Willocks and Comcare - [2000] AATA 678

DECISION AND REASONS FOR DECISION [2000] AATA 678

ADMINISTRATIVE APPEALS TRIBUNAL )

)No A1999/16; 202; 420; A2000/197

GENERAL ADMINISTRATIVE DIVISION          )
           Re      GRAHAM K WILLCOCKS
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member Dr Michael Miller, AO, Member Air Mshl IB Gration, AO, AFC, Member

Date8 August 2000
PlaceCanberra

Decision The tribunal affirms the decisions under review of 23 December 1998 and 28 June 1999. The tribunal sets aside the decision under review dated 12 November 1999, and in substitution therefor disallows the applicant's claim for compensation for psychological counselling for the applicant's lower back condition and decides the applicant has no entitlement to compensation pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988.

...............(Sgd.)........................
Pamela Burton Senior Member
CATCHWORDS
WORKERS' COMPENSATION – injury to back at work – whether pre-existing degenerative disease – whether new injury at work, or temporary or permanent aggravation of degenerative disease – whether disc prolapsed at work or in a subsequent incident away from work – whether stress at work and/or back pain caused psychological injury – whether compensable. Whether applicant failed to disclose previous episodes of back pain and psychological problems – whether wilful and false representation.

Legislation
Safety Rehabilitation and Compensation Act 1988 ss4, 7(7)
Authorities
Comcare v Porter (1996) 70 FCR 139

