Willmot and Comcare
[2003] AATA 952
•25 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 952
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/318
REPATRIATION DIVISION DIVISION ) Re ERIC WILLMOT Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms N Bell Date25 September 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution therefor decides that the Respondent is liable to pay compensation in respect of the Applicant’s lower back condition.
[Sgd] Ms N Bell, Member
CATCHWORDS
WORKER’S COMPENSATION – right foot and ankle injury sustained in employment with military in 1992 – Department of Defence accepted liability of foot and ankle injury – Applicant submitted that foot and ankle injury altered his gait – argued lower back condition result of foot and ankle injury - whether right foot and ankle injuries caused lower back condition – decision set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – sections 4 and 14
REASONS FOR DECISION
25 September 2003 Ms N Bell, Member 1. This is an application by Mr Eric Willmot (“the Applicant”) for review of the decision of Comcare (“the Respondent”), dated 10 July 2000 (T15), which affirmed a determination dated 10 May 1995 (T4), that the Department of Defence is not liable to pay compensation in respect of the Applicant’s lower back condition.
2. At the hearing before the Tribunal, the Applicant was represented by Mr Edwards of Counsel and the Respondent was represented by Mr Johnson of Counsel. The Applicant gave oral evidence to the Tribunal, as did Dr Peter Colville. The following documentary evidence was before the Tribunal:
Exhibit
Document
Date
TD1
T-documents
A1
Report of Doctor Ghabrial
1 May 2002
A2
Report of Doctor Ghabrial
25 July 2002
A3
Report of Dr Ghabrial
10 September 2002
A4
Report of Dr Ghabrial
28 November 2002
A5
Report of Dr A.R Bartram
13 October 1992
A6
Bone Scan by Dr G. Jost
17 August 1994
A7
Department of Defence Outpatient Clinical Record
17 October 1994
A8
Report of Dr M. Shaw
14 November 1994
A9
Economic loss Questionnaire
14 November 1994
A10
Letter from Defence Centre, Melbourne
11 May 1995
A11
Report of Dr. P Boys
24 August 1998
A12
Report of Dr P Watson
9 October 1998
A13
Letter from Dr Kleinman to Dr F. Ooi
17 October 2001
A14
Letter from Dr Kleinman to Dr. F. Ooi
7 September 2001
A15
Letter from Dr Kleinman to Dr. F. Ooi
25 September 2001
R1
Dr P. Colville Report
2 August 2002
R2
X-ray reports of Dr. Evans
26 May 1998
R3
X-Ray Report of Dr Evans
27 May 1998
R4
Report of Dr Morris
14 July 1998
R5
Clinical Records of Dr Cameron & Dr Miles
25 May 1998 – 24 July 2000
R6
Report of Dr Rowe
4 October 2001
LEGISLATION
3. The relevant legislation is section 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). Under this section, the Respondent is liable to pay compensation "in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment." Section 4 (1) of the Act defines injury as -
“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.”
APPLICANT’S EVIDENCE
4. The Applicant told the Tribunal that he enlisted in the army in October 1991 at the age of 32 as a qualified motor mechanic. He said that he wanted to retrain.
5. He said he injured his right foot on a bayonet assault course on the 17 January 1992 by stumbling on a rock and twisting his right foot and ankle. Following the injury, the Applicant was treated with ice packs and strapping. Later in 1992, the Applicant had x-rays and further investigations, which suggested a fracture of the right tarsul navicular bone (Exhibit A8). Following this, the Applicant had two periods of plaster immobilisation.
6. On 16 May 1992, the Applicant visited the medical centre as he suffered back strain while participating in a five kilometre run as part of physical training. (T21).
7. The Applicant said that during the two years after the injury to his foot he began to experience pain in his knee. He also said his back would get sore after bush exercises, which involved carrying a 60 kilogram pack, 15-20 kilogram webbing and a rifle.
8. In March 1994 the Applicant underwent foot surgery because his foot had been continuously sore and other treatment, including cortisone injections, did not assist. He said he reached the point where he could not function and although he was on certain restrictions, he had normal working duties as a signalman, doing standard military drills and exercises. He said that he walked with a limp and that while orthotics had helped him slightly, his limp worsened after fitness exercises, involving five kilometre runs.
