Wissing and Comcare (Compensation) - [2018] AATA 768

Wissing and Comcare (Compensation) [2018] AATA 768 (9 April 2018)
Division:GENERAL DIVISION
File Number(s): 2016/5655, 2017/3694
Re:Lester Wissing
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Miss E A Shanahan, Member

Date:9 April 2018
Place:Melbourne

The Tribunal affirms the decisions under review.
..........................[sgd]..............................................
Egon Fice, Senior Member
WORKERS COMPENSATION – 1976 workplace accident – low back pain – settlement reached in 1990 – application of the Compensation (Commonwealth Government Employees) Act 1971 – transition provisions of the Safety, Rehabilitation and Compensation Act 1988 – aggravation or exacerbation of injury – psychological injury
Legislation
Compensation (Australian Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988
Cases
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Department of Defence v West (1998) 85 FCR 491
REASONS FOR DECISION
Egon Fice, Senior Member
Miss E A Shanahan, Member
9 April 2018

On 12 October 1976, when Mr Lester Wissing was employed as a technical assistant by the Commonwealth Scientific and Industrial Research Organisation (CSIRO), he sustained what he described as a strained back injury. He lodged a Notification of Injury with his employer on 28 October 1976. Mr Wissing also lodged a claim for compensation under the then Compensation (Australian Government Employees) Act 1971 (the 1971 Act) in respect of his strained back. In a determination made on 18 January 1977 by a Delegate of the Commissioner for Employees Compensation, his claim in respect of strained coccygeal ligaments was accepted and he received compensation for medical treatment expenses.
Despite treatment, Mr Wissing continued to experience pain in the lumbosacral area. An X-ray taken on 6 September 1977 at the Geelong Radio Diagnostic Clinic, which was read by Dr HW Hardy, disclosed that his anatomy was normal and no spondylosis or spondylolisthesis was seen. The bone and joint appearances were normal at all levels of the lumbosacral spine and the sacroiliac joint regions. No disc space narrowing was seen.
In an Occupational Injury, Illness or Incident Report completed by Mr Wissing on 25 May 1988 Mr Wissing said:
On 12/10/1976 I hurt my low back when lifting a bin of sludge. My continued employment aggravated my low back injury + I ceased work due to this and my anxiety state on 9/12/1981. I have not worked since then as a result of the combined effect of my low back pain + anxiety.
That report appears to have followed a letter sent to Mr Wissing dated 6 May 1988 from a Delegate of the Commissioner for Employees’ Compensation advising him that it was proposed to determine that the CSIRO was no longer liable to pay compensation. Mr Wissing was given 21 days in which to obtain and submit evidence showing why liability should not be terminated.
After providing Mr Wissing with a number of extensions totalling some three months and receiving further medical reports, the Delegate determined that liability should be terminated. The Delegate noted that between 1976 and his retirement on invalidity grounds in 1982, Mr Wissing was only absent from work for a total of eight days in connection with his back condition. Those days were made up of part-day absences associated with medical treatment. The Delegate also said:
The invalidity retirement was attributed 80 per cent to a personality disorder and only 20 per cent to low back strain. However, even this 20 per cent figure does not necessarily relate to the incident on 12 October 1976 as Commonwealth Medical Officer reports prior to 1982 strongly disputed any objective signs of back injury.

X-rays taken in 1982 were largely normal, with only minimal disc degenerative changes at the L3-4 level.
The Delegate also noted that the form Mr Wissing submitted giving notice of an anxiety condition did not constitute a claim for compensation. Mr Wissing was informed that if he wished to claim for his anxiety condition, he needed to lodge a claim. The Delegate also cast some doubt on whether his claimed anxiety condition was related to the accident in 1976 because, given the six-year period which had elapsed since he ceased employment in 1982, an aggravation of that condition would not necessarily continue for that length of time. On reconsideration of that decision on 30 August 1988, Comcare affirmed the decision.
Mr Wissing then lodged an application with this Tribunal seeking a review of the

30 August 1988 decision. Prior to hearing, the matter settled and consent orders were made by the Tribunal on 22 February 1990. The matter was remitted to Comcare for reconsideration with directions, including the following:
(a) That up until 2 February 1990 (“the period”) the Applicant continued to suffer from back injury, aggravation of back injury and anxiety condition (“the conditions”) to which conditions the Applicant’s employment with the C.S.I.R.O was a contributing factor and had contributed to a material degree.
(b) By 2 February 1990 the effects of the conditions to which the Applicant’s employment with the C.S.I.R.O had contributed had ceased.
(c)…
(d)…
(e) Comcare is not liable to make payments of compensation to the applicant in respect of the conditions for any period after 2 February 1990.
Between 1990 and 2004 Mr Wissing consulted or was investigated by numerous medical practitioners, most of whom provided reports. They included his General Practitioner, Psychiatrists, Radiologists, Orthopaedic Surgeons, Rehabilitation Medicine Practitioner, Psychologist, Cardiologist, Neurosurgeons, Pain Specialists and a Respiratory Physician.
On 5 March 2004 Mr Wissing lodged another claim for Workers’ Compensation. This claim related to the same injury he experienced on 12 October 1976. He described the diagnosed condition in the following way:
Posterior annular tear L 5/S1 disc. Significant degenerative change affecting the joints, also degenerative change affecting facet joints, at the lumbosacral level, posterior annular bulging Radial tear. [This statement appears to be taken directly from an X-ray report. It does not address cause, injury or age-related degeneration.]

In a letter dated 29 March 2004 Comcare advised Mr Wissing that his claim had been rejected. The Comcare Delegate referred to the transitional provisions set out in s.124 of the SRC Act. That is because the new legislation, the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) came into effect on 24 June 1988. Relevantly,

s. 124 provides:
(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing date.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
An injury under the 1971 Act included a physical or mental injury as well as an aggravation, recurrence or acceleration of such injuries.
The Delegate also referred to the medical certificate provided by Dr Darling, Mr Wissing’s then GP, who stated:
He suffers from chronic severe low back and leg pain present he says since the work accident in 1976 and is most likely associated with his know [sic] lumbar-sacral disc degeneration.
Mr Wissing sought reconsideration of that decision. In a letter dated 19 July 2004 Comcare advised Mr Wissing that his claim on reconsideration was rejected. The Review Officer was satisfied that the determination made on 29 March 2004 should be affirmed. The Review Officer noted that Mr Wissing’s legal representatives submitted he had suffered a recurrence of the injury but that no details as to how the recurrence occurred were presented. One of the medical reports relied on by Mr Wissing indicated that he was suffering from an exacerbation of his back condition. However, it did not explain how that exacerbation or presumably, aggravation, was related to the injury he suffered in 1976.
Mr Wissing lodged an application with this Tribunal in 2004 following the reconsideration decision of 19 July 2004 but withdrew from that proceeding on 16 June 2005.
Under the cover of a letter dated 21 December 2009, Mr Wissing’s lawyers lodged an application with Comcare seeking compensation for permanent impairment. The diagnosis of his current condition, provided by Dr Jamie McKew, included chronic low back pain; legs and bowel; back and front of legs to ankles; and bowel and bladder disturbance. In a letter which appears to be undated but referred to as dated 31 May 2010 from Comcare, Mr Wissing was advised that his claim for permanent impairment in relation to his lower back, bilateral legs, anxiety, depression, bowel and bladder conditions was rejected.
In a handwritten letter dated 14 December 2015, Mr Wissing set out a summary of events, concluding:
I urgently need medical treatment such as Physio, see a Specialist, see the GP who I want to see, who knew my condition properly. Possible aids, help around the house, medication, on going help. Payment for loss of wages for 30 years pain and suffering or settlement.
Comcare appears to have accepted this letter as a claim made under s. 16 of the SRC Act which provides for compensation for medical treatment obtained in relation to an injury. Relevantly, it provides:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determined is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
On 24 March 2016 Comcare determined that it was not liable to pay compensation for medical treatment under s. 16 of the SRC Act. It found that the evidence did not establish that further treatment was related to his compensable condition which arose out of the

12 October 1976 accident. On 27 June 2016 Mr Wissing requested reconsideration of that decision.
Upon reconsidering Mr Wissing’s claim, on 4 August 2016 a Review Officer with Comcare determined that the original determination was correct and he affirmed the decision. Essentially, the Review Officer’s decision was based on the meaning of the expression therapeutic treatment as defined in s. 4 of the SRC Act. That definition refers to treatment given for the purpose of alleviating an injury. The Review Officer found that consultations with his GP and physiotherapy were medical treatment and fell within that definition. However, he was not satisfied with the evidence given by his GP and physiotherapist. That was because, although Mr Wissing claimed to have experienced an exacerbation of low back pain earlier in 2016, no details were provided by those persons regarding how the exacerbation was triggered; or whether it was spontaneous with no identifiable incident or contributing factor. The Review Officer found there was insufficient medical evidence to support Mr Wissing’s claim that his lower back pain was related to his accepted conditions sustained in 1976.
On or about 14 March 2017 Mr Wissing completed a second Compensation Claim for Permanent Impairment and Non-Economic Loss. The permanent injury Mr Wissing claimed to have suffered was described as spinal injury damage L5 – S1 area, PTSD and anxiety condition. The treating doctor’s part of that claim form was completed by

Dr Andrew Beavon from Kardinia Health. He described the extent of Mr Wissing’s impairment as:
Chronic pain daily with limitations in physical activity compound by adjustment disorder anxiety with depression. Poor sleep.
On 10 April 2017 Comcare wrote to Mr Wissing informing him that his claim for permanent impairment had been refused. That was because his claims for compensation in relation to aggravation of an existing back condition and an anxiety condition, determined on

24 March 2016 and reconsidered on 4 August 2016, were refused. Mr Wissing lodged a request for reconsideration of that decision on or about 27 April 2017.
On 25 May 2017 Comcare advised Mr Wissing that his reconsideration request resulted in an unsuccessful outcome. The Review Officer affirmed the original determination.
On 26 October 2016 Mr Wissing lodged an Application for Review of Decision with this Tribunal. He seeks to have reviewed the decision given to him by a Review Officer of Comcare in a letter dated 4 August 2016 in which medical treatment for his condition was denied. The Tribunal has given that proceeding number 2016/5655.
The second proceeding, number 2017/3694, is in respect of Comcare’s decision to refuse Mr Wissing’s claim for permanent impairment. That decision was conveyed to him in the letter dated 10 April 2017. Mr Wissing’s application to this Tribunal was lodged on

26 June 2017.
The issues which arise for our consideration in matter number 2016/5655 are:
(a)determination of the nature of the injury or injuries for which Mr Wissing claims compensation in respect of his medical expenses;
(b)
whether the injury or injuries relate to his lower back injury sustained on

12 October 1976; and
(c)if the answer to (b) is in the affirmative, whether physiotherapy and consultations with his GP and a specialist constitute medical treatment which was reasonable in the circumstances for Mr Wissing to obtain in relation to his compensable injury.
The issues which we must determine in matter number 2017/2694 are:
(a)whether Mr Wissing suffers a permanent impairment as a result of his compensable injury;
(b)if the answer to (a) is in the affirmative, the date on which that occurred; and
(c)if Mr Wissing’s impairment became permanent prior to 1 December 1988, there has been a qualitative and quantitative change in the degree of the impairment after that date.
ACCEPTED INJURIES – PRE - 22 FEBRUARY 1990
Given the nature of Mr Wissing’s initial injury suffered on 12 October 1976 and the significant passage of time since that injury, it is unsurprising that the nature of the claims regarding that injury has varied over time. This has been further complicated by the numerous medical reports and radiological reports Mr Wissing obtained following his injury. There are many contradictions in the medical evidence and while we deal with those that are significant, it is unnecessary to deal with all of them.
Furthermore, it seems to us appropriate to divide the passage of time into two periods: the first concerned with matters arising prior to Mr Wissing’s terms of settlement reached on

22 February 1990 as a consequence of him seeking a review by the Tribunal; and the second with events which took place post-settlement.
Injury pre - 22 February 1990
Mr Wissing, in his claim for compensation, described his injury as strained back. This was subsequently described as strained coccygeal ligaments. That was his accepted injury and Mr Wissing was compensated for the cost of medical treatment for that injury.
Mr Wissing continued to complain of pain in his lower back. On 7 November 1977, the Commonwealth Medical Officer stated that his case had been fully re-assessed. The Medical Officer reported:
Tenderness was localised over the Coccyx, and his continuing pain must be considered as a recurrence of the “strained Coccygeal ligaments” sustained at work on 12^th October, 1976.
Dr R S Williams, who treated Mr Wissing following his injury, requested an X-ray which was taken on 6 September 1977. The important finding recorded by Dr Williams was that his anatomy was normal. All bone and joint appearances were normal in the lumbosacral spine and the sacroiliac joint regions. There was no disc space narrowing evident. Mr Wissing’s recurrent pain following the injury was accepted for compensation. No restrictions were placed on his employment at that time and he was referred to

Dr M Ingpen, a Rheumatologist, who examined Mr Wissing on 4 June 1979.
In his report dated 5 June 1979, Dr Ingpen recorded being told by Mr Wissing that he was in acute pain for several weeks which slowly settled to a dull ache. However since that time, he felt he had extremely weak pain and any movements, particularly involving flexion or lifting, resulted in exacerbation of his back pain. He had some physiotherapy which gave him temporary relief. Dr Ingpen recorded his findings on examination as follows:
On examination he appeared basically healthy and of normal general mobility. His spine moves normally at all levels. Straightleg raising was 90 degrees bilaterally and there were no neurological signs. There is mild central lumbo-sacral tenderness. General examination of the cardiovascular system, respiratory system and abdomen was not helpful. X-rays of his lumbo-sacral spine seemed fairly normal.
I think this typical picture can only be produced by a central lumbo-sacral disc bulge consequent upon a tear of the annulus. They are extremely frustrating to assess and even more frustrating to try and treat.
… [T]he one bright spot is that most of these will ultimately get better provided repeated injury can be reduced.
Dr Richard McArthur, an Orthopaedic Surgeon (who described himself as a specialist in physical medicine), examined Mr Wissing on 11 May 1978. Dr McArthur recorded

Mr Wissing as reporting he experienced chronic pain and stiffness in his back which was worse after lifting activities or mowing. It was eased by rest. His back was stiff in the morning but improved as the day progressed. The pain was confined to his back and not referred into his lower limbs which remained free of neurological symptoms. On examination, Mr Wissing’s lumbar spine appeared normal and movement was full and pain-free. There was no local lumbar tenderness. X-rays of the lumbosacral spine were normal.
It appears Mr Wissing was then treated by Mr W H Huffam, an Orthopaedic Surgeon.