REASONS FOR DECISION

8 August 2000 Pamela Burton, Senior Member Dr Michael Miller, AO, Member Air Mshl IB Gration, AO, AFC, Member

The applicant sustained an injury to his low back while lifting a printer in the course of his employment with ACT Health and Community Care on 29 January 1996, for which the respondent has admitted liability. The applicant claims that the incident caused, or materially contributed to, his degenerative lumbar spine condition and that, as a result of the back pain and stress at work, he suffers a severe anxiety condition, for which injuries he claims compensation under the Safety Rehabilitation and Compensation Act 1988 ("the Act").
The decisions under review
Several matters are before this tribunal arising out of four decisions of the respondent. In matter No 16 of 1999 the respondent made a determination on 19 August 1998 (T86 of 16/99) not to meet the cost of an exercise bike and an air walker unit recommended by the applicant's physiotherapist, Mr Trevor Beswick. Instead the respondent indicated that it would consider approving a gymnasium membership to allow access to a wider range of exercise equipment in a supervised environment. The independent review officer (the "IRO") affirmed this decision on 23 December 1998 (T103 of 16/99). The applicant seeks tribunal review of this decision.
In matter No 202 of 1999, by determination of 8 April 1999, the respondent refused liability for the applicant's condition of "severe anxiety". The IRO affirmed this decision on 28 June 1999. The applicant also seeks review of this decision.
In matter No 420 of 1999, by determination of 15 April 1999 (copy not provided to the tribunal), the respondent disallowed the applicant's claim for compensation for psychological counselling for the applicant's compensable low back condition on the ground that it was not therapeutic treatment. The IRO affirmed this decision on 12 November 1999. On that occasion the IRO also considered a determination dated 28 June 1999 (of which a copy was not supplied to the tribunal) which assessed the applicant's whole person impairment at 10% pursuant to section 24 of the Act. The applicant, through his solicitor, by letter dated 1 July 1999 requested that that assessment be reconsidered. The IRO on 12 November 1999 affirmed the determination of 28 June 1999.
At the hearing the tribunal was informed that the respondent on its own motion reconsidered liability in these matters and decided that it had no ongoing liability in respect of the injury the applicant suffered to his back in the course of his employment on 29 January 1996. The tribunal notes that matter No 197 of 2000 raises the issue of initial liability, although no decision in writing pursuant to section 63 of the Act was brought to the tribunal's attention. This does not prevent the respondent from contesting liability generally. The respondent contends that liability was wrongly accepted for the applicant's ongoing complaints of pain, and psychological reaction to it. The respondent further contends that the applicant had a pre-existing back condition and psychiatric condition of which he was aware and that he is precluded from receiving compensation pursuant to section 7(7) of the Act.
Ms Amanda Tonkin represented the applicant and Mr Geoffrey Watson represented the respondent. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T documents") and medical reports, clinical notes and other documents tendered by the parties.
The applicant gave evidence over a period of two days. His partner, Ms Janice Martin, gave evidence in person on his behalf. Dr Dwight Dowda, consultant occupational physician, Dr Peter Stevenson, consultant physician, and Dr June Donsworth, consultant psychiatrist, gave telephone evidence on behalf of the respondent.
Background
The applicant is 46 years old. On 22 September 1993 he commenced employment with ACT Health and Community Care as an Information Technology Officer, level 2.
The applicant sustained an injury when he lifted a printer in the course of his employment on 29 January 1996. He saw his chiropractor the next morning. He had visited chiropractors on many occasions previously for "adjustment" to his back. He continued to attend work over the next month, before taking leave for an extended motoring holiday around Australia with his partner, Ms Martin.
In the course of that trip he had some trouble with his back, and saw a chiropractor en route. Shortly after arriving in Perth, as he was unloading an overnight bag from the car, he felt acute pain which immobilised him. He sought chiropractic treatment and was referred to a doctor. After several days' rest he resumed his journey, but he suffered pain throughout the remainder of the trip, seeking treatment as required. On his return to Canberra, his regular chiropractor referred him to a doctor for further treatment.
On 30 May 1996 the applicant claimed compensation for low back injury (T8 of 16/99), attributing the pain to the incident which occurred at work in January 1996. The respondent accepted liability for an aggravation to a pre-existing condition, determining the condition to be "aggravation of degenerate L4/5 disc with annular bulging most pronounced [in the] right lateral intra foraminal portion of the disc". The respondent paid the applicant compensation for medical expenses, incapacity, and permanent impairment on the basis of an assessment of 10% whole person impairment.
The central issue for the tribunal is whether the acute onset of pain in Perth and the condition from which he is now suffering was caused, or materially contributed to, by the injury the applicant sustained at work in January 1996. The first issue for consideration, therefore, is whether the applicant suffered either a pre-existing degenerative lumbar disease condition and/or a pre-existing psychiatric condition.
Previous health
The tribunal is satisfied that, at the time the applicant commenced employment with ACT Health and Community Care, he suffered from a degenerate L4/5 disc. The lumbar spine CT scan on 21 March 1996 revealed degenerate L4-5 disc with annular bulging (T4 of 16/99). The applicant's past medical history supports the overwhelming medical opinion that the degenerate spine at L4-5 pre-dated the injury he sustained in January 1996 at work.
The applicant was admitted to Woden Valley Hospital on 9 February 1972 with a six-week history of left lumbar backache and left sciatica. His condition was diagnosed as "acute protrusion lumbar intervertebral disc". He was treated with bilateral skin traction and diazepam therapy for nine days (Exhibit 8). He was admitted to Woden Valley Hospital on 30 March 1972, suffering from severe pain in his left leg and lower back following a fall from a chair. He was treated with bed rest and traction and discharged on 21 April 1972. He was diagnosed with "lumbar disc lesion" (Exhibit 9). The applicant believed that he was under the care of Dr Roebuck, orthopaedic surgeon, at the time. Exhibits F and G relating to the two periods of hospitalisation verify this. Medical receipts indicate that he was treated by both Drs Vance and Roebuck.
Before the applicant commenced seeing Dr Keynes, chiropractor, he had treatment from Mr Mitchell, chiropractor, on 28 July 1972. Dr Keynes noted in his report dated 22 November 1999 (Exhibit E), that at that time he presented with pain in both legs. Between 1973 and 1983 the applicant was employed by the Bureau of Mineral Resources and his duties required him to engage in relatively heavy manual work in the course of crushing rock samples and testing soils. He was able to carry out this work. The applicant said that he was very fit in this period. He ran and exercised regularly at the gymnasium. He said that he attended a chiropractor for his back on an "as needs basis". From May 1983 onwards it seems that the applicant attended Dr Keynes more regularly for low back pain including his right leg and buttock (Exhibit E).
Dr Cairns, orthopaedic surgeon, examined the applicant on 28 April 1988 for the purpose of providing a medico-legal opinion in relation to a workers' compensation claim arising out of an injury the applicant sustained at work on 2 May 1983 (Exhibit 13). The applicant presented to Dr Cairns with ongoing disability in the lumbo-sacral area which he claimed had been aggravated by the incident at work in May 1983. Dr Cairns concluded that the applicant had suffered from a pre-existing disability of a similar nature for at least 11 years prior to the work incident. He thought that the effect of the May l983 injury probably resolved within 8 to 12 weeks and any ongoing disability related to the pre-existing disorder. He attributed the onset of the pre-existing condition to the 1972 incident, which he saw as producing "recurring and intermittent acute posterior facet joint strain secondary to degenerative disc disease and intermittently productive of segmental spinal stenosis affecting a left sciatic nerve root" (Exhibit 13).
On 15 December 1988 the applicant saw Dr Geoffrey Stubbs, orthopaedic surgeon, who also thought that the applicant's condition was the natural progression of his pre-existing condition rather than the 1983 accident, which latter accident he thought resulted in only a temporary exacerbation of his problem.
The applicant's own evidence is that he attended regularly on a chiropractor for "adjustments" to his back before 1996. Further, he gave a history of previous low back pain to Dr Kennedy, whom he consulted in Perth on 21 March 1996. Dr Kennedy, in his report of 28 March 1996 (Exhibit Q), noted a history of aching in the lower back and left lower extremity for over 20 years when he examined him. The applicant apparently told Dr Kennedy of the diagnosis made when he was 18 of intervertebral disc lesion and that he had been treated with 6 months of intermittent traction under the care of Dr Roebuck.
Dr J.M.Matheson, consultant neurosurgeon, stated on 23 June 1998 (T78 of 16/99) that:
Mr Willcocks' claim of aggravation of degeneration in the L4/5 disc with annular bulging most pronounced right lateral intraforaminal portion of disc is absolutely correct in describing his work-related injury. In other words, the degenerate disc has prolapsed further causing entrapment of the L5 nerve root and the need for surgery. Because of his underlying disc problems his surgery has [been] incomplete in [its] outcome.

Dr Matheson's attribution of the aggravation injury to the applicant's employment was based on the history he received. He also stated (T78 of 16/99):

Obviously the source of his back pain is his multiple disc degeneration within his back. This would account for his [claimed] symptoms.

