Lavers and BHP Transport Pty Ltd [2002] AATA 529 (28 June 2002)

Last Updated: 2 July 2002

DECISION AND REASONS FOR DECISION [2002] AATA 529

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1998/230

GENERAL ADMINISTRATIVE DIVISION )

Re SIMON PETER LAVERS

Applicant

And BHP TRANSPORT PTY LTD

Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

Date 28 June 2002

Place Adelaide

Decision The Tribunal sets aside the decision under review and in substitution therefor decides that: (a) the applicant suffered an injury within the provisions of Seafarers' Rehabilitation and Compensation Act 1992, which was contributed to in a material degree by his employment with the respondent and subsists beyond 5 October 1997, as a result of which he remains partially incapacitated; and (b) the respondent is liable to pay compensation and medical expenses to the applicant as well as costs of these proceedings incurred by the applicant.

(Signed)

J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS

COMPENSATION -- whether injury or aggravation of pre-existing back condition whilst on respondent's ship contributed in a material degree to the applicant's incapacity - whether applicant continues to be incapacitated from work - consideration of conflicting medical evidence.

Seafarers' Rehabilitation and Compensation Act 1992 ss.3, 9, 26

Purkess v Crittenden (1965) 114 CLR 164

REASONS FOR DECISION

28 June 2002 Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

1. This is an application for review of a decision made on 3 April 1998 (T4) by a delegate of the respondent who had varied the primary decision of 13 October 1997 (T33). The primary decision was that the respondent had decided in accordance with section 26 of the Seafarers' Rehabilitation and Compensation Act 1992 (the Act) that liability did not continue to exist for any present incapacity for work or any medical expenses arising from injury as of 13 October 1997. On review of this it was decided that the primary decision be varied to the respondent having no liability under the Act following 13 October 1997.

2. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T39) together with 27 exhibits, 16 lodged by the applicant (Exhibits A1-A16) and 11 by the respondent (Exhibits R1-R11). In addition, the Tribunal heard evidence from the applicant whilst medical evidence was given by Dr Nagi Guirguis, specialist in rehabilitative medicine; Dr David Hall, spinal surgeon; and Dr Christopher Kelly, specialist in occupational medicine. The applicant was represented by Mr M. Saies and the respondent was represented by Mr J. Wallace, both of counsel.

issues

3. Prior to the date of the hearing, the parties advised that the issues before the Tribunal were whether or not the applicant's employment with the respondent contributed to in a material degree the injuries or aggravation of pre-existing injuries sustained by the applicant on 7 July 1997 and that further, whether or not the applicant suffered incapacity or partial incapacity for work at all material times subsequent to 7 July 1997. However, at the outset of the hearing the parties agreed that it was not in issue as to whether or not the applicant was suffering from a compensable injury and that in issue is whether the injury subsists beyond 5 October 1997, being the date on which the applicant's employment with the respondent was terminated.

applicant's evidence

4. The applicant, who was born on 31 December 1965, commenced work as a merchant seaman in or about July 1990. Prior to this he had worked tugs and line boats at Port Stanvac. On about 16 January 1992 whilst in the course of his employment on the vessel "Australian Trader" he suffered an injury to his lower back. At the time he was assisting another seaman to lift a gangway as a result of which he strained his back muscle. The applicant stated that he had some seven days off work after which he returned on full duties and had no further difficulty as a result of that injury.

5. The applicant stated that he again suffered injury to his lower back on 13 October 1993. At the time he was employed on the vessel "Far Sword" and was lifting a snatch block over a storm step when he felt a pain develop in his lower back. As a result of this injury he stated he was off work for approximately three months, after which he took about three weeks leave entitlements that he had owing to him, before returning to work. He stated that he went on the shipping roster, which is a labour pool for seamen. He was then assigned to the vessel, "Island Seaway".

6. In the course of his employment on the "Island Seaway", the applicant on about 7 March 1994 suffered injury to his lower back and right leg. He stated that prior to this incident he was basically free of any symptoms from his previous lower back injury in 1993. He injured himself while lifting a heavy drum. He stated he felt immediate extreme pain in his lower back and right leg. As a result he was declared unfit to sail and hence went home and was incapacitated for work for which he received income maintenance payments, as a result of a workers' compensation claim, from 7 March 1994 until 21 June 1994, and from 15 August 1994 to 25 October 1996.