Mr Huffam first saw Mr Wissing on 20 June 1980. On examination he described Mr Wissing as a tall anxious looking man with a long thin back and rather poor development of the back muscles. Mr Huffam described Mr Wissing as having full range of movement in his back, full straight leg raising, knee and ankle jerks which were equal and active. Other than a slight lower thoracic scoliosis, Mr Huffam noted no other abnormality. He diagnosed low back strain. Mr Huffam reviewed and examined Mr Wissing again on 3 November 1980 when he was noted to have a little tenderness over the lumbo sacral region but almost full range of movement although some apparent pain at the extremes of movement.
In his conclusion and prognosis, Mr Huffam said (T docs page 23):
Mr. Wissing injured his back as described above on 12/10/76. The position he described of bending over as he lifted the bin of sludge is a position in which the spinal muscles are unable to contract and protect the lower part of the back effectively and so, the back in this position is very susceptible to straining and tearing of ligaments and of the posterior part of the intervertebral discs in the lumbo sacral region and Mr. Wissing will have sustained an injury to the ligamentous structures and perhaps one of the lower intervertebral discs in this way and he has continued to have pain from this injury. He is a tall man with rather poor musculature to protect his back which also makes him more susceptible as to such an injury and more susceptible to aggravation of this injury by further bending and lifting.
Mr. Wissing appeared to be very worried about his condition and his anxiety may have aggravated his condition.… I would expect Mr. Wissing to continue to be aware of some weakness in his back following this injury, although he should be able to cope with work which does not require him to lift heavy weights or to work in a bent over position.

The Commonwealth Medical Officer conducted a medical examination of Mr Wissing on 17 November 1981 for the purpose of determining his fitness for continued duty. The Medical Officer assessed Mr Wissing as suffering from low back strain and attributed 20% contribution to his incapacity from that condition and 80% to what he described as emotionally unstable personality. The Medical Officer found Mr Wissing to be unfit for continued employment and recommended that he be retired on the grounds of invalidity.
In a report dated 8 June 1982 Mr Huffam recorded that he last saw Mr Wissing on

24 May 1982. Apparently Mr Wissing told him that in about September 1981, he had to take three or four days off work and then took two weeks leave because of back pain. That statement is inconsistent with the medical records. Mr Wissing then apparently told Mr Huffam that he had stopped work on 9 December 1981 and had been off work since then. He does not appear to have told Mr Huffam that he was found to be unfit for continued employment and retired on invalidity grounds. Mr Huffam also referred to a new X-ray of Mr Wissing’s lumbosacral spine taken on 24 May 1982 which disclosed minor spondylitic lipping at the L3 - 4 level, but no other abnormality and no intervertebral disc space narrowing.
Dr Williams provided a further report to the CSIRO to the CSIRO dated 27 August 1982. In addition to repeating much of his earlier reports and referring to Mr Huffam’s reports, he said:
I would concur with this opinion and definitely agree that his lack of self-confidence and anxiety is tending to aggravate his back problems, though I am quite sure he does suffer from some genuine lumbo-sacral disc disability.
It appears that Dr Brendan J Dooley conducted an examination of Mr Wissing on behalf of the Department of Health. His report, dated 16 November 1982, contains a number of answers to questions asked of him by the Department. In answer to the question regarding the condition Mr Wissing suffered, he answered:
chronic lumbar sprain – probably due to aggravation of a lumbo-sacral disc degeneration, with anxiety state.
It is not clear from the report where that information comes from. It is likely that it is

Dr Dooley’s clinical judgement. No disc degeneration is noted or reported in any of the earlier X-rays or reports. In fact question 2(b) asks about the aggravation, acceleration or recurrence of a pre-existing injury and the response simply refers to the incident of 12 October 1976. The evidence indicates that Mr Wissing had no reported lower back condition prior to that incident. The second part of the suggested answer to that question asked whether some other event or recurrence attributable to any employment of the employee may have cause the aggravation, acceleration or recurrence. No answer is provided to that question. In answer to the question regarding whether the effects of his injury were of a permanent or temporary nature, Dr Dooley recorded that it was probably permanent. Again, there are no reasons or evidence supporting that statement.
We had in evidence a reconsideration decision made by a delegate of the Commissioner for Superannuation under the Superannuation Act 1976. That report concerned whether Mr Wissing had provided full disclosure in 1975 when he joined that superannuation scheme. An interesting report referred to in the reconsideration decision is that said to have been produced by Dr Benjamin who examined Mr Wissing on 10 February 1984. We did not have a copy of Dr Benjamin’s report in evidence. Dr Benjamin was apparently treating Mr Wissing from as far back as 1972. Following the examination of 10 February 1984, Dr Benjamin said the following in his report dated 14 February 1984:
In 1972 Mr Wissing saw me and discussed his past history of fits and treatment with anti-convulsants. He was aware that he suffered from this condition and had been treated for it.
In 1972 when Mr Wissing consulted me he presented with a two and a half year history of symptoms such that I gave him medication, individual follow-up interviews and after considerable discussion admitted him to group therapy. There was no discussion of a psychotic illness at this stage and it would be my opinion that Mr Wissing was aware both of the problems of his depression and personality difficulties and of measures undertaken to treat him…
According to the Delegate’s report, as Mr Wissing was treated by Dr Benjamin for a personality disorder in 1972 and 1973, arrangements were made for a consultation on

10 February 1984. Dr Benjamin was given full details of Mr Wissing’s case and was asked questions framed with the provisions of s. 184(5) in mind. According to the Delegate, in his report of 14 February 1984, Dr Benjamin concluded:
It would be my opinion that the back injury did not produce a new psychiatric condition in Mr Wissing. Mr Wissing’s personality was such that as he proceeded through life, any stresses would bring about anxiety, depression and inability to cope with normal work situations. That psychiatric state (personality disorder as described above) was present in 1972 and remains present in my assessment of this man in 1984. It would be my opinion that the back injury if it led to psychological disturbance would be for the exacerbation of a pre-existing condition and not the development of a new response.
The Delegate also states that Mr Huffam, when writing his earlier reports, had no record of Mr Wissing’s history of psychiatric consultations. As will become apparent presently, the omission of the full history of Mr Wissing’s mental and physical condition may explain the often conflicting reports prepared by numerous medical practitioners.
Dr Colin E Seabridge, a Psychiatrist, said the following in a letter dated 15 September 1987:
I notice that Mr. Wissing has recently had a claim for Invalid Pension rejected. Perhaps as part of his general symptomology Mr. Wissing failed to draw attention to the fact that he has a long psychiatric history; he has been seeing me on a regular basis since March 1985 and before that he had seen Dr. Philip Wood for assessment, and some time before that he was seen in treatment by Dr. Benjamin. Mr. Wissing suffers from a personality disorder with some paranoid features and has rightly or wrongly become totally preoccupied with his health and his back pain and his feelings of being wronged by his original employer. He has pursued a number of avenues in an attempt to obtain satisfaction, including Federal and State members of Parliament and several solicitors. He is involved in litigation within his own family over a Will and he has been physically attacked by his own brother. His family is convinced that he is mentally disturbed and have completely withdrawn from him and he lives alone, refusing to turn on the heater and living with only one light globe in an attempt to conserve his meagre funds.
In a letter dated 25 September 1987, Dr Seabridge, when writing to Dr Derek Davey, said:
He [Mr Wissing] suffers from a complex personality disorder with a paranoid tendency and an ingrained conviction of disability.
Mr Wissing attended a radiological examination on 6 January 1988 at the Geelong Radiological Clinic. That was done at the request of Dr Darryl Jones, who it appears

Mr Wissing consulted in order to garner support for his claim for the disability support pension. The radiological report, which dealt with his lumbosacral spine, states:
There is a minimal lumbar scoliosis convexity to the right. The general bone density is normal. The lumbar disc spaces are within normal limits. The posterior facet joints are normal. The sacro-iliac joints are normal.
Dr Seabridge’s report dated 3 March 1988 reveals a seriously concerning pattern of behaviour by Mr Wissing. Dr Seabridge stated that Mr Wissing had 17 consultations with him between March 1985 and September 1986. He failed to keep two appointments made by him after that date. Dr Seabridge last saw him in September 1987. Dr Seabridge said:
During this time, he also attended Dax House, the local Psychiatric Hospital, on several occasions in an agitated state seeking urgent attention. Throughout the time that he has been under my care he has been required to take major tranquilisers, antidepressants and sedative medication. He has a past history of psychiatric attention by two other Geelong Consultants prior to his original work related injury. Mr Wissing suffers from both disturbed thinking and disturbed behaviour and he has at times been quite paranoid. The extent of his problem is exemplified in my strongly worded caution concerning release of his clinical documents to him.… His preoccupation with his condition interferes with his reason and he carries around sheets of documents and annotated notes. At one stage he refused to use the electrical appliances in his house, and on another occasion he intimated that he was being victimised because of the Vietnamese abusing work care. This odd remark typifies his thinking disturbance.…
Mr Wissing obviously suffers from reactions which modify his patterns of daily living and a disturbance of thinking with definite disturbance of behaviour. In addition he requires, or should have, regular ongoing medication and regular psychiatric supervision. He is incapable of appropriately assessing his situation and behaving accordingly, and he has impaired control. He undoubtedly suffers the degree of psychological impairment of between 25 – 40%.
In April 1988 Commonwealth Employees’ Compensation requested that Dr Philip Zlatnik provide a medical report regarding Mr Wissing’s spinal condition. He did so in a letter dated 29 April 1988 and attached answers to a questionnaire provided to him. There was no evidence that Dr Zlatnik was aware of Mr Wissing’s prior psychological problems. On the examination, Dr Zlatnik reported:
On examining the lumbar spine the neurologic exam is normal. Straight leg raising was limited to 90° bilaterally in the sitting position, and to 50° on the left and 40° on the right in the supine position. The man could flex his lumbar spine to 100° without pain.
An x-ray examination of the lumbar spine obtained at the Geelong Radiology Centre in the nature of a CT scan on 22 April 1985 was reported as normal.
In answer to a question asking what condition of his back Mr Wissing now suffered,

Dr Zlatnik said there was no back condition but psychoneurosis. Dr Zlatnik also indicated no treatment was indicated and that there were no restrictions on his capacity for employment with either CSIRO or with another employer. He described Mr Wissing’s prognosis as good.
Mr Wissing lodged an application in this Tribunal in 1988 regarding compensation for his back injury, aggravation of the back injury and his anxiety condition. The minute of consent orders signed by the parties on 22 February 1990 states the following in relation to the reconsideration decision:
That up until 2 February 1990 (“the period”) the applicant continued to suffer from back injury, aggravation of back injury and anxiety condition (“the conditions”) to which conditions the Applicant’s employment with the CSIRO was a contributing factor and had contributed to a material degree.
In support of the application lodged with the Tribunal in 1988, Comcare sought a report from Dr Paul Kornan, a Psychiatrist. At that time, Mr Wissing was receiving treatment from Dr Seabridge. The past psychiatric history given by Mr Wissing to Dr Kornan was significantly incomplete and, based on Dr Seabridge’s account, inaccurate. Mr Wissing is recorded as having said:
… A little bit yes, when I was about 19. Just part of growing up and I saw