9. The Applicant said that following surgery in March 1994 he was on crutches for about two weeks and then was weight bearing with a brace. He said the operation gave him no general relief except that it rid him of a sharp pinched nerve pain. He said he went back to normal duties, exercise and training after convalescing from the operation.
10. The Applicant said that his right knee was sore after physical activity following the operation and that his back was about the same, but he began to notice pain in his right leg originating from his back.
11. In 1994, the Applicant worked as a signalman in the Communications Unit of the Royal Australian Signals Corp. He described his work duties to include installing telephones, trench work, installing main distribution frames, climbing towers, working in confined spaces, carrying cable drums and other equipment of up to 20 kilograms, and digging. He said his back pain worsened with increased trench work, work in confined spaces and physical exercises in parades. He said the pain in his back was in his lower back, buttocks and down his right leg.
12. The Applicant said that he went to the medical centre in December 1994 complaining of a swollen right knee. He recalled that the visit may have taken place immediately after playing golf, which he described as being part of his military physical training and scheduled whilst on duty. He had an arthroscopy, in December 1994, and then returned to full duties. He said that his knee felt good after a while but there was no change in his gait and no difference to his back.
13. The Applicant said that he did not seek treatment for his back until about early 1995, when he began to feel that there was something distinctly wrong with his back. He said that, in 1995, he first saw a doctor at the medical centre and had x-rays and physiotherapy.
14. The Applicant said that he was discharged on 20 May 1995 because of his back problems. He said that he had not been seeking a discharge and had merely been before the army medical board for a routine assessment. He was told that, having previously been classified as Fit Everywhere (”FE”), he could no longer remain in the army because of the combined effect of his foot, knee and back conditions.
15. The Applicant acknowledged that the Respondent has accepted liability for his knee injury and has met the cost of two further arthroscopies, the first by Dr Dodsworth in 1998 and the second by Dr Nielson in 2000.
16. The Applicant said that after discharge from the army he commenced doing communications work, similar to the work he had done in the army, on a self-employed basis. He said that over the following years, his back worsened which culminated in a disc excision, following an MRI in late 2001.
17. The Applicant said that he had worked as an apprentice and mechanic for some ten years before entering the army, with no problems with his back.
18. The Applicant told the Tribunal that in 1998 in Brisbane he had seen Dr Morris. He pointed to a passage in Dr Morris’ report which states that he had complained of back pain for six months. The Applicant informed the Tribunal that this statement was incorrect and an error on the part of Dr Morris. However, the Applicant noted that he might have told Dr Morris that his back pain had been severe for the previous six months.
19. In cross-examination, the Applicant said that after the surgery to his foot in 1994, his duties were restricted in terms of physical education activities in that he could not run nor do anything that aggravated his foot. If he found any training exercises uncomfortable, he was not required to continue them. He was still able to do his work duties but was restricted from working in confined spaces, carrying heavy equipment, climbing, bending and squatting. It was put to the Applicant that the development of pain in his lower back did not impose any additional restrictions. The Applicant denied this, saying that previously he had been able to do the activities mentioned above with some discomfort but that the activities became impossible with the added restrictions that arose because of his back condition. He stated that when he left the army he was able to do work similar to that which he had done in the army and continued to do so until 1998, when he found that his back condition prevented him from continuing.
20. It was put to the Applicant, by reference to the clinical notes of Dr. Morris and Dr Cameron, that in 1999 he had a motor vehicle accident in which he rolled a car. The Applicant maintained that he could remember no such accident. He also suggested that a reference to “rolling a car” may have been a reference to him clutch starting a motor vehicle.
OTHER EVIDENCE
21. The reports of Dr Yae Ghabrial, Orthopaedic Spinal Surgeon, opine that the Applicant sustained an injury to his right foot and ankle in February 1991 and subsequently developed symptoms in his right knee and lower back. He found the Applicant to have (Exhibit A1):
“1. Severe prolapsed disc at the L5/S1 segment with compression on the neural elements;
2. Post traumatic osteoarthritis of the medial compartment of the right knee; and
3. Post traumatic osteoarthritis of the talo-navicular joint.”
22. Dr Ghabrial stated that the Applicant’s back and right lower limb disabilities are the result of right foot and ankle injuries sustained in February 1991. Dr Ghabrial stated that these injuries contributed to the injury of the right knee and lower back in 1994. He stated that the deterioration of these problems led to his present problems.