7. After this latter injury, the applicant was referred to Dr John Lipert, orthopaedic surgeon. Dr Lipert prescribed anti-inflammatories and painkillers and referred him to receive physiotherapy treatment and preferred at that stage for the applicant to avoid surgery. He also referred the applicant to Dr David Hall for a second opinion and who recommended surgery which was undertaken on 16 July 1996. the applicant stated that the surgery had been successful.

8. In the latter part of 1996 the applicant again commenced employment as a seaman with the respondent and served on the "Iron Carpentaria". His duties included, inter alia, the cleaning of the engine room, moving the ship's stores, washing the ship down and other general seaman's duties. The applicant stated that most of his duties involved heavy lifting and bending. He stated that to the best of his recollection he had no symptoms at all during about the first six months of his return to normal seaman's duties apart from an occasional twinge of pain in his back or a minor dull ache which may have persisted for a day or so every now and again. He stated that there were no symptoms that caused interference to his duties.

9. On about 7 July 1997 the "Iron Carpentaria" was anchored at Port Kembla and had a salt water pipe that began to leak. In order to replace a section of pipe, sections of the deck plates had to be removed, along with some handrails. Whilst dismantling the deck plates and handrails he experienced pain in his lower back and left leg. He stated that in the course of the next couple of days the pain intensified and he was confined to his cabin. He stated that he saw a doctor in Port Kembla who certified him off work for seven days after which he returned to Adelaide and saw Dr D. Hall who was reluctant to certify the applicant fit for sea duty again. Dr Hall advised him to undertake light work, take painkillers and continue work with his exercise programme. The applicant was off work for the rest of 1997 and the respondent terminated his employment on or about 5 October 1997.

10. As previously stated, the applicant experienced pain in his lower back and left leg on 7 July 1997. He then lodged a claim for compensation for "lower back strain" on 15 July 1997 (T30/63). After consideration the respondent denied liability for this matter continuing to exist as of 13 October 1997 (T33/69). The denial of liability was for any present incapacity for work or any medical expenses arising from that injury. The applicant sought reconsideration of this determination on 5 January 1998 (T35). On 3 April 1998 the respondent after reviewing the matter decided to affirm the original determination. An application for review by the Administrative Appeals Tribunal was lodged on 10 May 1998 (T2/3).

11. The applicant obtained employment with Penneshaw Youth Hostel Pty Ltd, owned by his parents, in February 1998 as a bus driver and cook. On about 16 July 1998 in the course of his driving a bus, which undertook tours of Kangaroo Island, he hit a pothole. As a result of this he stated he suffered an aggravation of his pre-existing lower back and leg injuries which prevented him from returning to his pre-injury duties and hence undertook alternative duties doing office work until his ceasing to work there in December 1999. The applicant stated that this business was a family business that at the time was owned by his parents. The applicant stated that since his employment at Penneshaw he has undertaken a short period of self-employment in January or February 2000.

12. The applicant stated in relation to his injury in March 1994 that his claim for workers' compensation was accepted and that he began a rehabilitation process with Commonwealth Rehabilitation Service (CRS). He stated that his rehabilitation adviser suggested that he would be able to be retrained and attempts were also made to find alternative employment for him. Unfortunately nothing came of the retraining and that only one job, as a welder, was suggested to him. He was not qualified for this and he of his own volition attempted to find other light employment but was unsuccessful due to his being qualified only for manual work as well as his back injury being an obstacle.

13. The applicant stated that despite his not continuing with the heavy work of a seaman, his back deteriorated steadily over the course of time until mid-1996. He stated that he suffered worsening back pain as a result of doing relatively minor tasks such as picking up light objects, bending, twisting and prolonged sitting or standing as well as when coughing.

14. Before undertaking surgery by Dr Hall, the applicant stated that he had been advised on numerous occasions by Dr Lipert that a variety of activities should be undertaken to ascertain what he was capable of doing. He stated that he continued with his recreational activities including the playing of golf although this was curtailed and he played less often and on shorter courses. His recreational activities were reduced less than prior to the injury in March 1994. He also stated that if in the course of his activities pain developed in his back he would stop. To assist him in his rehabilitation he also was receiving physiotherapy and doing gym work to help him build up the muscles around his back.