Mr Benjamin. I can’t recall exactly. It was over three or four months. I was not in hospital. It amounted to a number of things coming in, like I had a responsible job and with the family situation how I was brought up. They were very respectable parents, but I had a little bit of a drinking problem. There were upsets in the house. It was me wanting to go and start a relationship. Wanted to go out and meet females. There were problems I had in introducing them to my parents. I wanted my parents to be normal.…
Since this has happened, I’ve seen Mr Seabridge. I’ve been there since at least 1985, and I see him once in six weeks. There is no medicine, but he had me on medicine at the start. But no (not now medicine).
Dr Kornan recorded this about Mr Wissing’s mental state:
He was a man of tallish appearance, who clearly was neatly dressed. I gained the impression that he was very particular with his appearance, as part of his major obsessive-compulsive tendencies. He seemed to be rather an inadequate individual who had some long-standing psycho neurotic problems. He appeared to have a lack of ego strength. There were no indications of any psychotic features. His mental faculties waned as the interview went on. His intelligence level was probably somewhat above average.
In summary, Dr Kornan reported:
From the psychiatric viewpoint, he presents with a constitutional personality disorder.
He presents, in my opinion, with an inadequate personality type, with associated feelings of insecurity and a loss of confidence. He is someone who has marked obsessive-compulsive tendencies, and a generally ineffectual way of dealing not only with relationships but with many events that occur to him anyway.
…
In my opinion, the anxiety problems which he has are really part of his general insecurity difficulties. I see him as someone who has a major personality disorder of the inadequate obsessive type.
To sum up, this man presents with a constitutional personality disorder.
…
In my opinion, I do not believe that this accident [the 1976 accident] led to his present psychiatric state. I see his present psychiatric state as constitutional in origin. It is possible that initially injuries could have partially aggravated, at that time, his constitutional tendencies. Whatever aggravation existed at that time though, I consider now to be long since over.
…
His present condition is probably stabilised at a level of chronic incapacity. There is a possibility though that he could have some slight improvement over the next few years.
…
He will have his constitutional personality disorder in definitely. He will thus have an ongoing residual disability to a partial degree indefinitely.
…
I do not believe that he would be having ongoing psychiatric treatment at this stage, but for the fact that this is a medico-legal situation. When the appeal is over, from this situation, I consider that he will not continue to attend a specialist psychiatrist. At that stage then, he will return to merely being treated by local doctor.
Dr Ingpen also provided a report to Comcare in respect of the proceeding before the Tribunal. His report dated 12 May 1989 relevantly states:
Since my last communication, this man has continued to complain of persistent lumbar-sacral pain severe enough to preclude him from any form of useful employment. I remain of the opinion that he has a low grade lumbar-sacral disc lesion which indeed may cause lumbar-sacral discomfort and on occasions may even cause some spasm. However, in nearly all cases of this type, people are leading near normal lives and perhaps minor limitations directed towards repeated bending and heavy lifting. I remain of the opinion that on the basis of current clinical information, this man is capable of light work on a full-time basis with the above restrictions. As indicated in my previous report, these cases tend to be very protracted and do not respond particularly well to conservative treatment. It would, however, seem reasonable that his current condition is still as a result of the alleged injury of 12^th October, 1976. It remains valid to use the light Palumbo-sacral cinch support for heavier and more vigorous physical activities. The only way of proceeding further in a medical sense would be to carry out discograms with a view to surgery and this could not be justified on the basis of his current condition.
It has been alleged that, as a result of his back pain, he has developed a significant stress neurosis but I do not feel competent to comment in this regard.…
Dr Dooley also provided the report dated 4 July 1989 to Comcare. Dr Dooley repeated the radiological findings which have been referred to by many prior medical practitioners.

Dr Dooley offered the following opinion:
This man suffers from lumbar disc degeneration with low back strain and a marked anxiety neurosis. I would agree with the original assessment that he retired on the basis of 80% due to anxiety state and 20% low back strain.…
In answer to specific questions posed by Comcare, Dr Dooley said:
This man, in the injury of October 1976, suffered a back strain with aggravation of pre-existing lumbar disc degeneration. It could then be argued that either one of two things happened. Either he made a fairly quick recovery from the effects of this physical injury and that subsequent problems were due to the natural progression of disc degeneration, with or without anxiety state, or, alternatively the view could be taken that he had no problems prior to the injury in October 1976 and that his continuing low back problems relate to his injury. I favour the former.
We note, once again, that the reference to an aggravation of pre-existing lumbar disc degeneration does not appear to be supported by any of the medical reports. The first mention of lumbar disc degeneration is found in the report of Dr Dooley made in November 1982. That is, some six years after the accident.
A detailed report dated 23 August 1989 was prepared by Dr Seabridge. Relevantly,

Dr Seabridge said:
… He has an underlying need to prove and a desire to be pleasing and a fear of criticism and rejection. This aspect of his personality in part underlies the deterioration in his condition following his original accident in 1976 up until him stopping work in 1981. He has described to me in the past how the extent of his injury and disability was disbelieved and he was criticised by his fellow workers and was accused of being a bludger. A similar attitude of disbelief and lack of sympathy was evidenced in his own family and prior to me first seeing him his brother had actually physically attacked him over this issue. As I stated in my report of November, 18^th 1988, those psychiatric symptoms which Mr Wissing displays can not be separated from the effect of his original accident which altered his capacity to work, changed his relationship with fellow employees, and adversely affected his self-image and his role generally. There is no doubt that his reaction to his injury and his disability is a dramatic one and falls outside the usual clinical picture associated with a soft tissue injury. The complex interaction of reduced effectiveness, chronic pain, lowered self-esteem and most particularly the feeling of victimisation and of being misunderstood, leads to a pattern of behaviour which in itself is quite typical and is certainly not unique to Mr Wissing. His intense preoccupation with attempts to obtain justice for himself and the gradual reduction of his interests and activities outside of this pursuit fuels his condition with chronic frustration, resentment and hostility.
With regard to the other reports it should be understood that there is no evidence of anxiety or depression as such in the clinical presentation of this man. Similarly although troubled at times by self-doubt, need to prove and uncertainty about his own adequacy he does not have a consistent pattern of behaviour sufficient to diagnose him as having an inadequate personality and at times he has actually shown a considerable amount of initiative and even bravado.… His pedantic pursuit of detail regarding his case is not sufficient to describe him as having major obsessive-compulsive tendencies and although his constitutional make up has undoubtedly been responsible for his reaction to his injury, I do not believe that this can in itself be regarded as pathological and I do not believe that assessment of him prior to his accident would have led to a significant psychiatric diagnosis being made. A description of inherent personality traits and characteristics is applicable to everyone and this is quite a different matter from making a positive diagnosis of disorder.
I remain of the opinion that the condition of Mr Wissing is consistent with the description of “abnormal illness behaviour”, with a conviction of disability which has been attributed to the accident and for which he feels he should be indemnified. The ongoing pursuit of this cause has become the focal point of his life and an over-riding preoccupation contributing to a chronic state frustration, resentment and self preoccupation.

Prior to the dispute being settled by the parties in February 1990, a report was prepared for Mr Wissing’s solicitors by Dr JA Darling which is dated 25 October 1989. Dr Darling stood by his previous opinion that Mr Wissing suffered from symptomatic chronic lumbar musculo-ligamentous strain which appeared to have its origins in a lifting injury sustained in 1976 while working for the CSIRO. As for the impact of his continuing employment between 1976 and 1981, Dr Darling said:
I find it difficult to assess the impact of the five-year period of employment after his initial work accident on his back condition, except to say there could have been possible aggravation. He continued to work as a Technical Assistant with the CSIRO during this time, which apparently required periodic lifting and movement of heavy drums of waste and wool bales.
With respect to Dr Darling, the evidence regarding his work during this period was that he was given light duties and not required to engage in lifting of heavy materials. Also, his statement regarding possible aggravation is unhelpful given there was no evidence of aggravation.
Finally, there was a brief report from Mr Bourke, Orthopaedic Surgeon, dated 31 October 1989. Essentially, this report repeats what was said in his earlier report, although he conducted a physical examination on the day of the report which he said revealed the following:
Physical examination today reveals a full range of lumbar flexion with a mild restriction of extension and pain at the extreme. There is pain and restriction of lateral flexion of the lumbar spine. There is pain on coming from the flexed position of the lumbar spine to the neutral position. Straight leg raising is within normal limits. There are negative sciatic stretch tests.
In summary therefore, this man continues to experience low-back related symptoms and on examination there is restriction of movement.
…
This man’s ongoing restriction of low-back movement and ongoing low-back related symptoms are directly related to the work incident of 1976. The fact that he has Anxiety and emotional problems, may be solely related to the low back pain, although usually there is some pre-existing element. The first mention of emotional type problems in the correspondence provided, was in 1982, some six years after the injury.
As we have already said, the difficulties in this case are often contributed to by medical practitioners not having the entire medical history at the time of reporting. Mr Burke’s report was clearly made without the benefit of a complete medical history.
On 22 February 1990 the parties signed minutes of consent orders which they submitted to the Tribunal. The important parts of that minute are as follows:
…
(b) By 2 February 1990 the effects of the conditions to which the Applicant’s employment with the CSIRO had contributed had ceased.
(c) Comcare is liable to pay weekly compensation to the Applicant for a total incapacity in respect of the period calculated by reference to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 as replaced by the Commonwealth Employees Rehabilitation and Compensation Act 1988 less payments already made in the period.
(d) Comcare is liable to pay the Applicant’s reasonable medical expenses in respect of the period.
(e) Comcare is not liable to make payments of compensation to the applicant in respect of the conditions for any period after 2 February 1990.
CLAIMED INJURIES – POST 22 FEBRUARY 1990
The effect of the Tribunal’s Consent Order made in 1990 is that Mr Wissing agreed his condition (both physical and mental) at that time, arising out of the 1976 injury, was such that he no longer had an incapacity for employment nor did he require any further medical treatment for his injury. While the Consent Order did not preclude a further claim being made in respect of the 1976 injury, there would need to be a connection by way of an aggravation of an existing injury, whether or not that injury arose out of or in the course of his employment with the CSIRO, the aggravation having arisen out of or in the course of that employment. An aggravation includes an acceleration or recurrence. A further claim could also be made if Mr Wissing were able to establish that he suffered a new injury which arose out of or was related to the original injury.
Injury is defined in s. 5A of the SRC Act in the following way:
(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
…
Section 4 of the SRC Act defines aggravation in the following way:
aggravation includes acceleration or recurrence.
On or about 25 February 2004 Mr Wissing lodged a further claim for compensation under the SRC Act. He described the diagnosed condition in the following way, which we noted was taken from a radiological report:
Posterior annular tear L5/S1 disc. Significant degenerative change affecting the joints, also degenerative change affecting facet joints, at the lumbo-sacral level, posterior annular bulging radial tear.
As for the date of injury, Mr Wissing said it was 28 October 1976, which of course is the date of his original lower back injury. However, in this claim, he referred to his legs, hips and feet.
Mr Wissing also referred to a number of specialists to whom he had been referred including Mr Gary Speck, Orthopaedic Surgeon; Mr Stan Schofield, Orthopaedic Surgeon; Mr Ross Wilkie, Consultant Radiologist; and Barwon Health Pain Clinic (Geelong Hospital). In answer to the question whether he had ever claimed workers’ compensation for a similar injury, Mr Wissing indicated this was the same injury for which he claimed compensation in 1982.
In a report dated 19 February 1996, Mr Wilkie, after considering CT scans done on

22 April 1985, 25 August 1988 and 20 August 1993, concluded that Mr Wissing suffered from lumber-sacral disc degeneration. He said:
I do believe the specific lifting episode in 1976 is the specific cause of this, however his employment may well have entailed multiple minor injuries to the annulus and annular injury is with small circumferential tears undoubtedly and cause disc degeneration.
In a letter dated 8 December 1999, addressed to Dr M Gray-Thompson, Mr Speck said:
… He has back pain with radiation into the legs and has had various investigations. His discogram is performed by Ross Wilkie couple of weeks ago did not produce his typical pain in the lower limbs or back and the Cortisone injected at that time did not give him relief.
The overall pattern of his pain is as much as it was when I previously saw him three years ago and the lack of any neurologic deficit and similar changes on his MRI scan, would suggest that further investigation is not likely to be helpful.
I think it is best for Lester to be treated on the basis of his symptoms and he did raise the question of fibromyalgia. On the basis of exclusion of other diagnoses, this is not unreasonable.
Mr Schofield provided a report dated 18 December 1996. He recorded Mr Wissing telling him that his symptoms had become worse over the past two years causing him difficulty sitting or standing for long or walking long distances. On examination, Mr Schofield said Mr Wissing’s spinal movement was about half of the normal range. His straight leg raising and neurology were normal. He could not lift himself up from the supine position. On examining the radiology, Mr Schofield said:
His last plain x-rays were taken in 1988 in these demonstrated disc space reduction at the lumber-sacral level. Further x-rays with functional direct views were taken today and these again showed disc space reduction but not much different to those taken 9 years ago.
I examined an MRI scan from Royal Melbourne Hospital and done in January 1995. This clearly demonstrates degeneration at lumbo-sacral level without prolapse. It amazes me that the reporters concluded that it is normal despite describing the degeneration.
Mr Daryl H Nye, a Neurosurgeon, examined Mr Wissing on 20 January 1998. Mr Nye reported the following:
Formal examination revealed a little loss of the normal lumbar lordosis, a good range of flexion was achieved in the lumbar spine, and straight leg raising was performed to 60° bilaterally, and in the lower limbs I noted no muscle wasting, all reflexes were present and symmetrical, and there was no sensory impairment. The neurological examination was indeed normal.
An MRI scan undergone in 1995 was the most relevant investigation available, and this reveals isolated lumbo-sacral disc degeneration with loss of signal, unaccompanied by any disc prolapse or nerve root compromise.
There is no doubt that this individual has single level disc degeneration at the lumbo-sacral level, his symptoms have been amplified to a level constituting a chronic pain syndrome, with the degree of chronic invalidism, greater than what would be normally expected from the identified pathology and this is in my opinion at least in part a reflection of personality.…
In my opinion this is one of the most difficult types of problems to solve, and indeed there may be no solution. The non-organically determined features so dominate the picture one is hesitant in making any recommendation for surgery, and I can understand the view expressed by the Orthopaedic Surgeon who favoured a conservative approach.… On the positive side however I have been able to reassure this patient that he does not have any condition causing any compromise of any neurological structure, and despite his complaints referred to the lower limbs including episodic weakness I have reassured him that he does not have a sinister disorder which is likely to threaten limb function and hopefully this opinion has been understood and accepted.
Dr Toni Hogg from Barwon Health said the following in a letter dated 16 June 1998 addressed to Dr Andrew Muir:
Despite his lumbar back pain has steadily escalated and when I saw him originally in November of ‘96 and again in ‘97 and again recently my view has always been that he needed no further hands-on therapy but the intervention of a chronic pain service. He seems to have a deep-seated view that his back is some way broken and is not going to benefit from any exercise or movement and he tends to hang his opinion on those of his two previous Orthopaedic surgeons Gary Speck and