23. He stated that the Applicant’s gait has changed as a result of both his right knee and foot injury, as well as the effect of his use of crutches on multiple occasions. He opined that the Applicant’s back symptoms are related to his altered bio-mechanics due to this change of gait. Dr Ghabrial expressed difficulty with the view that the Applicant’s L5/S1 disc prolapse with extrusion is the result of an age problem, as the Applicant is only 40 years old. Finally, Dr Ghabrial stated that the heavy physical training and the carrying of large heavy backpacks, which were part of his duties in the army, and which he continued after he developed symptoms in his back and legs, contributed to a great extent to the onset of his back problems.
24. In his report dated 8 May 1995, Dr Peter Colville states (T3, f5 and f7):
“There has been persisting pain in the right foot with localised tenderness in the region of the excised navicular tubercle and also pain medially in the knee joint line on the right. He describes that knee pain as severely disturbing sleep at night, and also in going up steps. Earlier in 1994, there was the gradual onset of low back pain and an episode of severe back stiffness with radiation of pain to the right buttock.
…
DIAGNOSIS
1. from what condition does (or did) the claimant suffer as a result of the incident on 17 January 1992?:
“(a) Damage to the tibialis posterior tendon attachment to a developmentally separate ossicle for the navicular tubercle on 17/01/92 There is persisting pain and tenderness at that site although the separate ossicle has been surgically removed.
(b) He developed a painful swelling of his right knee when playing golf in December 1994. An arthroscopy revealed some meniscal damage both medially and laterally together with some cartilage roughening which were treated during that procedure. He describes persisting pain in that knee subsequently but not I gather any further acute episodes of disability from that cause.
(c) Early in 1994 there was the gradual onset of low back pain over about one year, presumably due to minor lumber degenerative disease which would be predominantly age-related.”
Dr Colville gave the following answer to the question from the Department of Defence(T3, f7);“CAUSATION
2. Did any part of the claimant’s employment in any way: (a) cause or contribute to the condition (or part of it)? (b) cause or contribute to an aggravation, acceleration or recurrence of the condition (or part of it); if so how?
Answer:(a) Injury to his right foot 17/01/92, was a major contributing cause to that local problem.
(b) No specific injury was reported in relation to the onset of the problem in his right knee when playing golf, but on the balance of probabilities his employment installing telephone lines contributed as an aggravating factor to that condition. No primary injury, in or before army service, is known.
(c) In relation to his back problem, again there is no specific injury recalled. The degenerative process would be constitutional, but his employment (and presumably other activities) would have caused temporary aggravation of symptoms from that cause.”
25. Later in his report Dr Colville stated (T3, f7):
“In relation to his back pain problem that should be reasonably seen as primarily constitutional in origin as a natural part of the aging process”..
26. Dr Colville gave oral evidence to the Tribunal by telephone. He stated that in his opinion, the Applicant developed back pain in 1994 as a gradual onset unrelated to other events and that the pain came along in a manner typical of a degenerate spine. He described the Applicant’s x-rays as being not significantly different from those of any man of 40.
27. In relation to the motor vehicle accident described in the Applicant’s general practitioner’s notes, Dr Colville said that if such an accident occurred, the Applicant would be likely to suffer back discomfort for a while with scattered soft tissue trauma. Dr Colville commented that the injury would be nothing major, simply causing trauma in a weakened structure that was purely degenerative.
28. In cross-examination, Dr Colville said that the vast majority of degenerative changes remain in an asymptomatic state and that they can be made symptomatic by an event or by an acute change in the degenerative process.
29. Dr Colville was asked to consider if the Applicant had a foot injury in 1992, surgery in 1994 and had developed an abnormal gait, whether that would aggravate the symptoms of a degenerative spine. He answered that it might do so and that such an aggravation might be permanent or temporary.
30. Dr Colville said that radiated pain in the right buttock would not necessarily be neurological and would more commonly stem from degenerative nerve structure than from nerve root problems. He said that an abnormal gait’s effect on a degenerative spine would not necessarily be side specific.
31. When asked about assessing the permanency of a condition, he said it would depend on the individual’s history and said that while degenerative conditions are permanent, symptoms change.