On the material before us we conclude that the applicant suffered significant back pathology since at least 1972. The medical evidence speaks with one voice that the applicant had a degenerative lumbar spinal condition prior to the injury he sustained at work on 29 January 1996. Whether that incident temporarily or permanently aggravated his degenerative condition raises the question of whether that incident or some other event produced the clinical and radiological changes in his degenerative condition that led to the need for the surgery by 1998.
The evidence also reveals that the applicant had a history of previous mental health problems. On 24 September 1981 he was admitted to Woden Valley Hospital for depression. He stayed in hospital for a week. He was treated by Dr Lee, psychiatrist, who diagnosed his condition as "personality disorder and depressive reaction" (Exhibit 18).
Credit and section 7(7)
One of the issues raised by the respondent in this matter is whether the applicant has at any time, for purposes connected with his employment or proposed employment by the Commonwealth, made a wilful and false representation that he did not suffer from lumbar spine disease or a psychiatric condition.
Subsection 7(7) of the Act reads:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

The applicant's psychological condition is a disease as defined by subsection 4(1) of the Act, so, the subsection 7(7) issue in this respect arises as to whether the applicant made a wilful and false representation that he did not suffer from a previous psychiatric condition.
In respect of the lumbar spine condition, however, whether subsection 7(7) of the Act applies to the applicant's lumbar spine disease or its aggravation depends, first, upon whether the applicant suffered a discrete injury to his lumbar spine in the course of lifting the printer on 29 January 1996 or later in Perth as a consequence of unloading the car, or whether the applicant suffered an aggravation of pre-existing lumbar spine disease. If the applicant suffered an injury rather than an aggravation to a disease condition, section 7(7) of the Act does not apply. Whether or not that is likely to be the case we discuss below. We turn first to the issue of credit.
The applicant commenced working for ACT Health and Community Care on 22 September 1993. On 29 April 1994 he was examined by Dr Singh-Pandher, a Commonwealth Medical Officer. For the purposes of the examination the applicant was asked to complete a medical questionnaire (Exhibit S). One of the questions asked was:
Are you now suffering from, or have you ever suffered from or received treatment for any of the following conditions, diseases, injuries or disabilities, or alternatively has a doctor ever suggested that you may be suffering from or may have been suffering from, any of the following conditions, diseases or disabilities?

To the conditions listed the applicant was required to write "Yes" or "No". He answered "No" to "Anxiety state or stress" and "No" to "Any other mental or nervous condition." The applicant answered "Yes" to "Pains in back", "back or neck injury" and "slipped disc". As to this he provided the detail: "slipped disc at age 18 and sought spinal adjustment at a chiropractor".

The applicant did, however inadequately, disclose the fact that he had suffered previous back injury and pain. This provided an opportunity for the examining CMO to ask further questions about it. In those circumstances we are not satisfied that the applicant made a "wilful and false representation" that he did not suffer from a previous back condition on that occasion. However, the respondent submits that the applicant did make such "wilful and false representation" to various examining specialists for the purposes of his claim for compensation for his low back condition.
The applicant told Dr Ashman, for example, that he had occasionally experienced low back pain in the past, but he denied previous leg pain (T36 of 16/99). On the other hand, he told Dr Stevenson, consultant physician, that he had been going to a chiropractor all his life (Exhibit 2). The applicant denied that he had made that statement and said in evidence that he was in a lot of pain when he saw Dr Stevenson, and he was likely to have indicated that he saw a chiropractor about twice a year – some years more, and some years less. Nevertheless, Dr Stevenson was adamant in giving his evidence that he did ask the applicant if he had suffered any past severe back or leg pain, and the applicant said "No". Moreover, when Dr Hopkins and Dr Burke asked the applicant whether the history given to Dr Stevenson was accurate, the applicant agreed it was. It also seems that the applicant denied previous back history to Dr Matheson but told him about having some lipomas removed. Dr Scott, occupational physician, too obtained a history of no significant musculoskeletal problems (T18 of 420/99). Thus Drs Ashman, Hopkins, Stevenson, Burke, Matheson and Scott asked but did not receive a full and frank disclosure about the applicant's previous back problems.
When cross-examined about his reasons for not providing the examining specialists with a full and frank history of his back complaints, the applicant played down the importance of the back pain he suffered in 1972 and the hospital treatment he had for it. He said that it happened a long time ago and he did not give much thought to it; nor did he see it as significant. He said that he had forgotten about the periods of hospitalisation. He denied that he did not give a history of his past back problems. He further said that he was not asked about previous back pain. He also gave a somewhat inconsistent explanation that he assumed the practitioners had the relevant history, it being revealed by him in the questionnaire he completed in 1994.
The applicant made misleading representations to the examining specialists as to his previous back condition. He joined the public service in 1972, the same year in which he was hospitalised for a back problem. As a consequence the applicant was initially refused permanency. This was reversed on appeal in 1974. The applicant remembered the incident when he completed the questionnaire in 1994. It is unlikely, therefore, that the applicant forgot about the incident when he was later examined by the specialists. In our view it was a conscious omission on the applicant's part not to provide the examining specialists with a full and complete history of his previous back pain. Nevertheless, even if the representations were false, we are not satisfied that they were made wilfully. We accept that the applicant genuinely came to believe that the incident at work in 1996 contributed to his current condition.
Therefore we conclude that there is insufficient evidence to sustain the omission as being "wilful" in the sense that it was done deliberately in order to obtain a benefit to which he was not entitled. It is more likely that the applicant did not see the hospitalisation so many years ago, and the non-work related problems which he had had since that time, as impacting on his capacity to work or bearing any relationship to the injury he sustained in 1996. He answered questions asked by the examining doctors in the context of his health just prior to 1996. We accept that he did not intend wilfully to deceive those doctors in relation to his prior medical history, though he did in fact mislead them.