15. Whilst in the first year after his injury he played golf approximately monthly, as his back deteriorated he played less golf as it started to aggravate his back more. He undertook the surgery in July 1996 after which he gradually commenced doing more activity which involved the use of his back. He stated that after the operation he continued to modify his movement in order to protect his back and as a result he stated that he observed many of the things which caused him pain prior to the operation were no longer as painful. He further stated that he was able to do more without getting the constant aggravations which he had experienced before surgery and that his recovery was very quick and felt very complete. There was only an occasional dull ache or very minor back pain and he was able to undertake a lot of activities that he avoided.

16. Due to his feeling better after the operation the applicant stated that he made the decision to return to his normal duties as a seaman. He stated that he saw Dr Hall who certified him as being fit to return to sea duties. He further stated that he was also cleared by a navigation doctor recognised by the Australian Maritime Safety Authority (AMSA). As a result he stated he was provided with a certificate with no restrictions to return to work. It was then that he returned to sea duties in about October 1996 with the respondent serving on the "Iron Carpentaria". He continued to work on this vessel until he suffered the injury to his lower back in July 1997 when he went off work and the respondent terminated his employment in October 1997.

17. The applicant stated that the level of background pain in his lower back was worse than since that experienced prior to the surgery. He further stated that in the time since July 1997 the background level of pain experienced has remained relatively constant and that the main change in his condition is that he now suffers aggravations more frequently. He stated that the pain he experiences when his lower back is aggravated seems to be getting worse and the aggravations take longer to get over. He also stated that he has begun to develop further symptoms, such as a tingling feeling in his right foot and has continued to suffer intermittent left leg pain since July 1997 which he associated with pain in his lower back. He stated that since the injury in July 1997 he has continued to experience pain in his right leg and into his foot.

18. The applicant stated that since 1997 he has been restricted in his ability to do an increasing range of activities including mowing lawns, gardening and taking out the basket of washing. He now finds that very minor events can trigger a significant increase in the pain in his lower back and that its condition is about the same prior to the surgery in 1996. He also stated that he now avoids recreational activities of any sort of strenuous nature and has been unsuccessful in finding hobbies which are unlikely to hurt his back. He stated that he has continued to receive ongoing medical treatment and investigation, and has continued to be prescribed medication and other treatment in relation to the injury and/or aggravation of pre-existing injury sustained in the employ of the respondent on 7 July 1997.

dr david john hall

19. Dr Hall, spinal surgeon, in his evidence stated that he first saw the applicant on 27 May 1996 on referral from Dr John Lipert, orthopaedic surgeon. He agreed that he had prepared a number of reports. In giving his evidence he took into account all the information before him including a number of reports to and from other doctors. In his oral evidence Dr Hall acknowledged that in so far as the two incidents are concerned, namely that of 7 July 1997 concerning the lifting of the deck plate, and of 16 July 1998 concerning the hitting of a pothole whilst driving a bus, whilst difficult to determine the relevant contribution by each respectively, he was satisfied that there is some contribution and that these each play some part in the applicant's ongoing condition.

20. He stated that following the surgery in 1996 he reviewed the applicant post-operatively on one occasion on 27 August 1996 where he found the applicant to be making excellent progress. The applicant informed him that the back and right leg pain was completely relieved. The applicant further informed him that there was a good chance of obtaining a job on a ship resulting in his supporting the applicant in his application for such a job. Dr Hall stated that he did not review the applicant again until he attended him on 12 August 1997. He stated that he supported the applicant's return to heavy physical work as a result of the applicant's declaring that the symptoms had completely resolved.

21. He further stated in reference to his letter of 27 August 1996 to Dr G. Crawford (Exhibit A15) that there was no restriction of duties. When he saw the applicant on 27 August 1996 he stated that the applicant was progressing exceptionally well and as a result supported the applicant in applying for the seaman's job. As to the type of duties that could be undertaken on return to sea, Dr Hall stated that it is his practice to recommend that patients use their commonsense and exercise caution in the way they manage themselves.

22. Dr Hall stated that the applicant has at least two degenerate discs in the lower part of his back and others higher up. He further stated that the applicant underwent surgery and that it was to be expected that there would be some degree of ongoing niggling problems. The applicant was able to manage this and get on with his life in an acceptable fashion.