32. In relation to a motor vehicle accident, Dr Colville said a motor vehicle accident could be one of many other identifiable events causing aggravation but that so could a very trivial event.
33. The report of Dr A R Bartram, Orthopaedic Surgeon, dated 13 October 1992 (Exhibit A5) states that the Applicant was reviewed after one week walking around, fully weight bearing and his condition was satisfactory. The report recommends that the Applicant return to normal duties “as long as there is a gradual build up”.
34. The report, dated 17 August 1994, of Dr G Mack Jost, consultant physician, in nuclear medicine (Exhibit A6) reports on a bone scan of the Applicant’s feet. The report comments that “the abnormality is unusually superficial for a stress fracture as stress fractures are usually full thickness. The beginning of a stress fracture is possible or localised damage to joint or an attachment injury would also have to be considered”.
35. An entry, dated 18 October 1994, in a Department of Defence outpatients clinical record, signed by J Rudjki, (Exhibit A7) describes the Applicant, six months after his navicular incision as “still troubled by localised pain – walks with a limp – developing pain in knees and back because of abnormal gait”.
36. The report of Dr Michael Shaw, dated 14 November 1994 (Exhibit A8), noted that the Applicant walked with an appreciable limp and that his foot condition should only be temporary. Dr Shaw advised that it would wise for the Applicant to avoid prolonged periods of standing or marching but that otherwise he is fit to continue with his usual duties.
37. In an “Economic Loss Questionnaire” completed by the Applicant, on 14 November 1994 (Exhibit A9), the Applicant notes pain in his right foot, in both knees and in his lower back. He also states that he walks with a limp and has severe pain with long walks.
38. A Medical Board Examination Record (T21) of the Applicant, dated 28 March 1995, and signed by J Rudjki, indicates abnormalities in the Applicant’s lower extremities, his back, posture, gait and emotional stability. It also notes the sudden onset in November 1994 of right knee pain with no history of trauma, as well as an arthroscopy, menisectomy and chondroplasty in December 1994. In addition the record notes that the Applicant now has lower back pain at the S/1 joint and at L4/5 and is unable to climb ladders, jump, run, or stand for prolonged periods and hence is unable to work effectively in his job without suffering from continuous pain. The record provides a diagnosis of chronic pain in the Applicant’s right foot, knee and sacro-iliac joint with bilateral patellofemoral crepitus and milateral pes planus. The report recommended restrictions against running, jumping, push-ups, sit-ups, lifting weights greater than 10 kilograms, drills and marching. The report also notes that the Applicant is exempt from bayonet fitness training.
39. By letter to the Applicant from the Defence Centre, Melbourne dated 11 May 1995 (Exhibit A10), the Respondent accepted liability for aggravation of the medial and the lateral minuscule damage with cartilage roughening of the right knee.
40. In a report dated 24 July 1998 (Exhibit A11), Dr Peter Boys, orthopaedic surgeon, attributes the Applicant’s foot and knee conditions to the Applicant’s service employment and activities. He notes that the Applicant developed a lower back condition, which restricted activities, initiated medical downgrading and ultimately resulted in discharge from the army.
41. He also noted that the combined effects of the Applicant’s right foot and knee conditions restrict his capacity to kneel, squat, run and walk for protracted periods. He described the Applicant as being able to utilise a ladder with care but as having difficulty accessing awkward spaces, in the course of his employment, as a computer technician and as having discomfort with ascending slopes and stairs.
42. In a letter dated 9 October 1998 (Exhibit A12), Mr Peter Watson, physiotherapist, notes the Applicant’s “longstanding right side ankle, knee and lower back condition” and suggests hydrotherapy as a means of rehabilitation. He then proceeds to estimate the cost and extent of the hydrotherapy required.
43. Letters from Dr Leon Kleinman, Orthopaedic Surgeon, to Dr F Ooi, G.P, dated 17 October 2001, 7 September 2001 and 25 September 2001 respectively (Exhibits A13, A14 and A15), state that the Applicant has a significant disc prolapse at L5 and a degenerative disc at L4-5 without evidence of prolapse together with L5/S1 radiculopathy (nerve root damage) on the right.