In relation to his psychological condition the same can be said. The applicant did not regard as significant his admission to hospital for his mental condition or his back. He said that he admitted himself to hospital for rest and discussion, and to get away from his family problems at home. We note that the hospital's clinical notes record as much (Exhibit 18).
In the light of that, the applicant's failure to tell Dr Donsworth, consultant psychiatrist, that he had a past history of depression is explicable. She was unaware of his hospital admission in 1981. In evidence the applicant said that he does not recall if he told Dr Donsworth about it or not; and, if he did not, it was because he did not then remember that hospital admission in 1981. He said that he recalls it now because he went back through the T-documents and tried to remember each event. He also said he had forgotten about it because it was insignificant, and that his recall is that he was depressed at the time of his hospital admission but that he did not consider that he had suffered a psychiatric condition. He denies that he deliberately concealed this previous history.
The applicant also answered "No" to the question in the 1994 questionnaire of whether he had had any past compensation claims. The applicant in fact had made compensation claims in the past but he explained that he had received no compensation as a result. He was reminded that he obtained compensation for an accident in the 1970s, and in 1983. As to the first, the applicant said that he was under 18, and he did not personally receive the lump sum; as to the second, he only received reimbursement of his medical expenses; and that in both incidents he did not receive compensation for his own use. These answers are obviously unsatisfactory, but do tend to support a denial of any "wilful" intent in the sense used by the Act.
Other aspects of the applicant's credit were attacked in relation to the completion of a document for Swan insurance on 8 May 1996 for illness in the course of his trip around Australia. Nothing turns on this as it appears that the policy specifically covers such an event, whether or not the applicant received sick pay from work for the same period. The respondent also questioned whether the applicant went off work for stress as certified by the staff clinic certificate, or because he wanted to pressure his supervisor to overcome the staff shortage problem. The evidence is that the applicant could not cope with the stress occasioned by the staff shortage, and it seems likely that, because he was suffering stress and having difficulty coping, he also hoped that his supervisor would correct the situation in his absence.
While the tribunal agrees that the applicant made some statements which were false, we do not find they were wilfully so, pursuant to subsection 7(7) of the Act. He did disclose his back condition to the Commonwealth Medical Officer, and genuinely did not believe that he had a history of psychiatric problems. The statements he made in respect to those matters therefore were not made with "no belief that the representation is true" (Comcare v Porter (1996) 70 FCR 139 at 150). For that reason we find that subsection 7(7) does not apply.
The incident on 29 January 1996
On 29 January 1996 the applicant was required to repair a print server. To ensure that printing could continue while he attended to the repairs, he relocated the printer (which weighed in excess of 35 kilograms) to another office and connected it to a different computer. This involved lifting the printer off the desk and carrying it along the corridor (T7 of 16/99). He stated that he had leaned over the desk to pick up the printer and that, in the course of lifting it off the desk and carrying it along the corridor, he felt pain in his back (T8 of 16/99).
In completing an accident report on 22 May 1996, he attributed this incident to causing him low back and right leg pain "to the point where I was unable to walk", to which, we assume from the oral evidence the applicant gave at the hearing, he was referring to the immobilising pain he experienced in Perth on 20 March, some 7 weeks after the incident.
Ms Martin, the applicant's partner at the time of the January 1996 incident, said that she observed the applicant limping a little bit and obviously in pain that evening. She said that she did not observe much improvement in him before they left on their holiday in early March 1996.
The applicant attended his chiropractor, Dr Keynes, early the morning after the lifting incident at work and took the remainder of the day off work. It seems that Dr Keynes regarded the pain about which the applicant complained as the same type of pain for which he had treated him in the past. Dr Keynes noted "mid thoracic pain" (Exhibit E). The applicant said in evidence that the pain he felt that day was different from the normal discomfort for which he had regular chiropractic treatment. He said that he told Dr Keynes this but that the doctor did not listen to him and provided only the usual treatment. However, the applicant returned to the chiropractor on two further occasions before he commenced his trip to Perth. It is therefore open for the tribunal to conclude that the treatment gave the applicant some relief. The applicant's evidence that "He (Dr Keynes) would not listen" indicates that he apparently presented to Dr Keynes not much differently from on previous occasions. In fact, the applicant's own evidence supports this, as he said in evidence that he was "waiting for his back to settle like it had in the past, but it did not. It got worse". What is clear on the evidence is that the pain the applicant described was nothing like the severe pain that he claimed to have suffered in Perth, which required very different medical management, about which we say more below.
Despite the applicant's opinion that Dr Keynes did not tailor his treatment to the pain about which he complained on 30 January 1996, he returned to Dr Keynes for further routine treatment on 8 February and 4 March, the day before he and his partner commenced their motoring trip around Australia. The clinical notes of 8 February state "low back region checked as he was off around Australia by car". On 4 March they state "firm adjustments due to amount of pain … 5th lumbar adjusted bilaterally plus sacrum". No reference is made to complaints of leg pain (Exhibit E).
The applicant returned to work on 31 January after having one day off, and assisted in the relocation of the printer back to its original room. It is not clear whether he lifted it on his own or with assistance. The applicant says that his back got progressively worse after the incident of 29 January, and that he had pain in the right leg and right hip which progressively worsened during February.