Mr S Schofield. His MRI at the end of 1996 showed L5/S1 disc degeneration and little else and he now feels that he needs another MRI to clarify the situation.
I have a lot of correspondence on file from various orthopaedic surgeons which I would be happy to forward to you if you feel it is of any use but basically I believe that it is Mr Wissing’s deep-seated beliefs about the nature of his injury that are causing him the most ongoing troubles and I wonder if a psychiatric opinion may be of some use to you.
A further MRI was performed on 30 June 1998 which concluded:
Degenerative change in the L5-S1 disc is confirmed with a small annular tear posteriorly to the right of midline associated with minimal bulging of the disc but no focal disc protrusion nor evidence of resulting nerve root displacement or compression. Elsewhere, desiccation of the L4-5 disc is noted but there is no evidence of extrinsic encroachment on the lumbar spinal canal or intervertebral foramina, and no intradural abnormality is seen.
Mr Nye reviewed Mr Wissing’s condition on 1 September 1998 and provided a report dated 2 September 1998 in which he said:
With respect to symptoms a long written list of multiple symptoms was presented, indicating a diffuse pain syndrome, which could not all be resulting from single level disc degeneration.
An MRI scan of the lumbar spine was arranged at the Geelong Hospital and undergone on 30 June 1998, and the patient has this and the related report in his possession, the report is somewhat verbose, and uses words not previously encountered by this patient and his main query for me was whether there had been any real change in the situation.
My assessment of the current study when compared with my description of the earlier similar investigation would indicate to my assessment little if any alteration in the situation, and I remain of the opinion that this individual suffers from single level disc degeneration unaccompanied by significant prolapse or compromise of any neurological structure.
Mr Wissing was examined by Dr Hedley T Griffiths, a Rheumatologist, who provided a brief report dated 27 November 1998. After briefly reciting Mr Wissing’s medical history, Dr Griffiths said:
I could find no significant abnormality on examination. His back is a little stiff to move, there were no tension signs and no neurological deficits and his peripheral joints were normal.
His lumbar spine x-rays look pretty good as well.
IMPRESSION-I think Lester’s problem is largely soft tissue in origin overlaid by pretty major psychological problems. I told him that unfortunately there is no medical solution to his pain and he is going to have to live with what he has and I think an exercise programme would be appropriate. I do not think he would be a good candidate for narcotic analgesics.
Of some significance in this case is a pain management course which Mr Wissing undertook at the Geelong Hospital. The program was conducted on three half days per week over four weeks. Mr Wissing attended all of the sessions within the program. A psychologist provided the following observations:
Mr Wissing is still clearly looking for a cure. His desire for an external solution has limited his ability to utilise the skills and enjoy the benefits offered through the program. Throughout the program he grappled with the concept in chronic pain conditions that are pain does not equal injury. Although he clearly tried he was in the end not prepared to accept the idea. There is no question that his pain is significantly limiting his activity and that is decisions are dominated by his feeling state at the time. It would appear that his unwillingness or inability to cognitively reconstruct his condition is seriously limiting his activity and engagement in life.…
Mr Peter J Dohrmann, a Neurosurgeon, examined Mr Wissing in about June 2000. He referred to a picture of chronic disabling severe low back pain for which no definite cause had been identified. Mr Dohrmann said:
An MRI scan in 1995 was normal, and the one performed in 1998 is, I believe, virtually normal. The report of the more recent scan is fairly lengthy, but in fact it is well within normal limits for a man of his age.
Specifically, there is no indication for any spinal surgery, minimal invasive or otherwise. I can see no option but to continue with pain management for this difficult and perplexing problem.
Mr Wissing had some five consultations with Dr Joe Black, a Psychiatrist, who provided a report dated 13 October 2000. Dr Black said:
… As you are aware, he has consulted with a large number of doctors and has collected a commensurate number of opinions about the best management of his pain. Lester feels that a lot of the advice he has received has been contradictory. In the final analysis, he has not obtained the relief he seeks.
Lester’s life is filled with pain-related behaviours and his predicament places enormous stress on his marriage. At times he becomes depressed and despondent, sometimes to the point of feeling that he would be better off dead.
Lester is a man who values order and certainty. He finds it hard to accept that medicine cannot produce a more definitive response to his pain. He believes that his treatment experience has been shaped by the fact that he has not been privately insured.… I got the sense that he already has some ideas about doctors he might see in the near future in order to be ready for any procedures they might suggest that could be funded by this insurance in due course.
In my meetings with Lester, I saw no evidence of treatable psychiatric disorder such as anxiety, depression, substance misuse or PTSD.
Dr Gray-Thompson from Geelong Pain Clinic referred Mr Wissing to Mr G A Brazenor, a Neurosurgeon, who saw Mr Wissing in November 2000. Mr Brazenor referred to

Mr Wissing’s case as one of the strangest cases for the 2000 year. After a brief recitation of Mr Wissing’s injury and medical history, Mr Brazenor said:
On examination this was a fit-looking bloke with a normal gait and no spinal deformity in the standing position. Neither was there palpable spasm of the Erector Spinae muscles, and he did not buckle when palpitated. He could flex at the waist to 60 degrees limited by low back pain, and he could extend to 20 degrees similarly limited. On supine examination there was no wasting in any muscle group in the lower limbs and straight leg raising was restricted to 70 degrees bilaterally by low back pain. Motor power was normal throughout but all tendon reflexes in the lower limbs were vestigial. Sensation to pin-prick was normal.
At the end of supine examination I sat Mr Wissing up to 90 degrees of

lumbosacral flexion on the couch, apparently without causing him significant increase in pain.
I examined a magnetic resonance scan [MRI] performed today on the Epworth machine, and it was normal for Mr Wissing’s age, except that the 5/1 disc had lost vertical height and the T2 -weighted signal. However the facet joints are normal throughout as all the other disks, and the S/1 disc, if it was injured in the past, is now completely healed. Plain films dated 17^th August 2000 confirmed that deflation of the S/1 disc is the only abnormality, without osteophytes, and we can see the hip joints which look normal. MRI dated 19^th January 1995 shows exactly the same picture. Isotope bone scan with SPECT on 8^th November 1999 was completely and beautifully normal.
Mel, this is a case where I think there just has to be secondary gain from the invalid role. I don’t see how this back could possibly be causing him more than a little bit of low back pain if he stacks firewood. I certainly don’t see any reason why he would not be able to walk kilometres whenever he wanted, and indeed my only constructive suggestion to them today was that he should be taking four equal walks, every day, rain or shine, and if he can only walk ten minutes then that is what he should do, gradually working it up through fifteen minutes per walk, twenty, etc etc until he is walking thirty minutes q.i.d. Quite frankly, however, I suspect that all of that would be a bit of a farce, in so far as I don’t see a single sign of genuine disability.
In response to the above letter from Mr Brazenor, Dr Gray-Thompson said:
I first struck him about 20 years ago when I was working for Commonwealth Rehab. He has haunted me at a fairly regular rate demanding referrals to various specialists. I have lost track of the number of opinions sought and given. Most support your latest view. Despite this he keeps seeking someone who would agree with his own assessment of his problem but he has not yet achieved this goal.
Mr Michael Shannon, Orthopaedic Surgeon, examined Mr Wissing on 6 December 2004. He provided a report on the following day. We should say at the outset that the history recorded by Mr Shannon does not seem to accord with the history we have obtained from the other medical reports and also from Mr Wissing’s own reports. Mr Shannon recorded Mr Wissing as telling him the following:
He reported the injury but remained at work and indeed continued working over the next few days, without seeking medical advice, because there was not much work around at the time.
He attended his general practitioner, possibly a few days later, and he does not recall whether he had any treatment at all. He was not put off work.
Over the next three weeks or so his back settled to a degree, but as the workload increased in subsequent months the pain became worse and he was referred to a specialist in Geelong, complaining of low back pain. He cannot recall that he had any leg pain at the time.
…
Over subsequent years he had ongoing back problems and found he was having increasing difficulty in carrying out his normal duties.
He saw the company medical officer number of times over the years, and eventually without further specific incident or injury he was told that he had to retire in December 1982 because he was not able to do the work.
He has had a number of MRI Scans performed between 1998 and 2003. These essentially show similar features, that there is narrowing and desiccation of the lumbo sacral disc, without a significant annual tear. There is minor loss of signal at L4/5 but no significant disc bulge at either level.
Discography in 1999 shows disc degeneration at L5/S1.
Plain x-rays confirm the lowest disc is not transitional.
I note his original plain x-rays and C.T. Scan were essentially normal.
However at least by 1988 a CT Scan was reported to show narrowing of the lumbo- sacral disc bulge and circumferential bulging at that level.
I note that an MRI Scan in 1995 was reported to be normal but that Mr Schofield believes that it shows lumbo- sacral disc generation without disc prolapse.
I would agree with that view.
OPINION: Mr Wissing is suffering from lumbo- sacral disc degeneration.
The incident that he described apparently resulted in at least the aggravation of the degenerative change, although it is noted that there was no loss of time from work and indeed the incident did not necessitate seeking medical advice for some days.
There does not appear to have been any further specific subsequent injury…
It is not entirely clear why he ceased work but certainly from the reports in your file he would appear to have been totally incapacitated although the general consensus at the time was that he was fit for light work with restrictions on bending and lifting.

The problem we have with Mr Shannon’s report is that it appears to be based on the implication that damage to his lower disc existed at the time of the incident or it was an aggravation of an existing condition. We are aware that the only X-rays from the 1970s to the mid-1980s were plain films. The findings/opinions made at the time reflect the limited investigations available. There was no radiological evidence of degenerative change until some years after the incident. In fact the first report we are able to locate which suggests degenerative change is the MRI taken on 19 January 1995.
A more recent MRI of Mr Wissing’s lumbar spine was done on 13 February 2016. The findings included the following:
Normal alignment of the vertebral column. Preserved vertebral heights. No significant anterior or retrolisthesis is noted. The facet joints are normally aligned.
Mild reduction of L5-S1 intervertebral disc space, with some disc desiccation. The conus terminates at the level of upper end plate of L2.
There is no significant posterior disc herniation noted along the lumbar spine. Normal appearance of the exit neural foramina, with no significant compression of the exit lumbar, or sacral nerve roots.
Mr Wissing was seen as an outpatient at Kardinia Health on 19 February 2016 by

Dr Louise Brennan who reported:
He presents with chronic lower back pain involving the right lower limb specifically referral to what appears to be the right L1 and L2 distribution. He is 68 years of age and a non-smoker with a coexistent diagnosis of controlled congestive cardiac failure in the setting of treated valvular heart disease. He also has had previous medication trials in multiple medication allergies. I note that he has presented to the Hospital Outpatient Department on numerous occasions and has been involved at some stage over the medical journey. A colonoscopy performed in 2015 appears to be normal. Furthermore MRI lumbar spine this year did not show anything other than subtle degenerative changes. His clinical examination today was entirely normal with no evidence of impairment or disability.…
I have arranged obviously against my own better advice an MRI of the thoracic spine purely just to ensure that there is not any spinal cord lesion involving the L1 nerve root on the right-hand side. I anticipate a very low probability that anything will be found and I have communicated this to Lester and I have done this primarily for reassurance alone. I have been clear with him that I will be unhappy to investigate him further as a risk of complication from the investigation outweighs any potential benefit from a diagnostic perspective. He has asked me whether or not I would perform pain intervention and I have refused today as I do not think there is any clinical indication for it. I have reassured him that the pain will probably abate on its own and this represents an acute pain flare, but that he would benefit from a multidisciplinary approach which will be managed through the impact pain management program and mindfulness therapy.
Dr Andrew Beavon, a General Practitioner at Kardinia Health, wrote two letters dated 20 June 2016. In those letters Dr Beavon effectively sought extra physiotherapy sessions from Comcare apparently at the request of Mr Wissing. Dr Beavon did not explain why he believed Mr Wissing might benefit from further treatment for his chronic back pain.
It seems Mr Wissing relied on Dr Mark McGill, a General Practitioner, at the Geelong City Medical Clinic, for the claim that his condition had worsened since the 1990 settlement. In a report dated 5 November 2004 Dr McGill said that when he saw Mr Wissing in that year, he had complained of ongoing back pain. He also apparently told Dr McGill that he had seen a number of treating doctors in the past who have given conflicting opinions.