44. In a report dated 2 August 2002, Dr Colville states the following opinion (Exhibit R1):
“Professor Ghabrial’s Report,
Professor Ghabrial states, “He started to develop symptoms in his right knee” but does not include any date of onset of the knee symptoms, and offers no reason why the ankle injury could be blamed for this. Perhaps he considers that there was a concurrent knee injury with the ankle but I am unaware of any documentation of this by his treating surgeon at that time or of any symptoms until two years later. It is reasonable to suggest that a separate knee injury at some other time is more probable. He dates the onset of back symptoms as 1994 and again states that there was probably a significant back injury at the time of the ankle injury. The same problem arises here. Since there is no record of evidence of back injury then, there would have been many equally minor and perhaps greater stresses on his back at other times, or progression of the constitutional degenerative change alone, which would explain the onset of back pain two years later.
Overview.
Over two tears after an ankle injury, the gradual onset of back pain should not be attributed to that event in the absence of any significant back symptoms at that time. A later onset of back pain is consistent with a new change within the normal constitutional degenerative process (the severity of that process was further confirmed in the MRI in 2001). Such changes are the rule rather than the exception by the age of forty years. The severity of symptoms they cause is largely fortuitous and related to the pattern of changes that occur. When disc rupture occurs, its precise location is critical – symptoms can be almost absent, or can be acutely severe and disabling when the changes are related to the neural canal. When the latter occurs in association with severe spinal compression (symptoms within days of the injury and can be progressive over the next weeks) that is properly seen as causing an injury to a structure weakened by the degenerative process and causing a period of disablement. That episode is not the cause of the degenerative process or its future progression.
In relation to the knee problem, this apparently caused its first symptoms in 1994 with operative diagnosis of internal cartilage damage. That may well have had an acute traumatic cause in the past, but I can find no clear history of an episode of knee pain and swelling. (Pages PT21 are difficult to read – does sheet 2 (“Referred to Dr Kirwan”) refer to, on 25/11/94, ‘…onset over three days golfing…’). Again, this knee damage should not be seen as an outcome attributed to the foot injury.
In summary my conclusions would be:
1. There was a clearly identified injury to the right foot with residual pain and some resulting loss of function.
2. He had an internal derangement (cartilage damage) in the right knee that required operative treatment about two years later. When this damage occurred is unclear and I could not find any past reference to knee symptoms. I find it very difficult to postulate a mechanism whereby that ankle injury could predispose to the occurrence of such knee damage.
3. He has constitutional degenerative changes in the lumbar spine complicated by disc extrusion with neural involvement at least at L5-S1. A degenerate L5-S1 disc is to be expected at his age. Again it is very difficult to offer any mechanism whereby this should be seen as a complication of the ankle injury rather than an outcome of his particular degenerative process. I am not aware of any possibly significant contributing injury prior to the onset of symptoms.”
45. In a report dated 26 May 1998 (Exhibit R2), relating to an x-ray of the Applicant’s lumbar sacral spine, Dr John Evans concluded that there is minimal degenerative change throughout the lumbar spine with no significant progression since the previous study of 8 March 1995. In a report dated 27 May 1998 (Exhibit R3) of a CT scan of the Applicant’s lumbar spine, Dr Evans reported shallow disc protrusions at L4/5 and L5/S1.
46. In a report of Dr John Morris, orthopaedic surgeon, dated 14 July 1998 (Exhibit R4), it is reported that the Applicant suffered from quite severe back pain for about six months, which prevented him from working. The report states that the Applicant is not able to climb ladders or get into roof areas and notes the problems the Applicant has had with his right knee and left foot. The report observes that the pain in his knee is distinct from that in his back but that “it is a bit difficult to be sure”.. Dr Morris stated that he would not support an application by the Applicant to receive Veteran’s Affairs Pension at his age. He opined that the Applicant’s back will improve and that he should continue to work for the term of his normal working life, albeit in a lighter job for a year or two, until his back settles down.
47. Clinical notes of Dr Cameron and Dr Miles, the Applicant’s G.P’s (Exhibit R5) begin with a first entry of 25 May 1998 and with a final entry on 22 August 2000. Among other things, the notes record the following:
“feels back worse after MVA three months ago. Rolled car while driving. Constant low back pain.“
48. In a report dated 4 October 2001 (Exhibit R6), of an MRI of the Applicant’s lumbar spine, Dr Lindsay Rowe concludes;
“Disc bulging, dehydration at L4/L5 with internal disc disruption and high signal in the annulus. No nerve root compression at this level or spinal stenosis.