A work colleague, Ms Marilyn Hough, in a statement dated 4 February 2000 (Exhibit X), said that she noticed the applicant had a noticeable limp and stoop in February 1996 and that he was obviously in some discomfort. He told her that he had hurt his back lifting a printer. Other statements were tendered verifying that the applicant appeared to suffer back pain in the period before he left for his trip around Australia.
The applicant's supervisor at the time of the incident, Mr Chris Duffy, stated that he was aware that the applicant had hurt his back and that it was causing him considerable distress during February, though not affecting his performance at work (T13 of 16/99).
On 6 June 1996 another of the applicant's supervisors verified that the applicant appeared to suffer back pain and difficulty in moving comfortably on occasions (T9 of 16/99). However, as the 29 January incident was not reported to the supervisor until 22 May 1996, his observation was not recorded until well after the event.
We have no doubt that the applicant suffered back pain, by way of aggravating his pre-existing condition, in the incident which occurred on 29 January 1996. What is in doubt is whether or not this incident caused the applicant the severe low back and leg pain experienced in Perth, as well as the thoracic back pain noted by Dr Keynes in January.
Dr Keynes' clinical notes indicate that he treated the applicant on 30 January, 9 February, 4 March and for the last time on 1 May 1996 (Exhibit E). However, by certificate dated 30 August 1996, Dr Keynes certified that the applicant attended on those dates for "pain to his right hip, leg and foot" (Exhibit R).
We give no weight to the certificate he gave. We do not know the circumstances in which it was given, and it is inconsistent with his clinical notes made at the time. The notes do not indicate any right leg problem. The applicant's evidence is that Dr Keynes treated his thoracic area. On 4 March 1996 adjustment to the 5th lumbar and sacrum is referred to. In his report dated 14 March 2000 (Exhibit D) Dr Keynes referred to the applicant attempting to "jog my memory" about the accuracy of his records. Dr Keynes says that, despite those efforts, he has nothing further to add to the records.
There is no clinical or radiological evidence to suggest that any injury by way of disc prolapse or annular bulge or nerve root compromise was occasioned in the course of the lifting incident at work. There is, however, evidence that an injury occurred some weeks later on 20 March 1996 in Perth, after which the applicant saw a doctor and had radiology carried out.
incident of 20 March 1996 in Perth
The applicant suffered back pain in the course of his drive to Perth. The applicant said that early in the trip the vehicle hit a bump and bounced around a bit. He concluded that the shock absorbers would need to be repaired. In Albury they were replaced. Ms Martin did most of the driving because the applicant's back got worse. He had chiropractic treatment on 8 March 1996 in Murray Bridge, and on 13 March at Port Augusta, South Australia.
Then, on arriving at his friends' place in Perth on 20 March, in the course of removing a small overnight bag from the car, the applicant experienced severe pain in his right hip and leg. It immobilised him. He was taken to Mr Langer, chiropractor, on 21 March 1996 who referred him to Dr Kennedy, sports medicine practitioner in Perth (Exhibits Q and 14). The history he gave to the practitioners was of pain in February 1996, rather than of the incident which occurred on 29 January 1996. Dr Kennedy referred him to Dr Fraser for CT scans, and prescribed Mersyndol Forte. The CT scan showed degenerative changes in the L4/5 disc, most pronounced on the right, involving the 5th lumbar nerve root (T4 of 16/99). The applicant went back to Mr Langer on 22 March and made use of hot and cold packs. Dr Kennedy reviewed him that day and again on 25 and 27 March. He also attended Mr Langer on both of those days and again on 28 March. Dr Kennedy provided a medical certificate dated 27 March 1996 stating that the applicant was suffering from "acute low back injury" and, strangely, certified him unfit for work from 11 March 1996 (a date as to which there is no evidence of any event occurring that affected the applicant) to 6 April 1996 (T5 of 16/99).
As to the histories given to the treating practitioners in Perth, the applicant said that as he was in pain Ms Martin was likely to have provided the histories recorded. However, Ms Martin's evidence is that she only related to the practitioners what she had herself observed, and that the applicant provided the relevant past histories.
On 28 March the applicant and Ms Martin departed for Geraldton, West Australia. The applicant used an appropriate seat back support which he had obtained in Perth. In Geraldton, the applicant saw another chiropractor and purchased anti-inflammatory tablets. The applicant continued his trip around Australia using the services of various chiropractors. On 11 April 1996 in Alice Springs in the Northern Territory, the applicant saw a chiropractor, Dr Dominguez, who provided a medical certificate which the applicant faxed to his employer on 15 April 1996.
History on return to Canberra
After his return to Canberra the applicant attended Dr Keynes. Dr Keynes referred him to his general practitioner, Dr Armstrong, whom the applicant saw on 7 May 1996. On 8 May 1996, the day the applicant returned to work, he saw Dr Andrews, consultant neurologist, and had nerve conduction tests carried out. Dr Armstrong referred him to Dr Cousin, physiotherapist, whom he then attended regularly.
On 28 June 1996 the applicant reported that, while connecting a cable to a printer on a desk, he had to lean forward and twist to the left over the desk. In the course of that action he felt pain in his left waist and hip region. He attributed this pain to being an aggravation to his pre-existing acute low back injury and so claimed in the accident report (T15 of 16/99).
In September 1996, Dr Robert Cox, general practitioner, referred the applicant to Ms Annemarie Jubb, psychologist, for pain management. The applicant continued to be treated by Ms Jubb and Dr Cox for management of his pain over the years (Exhibit C).
On 5 September 1996 the applicant consulted orthopaedic surgeon, Dr Brian Ashman, who reviewed the CT scan performed in March of the same year, and noted a degenerate disc at L4-5 with a right-sided bulge. On examination the applicant appeared neurologically normal other than having a "slight weakness of the right EHL muscle" (T35). Dr Ashman reviewed the applicant on 10 September 1996. The recent MRI scan showed no evidence of nerve root compression and the previously noted disc protrusion at the L4-5 level on the CT scan of March 1996 was no longer seen (T37). Dr Ashman concluded that the applicant's ongoing pain must arise from "a degree of neural damage caused by the period of nerve compression earlier this year when there obviously was some physical contact between the disc and the nerve".