Dr McGill was of the opinion that Mr Wissing’s symptoms are consistent with a reactivation/exacerbation of his pre-existing back injury. No further details were given as to how the reactivation or exacerbation occurred.
The most recent medical reports which were in evidence were those prepared by

Mr Iain Kelman, an Orthopaedic Surgeon, and Dr Erin Redmond, a Psychiatrist.
In his first report dated 7 March 2017, Mr Kelman explained the mechanism of the injury Mr Wissing suffered on 12 October 1976. He described Mr Wissing being asked to remove a sludge bin and have it weighed. Mr Wissing said it was a large bin containing up to 120 L of fluid. On attempting to remove the bin he was pulling from under a bench he experienced burning pain in the lumbar thoracic area of his back. Mr Kelman then said:
He reported the injury. A lunchbreak followed. He remained at work for the rest of the day. In the days that followed he went to see his general practitioner. He stated he was referred to a specialist Dr McArthur. I was unable to find any evidence of investigations carried out at this time. Mr Wissing stated he had physiotherapy during this time and intermittently during the following six years. He also stated that there were no specific light duties available and he continued to work throughout this time.
In 1982 for reasons which are not entirely clear he was declared unable to work and was retired on an invalidity pension through Comcare. It is stated in notes that his back condition contributed 20% to this decision and is personal or psychological condition 80%.
Mr Wissing stated that in 1982 he was treated in Ballarat and given injections and facet joint injections. There is no documentation. He was later seen by a musculoskeletal specialist in Geelong, was treated with traction and later with rhizotomy which he stated did not help. Reviewing the file it appears that Dr Speck, Orthopaedic Surgeon on 21 March 1995 suggested facet joint injections. He was later seen by Dr Muir, Pain Specialist on 11 September 1998 who recommended pain management treatment.
Mr Kelman then referred to the MRI scan of lumbar spine taken on 10 June 1998 to which we have referred above.
Mr Kelman noted that between 1998 and 2007 there was no evidence of any specific treatment having been undertaken. There was a further MRI scan done on 7 August 2007 which disclosed:
Mild disc degenerative change at L5/S1. No evidence of spinal canal compromise or focal neural compression. Dr Morris.
An MRI scan taken on 13 March 2010 was reported as follows:
The spine appears quite well-preserved for age with only mild disc degenerative change seen at L5/S1. No evidence of neural compromise or significant disc herniation. Dr Wan.
Mr Kelman referred to the MRI conducted on 13 February 2016 at the pain clinic at Geelong Hospital. Mr Kelman also referred to an MRI scan of the thoracic spine done on

2 May 2016. The report states:
No signal abnormality or evidence of neural compromise throughout the thoracic spine.
On physical examination, Mr Kelman noted the following:
On examination Mr Wissing was anxious, he kept moving, did not sit for long. He was a poor historian and referred repeatedly upon injustices served upon him by his employers and their insurers.
He walked with a slow deliberate gate.
Mr Wissing was 182 cm tall. He weighed 75 kg. His body mass index is therefore 22.40 kg/m² which is within normal limits.
As for his lumbar spine, Mr Kelman said:
There was a loss of lumbar lordosis. There was no scoliosis. Forward flexion was 40°, extension 15°, lateral flexion was 20° to the left and right lateral rotation was 20° to the left and right. His response to all these movements was abnormal expressing pain verbalisation.
Regarding Mr Wissing’s lower limbs, Mr Kelman said:
Straight leg raising test was 60° bilaterally. Sciatic stretch test was negative bilaterally. Motor power on the flexors and extensors of his hips, knees, ankles and toes was normal. Sensation to light touch was assessed from L1 to S1 and found to be normal.
Deep tendon reflexes were present in his knees and ankles.
Summarising Mr Wissing’s condition, Mr Kelman said:
For reasons not entirely clear he was declared unable to work and is classified with an invalidity retirement. There appears to be other factors involved with his discharge from work. The back problem did not appear to be a significant issue.
He went on to have various treatments for his back including traction, injection to the spine, facet joint injections, pain management at various times throughout his career. Multiple MRI scans were undertaken and no significant pathology was identified.
Mr Wissing continued to complain of pain in his back with radicular pain to his limbs which could not be correlated or verified with respect to his investigations.
I consider that blue flags are present in this case. Mr Wissing has had disagreements with his previous employer as well is with their insurers and he feels most aggrieved by the way in which he has been treated. These factors I consider are predominant factors in this case.
With respect to his lumbar spine, there is minimal degenerative change in the lumbar spine or thoracic spine. There is some evidence of significant degenerative change at multiple levels in the cervical spine which would be in keeping with his age. The lumbar spine is remarkably preserved for his age.
In answer to a question regarding diagnosis, Mr Kelman said:
I consider that the diagnosis of his lumbar spine is that of minor spondylitic changes which would be in keeping with the person of 69 years of age. No evidence can be found in the clinical examination or on the multiple MRI scans that have been shown of significant lumbar pathology.
It is my opinion that the major issues with respect to Mr Wissing and the pain symptoms that he has presented are more related to the blue flags arising out of the conflict with his employers.
In answer to a question regarding whether Mr Wissing exhibited any voluntary exaggeration of symptoms or consciously guarded restriction of movement, Mr Kelman said:
There is evidence to suggest that he consciously guarded against movement, displayed symptoms which were not consistent with his condition and the range of movement, although not significantly reduced. This is difficult to correlate with his condition.
Mr Kelman did not consider that Mr Wissing’s current physical condition was significantly contributed to by his employment with CSIRO. Mr Kelman said there were no pre-existing, congenital or constitutional conditions and that Mr Wissing showed some evidence of natural progression of osteoarthritis as a result of the natural process of ageing. He also considered that the psychological effects of Mr Wissing’s condition were dominant.
We had in evidence a report prepared by Dr Erin Redmond dated 8 May 2017. She assessed Mr Wissing on 22 February 2017. In reporting on Mr Wissing’s mental state,

Dr Redmond said Mr Wissing believed his current back problems were related to his previous injury and that he had been badly treated. He referred to one of the insurance doctors who examined him as being corrupt and said that he was physically and emotionally abused by that practitioner. He reported the medical practitioner to the Medical Board three times, determined to get justice for himself.
Dr Redmond referred to the report of Mr Kelman and the multiple MRIs and other radiological imaging reviewed by Mr Kelman. She noted Mr Kelman’s opinion that the changes in Mr Wissing’s lumbar spine were consistent with a person of 69 years of age and that the pain symptoms he presented were related to blue flags arising out of the conflict with his employers. She explained the use of a flags model as a biopsychosocial approach indicating biological, mental health, psychological, social and other factors should be considered. Dr Redmond said that blue flags referred to social factors which needed to be considered including low social support, unpleasant work, low job satisfaction, excessive work demands, non-English speaking, sense of injustice and problems outside work.
Dr Redmond also referred to reports prepared by Dr Seabridge from 1987 onwards where he did not consider Mr Wissing had evidence of a personality disorder but, at worst, he could be considered as someone who had abnormal illness behaviour in that he was utterly preoccupied by his back injury and determined to get justice. Dr Redmond agreed it was reasonable to conceptualise Mr Wissing’s responses to his illness as ongoing abnormal illness behaviour (AIB). She described the condition as follows:
Abnormal Illness Behaviour (AIB) refers to a maladaptive manner of experiencing, evaluating or acting in response to health and illness that is disproportionate to evident pathology.
Dr Redmond also suggested Mr Wissing’s current problems could be conceptualised as a chronic pain syndrome. Dr Redmond went on to say:
With regards to employment contribution, one could consider the two separate mechanisms for this:
(1) The initial physical illness, with a chronic pain reaction, contributed to by work stressors. In this instance, Mr Wissing developed a chronic pain syndrome which persists 30 years after the injury and continues to cause some disability.
(2) Exacerbation of non-specific psychological factors from the compensation process (in this case, the abnormal illness behaviour). Mr Wissing has stated repeatedly that he feels he was very badly treated along the way. It is not uncommon to see people become totally preoccupied by the compensation process. They will continue to litigate if they are satisfied with the outcome, even if this continued litigation could itself be very damaging.
Thus, the chronic pain syndrome has led to abnormal illness behaviour, which has persisted to this day.
It is difficult to apportion a percentage contribution of each problem, but it is reasonable to think that the chronic pain contributes 50 percent of the disability, and the abnormal illness behaviour contributes another 50 percent.
When asked whether in her opinion, Mr Wissing’s current medical condition was an aggravation, acceleration or recurrence of a pre-existing underlying condition, such as his previous accepted anxiety condition which resolved in 1990, Dr Redmond said:
Mr Wissing does not have a serious underlying or predisposing mental illness however he displays the tenacity and obsessional determination that one often sees in post compensation as there is a sense of outrage and injustice. Sometimes this sense of outrage and injustice can do the patient a disservice as they become “blinkered” and unable to move past the episode leading to compensation. Mr Wissing’s current psychiatric symptoms, in his words, are related to the fact that he cannot sleep from his chronic pain and the distress thereof; this one would consider this to be an aggravation of a pre-existing condition.
Dr Redmond referred extensively to Dr Seabridge’s report of 23 August 1989 with approval. As for diagnosis, Dr Redmond offered the following:
Mr Wissing may have some obsessional personality traits however from Mr Wissing’s description it appears that for many years he put the condition aside and tried to get on with a normal life however he remains preoccupied with his pain and desire for relief.
I think the most appropriate diagnosis remains chronic pain syndrome arising from the initial injury followed by abnormal illness behaviour, which arose after the back injury. It is easy after the event to elaborate a number of abnormal behaviours or beliefs of the patient and then ascribe this to premorbid characteristics of the person.
Mr Kelman provided the second report dated 31 May 2017, commenting on

Dr Redmond’s report and Dr Beavon’s letter dated 10 April 2017. When Mr Kelman was asked whether he agreed with Dr Redmond’s diagnosis that Mr Wissing suffered from a chronic pain syndrome as a result of his initial workplace injury in 1976, Mr Kelman said:
It is my opinion that he suffers a chronic pain syndrome but I do not consider that the initial event which led to the development of this pain syndrome is a result of this initial workplace injury of 1976. He suffers pain syndrome which is chronic which in my opinion is related to generalised lumbar spondylosis which is degenerative condition of long-standing and likely to have been evident at that time. I remain of the opinion that his pain syndrome is not as a result of the initial workplace injury of 1976.
In addition, Mr Kelman also said:
… I do not consider that this pain syndrome was a result of the initial workplace event of 1976. The condition of degenerative lumbar spondylosis is a progressive degenerative disease occurring frequently in persons of his age. There are investigations which confirm the presence of such a condition. This condition has deteriorated and progressed according to the natural pathophysiology of the condition over a period of 30 years. It is my opinion that this condition has been exacerbated by psychological factors.
Dr Kelman reiterated that he was of the opinion that Mr Wissing suffered from degenerative lumbar spondylosis. That explained the symptoms he experienced.
In a letter dated 22 September 2017 Comcare requested that Mr Kelman address a number of further questions which it believed needed to be addressed, including permanent impairment and non-economic loss issues. He was also asked by Comcare to review the entire file relating to Mr Wissing. To enable him to do so, Mr Kelman was provided with significant additional material. Comcare invited his opinion regarding the claimed causal connection between Mr Wissing’s employment and his current medical condition. In particular, he was asked to provide an opinion as to whether spontaneous exacerbations and/or episodes of increased pain were a part of the normal progression of lumbar spondylosis and whether, on the balance of probabilities, the symptoms of lumbar spondylosis were exacerbated by constipation.
Mr Kelman provided a summary of his detailed report as follows:
Mr Wissing, 30 years of age at the time, suffered an injury to his lumbar spine while working as a research assistant for CSIRO. This was diagnosed as a Lumbar Sprain. Based on the reports of the doctors, specialists x-ray and scan examinations at that time this was the correct diagnosis. Mr Wissing worked for five years thereafter.
Such a condition resolves in three to six months at the very most. Mr Wissing had appropriate treatment at the time (see appendix 1).
Mr Wissing was aggrieved by the management of his work-related injury by his employers and their insurers. This is clear in all the letters he has personally written.
Mr Wissing found it necessary to continue complaining of his condition in order to gain the recognition he was seeking.
This led to a Chronic Pain Syndrome for which there was no organic cause. This then led to his illness behaviour, hypochondriasis [abnormal anxiety about one’s health; a frequent symptom in depressed patients. The patient fears or believes that he or she has a disease that persists despite medical reassurance], and personality disorder. This has not been helped by his Obsessive Compulsive Disorder. All confirmed by the psychiatrists he has seen.
In the interim, in the last 30 years Mr Wissing has developed lumbar spondylosis which is a natural process of ageing. This is the type of backache from which he now suffers. Mr Wissing is now 69. This clinical diagnosis is now evident from the recent clinical examinations and multiple scan undertaken. Over this time he would have developed backache from which he now suffers. It is my opinion that his current spondylosis bears no relation to the lumbar sprain 40 years ago in 1976.
There are some specific issues addressed by Mr Kelman which are, in our opinion, significant. They are as follows:
·
Regarding the X-ray taken on 28 November 1977 and reported by Dr Hardy –

