing back pain under the left shoulder blade, back of the chest and down to the left buttock area. Dr Neubauer examined the applicant and noted some restriction in movements in the lower back and diagnosed muscular spasms. He then prescribed anti-inflammatory and muscle relaxant drugs. There is nothing to link this severe and widespread pain to the applicant's work.
This episode of pain between 29 June and 12 July 1993 was apparently not connected with any activity at work. We conclude that the applicant was suffering symptoms arising from his lumbar and thoracic pre-existing spinal condition. Between this time and 1997 the records reveal that no medical attention was sought in relation to the lumbar spine. We note that on 9 December 1996 the applicant presented to Dr Meyer with loin and lower back pain, abdominal discomfort, dizziness, feeling unwell and feeling run down (Exhibit E). This is unlikely to be related to his spinal complaints. Dr Meyer thought it was a urinary tract infection and ordered a urinalysis and prescribed Maxolon for his nausea.
On 12 January 1997 (Exhibit D) the applicant attended Dr Meyer stating that he was suffering right lumbar back pain whenever he moved, after he had moved some furniture the previous day. In cross-examination it transpires that although the applicant moved some furniture at work, prior to the onset of the pain he had been assisting his father moving furniture at home. He was prescribed Panadeine Forte and certified unfit for work for two days.
On 25 July 1997 the applicant attended Dr Meyer about his right hip. The relevant history Dr Meyer recorded is that the applicant sustained a motor vehicle accident at the age of 5 causing paralysis in the left side of his body. On 30 July 1997 Dr Meyer referred the applicant to Dr Gillespie, orthopaedic surgeon. Then in September 1997 he was referred to the Royal Prince Alfred Hospital in Sydney for an opinion about his right hip condition. On 12 November 1997 Dr Sweetnam, the orthopaedic registrar, noted that the applicant had previously suffered Perthe's disease (inflammatory disease of the head of the femur), but considered that this was not the cause of his current problems. He noted that x-ray of lumbo-sacral spine showed quite a marked lumbar lordosis with probable mild degeneration at the lumbo-sacral level. He considered that the applicant's problems were likely to be related to a nerve root entrapment secondary to disc protrusion. He recommended an MRI scan (T10). The MRI scan conducted in January 1998 revealed dehydration of the L4/5 disc associated with an annular tear, but no neural compromise was identified (T12).
The spinal injury noted by Dr Sweetnam may have occurred while the applicant was moving furniture at home in January 1997. It could also have resulted from the heavy work he was performing at Mawson. However, the only specific incident identified as being associated with pain at this time was the moving of the furniture at home. As the applicant experienced pain following this activity, it is likely that the injury was occasioned at that time.
In the absence of any other history it seems that the 1990, 1991 and 1992 incidents were temporary aggravations – borne out by fact that there were no more attendances on doctors for lumbar pain in the 1992 to 1994 period when the applicant appears to have been doing heavy duties. In 1994 he was performing the supervisory duties of a Leading Hand, not involving as much heavy work. However, between 1992 and 1997 he did not attend any physiotherapists, chiropractors or treating general practitioners. Dr Meyer thought the aggravation was continuing, but between 1992 and 1997 there was no record of complaints of back pain.
In relation to the depressive condition, Dr Meyer noted on 20 March 1997 that the applicant was "lethargic and depressed re: situation". On 1 April 1997 Dr Meyer prescribed anti-depression medication. On 1 July 1998 the applicant was depressed and Zoloft was prescribed. On 6 July 1998 Dr Hope found severe depression and lethargy, attributing this to work and certified the applicant unfit until 10 July 1998. On 13 July 1998 Dr Meyer found major depressive disorder and again prescribed Zoloft. There is no record of back complaint having been noted on these occasions. Dr Meyer said in evidence that it was hard to say which injury tipped the scales. It is not until 30 July 1997 however, that the applicant was referred to Dr Gillespie for right hip pain.
Expert medical evidence
Dr Sweetnam, orthopaedic registrar, in his report dated 12 November 1997 (T10), did not feel that the applicant's dysplastic hip was the cause of his problems. He saw the problems as being related to his nerve root entrapment secondary to disc protrusion. X-rays show mild degeneration at the lumbo-sacral level. This is consistent with the presence of long-standing spinal disorder. He made no assessment of the applicant's capacity for work.