This opinion begs the question of whether this damage was caused in the incident at work or at the time of the extreme pain suffered by the applicant in Perth on 20 March 1996. Dr Ashman had a history of previous occasional low back pain over the years but an absence of leg pain prior to the January 1996 incident. That history is, as it transpires, incorrect, the applicant having had past back and leg pain problems. The applicant did not report leg pain at the time of the lifting incident in January 1996; nor did Dr Keynes, his chiropractor, note it. If he suffered leg pain later that day and prior to the incident which occurred on 20 March 1996 in Perth, it was apparently not his major complaint. In view of the level and intensity of pain subsequently experienced by the applicant in his low back and leg on 20 March 1996, it seems likely that the disc protrusion and the contact between the disc and the nerve actually occurred at that time.
Dr Peter Stevenson, consultant physician, examined the applicant on 2 September 1996 and provided a medico-legal report dated 30 September 1996 (T39 of 16/99). He concluded that the applicant appeared to suffer from right sciatic pain and degeneration of L4/5 disc at that time. On the history he was given, he accepted that the symptoms appeared to have followed directly on the lifting incident on 29 January 1996. However, following review of further material, Dr Stevenson concluded that the history provided by the applicant when he saw him on 2 September 1996 was incomplete, inaccurate and seriously misleading (Exhibit 2).
Dr K Nadana Chandran, neurosurgeon, saw the applicant on 10 October 1996. In his report of 11 October 1996 (T40 of 16/99) he noted that the recent MRI showed no evidence of disc protrusion but some evidence of degeneration at L4/5 and L5/S1. He concluded that there was no organic explanation for the extent of his pain. He also noted that, in spite of the pain and disability, the applicant "seems to be moving around quite well" (T40 of 16/99).
Eventually the applicant underwent surgery to his lumbar spine for L5 nerve root decompression which was performed by Dr Matheson on 25 June 1997. The applicant returned to full time duties on 14 August 1997. Dr Matheson had reported on 23 June 1997 (T59 of 16/99) that the applicant probably would not have needed surgery if it had not been for the incident of 29 January 1996. However, Dr Matheson did not have a complete history of the applicant's previous back and leg pain when he examined him the previous November. Further, Dr Matheson understood that the January 1996 lifting incident caused the applicant to develop "some pain going down the right leg to the heel and then on to the great toe suggesting an L5 distribution". The only reference Dr Matheson made to the Perth incident is contained in his comment that "It [the pain which developed from the January 1996 incident] persisted since he aggravated it again 2 months later doing some lifting". That history allowed Dr Matheson to conclude that the onset of the problem occurred in the course of the lifting incident at work in January 1996 and that the subsequent lifting incident in Perth was an aggravation of that injury and not the cause of the injury that later required surgical intervention (T50 of 16/99).
Stress at work
On 23 December 1998 the applicant claimed compensation for his condition of severe anxiety. He attributed this to "high stress and workload" as a consequence of being given a heavier workload while other staff were off work, and to his trying to cope while in pain from his low back injury (T3 of 202/99).
Problems at work seem to have emerged first between January and April 1998. Additional pressures were placed on the applicant and other staff as a result of the IT infrastructure of the ACT being transferred to a group called InTACT, and to the fact that the previous resource levels were reduced. The applicant was talked to by his supervisor about the difficulty the supervisor perceived the applicant was having in accepting the change (T5 of 202/99).
On 15 April 1998 the applicant submitted his resignation stating that his back pain made his work difficult, and added to the disquiet he felt about the environment in which he was now working and the loss of staff (T9 of 202/99). On 21 April 1998 he withdrew his resignation on advice from his doctor and solicitor (T20 of 202/99). In a letter dated 23 December 1999 the applicant claimed that he was "highly stressed and far from reality when I resigned from my job" (T3, 420/99). However, Mr Bob Webster, the HR Manager, states that when he became aware of the applicant's resignation he spoke to him on a number of occasions to ensure that his reasons for resigning were sound. Mr Webster attempted to talk him out of resigning but that the applicant assured him that he had carefully considered his resignation and was convinced that it was the right decision, and that he was leaving with no animosity toward InTACT. In those circumstances Mr Webster could not support the applicant's claim for work-related "severe anxiety" (T17 of 420/99).
On 1 August 1998, Dr Cox certified the applicant unfit for work for 7 days due to severe anxiety (T4 of 420/99). On 4 August 1998 another certificate extended the period of unfitness to 11 August 1998 (T5 of 420/99). The applicant ceased his employment with the public service on 10 August 1998. The applicant states that by that time he was starting to have panic attacks and he was suffering stress and he could not cope. In October 1998 he commenced employment with Paxus, but resigned after working for less than one week. On 23 December 1998 he claimed compensation for severe anxiety, which he attributed to heavy workload and high stress.
Since ceasing work the applicant has undertaken no paid employment. Paxus offered him a further contract but the applicant turned it down on the ground that he was unable to concentrate sufficiently because of pain. The medication to control pain also affects his concentration. He has done some unpaid voluntary work to keep himself occupied, consisting of sorting out some nuts and bolts for up to two hours at a time some 2 to 3 days a week for a few months at the Belconnen Metal Centre. Since June 1999 the applicant has embarked on a self-employed project of buying and selling Match Box cars which he collects as a hobby. He also makes "Junk Mail" holders and is growing chrysanthemums from seedlings. He goes to the Trash and Treasure market to sell the cars, mail holders and flowers. He says that he can manage these activities at his own pace and that he does not intend to resume employment.