Mr Kelman said the findings of this x-ray are important as it was taken six weeks after the injury and it shows no evidence of disc pathology and in particular no evidence of any changes at the L4/5 or L5/S1 disc spaces.
·On 11 May 1978 Dr McArthur said that, based on clinical history, Mr Wissing’s presentation was that of a disc lesion at the lumbosacral level – Mr Kelman said no evidence was produced to support that statement.
·The 5 April 1979 X-ray disclosed no bony or joint abnormality and the appearance indicated no change since 6 September 1977.
·In April 1979 Dr Renauf (sic) said no restriction should be placed on his employment.
·On 27 November 1981 (five years after the injury) the Commonwealth Medical Officer recorded a diagnosis of back sprain. He referred to investigations and expert opinion that there was no pathology. He noted an exaggerated anxiety which produced an exaggerated attitude to Mr Wissing’s disability, overshadowing everything else. Mr Wissing should carry out duties not requiring lifting and bending and avoid contact with co-workers. If those duties were not available, he would be unfit for employment.
·An X-ray taken on 24 May 1982 was normal although spondylosis with spondylolisthesis is seen. There was minor spondylitic lipping at L3/4 level. No disc space narrowing was seen.
·On 27 August 1982 Dr Williams reported Mr Wissing as stating his back pain was better now that he had stopped working. He commented on a recent X-ray which disclosed minor spondylitic clipping at L3/4 level but no other abnormality. He expressed the opinion that Mr Wissing’s lack of self-confidence and anxiety were tending to aggravate his back problems – Mr Kelman noted that other than minor spondylitic lipping at L3/4, the X-rays taken six years after the accident disclosed no lumbosacral abnormality.
·15 December 1983 Dr Gray-Thompson noted Mr Wissing’s spinal movements were almost full although there was constant tenderness between L5/S1 and to the right of the joint. Dr Gray-Thompson concluded Mr Wissing was suffering from chronic low back strain, while not severe, did limit his capacity for physical work.
·On 16 July 1984 Dr Parker, a Psychiatrist, commented that Mr Wissing’s personality disorder was of long-standing but did not think Mr Wissing’s lower back injury in 1976 aggravated the personality disorder as he did not have overt nervous symptoms. Dr Parker was of the view there were no grounds for compensating Mr Wissing for a psychiatric disability.
·On 22 April 1985 a computed tomography (CT) was taken from the lower portion of L3 to the upper portion of the sacrum and cuts were taken at L5/S1. No suggestion of any abnormality was disclosed.
·An X-ray done on 6 January 1988 (11 and a half years after the accident) disclosed normal bone density; lumbar disc spaces all within normal limits; posterior facet joints normal; and sacroiliac joints normal.
·Dr Seabridge reported on 3 March 1988 that Mr Wissing obviously suffered from reactions which modified his patterns of daily living and a disturbance of thinking with definite disturbances of behaviour. He was incapable of appropriately assessing his situation and behave accordingly. He had impaired control.
·
On 29 April 1988 Dr Zlatnik recorded that Mr Wissing may well have suffered ligamentous strain to his lower back in 1976 but he was of the view that

Mr Wissing was not as disabled as he would like to appear. Dr Zlatnik stated that Mr Wissing’s major problem was psychoneurosis.
·
Dr John Burke, Orthopaedic Surgeon, reported on 12 August 1988 that Mr Wissing had mild restriction of lumbar movements but no neurological deficits. He noted that the CT scan of 25 August 1988 showed mild narrowing of the L5/S1 level –

Dr Kelman responded that this was the first mention of changes in the lumbar spine at the L5/S1 level from X-rays taken 12 years after the claimed injury. Those changes are consistent with the onset of degenerative disease. Mr Wissing’s age that time was 41 years.
·In his report dated 9 May 1989 Dr Kornan, Psychiatrist, stated he did not believe that the 1976 accident led to his present psychiatric condition. He said his present psychiatric state was constitutional in origin.
·
Dr Ingpen in his report of 12 May 1989 said he remained of the opinion that

Mr Wissing had a low grade lumbosacral disc lesion which may have caused him some discomfort on occasions or even a spasm. However in cases of this type, people are leading normal lives and perhaps with minor limitations directed towards repeated bending and heavy lifting.
·In her letter dated 18 May 1989 Fiona McRae, a Physiotherapist, stated she referred Mr Wissing back to the Geelong Hospital for treatment by the orthopaedic outpatients. Her treatment included mobilisations, mobility exercises, interferential treatment, traction and extension exercises with little success.
·In a report dated 23 August 1989 Dr Seabridge said that the ongoing pursuit of his cause became the focal point for Mr Wissing’s life and an overriding preoccupation contributing to a chronic state of frustration, resentment and self-preoccupation.
·Dr Matthews, on 27 March 1994, said Mr Wissing was preoccupied in a hypochondrial sense with various areas of bodily function or malfunction whether it be his eyes, teeth, bowels, back; therefore between ophthalmologists, optometrists, dentists, gastroenterologist etc.
·In a report dated 21 March 1995 Dr Speck, Orthopaedic Surgeon, said an MRI scan showed significant degenerative change affecting the joints but also degenerative change affecting the facet joints of the lumbosacral junction level. He suggested surgery treatment may be of benefit.
·Dr Speck reviewed Mr Wissing on 16 December 1996 and discussed with him the denervation of the facet joints. He felt there was less in 50% chance of improving his case.
·In a letter dated 18 December 1996 Dr Schofield, said he agreed with Dr Speck that surgery would be beneficial if discography was positive at his lumbosacral level.
·On 31 October 1997 Mr Wissing was referred to Dr Black, a Cardiologist, who felt his symptoms were not cardiac in origin.
·Dr Muller, a Pain Specialist, in a letter dated 11 September 1998 indicated he had three consultations with Mr Wissing in 1998. He reviewed Mr Wissing for a problem of low back pain and leg pain present for 20 years. Dr Muller said that on examination, he was quite surprised that Mr Wissing had a good range of movement in his lower back. Neurology in his lower limbs was normal. Dr Muller requested an MRI which showed changes at L5-S1 however he was of the view there was no proven treatment for that condition. Dr Muller advised against surgical intervention and discharged him from his care.
·On 21 January 1998 Mr Wissing was reviewed by Dr Nye, for consideration of surgical treatment. Dr Nye rejected that approach, adopting a conservative approach.
·On 30 May 1998 Dr Janovic from the Caulfield Pain Management and Research Centre assessed Mr Wissing but felt he was too entrenched to make any major inroads into the program offered.
·A 30 June 1998 MRI of his lumbar spine confirmed degenerative change in the L5/S1 disc with a small annular tear posteriorly to the right of the midline associated with minimal bulging of the disc. There was, however, no focal disc protrusion and no evidence of nerve root displacement or compression. Desiccation [the process of drying up] of the L4/5 disc was noted but there was no evidence of extrinsic encroachment on the spinal cord.
·
On 27 November 1998 Dr Griffiths, a Rheumatologist, was of the opinion that

Mr Wissing’s problem was largely soft tissue in origin overlaid by major psychological problems. He said there was no medical solution to Mr Wissing’s pain and felt that an exercise program would be appropriate.
·On 4 November 1999 Dr Williams, Orthopaedic Surgeon, reported that he was of the view that there was no surgical treatable condition. He believed Mr Wissing should continue with the Geelong Pain Clinic.
·On 11 August 2000 Dr Jensen, Neurosurgeon, reported no indication for any form of invasive treatment.
·In a report dated 10 November 2000, Dr Brazenor felt there had to be a secondary gain from Mr Wissing’s invalid role. He did not see how Mr Wissing’s back could possibly be causing him more than a little bit of low back pain if he stacked firewood. There was no reason why he could not walk kilometres whenever he wanted. Dr Brazenor did not see a single sign of genuine disability.
·An MRI of Mr Wissing’s lumbar spine taken on 10 November 2000 disclosed a lumbar disc in early degenerative change. There had been a slight progression in disc degeneration since the 10 June 1998 MRI.
·
An X-ray done on 9 September 2002 of the cervical spine disclosed disc space height relatively well preserved with some posterior osteophyte formation at the C5/6 level consistent with mild disc degenerative change. The neural foramina were capacious at all levels and no focal bony destructive lesion was identified.

X-ray of the pelvis and hips disclosed joint spaces quite well preserved on both sides and no significant changes of osteoarthritis. No focal lesion was seen and the sacroiliac joints were well preserved.
·
On 7 December 2004 Dr Shannon reported a diagnosis of lumbosacral disc degeneration. He was of the opinion that the condition could have been caused by Mr Wissing’s employment but more likely was aggravated and accelerated.

Dr Shannon felt that Mr Wissing’s current condition was still in part related to his employment. He said Mr Wissing was partially incapacitated and unfit for work involving repetitive bending and heavy lifting.
·A 7 August 2007 MRI of the lumbar spine disclosed mild disc degenerative change in L5/S1. There was no evidence of spinal canal compromise or focal neural compression.
·An MRI of the lumbar spine done on 13 March 2010 disclosed the spine appeared well preserved for age with only mild disc degenerative changes present at L5/S1. There was no evidence of neural compromise or significant disc herniation.
·An MRI of Mr Wissing’s lumbar spine done on 13 February 2016 disclosed no significant posterior disc herniation in the lumbosacral spine. There was no significant compression of thecal sac or exit neural foramina.
·Dr Brennan from the Chronic Pain Clinic reported on 19 February 2016 that a clinical examination was entirely normal with no evidence of impairment or disability. His mental state examination did not indicate there was an active significant anxiety or depressive component but noted a catastrophic cognitive constructing coping style. Although Mr Wissing requested Dr Brennan perform pain intervention, she refused.
·On 20 June 2016 Mr Bassett, Physiotherapist, indicated Mr Wissing had come under his care and he requested further treatment be approved.
Dr Beavon, General Practitioner, approached Comcare on 20 June 2016 requesting funding for further physiotherapy.
THE MEDICAL EXPENSES CLAIM

As a preliminary matter, Mr Wissing’s claim is complicated by reason of the settlement reached on 22 February 1990 where he expressly agreed that the effects of the conditions to which his employment with the CSIRO had contributed had ceased. That does not mean Mr Wissing cannot raise claims for compensation at a later date, either for incapacitation, medical expenses, permanent impairment or non-economic loss. However, he may only do so if those factors arise out of an injury, as defined in s. 5A of the SRC Act; and Comcare has accepted liability under s. 14 to pay compensation for the injury or injuries.
This was dealt with by Cooper J in Australian Postal Corporation v Oudyn (2003) 73 ALD 659. In that case, Australian Postal Corporation (APC) made a determination involving two elements. The first was that the effects of the injury sustained by Mr Oudyn had resolved. That is, the injury no longer resulted in an incapacity for work or impairment. The second element, which was a consequence of the first, was that as from the date of the determination, the payment of compensation being made to Mr Oudyn under one or more sections of the Act was to terminate. The only difference between the circumstances of that case and Mr Wissing’s case is that rather than Comcare having made a determination of its own volition, that determination was made by agreement.
Cooper J said, at 667- 668:
Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payments cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.
APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plum v Comcare (1992) 39 FCR 236 at 240.… The Act does not contemplate the making of such a determination once liability under