Large central disc herniation L5/S1 with marked deformity of the thecal sac and compression of the S1 nerve bilaterally.”
Submissions
49. Mr Edwards, for the Applicant, submitted that the Applicant’s back pain is aggravated by his altered gait arising from his right foot injury, for which liability has been accepted by the Respondent, and also from his army work. He submitted that this aggravation is permanent.
50. Mr Edwards drew the Tribunal’s attention to the evidence of Dr Colville who conceded that a degenerative condition can be made symptomatic by such things as abnormal gait. He also drew the Tribunal’s attention to the evidence of Dr Ghabrial, who opined that this was the cause of the Applicant’s back pain. Mr Edwards asked the Tribunal to determine that the Respondent is liable for the Applicant’s back pain and to remit the matter to the Respondent to consider his entitlement to compensation for incapacity, medical expenses and permanent impairment.
51. Mr Johnson, for the Respondent, submitted that there is no special event in the Applicant’s employment associated with back pain. He submitted that the Applicant has been attempting to find a connection between his back problem and his employment but can find no specific event.
52. Mr Johnson noted that Dr Colville had acknowledged the possibility of the Applicant’s altered gait as a cause of his back pain, but observed that the doctor did not state that it was a probable cause. Mr Johnson submitted that the Applicant’s back pain is simply the natural progression of a degenerate condition and it is not surprising that it has become worse over the years.
53. Mr Johnson submitted that it was a matter of concern that the Applicant had no recollection of the motor vehicle accident, noted in his general practitioner’s clinical notes, and that he did not mention the accident to Dr Ghabrial. He submitted that the accident probably did occur and that the Applicant was aware of it when he saw Dr Ghabrial. Mr Johnson thus concluded that the Applicant is an unreliable historian who may have also forgotten other things.
54. Mr Johnson submitted that prior to the Army, the Applicant was employed as a motor mechanic, which was heavy work. He submitted that it is difficult to implicate any particular event in his development of back pain.
55. He also noted the restrictions placed on the Applicant in his work from 1992 onwards and submitted that these made it unlikely that conditions in the Army contributed to the development of his back pain.
Consideration
56. The Tribunal is satisfied, and there is no dispute, that the Applicant enlisted in the Army in October 1991 as a qualified motor mechanic and ultimately worked as a signalman in the Communications Unit. This employment included such duties as installing telephones, trench work, installing main distribution frames, climbing towers, working in confined spaces, carrying cable drums and other equipment up to 20 kilograms, and digging. The Applicant suffered an injury to his right foot in January 1992 while on a bayonet assault course and in March 1994 had surgery on that foot. The Respondent has accepted liability for that injury. Following the injury and the surgery the Applicant walked with a limp. He also developed a swollen right knee and in December 1994 had an arthroscopy. The Tribunal accepts the Applicant’s evidence that following the injury to his foot he began to experience back pain which caused him to consult his general practitioner in 1995.
57. The Tribunal is satisfied that, up until 1994, the Applicant was required to take part in physical training exercises which included bush exercises carrying a heavy pack, webbing and a rifle and 5 kilometre runs. The Tribunal is also satisfied that, after his surgery, the Applicant was placed on restrictions in relation to physical exercises involving activities, which aggravated his foot, working in confined spaces, carrying heavy equipment, climbing, bending and squatting.
58. The Tribunal is satisfied, on the basis of the reports of Dr Ghabrial and Dr. Colville and the letters of Dr Kleinman, that the Applicant suffers from a significant or severe disc prolapse at L5/S1 with nerve root involvement.
59. The Applicant has contended that his back pain is aggravated by his altered gait arising from his right foot injury and by the nature of his work with the Respondent. The Respondent contends that the Applicant’s back pain is the result of the natural process of degeneration. This is the issue for consideration by the Tribunal.
60. In support of the Applicant’s contention is his evidence that he experienced no problems with his back until after his foot injury in January 1992, notwithstanding his previous heavy work as a motor mechanic. His evidence was also that his back pain was worse when he performed trench work or climbing or worked in confined spaces and after doing bush exercises. He also said that when, after leaving the army, he performed similar work to that undertaken in the Army, he was unable to continue with it because of his pain.