Dr Khor, specialist in anaesthesia and pain management, noted in his report dated 12 April 2000 (Exhibit C), that there were a number of components to the applicant's pain including discogenic disease with a possible annular disc tear at L4-5 and altered biomechanics in his spine due to the dysplastic hip. He also noted the applicant was depressed. He thought these conditions were likely to be of long standing. He made no assessment of the applicant's capacity for work.
Dr Saboisky, consultant psychiatrist, in his report dated 24 December 1999 (Exhibit 1), agrees with Dr Meyer's diagnosis of depressive illness in July 1998 but says that the applicant now has no psychiatric disorder. He feels that the chronic back pain was a major contributing factor in the development of depression. He agreed with Dr Lucas, consultant psychiatrist, that psychosocial factors were important in the applicant's continuing pain, contributing to the extent of 70% to his depression.
Dr Saboisky thought that the applicant's work related injury materially contributed to his previous depressive condition. However, in his supplementary report dated 27 April 2000, Dr Saboisky stated that he assumed that the applicant's back pain was linked to the work injury on 19 March 1992 because the applicant gave a history of persistent back pain since that time
The evidence does not support the assumption upon which Dr Saboisky's opinion is based, that is, the presence of persistent pain since 1992. The tribunal cannot assume, then, that on the above history Dr Saboisky would maintain his opinion that the depressive illness was materially contributed to by the applicant's employment. In fact, Dr Saboisky agreed that if there is evidence that the applicant's back pain is not attributable to a work-related event, then it is not reasonable to assume that his employment contributed to his previous depressive condition (Exhibit 1).
Dr Faulkner, general practitioner, in her report dated 12 February 1999 (Exhibit A), also considered the applicant's chronic pain contributed substantially to the depression. Dr Faulkner, however, considered him unable to work for the foreseeable future as opposed to Dr Saboisky, who stated that there is nothing to suggest that the applicant was permanently incapacitated for work.
Dr Chandran, neurosurgeon, in a report dated 1 February 1999 (T54), stated that the copies of the medical reports submitted to him did not indicate any problems of ongoing pain or disability from 1992 to 1997. He saw no evidence to suggest that the present condition was related to the incident of March 1992. He also took into account the staff report of 16 September 1998 (T28), which he felt did not indicate the presence of a spine problem. He recommended psychiatric management for the applicant's depressive illness.
In a report dated 16 December 1999 (Exhibit 3), Dr Chandran notes that in assessing the connection between the incident of March 1992 and the present condition, he found a gap of some 3½ years from July 1993 to December 1996 in the reporting of back related symptoms. This accords with the tribunal's own findings. Dr Chandran concludes in both reports that the applicant is unlikely to return to work.
Mr Beswick, industrial physiotherapist, in his report dated 6 March 2000 (Exhibit 2), described the Key functional assessment. He found that the applicant was consciously attempting to manipulate the test results and that produced an invalid assessment. Mr Beswick said in evidence that the applicant's behaviour was bizarre and that he exhibited pain behaviour. The tribunal did not find Mr Beswick's assessment or test results persuasive or useful. We accept that the applicant was genuinely in pain during the time he attended Mr Beswick's office. Mr Beswick did have to help him down the steps. The applicant was clearly in severe pain when Dr Meyer attended him later that day.
Dr Lucas, consultant psychiatrist, in a report dated 10 September 1999 (Exhibit B), considered that the applicant had suffered a major depressive episode in 1998 which has to some extent resolved with treatment. He diagnosed chronic pain disorder associated with psychosocial factors and possibly with a general medical condition the nature of which is unclear. Dr Lucas opined that the applicant's work injuries played a significant role in the development of his chronic pain and subsequent psychiatric disorder. He further noted that the depression played a major role in his ceasing work although at present the chronic pain may now be a more significant problem for him.