s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.
…
For the reasons which I set out above, the determination did not, and could not, for the future preclude Mr Oudyn from an entitlement to compensation in respect of the injury sustained on 2 August 1999 if he was otherwise entitled to receive compensation in accordance with the Act.
Notwithstanding the determination of APC made on 18 May 2000, Mr Oudyn was entitled to make the claim for permanent impairment under s. 24 of the Act which he did by letter dated 12 February 2001 from his solicitors.
The reasoning of Cooper J applies equally to Mr Wissing’s medical expenses claim under s. 16 and his claim for permanent impairment and non-economic loss under ss. 24 and 27.
Because Mr Wissing’s claim for reasonable medical expenses is founded on the injury he suffered on 12 October 1976; and Mr Wissing settled his compensation claim under s. 14 of the SRC Act on 22 February 1990 which included an agreed term that Comcare was not liable to make payments of compensation to him in respect of the conditions for any period after 22 February 1990, some care needs to be exercised in determining the basis for the s. 16 claim. The 1990 settlement referred to a back injury, aggravation of back injury and anxiety condition to which his employment with CSIRO had contributed to a material degree.
We should also point out that s. 16(1) of the SRC Act refers to the cost of medical treatment obtained in relation to the injury. The use of the definite article in subsection (1) is important as is the use of the word injury which is a defined term in the Act. The word injury is defined in s. 5A of the SRC Act as a physical or mental injury arising out of, or in the course of, the employee’s employment; or an aggravation of a physical or mental injury suffered by an employee, irrespective of where that injury was initially suffered, but the aggravation must have arisen out of, or in the course of, that employment. In other words, in this case, the aggravation must have arisen out of or in the course of
Mr Wissing’s continued employment with CSIRO after 1976 if he is to succeed in an aggravation claim. Mr Wissing ceased employment with the CSIRO on or about 27 November 1981.
Given the terms of settlement agreed by the parties in 1990, medical expenses for treatments Mr Wissing received prior to the settlement date are taken to have been compromised by the agreement. The medical history therefore, prior to the settlement agreement, is significant in establishing the precise nature of the injury for which
Mr Wissing’s claim was made and accepted. After settlement date, for Mr Wissing to succeed in his claim, the evidence must establish that the medical expenses he incurred following settlement arose out of an exacerbation of his medical conditions which resulted from the 1976 injury. That includes any psychological injury in the nature of anxiety.
Physical injury
Dr Renouf, then the Commonwealth Medical Officer, said in a report dated
7 November 1977 that Mr Wissing was first seen by him on 13 September 1977 complaining of pain in the lumbosacral area. He said the tenderness and continuing pain was localised over the coccyx. Dr Renouf considered that the continuing pain must be considered as a recurrence of the strained coccygeal ligaments sustained at work on 12 October 1976.
We accept the evidence supports that there was an exacerbation of Mr Wissing’s initial physical injury between 1976 and 1981. We also accept that Mr Wissing suffered a psychological injury in the nature of anxiety as a consequence of not being able to obtain satisfactory treatment for his physical injury. Following 1981, because Mr Wissing ceased employment with CSIRO, any subsequent aggravation of those existing conditions cannot be compensable injuries because of s. 5A(1)(c) of the SRC Act. We have also examined s. 6 of the SRC Act which extends or expands the concept of an injury arising out of or in the course of employment. None of those provisions apply to Mr Wissing given that he had ceased employment at the end of 1981.
If we are correct thus far in our analysis, then the only possible basis upon which
Mr Wissing’s medical expenses claim can succeed is if he suffered an additional injury in 1976 which was not diagnosed at that time. That is because s. 16(1) of the SRC Act refers expressly to the injury which is a reference to an injury which arose out of, or in the course of, his employment with CSIRO. By reason of the agreement made in 1990, Mr Wissing accepted that the effects of the conditions to which his employment with the CSIRO had contributed had ceased. His compensation payment took that into account and it concluded Comcare’s liability for his injuries and aggravation of those injuries up until that point in time. He cannot now resile from that agreement.
However, as Ms C Dowsett of counsel, who appeared on behalf of Comcare, submitted, the question which arises for determination is whether the medical condition from which Mr Wissing complains post the 1990 agreement was in fact an injury sustained in 1976, the symptoms having only become apparent since that date; or whether the condition from which Mr Wissing now suffers is a different medical condition altogether.
The chronology of events including the numerous medical consultations and radiological scans presented by Mr Kelman in his report of 13 October 2017 are, in our opinion, accurate. In addition, they shed considerable light on the nature of Mr Wissing’s physical and psychological injuries.
On the day Mr Wissing was injured in 1976, he reported the incident to his supervisor at CSIRO. Despite that, he did not seek medical assistance until 28 October 1976, some 16 days after that event. No explanation was provided for the delay. The logical inference open to us is that the pain or discomfort experienced by Mr Wissing in the 16 days following his injury was insufficient to prompt him to seek medical attention immediately. That period of delay also supports the diagnoses made by various medical practitioners of a strain to his lower back, sometimes described as strained coccygeal ligaments. The diagnoses in turn are supported by X-rays done between 1977 and 1979. In September 1977, the report stated: No spondylosis or spondylolisthesis is seen. No disc space narrowing is seen.
Dr Ingpen in his report of 8 October 1980 expressed the opinion that the nature of
Mr Wissing’s pain was consistent with the low grade posterior lumbosacral disc protrusion. This is not evidence of degenerative disc disease. It is consistent with the nature of the injury Mr Wissing claimed occurred in 1976.
An X-ray taken in May 1982 disclosed minor spondylitic lipping at L3/4 level but no other abnormality. As Mr Kelman said in his report, this was some six years after the injury and yet no lumbosacral abnormality was noted on X-ray. By this time, Mr Wissing was no longer engaged in employment with the CSIRO.
The first evidence of changes to Mr Wissing’s lumbar spine appears on a CT scan done on 25 August 1988 which disclosed mild narrowing of the discs at the L5 – S1 level.
As Dr Kelman explained, at that time Mr Wissing was 41 years of age and those changes are more likely than not to be in keeping with the onset of degenerative disease and his age. The August 1988 CT scan of his lumbar spine also shows some minimal degenerative circumferential bulge of the L5/S1 posterior disc margin. This is now some 12 years after the injury he sustained at the CSIRO.
There are some medical reports, for example Dr Dooley (4 July 1989) and Mr Shannon (7 December 2004), which refer to Mr Wissing suffering from a back strain in 1976 and an aggravation of a pre-existing lumbar disc generation. However, with respect to Dr Dooley, there was no evidence of any pre-existing lumbar disc degeneration which was aggravated by his work with CSIRO. Similarly, although Mr Shannon referred to CT scans which, by 1988 disclosed narrowing of the lumbosacral disc bulge and circumferential bulging at that level, the basis for his conclusion that the accident of 1976 appeared to result in at least the aggravation of degenerative change is not stated. An
X-ray taken in 1979 reports early osteophytic lippings present in relation to a few
mid-lower thoracic segments of his spine. We did not have any evidence of early degenerative signs in Mr Wissing’s lumbar spine prior to 1976.
Having carefully examined all of the medical reports in evidence and the findings made by the numerous practitioners who have examined Mr Wissing, we find, on the balance of probabilities, Mr Wissing’s symptoms post 1990 are due to degenerative changes in his lumbar spine. Those degenerative changes, which may be described as lumbar spondylosis at L5/S1, did not exist at the time of the accident or before
1988. Furthermore, because Mr Wissing ceased his employment with CSIRO at the end of 1981, we find there could not have been an aggravation of his lumbar spondylosis at L5/S1 which arose out of or in the course of his employment with CSIRO.
Given those findings, it necessarily follows that Comcare cannot be liable to pay
Mr Wissing for the cost of medical treatment in relation to his lower back condition after 1990. That treatment does not fall within the compensation provisions set out in s. 16 of the SRC Act. That is because the injury for which he seeks compensation was not an injury which occurred in the 1976 incident; nor was there an aggravation of the injury for which Comcare accepted liability. His lumbar spondylosis, which is degenerative in nature and not related to the 1976 incident, is a discrete medical condition. There could not have been an aggravation of his lumbar spondylosis for the purposes of compensation under the SRC Act because his lumbar spondylosis was not diagnosed until some seven years after he ceased employment with CSIRO.
Psychological injury
The evidence before us indicates Mr Wissing had psychological problems prior to his 1976 injury. The 6 April 1984 report of Mr RC Whithear refers to a report dated
23 June 1982 from Dr Williams which records Mr Wissing having had, in 1965, a 10 year history of temporal lobe epileptiform seizures and treatment for those seizures continued until 1971. Dr Williams also said that Dr Marcus Benjamin, the psychiatrist who examined Mr Wissing in July 1972, diagnosed Mr Wissing as having temporal lobe epilepsy, personality disorder with shyness, inferiority and reactive depression. Although we did not have before us Dr Benjamin’s report, no issue has been raised about its accuracy as recorded by Mr Whithear.
Apparently Dr Benjamin provided a report dated 17 March 1983 which dealt with the assessment of Mr Wissing in 1972 and 1973. Dr Benjamin reported that Mr Wissing had, for two and a half years prior to July 1972, increasing depressive episodes where he was very much aware of his feelings of despondency. Dr Benjamin’s diagnosis was:
Temporal lobe epilepsy
Personality disorder characterised by shyness, feelings of inferiority…
Reactive depressive reaction.
Mr Wissing was again examined by Dr Benjamin on 10 February 1984 who then reported:
… There was no discussion of a psychotic illness at this stage and it would be my opinion that Mr Wissing was aware both of the problems of his depression and personality difficulties and of measures I was undertaking to treat him.
… His description of himself as a personality suggested a quite significant personality problem of long-standing. He didn’t like talking to people and found it difficult to make conversation. Indeed he hadn’t been going out for three or four months prior to seeing me… (T docs page 46)
… I think his prognosis may not be good… I will let you know at a later stage how things go but this is going to be a long-term problem.
Of particular significance is Dr Benjamin’s opinion that Mr Wissing’s back injury did not produce a new psychiatric condition. If it led to a psychological disturbance, it would be an exacerbation of a pre-existing condition and not the development of a new response. Also, Mr Wissing’s diagnosed personality disorder was present in 1972 and, in 1984, it remained.
Mr Wissing also consulted Dr Seabridge extensively between 1985 and 1986. He described Mr Wissing as suffering from both disturbed thinking and disturbed behaviour, which at times was quite paranoid. In his 1989 report, Dr Kornan described Mr Wissing as an inadequate individual who had some long-standing psycho neurotic problems. He also summed up Mr Wissing as a man who presents with a constitutional personality disorder. Dr Kornan also said it was possible that the initial injuries could have partially aggravated, at that time, his constitutional tendencies. Nevertheless, if aggravation existed at that time, he considered those effects to be long since over. Dr Kornan was also of the opinion that Mr Wissing would have his constitutional personality disorder indefinitely and therefore would have ongoing residual disability to a partial degree indefinitely.
In a letter dated 23 November 1987 addressed to Mr David Wall of the Department of Social Security, in support of an apparent application for the disability pension,

Dr Seabridge said:
Although he attends me in a therapeutic capacity he does so on the apparent understanding that there is really nothing wrong with him and he makes no request for treatment.
In a letter dated 25 September 1987 addressed to Dr D Davey, Dr Seabridge explained that Mr Wissing had consulted him through most of the previous year, largely venting his frustration and preoccupation with his disability and attempts to obtain some kind of redress. Dr Seabridge was of the opinion that Mr Wissing suffered from a complex personality disorder with a paranoid tendency and an ingrained conviction of disability.
In a report dated 18 November 1988 which was prepared for the purposes of supporting Mr Wissing’s application to this Tribunal, Dr Seabridge said:
There is an indisputable interplay between his physical and his psychological symptoms and it could well be argued that his ongoing psychiatric morbidity is a result of his original injury and his ongoing work related problems anyway which would leave his injury as the primary disability. His response to his injury and his pattern of illness behaviour is the main basis for the psychiatric formulation being invoked. This certainly could not be categorised under the loose label of psychoneurosis and is certainly in itself an adequate justification for reduced employability.
In his 23 August 1989 report, Dr Seabridge said that it should be understood there was no evidence of anxiety or depression as such in the clinical presentation of Mr Wissing. Furthermore, Mr Wissing did not have a consistent pattern of behaviour sufficient to diagnose him as having an inadequate personality and that at times he actually displayed considerable initiative and even bravado. Dr Seabridge maintained his opinion that

Mr Wissing’s condition was consistent with the description of abnormal illness behaviour. Dr Seabridge also repeated what he had previously said which was that his psychiatric symptoms could not be separated from the effect of his original accident. The accident altered his capacity to work and changed his relationship with fellow employees. Both adversely affected his self-image and his role generally.
However, we should point out that Dr Seabridge does not mention that by 1989,

Mr Wissing had also been diagnosed with a degenerative condition of his lower spine, unrelated to the 1976 injury. He did not take this into account in the writing of his report. Furthermore, the settlement reached in 1990 was on the basis that Mr Wissing had suffered a mental injury as a consequence of his 1976 accident but that the effects of that injury had, by 1990, ceased. Mr Wissing cannot claim to be entitled to compensation for medical expenses after 1990 because, even if his mental condition was aggravated after that date, it could not have been an aggravation that arose out of or in the course of his employment with CSIRO.
Dr Kornan, who examined Mr Wissing on 2 May 1989, appears to have taken a reasonably extensive history as recited to him by Mr Wissing. Nevertheless, his focus was on the injury which occurred in 1976. Dr Kornan did not believe that the 1976 accident led to Mr Wissing’s present psychiatric state. He was of the view that it was constitutional in origin. That appears to coincide with Dr Seabridge’s opinion, save for the possibility that his condition may have been aggravated at that time. Even so, given the eight or nine years which had passed since the injury, unsurprisingly, Dr Kornan considered that if there was an aggravation at that time, it was long since over.
Dr Seabridge wrote a letter on 2 June 1993 to Medicare, Compensation, Health Insurance Commission in which he said:
… Despite seeing me in my capacity as a psychiatrist Mr Wissing has not acknowledged that there is any psychiatric component in his condition and has gone to significant links to try and avoid having this included in his claim or in the assessment of his disability.
…
Mr Wissing’s initial injury was a physical injury and his claim was for back pain associated with back damage sustained in a lifting accident. Although his involvement in ongoing litigation both for Compensation and for Disability Allowance has caused him a significant amount of resentment, anger and distress and a feeling of victimisation of almost paranoid intensity the same responses have occurred in issues in his personal and family life unrelated to his previous employment or his ongoing litigation. In other words his attendance on me and his consultations concerned problems in his basic personality and a pattern of impaired adjustment which are not directly related to his compensated condition.