The applicant says that he is now experiencing pain in his left side as well as his right. His medication includes morphine and he is trying to reduce its intake by finding better ways of managing his pain levels.
Medical evidence
The applicant relies on the evidence of Dr Robert Scott, occupational physician. In his report dated 15 June 1999 (T18 of 420/99) Dr Scott seemed not to have a history of the extreme pain and disability the applicant suffered on arriving in Perth. He reported "he eventually reached Perth, having seen various chiropractors on the way. His pain in the back and foot were said to be bad. In Perth he saw a chiropractor who allegedly referred him to a Sports Physician." In addition, Dr Scott had a past history of "no significant musculoskeletal problems". He thought that there may have been some prior lumbar spondylosis which is common in people the applicant's age, but which was asymptomatic at the time of the lifting incident. In his report of 24 June 1999 (Exhibit B) he again assumes no history of significant musculoskeletal problems.
Unfortunately the history given to Dr Scott was incomplete and inaccurate. He attributes the significant degeneration and bulging shown in the CT scan dated 21 March 1996 (T4 of 16/99) as having occurred in the lifting incident at work in January of that year. We note that the scan was conducted after the Perth incident and, on the evidence before us, we have concluded that the disc bulge it shows is likely to have occurred on 20 March 1996, during the unloading of the car in Perth. We also think that it is highly unlikely that the extent of the degeneration revealed in the CT scan could have developed in the period of two months between 29 January and 20 March1996, as suggested by Dr Scott.
Dr Scott dismisses the fact that the applicant had considerable chiropractic treatment before the lifting incident as of no consequence. It would seem that he did not have access to the summons material which contained Dr Keynes' notes, as they provide evidence of the applicant's regular attendance on his chiropractors for treatment of significant back problems and leg pain beginning in 1972. Dr Keynes' notes provide a valuable source of contemporaneous evidence concerning the timing of the applicant's complaints of back pain and the onset of his spinal problems.
Dr Scott's opinions must, therefore, be regarded with caution. In particular, his conclusion that the applicant sustained an acute back injury as a result of the incident on 29 January 1996 resulting in disc degeneration requiring surgical intervention, can be given no significant weight.
Dr Jeremy Hopkins, consultant orthopaedic surgeon, first assessed the applicant on 9 September 1998. The tribunal was not provided with a report of his findings from that assessment. In his report of 7 June 1999 (T16 of 420/99) he says that he considers that the sole cause of the applicant's current status and the disc protrusion was the lifting incident of January 1996. This seems to be based on his assumption that there was no evidence of any underlying condition. This conclusion arises out of the history he was given, which was not an accurate or full history of the applicant' pre-existing condition.
In his report dated 20 January 2000 (Exhibit 4), Dr Hopkins indicates a change of mind on the cause of the applicant's current back pain in the light the history of his pre-existing degenerative condition. He notes the history provided by the applicant was "somewhat at variance with the facts". He notes that the information subsequently made available to him revealed a long-standing history of low back and leg pain. He cites Dr Cairns' report of 3 May 1998 (Exhibit 13), Dr Kennedy's report of 28 March 1996 (Exhibit Q), and Dr Keynes' notes (Exhibit 21) as confirming that history. Moreover, Dr Hopkins in his report of 20 January 2000 (Exhibit 4) in answer to a question concerning the relevance of upper thoracic spine pain to an L4/5 disc injury said:
I would expect that if Mr Wilcocks sought treatment for his upper thoracic spine on 30 January 1996, he would have almost certainly been complaining of pain in his low back at that time, if indeed it had been injured the day before"