61. The evidence of Dr Ghabrial also supports the Applicant’s contention with the opinion that his back pain arises from his altered gait and that, in a man only 40 years of age, disc prolapse is unlikely to be caused by degeneration. Dr Ghabrial also notes that the Applicant continued heavy physical work after he developed symptoms of back pain. Similarly, Dr Rudjki, in October 1994, opined that the Applicant’s back pain and knee pain arose from his altered gait.
62. The Tribunal also notes the report of Dr Evans dated 26 May 1998, to the effect that x-rays show that there is minimal degenerative change to the Applicant’s lumbar sacral spine with no significant progression since the previous study in 1995.
63. Dr Colville’s evidence, although primarily to the effect that the Applicant’s back pain is constitutional, was that it is possible that an altered gait would aggravate a degenerate spine. He also allowed that the vast majority of degenerate spines are asymptomatic and can be made symptomatic by an event or an acute change. Dr Colville was also of the view that a motor vehicle accident in which a car rolled would produce back discomfort for a while with scattered soft tissue trauma “but nothing major”.
64. Dr Colville was, however, firm in his view that the Applicant’s back pain is constitutional and a natural part of the ageing process. He said the Applicant is like any other 40 year old man in this respect.
65. Also in support of the Respondent’s contention is the Applicant’s evidence that, after his foot surgery in 1994, he was placed on significant restrictions from work involving confined spaces, bending, climbing and squatting and from physical training exercises. This narrows the period during and extent to which the nature and conditions of work could be said to aggravate his back condition.
66. The Respondent made much of the entry in the notes of the Applicant’s general practitioner of a motor vehicle accident in 1999, in which the Applicant is said to have rolled his car. The Applicant denies this occurrence and it is not reported anywhere else in the evidence before the Tribunal. The Tribunal is of the view that, if the accident did occur, given Dr Colville’s view of its likely impact on the Applicant’s back, it is of little consequence. As to the effect of the entry on the reliability of the Applicant’s evidence, the Tribunal draws no inference from this isolated entry, given the otherwise consistent nature of the Applicant’s own evidence and the histories reported by other medical practitioners.
67. The Tribunal considers that the weight of the evidence supports the conclusion that, it is more probable than not that the Applicant’s back pain is the result of aggravation caused by his altered gait which in turn arises from his foot injury. In this respect, the Tribunal prefers the evidence of Dr Ghabrial, which although not subjected to cross examination, was not entirely controverted by Dr Colville, notwithstanding his primary view that degeneration is the cause of the Applicant’s pain. The Tribunal is also mindful that the Applicant first experienced back pain in 1992, after his foot injury, when he was just 33. This diminishes to some extent the force of Dr Colville’s view that his back pain was purely age and constitution related and lends some support to the view of Dr Ghabrial that prolapse caused by these factors alone is unlikely. The report of Dr Evans is also supportive of this conclusion.
68. As to the effect of the Applicant’s nature and conditions of work on his back condition, the Tribunal is mindful that, after 1994, he was, to some extent, protected from activity that could aggravate his back condition, even if those restrictions were targeted to his foot and knee conditions. However, between 1992 and 1994 he undertook vigorous physical training, worked in confined spaces, carried heavy equipment and was required to climb, bend and squat. While the period during which he was required to undertake this activity was limited, the Tribunal is satisfied that it coincided with the development of the Applicant’s back pain and it is more probable than not that it contributed to the aggravation of that condition.
Decision
69. The Tribunal sets aside the decision under review and in substitution therefor decides that the Respondent is liable, under section 14 of the Act, to pay compensation in respect of the Applicant’s lower back condition. The Applicant qualifies for costs in accordance with the Tribunal’s General Practice Direction.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member.
Signed: A. Krilis
AssociateDate/s of Hearing 31 March 2003 and 25 July 2003
Date of Decision 25 September 2003
Counsel for the Applicant Mr T. R Edwards
Solicitor for the Applicant Mr Christian Hart
Counsel for the Respondent Mr Geoffrey Johnson
Solicitor for the Respondent Ms Johanna Smith
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