The evidence we have referred to above leads us to find that Mr Wissing is not entitled to compensation pursuant to s. 16 of the SRC Act for reasonable medical expenses related to any mental injury he suffered as a consequence of his physical injury in 1976. That is because the evidence supports the finding that Mr Wissing had a mental condition prior to 1976 which resulted in depressive symptoms amongst others. There was no dispute that Mr Wissing may have suffered an aggravation of that condition as a consequence of the 1976 injury and his subsequent dispute with Comcare and other Commonwealth agencies regarding compensation and/or social security payments arising out of his incapacity for work.
However, we find that the psychiatric evidence supports Comcare’s claim that any such aggravation had ceased by 1990. In fact, by signing off on the terms of agreement reached on 22 February 1990, Mr Wissing expressly agreed that any effects his 1976 injury had on his mental condition had ceased. If in fact Mr Wissing’s mental condition was later aggravated by other factors related to disputes over compensation, they are not compensable under the SRC Act. Such aggravation could not be said to have arisen out of or in the course of his employment with CSIRO. In fact, his subsequent symptoms may properly be considered as part of his constitutional condition which is not related to the 1976 injury.
THE PERMANENT IMPAIRMENT AND NON-ECONOMIC LOSS CLAIM
A claim for non-economic loss pursuant to s. 27 the SRC Act depends on a finding that the claimant has an injury which resulted in a permanent impairment and that compensation is payable in respect of the injury under s. 24 (s. 27 (1)). Therefore, unless we find that Mr Wissing is entitled to compensation for permanent impairment arising out of his 1976 injury, he cannot have any entitlement under s. 27.
Impairment is a defined term in the SRC Act. Section 4 sets out the definition as follows:
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
Relevantly, s. 24 provides:
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impermanent is permanent, Comcare shall have regard to:
(d)the duration of the impairment;
(e)the likelihood of improvement in the employee’s condition;
(f)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; an
(g)any other relevant matters.
…
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
Mr Wissing’s claim under s. 24 was said to be in respect of: spinal injury, damage. L5-S1 area, Post-Traumatic Stress Disorder (PTSD), anxiety condition.
As we have already indicated above, the voluminous medical evidence before us in this proceeding does not establish that Mr Wissing suffered a spinal injury and in particular damage to the L5/S1 lumbar disc area as a result of the 1976 incident. No damage was identified to his lumbar spine until 1988 when the first early signs of age-related disc degeneration at the L5/S1 level were observed. That was about eight years after the 1976 inciden.. He was said to suffer from strained coccygeal ligaments.
The only apparent diagnosis of PTSD is found in Mr Wissing’s Compensation Claim for Permanent Impairment and Non-Economic Loss form. His treating practitioner,

Dr Beavon, recorded a diagnosis of PTSD/adjustment disorder. Dr Beavon attended the hearing and gave oral evidence. In cross-examination Dr Beavon was taken to the entry on the claim form and he confirmed that he made that diagnosis. However, Dr Beavon said that on reflection, Mr Wissing did not meet DSM 5 criteria for a diagnosis of PTSD. He therefore withdrew that diagnosis. Therefore, the only possible basis for Mr Wissing’s permanent impairment claim is any other psychiatric condition.
The first hurdle which Mr Wissing has to overcome is that his entitlement to compensation for a work related injury arose under the 1971 Act. The 1971 Act was repealed on

1 December 1988 upon the commencement of the substantive provisions in the 1988 Act (the SRC Act). The SRC Act contains transitional provisions which effectively allow accrued rights under the repealed 1971 Act to be carried forward in the SRC Act, hence the general provisions found in s. 124(1A) of the SRC Act. If a person is entitled to compensation under the 1971 Act in respect of injury, loss or damage, that right to compensation creates an entitlement under the current legislation. However, there are limits. In this case, s. 124(3)(b)(iii) is applicable. It applies to, amongst other sections,

s. 24 dealing with permanent impairment. It effectively precludes a person receiving compensation for permanent impairment under s. 24 of the SRC Act where that entitlement arose prior to 1 December 1988 if the claimant was not entitled to receive lump-sum compensation in respect of the impairment he or she suffered under the 1971 Act.
As Ms Dowsett explained in her written submissions, the 1971 Act provided for lump-sum compensation in ss. 39–42. However there is no provision in those sections for compensation in respect of mental injuries. Nor, for that matter, is any provision for lump-sum payment in respect of a spinal injury although, given the findings we have made above, spinal injury is irrelevant here.
The question then becomes whether Mr Wissing’s mental injuries, if any, became permanent prior to 1 December 1988. The preponderance of evidence is that

Mr Wissing’s mental condition is constitutional and existed prior to his injury in 1976. Nevertheless, it is likely to have been aggravated by that injury and subsequent events. However, given the settlement reached in February 1990 which included a payment for any mental injuries Mr Wissing may have suffered or an aggravation of any pre-existing mental condition, Mr Wissing cannot now claim that the aggravation of his mental condition persisted after February 1990. The only argument open to Mr Wissing is that his mental condition was aggravated after February 1990 or that the impairment he now suffers is a new impairment which arose out of the 1976 injury.
The new impairment argument was raised before the Full Court of the Federal Court of Australia (O’Connor, Heerey and Merkel JJ) in Department of Defence v West (1998)

85 FCR 491. The Full Court in that case was concerned with an applicant who, the parties agreed, suffered a 10% permanent impairment under Table 9.6 of the Comcare Guide as at 1 December 1988, but by 18 December 1996, his impairment was assessed at 20% under the same Table. The question before the Court was whether the impairment as assessed in 1996 was a new impairment.
Merkel J, after explaining the consequences to an employee of the transitional provisions in the SRC Act and the limitations imposed on entitlement to a payment for a permanent impairment which existed prior to the commencement of that Act where the earlier legislation did not provide for an entitlement, said, at 503:
An entitlement to compensation under s. 24(1) arises at any time an injury to an employee results in permanent impairment. If there is an aggravation of an existing injury and that aggravation arose out of or in the course of the employee’s employment by the Commonwealth then the aggravation of the pre-existing injury is distinct from the injury and is an injury in itself which affords the employee with a separate and independent right to compensation under the Act: see Australian Telecommunications Commission v Leach (1982) 69 FLIR 409 at 412-413 per Fox and Lockhart JJ and Slattery v Comcare (1996) 70 FCR 131 at 133-135 and the authorities there discussed. Accordingly, under the statutory scheme any permanent impairment, whether a worsening of an existing permanent impairment or a new impairment that results from an aggravation, as defined in the Act, of an existing injury will give rise to a discrete entitlement under s. 24(1).
His Honour then explained the distinction between the word impairment when used in its narrow defined sense where it refers to part of the employee’s body or bodily system or function; and where it is used in a wider sense where reference is made in the Act to impairment of the employee. Merkel J said, at 504:
Under the statutory scheme where an injury results in a permanent impairment to any part of the body or of the bodily system or function the employee becomes entitled to compensation, but only when the total of the permanent impairment of the employee as a result of the permanent impairment to a part of the employee’s body etc exceeds 10 per cent. Under s. 25(4) once a final assessment has been made no further compensation can be payable under s. 24 unless there has been a subsequent increase in the degree of impairment of the employee of 10% or more as a result of injury whenever caused.
Merkel J also explained the policy underlying the transitional provisions in the SRC Act. He said, at 505:
Plainly, the policy underlying s. 124 is that where the entitlement to compensation under the Act has a relevant nexus with the period before the commencement of the Act, an employee is not to be deprived of any compensation that would have been payable under the earlier applicable, but now repealed, statutory scheme but is not to be entitled to any greater compensation than would have been payable under the repealed statutory scheme:…
In other words, an employee could not receive a lump sum payment under s. 24 of the SRC Act if that employee was not entitled to receive a lump sum payment under the 1971 Act.
We have found that the evidence discloses Mr Wissing had a pre-existing mental condition which, under stressful circumstances, manifested itself in Mr Wissing suffering considerable anxiety and possibly depression. That mental condition has been variously described but we see no advantage in placing a label on it. It suffices to say Mr Wissing suffers from disturbed thinking and disturbed behaviour as described by Dr Seabridge. In his report of November 1988, Dr Seabridge said there was an indisputable interplay between Mr Wissing’s physical and psychological symptoms and it could be argued that his ongoing psychiatric morbidity was a result of his original injury and his ongoing work related problems.
Dr Kornan described Mr Wissing as having a constitutional personality disorder which would remain with him indefinitely. It was not related to his 1976 injury but that is not to say that his disturbed thinking and behaviour arose out of his personality disorder and the consequences Mr Wissing believed would follow his physical injury.
However, by 1988, it became apparent as result of radiological scans that Mr Wissing had a degenerative condition in his lower lumbar spine. It is probably fair to say that

Mr Wissing does not believe that the degenerative condition is the source of his pain and discomfort in the lower spine. It is impossible for us to, effectively arbitrarily, apportion any of his psychological disturbances to either the strained ligaments or the degenerative condition at L5/S1. In any event, we need not do so. That is because in February 1990

Mr Wissing agreed that he no longer suffered any symptoms, physical or psychological, from the 1976 accident. It is therefore not possible for us to conclude that Mr Wissing’s psychological problems, which were probably aggravated by the 1976 injury, were permanent. Mr Wissing agreed that in 1990, they did not exist.
The problem for Mr Wissing is that by 1990, he was no longer employed by CSIRO. Therefore, any aggravation of his mental condition which occurred after that date is not compensable under any section of the SRC Act. The aggravation could not have occurred in the course of, or arising out of, his employment. Therefore the only possible way in which Mr Wissing may now claim a right to compensation for permanent impairment is if he suffers a new impairment as a result of the 1976 injury.
Unfortunately for Mr Wissing, we have no evidence which would support such a claim. In fact, on the evidence before us, it is more likely than not that his current psychological problems are a manifestation of his existing constitutional problem. This has been further aggravated by his preoccupation with the way in which his compensation claims have been handled by Comcare. This accords with what Dr Seabridge reported in August 1989 where he stated Mr Wissing’s constitutional make up has undoubtedly been responsible for his reaction to his injury although Dr Seabridge was not of the view that that itself could be regarded as pathological.
In his 13 October 2017 report Mr Kelman said Mr Wissing was aggrieved by the management of his work-related injury by his employers and their insurers. He found it necessary to continue complaining of his condition in order to gain the recognition he was seeking. That, according to Mr Kelman, led to Chronic Pain Syndrome for which there was no organic cause. That, in turn, led to his illness behaviour, hypochondriasis, and personality disorder. In addition to those problems, Mr Kelman referred to Mr Wissing having developed lumbar spondylosis as a consequence of the natural process of ageing. That problem was not related to his lumbar sprain in 1976.
In her report of 8 May 2017 Dr Redmond said Mr Wissing’s current problems could be conceptualised as a chronic pain syndrome. She said that there appeared to be no clear structural cause for Mr Wissing’s current pain symptoms but it was likely that his chronic pain syndrome was exacerbated by contributing factors of work satisfaction and then the perpetuating factors of his dispute with his employer and the insurer.
In our opinion, the evidence overwhelmingly points to a finding that Mr Wissing’s psychological injuries are not related to the 1976 work incident. Therefore, we must reject his claim for permanent impairment on psychological grounds.
CONCLUSION
We have found Comcare’s determination that it was not liable to pay compensation to
Mr Wissing for medical treatment pursuant to s. 16 of the SRC Act was the correct decision. That is because neither Mr Wissing’s claimed physical nor psychological injuries as at 24 March 2016 arose out of the accident on 12 October 1976 when employed by the CSIRO. Accordingly, we find that the decision made by a Review Officer with Comcare on 25 May 2017 was the correct decision. We affirm that decision.
We have also found that Mr Wissing does not have a permanent impairment which arose out of or in the course of his employment with CSIRO as a consequence of his 1976 injury. Therefore, we affirm the decision made by Comcare on 10 April 2017 denying
Mr Wissing compensation for permanent impairment under s. 24 of the SRC Act. As a consequence of that decision, Mr Wissing’s claim for non-economic loss on s. 17 of the SRC Act necessarily fails.

I certify that the preceding 167 (one hundred and sixty seven) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

..........................[sgd]..............................................
Associate
Dated: 9 April 2018

Date(s) of hearing: 21 November 2017

Applicant: In person

Advocate for the Applicant: Mr Alistair Mills

Counsel for the Respondent: Ms Cathy Dowsett

Solicitors for the Respondent: Ms Jagrup Pangly

Date(s) of hearing:	21 November 2017
Applicant:	In person
Advocate for the Applicant:	Mr Alistair Mills
Counsel for the Respondent:	Ms Cathy Dowsett
Solicitors for the Respondent:	Ms Jagrup Pangly