Thus, Dr Hopkins is questioning the existence of lower back pain at the time of that incident.

Dr Dwight Dowda, consultant occupational physician, in his report dated 12 August 1999 (T29 of 420/99) seems to have been given the history that the applicant resigned in June 1998 because he was no longer able to handle the work load in conjunction with the symptoms he was experiencing due to his back condition and right leg symptoms. He understood that the work was too much for the applicant and that it was also mid-winter when he found that, with the colder weather, his symptoms were worsening.
By the time Dr Dowda provided his report dated 5 December 1999, (Exhibit 1) he had been given copies of relevant summons material. He acknowledged that the history given to him by the applicant was incomplete and inaccurate. He noted a well-documented clinical history of many years of chiropractic treatment from 1972 for low back pain and leg pain. He noted discrepancies in the histories provided by the applicant to various treating practitioners, and inconsistencies with the description of a long history of exacerbating and remitting lower back disorder dating back to 1972 contained in a report dated 3 May 1988 by Dr Cairns (Exhibit 13). Dr Dowda states that the information contained in the summons documents and Dr Cairns' report raise considerable doubts in his mind regarding the aetiology of the right leg symptoms; in particular, the issue of causation relating to the incident of 29 January 1996.
Dr Peter Stevenson, consultant physician, provided a report dated 7 December 1999 (Exhibit 2) in which he noted in respect of causation that there had been many aggravations over the years, and he could not "regard it [the lifting incident of January 1996] as having in any substantial or material way contributed to his ongoing symptomatology".
In relation to the applicant's psychiatric condition, Dr June Donsworth, consultant psychiatrist, in her report dated 21 September 1999 (Exhibit 3) concluded from the history given that the applicant was suffering from Pain Disorder Associated with both Psychological Factors and a General Medical Condition, under DSM IV. She states in her report of 8 December 1999 (Exhibit 3) that she considers that the applicant's psychiatric condition amounts to a permanent impairment of 10% under Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment, the approved Guide under section 28 of the Act. However, she further opines that this might be reduced with psychiatric treatment. If that is the case, it is inappropriate to conclude that the applicant has a permanent impairment that reaches the threshold level of 10% under subsection 24(7) of the Act.
Dr Donsworth attributes the applicant's psychiatric condition to a reaction to the lifting incident of 29 January 1996 and not to the employment situation generally. Her reasoning is that the pain from which he suffered caused the psychological condition which was then aggravated by stresses at work. She concluded that reaction to the pain and associated psychological distress made it difficult for him to continue on at work, particularly when there was more pressure on him at work during 1998. Dr Donsworth's assumption that the applicant's ongoing pain condition is attributable to the lifting incident of 29 January 1996 is one which we have found on the facts not to be correct. Instead, the tribunal accepts the logic of Dr Donsworth's analysis but attributes the pain, not to the lifting incident of 29 January 1996, but to the Perth incident of 20 March 1996.
Dr Robert Tym, consultant psychiatrist, in his report dated 7 December 1999 (Exhibit A), notes that there is no significant difference between his diagnosis of Pain Disorder and that of Dr Donsworth. In his opinion the applicant's Pain Disorder consists of psychological symptoms manifesting themselves in psychological stress in response to his recurrent severe back pain and disability. The Pain Disorder is associated with both the factors of his back pain and psychological stress. He agrees with Dr Donsworth that the applicant's psychological distress was a reaction to his pain.
Dr Tym noted that the applicant gave a history of first injuring his back in 1987. This is another variation of the history of back problems. Dr Tym dates the ongoing back pain from 1996 which, again, is contrary to our finding on the facts of a longer back pain history.
conclusions
We note that the applicant took little time off work after the 29 January 1996 lifting incident and did not mention low back or leg pain to Dr Keynes on 30 January 1996. Nor did the applicant attribute the severe pain he experienced in Perth to the lifting incident at work when giving a history of his pain to Dr Kennedy, indicating instead that he had had the pain since late February 1996 (Exhibit 14). Given the applicant's long-standing history of back and leg pain, we conclude that the aggravation he sustained on 29 January 1996 was not long lived. Taking the whole of the evidence into account, we conclude that the 29 January 1996 incident probably did not cause the applicant's principal right leg symptoms, but rather temporarily aggravated his pre-existing degenerative disease in the thoracic spine region. After that incident he continued to work for about a month. He endured the long drive to Perth, which no doubt took its toll on his back, and likely would have done so in the absence of the January 1996 lifting incident, given the past back history.
The onset of severe right leg and back pain on 20 March 1996 would indicate that the applicant suffered another aggravation to his condition, and one which, given the CT scan report conducted at that time, is likely to have caused the L4/5 disc to bulge. The pain was in the lower back and right leg and was very severe. The chiropractor in Perth did not want to treat him, nor did Mr Keynes on his return to Canberra. Both referred the applicant to a general medical practitioner. What occurred in Perth caused severe pain that amounted to a serious back problem. There is no temporal or causal connection between it and his work.
On the whole of the evidence, the connection between the pain experienced by the applicant in Perth and the lifting incident at work some 7 weeks earlier is tenuous. Taking into account the facts and matters and all of the circumstances of both incidents, and given the long-standing pre-existing disease the applicant had and his need for regular chiropractic treatment, it is probable that many temporary aggravations occurred to the applicant's disease condition from time to time. The acute episode which occurred in Perth could have occurred at any time. It occurred away from his workplace and after a very long drive from Canberra to Perth. We therefore conclude that it was unrelated to the temporary aggravation at work in January 1996.
Because the respondent accepted liability, paid all treatment expenses, and paid compensation in respect of permanent impairment in the amount of 10% whole person, the tribunal must be satisfied on the balance of probabilities that the applicant's current lower back condition was not materially contributed to by the incident of 29 January 1996. We are so satisfied. The ongoing pain from which the applicant has suffered since the episode in Perth was not materially contributed to by his employment generally or the particular lifting incident of 29 January 1996.
On the material before us we conclude that the applicant's psychiatric condition is a reaction to his pain condition; and that but for that pain condition the stress he experienced at work would not have developed into a psychiatric condition. The main psychological treatment the applicant has had for his anxiety condition is pain management; a further indication that his anxiety condition is primarily a reaction to his pain condition.
As a result of this conclusion that, because the applicant's current condition is no longer attributable to his employment, it is not compensable, the tribunal does not need to consider whether the applicant's claim for an exercise bike and air walker unit is reasonable; whether psychological counselling constitutes "medical treatment" of the applicant's lower back condition for the purposes of section 16 of the Act; or his level of impairment for the purposes of section 24 of the Act. The applicant is no longer entitled to compensation pursuant to section 16 of the Act and he has no entitlement under section 24 of the Act.
Decision
The tribunal affirms the decisions under review of 23 December 1998 and 28 June 1999. The tribunal sets aside the decision under review dated 12 November 1999, and in substitution therefor disallows the applicant's claim for compensation for psychological counselling for the applicant's lower back condition and decides the applicant has no entitlement to compensation pursuant to section 24 of the Act.
I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Dr Michael Miller, AO, Member
Air Mshl IB Gration, AO, AFC, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  5-7 June 2000
Date of Decision  8 August 2000
Counsel for the Applicant        Ms Amanda Tonkin
Solicitor for the Applicant         Lander & Co
Counsel for the Respondent    Mr Geoffrey Watson
Solicitor for the Respondent    Phillips Fox Lawyers