The history provided to Dr Lucas failed to indicate back problems of significance between 1992 and 1998. He referred to the applicant's statement that "it had now all come together" apparently referring to his psychiatric symptoms. It would seem that, according to this history, his medical problems during this period were not a cause of difficulty for him. Dr Lucas stated that the applicant would have been unfit for work during the major depressive episode but noted he had now improved with treatment. The tribunal infers that Dr Lucas believes that the depressive condition is no longer causing total incapacity.
Miss Schellenberger in her report dated 1 December 1998 (T46), concluded from the applicant's history that he had full recovery from the 1990 and 1991 incidents but no recovery from the 1992 incident. She noted referral to physiotherapy in 1994 presumably because of back pain. The history she had did not refer to any further significant back problems until 1997. The doctor noted that by mid July 1998 the applicant was very depressed and could no longer "push" himself to go to work. At this time he was certified unfit for work. She concluded that he had a lower lumbar disc complaint which had been aggravated at work. She further concluded that the underdevelopment of the left side of his body had also aggravated his back complaint. The underdevelopment of the left side of the applicant's body is due to his childhood accident. Miss Schellenberger noted the recent onset of depression to which difficulties associated with the applicant's ex-wife had contributed, and opined that he was not working because of the depression. Her examination of the applicant revealed a near normal range of spinal movements and slight shortening of the left leg. Apart from some residual signs of a previous head injury there were no other abnormal findings.
Miss Schellenberger's report suggests that the applicant's inability to work is related to his psychiatric condition rather than to back pain, and suggests that his family problems contributed to the depression. Miss Schellenberger noted a permanent partial incapacity but considered that he would be capable of returning to full time lighter duties.
Dr Bell, Commonwealth Medical Officer, in her report dated 21 December 1998 (T48), related 3 incidents involving the applicant injuring his back. The history indicated persistent pain since the third incident which was manageable until 1998. She also noted a discrepancy in his spinal movements between formal examination and informal observation. She suggested that the applicant made efforts to exaggerate his disability. Dr Bell noted the applicant had suffered from depression in 1993 associated with marital problems. His mood fluctuated, the depression becoming severe in July 1998 when he was unable to get out of bed. Dr Bell regarded the applicant as unfit for work when she examined him but thought he may become fit following intensive rehabilitation.
Conclusions

The expert medical evidence suggests that the reason for the applicant's incapacity for work in 1998 was his depressive condition rather than his chronic back pain. There is agreement that chronic pain can cause depression. However, in this case it seems that the applicant's psychosocial problems also contributed to his depression.
The history of chronic back problems preceding 1990 does not appear to have been available to most of the expert doctors. However the general view appears to be that the injuries sustained in the 1990, 1991 and 1992 incidents were short lived and that there was a significant period from 1992 to 1997 when the applicant did not seek medical care for his back.
The incidents relating to the applicant's employment between 1990 and 1992 are likely to have temporarily aggravated his pre-existing degenerative condition, which condition probably arose out of his posture from the accident when he was 6 years old. His pre-existing degenerative condition is progressing with age. The clinical notes, records and the evidence as a whole support the conclusion that they were temporary aggravating episodes, as the applicant returned to full, if light, duties soon after 1992. While he was on higher duties between 1994 and 1997, he still carried out manual work. The medical records and evidence indicate that the applicant had no lower back complaints consistent with his previous lower back pain experienced between 1992 and 1997. He had an episode of severe wide spread back pain in 1996, which was short lived and not apparently connected with his current pattern of pain. The next severe episode arose at home in the course of moving furniture in January 1997 which triggered pain at that time.
There is no evidence of any work related incident to explain the back pain from 1997. The applicant's symptoms from that time, including his depressive condition, did not therefore arise out of or in the course of his employment. Taking the whole of the evidence into account, and the medical opinions presented to the tribunal, we are satisfied that the applicant's work related aggravations had resolved by 1993, and that his back pain from 1997 and his depression were not materially contributed to by his employment.
Decision
The tribunal affirms the decision under review.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member and Dr Michael Miller, AO, Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  18-19 May 2000
Date of Decision  8 August 2000
Counsel for the Applicant        Mr Ian Nash
Solicitor for the Applicant         Gary Robb & Associates
Counsel for the Respondent    Mr John Wallace
Solicitor for the Respondent    Blake Dawson Waldron