23. In relation to the deck plate incident of 7 July 1997, Dr Hall stated that this incident gave rise to further tearing of the annulus. He explained that the disc is symptomatic and degenerate and that it was not possible to say whether it is a tear in the disc that produces further pain or what it is that causes it. When put to him that Dr Kelly has suggested that because he had not undertaken any radiological investigations in August 1997 he could not have regarded the injury as all that significant, Dr Hall stated that this was not true. He explained that investigations are undertaken for two reasons. The first is to exclude any sinister pathology such as tumours or infection but that the applicant had no presentation consistent with such. Dr Hall stated also that the second reason is that a doctor should undertake investigation when such is likely to alter management leading to surgical intervention.

24. Dr Hall stated that when he saw the applicant the dominant symptom was back pain and at that time he felt investigations were not warranted. He further stated that the fact that an investigation had not been ordered was no reflection of the severity of the symptoms of the time. He also applied this reasoning to the July 1998 injury which he agreed had caused a significant further aggravation.

25. When asked to compare MRI scans which concerned both the July 1997 and July 1998 incidents, Dr Hall stated:

"All that I can say is that some time between those two imaging studies a large disc protrusion had become evident in 1997 - sorry, a large disc protrusion had become evident at L4-5 on a scan in 2000 so some time between those two dates that has occurred. Now, that can occur by a number of means. It can occur as a result of natural degenerative processes without an incident having to cause that. However in this particular case Mr Lavers describes two significant events: one lifting a deck plate in July '97 and another one a significant jarring and jolting injury with a bus over a pothole I think in July '98. I could not honestly differentiate between the two. I think they are both contributing factors in addition to natural degenerative processes."

26. Dr Hall disagreed with Dr Kelly's view (Exhibit R3) as to the mechanism of injury as between the two events and the significance Dr Kelly attaches to the distinction drawn. Dr Hall stated that he regards the event of lifting the steel plate in July 1997 as a significant event. He also stated that the mere fact of the jolting nature of the bus incident in July 1998 does not necessarily render the disc more likely to injury than the heavy lifting incident and nor does the stretching up to replace the windscreen of the bus make any difference.

27. After the July 1997 incident, Dr Hall stated that the applicant had had an epidural injection but this had not helped him. Dr Hall stated in about September 1997 he made the comment that it would not be wise for the applicant to return to normal duties of heavy physical work and instead he should look for light work on a permanent basis.

28. Dr Hall during cross-examination agreed that both events were significant and that he did not consider the July 1997 incident as only a minor event in terms of the aggravation of the applicant's condition. He stated that following the epidural injection and advising the applicant not to return to normal duties but rather look for light work on a permanent basis that this was an indication that the symptoms were regarded as significant. He also stated that the fact he did not order an examination by a radiological investigation at the time was no indication of the severity of the symptoms.

dr nagi guirguis

29. Dr Guirguis is a medical specialist specialising primarily in rehabilitation medicine. In relation to this matter he prepared six reports and saw the applicant on a number of occasions. In his oral evidence he stated, inter alia, that he still adheres to the opinion expressed in his reports. In his report dated 4 December 1998 (Exhibit A4) he stated of the difficulty to apportion between the injuries and that the applicant continues to be incapacitated as a result of the 1997 injury, and that this incapacity has certainly added to the level of the applicant's total incapacity.

30. In his report dated 22 June 1999 (Exhibit A5) he stated, inter alia:

"Mr Lavers has sustained a further acute aggravation of his lower back and right leg pain, that has since been resolving, leaving him with an increased level of pain and disability. It appears from the history and the clinical presentation that his back has become increasingly susceptible to acute aggravation since the aggravation in July 1998, and I believe that his recurring aggravations are caused entirely by the underlying mechanical discogenic abnormality caused by the injury in question. His lower back will remain susceptible to further acute aggravation, and whether these aggravations have resulted in an injury to other discs or an extension of the previous injury of the L5-S1 disc remains to be seen, as he has not received further investigation for his lower back. I believe it would be prudent for him to undergo an MRI scan to assess the current condition, having received the last MRI scan in 1996, prior to the surgery."

He further stated in this report:

"...The aggravation while working for BHP Transport on 7 July 1997 has certainly worsened his condition, resulting in him developing recurring mechanical lower back pain and increased susceptibility for aggravation. It is possible that this particular incident has also aggravated other lumbar intervertebral discs, particularly the L4-L5, which was previously degenerate. He has since required the constant use of MS Contin, which he continued to use until recently. I believe this particular injury has caused an added 10% loss of function of the lumbar spine, and 5% loss of function of the right leg."

31. In his oral evidence Dr Guirguis stated that at the time of preparing his report dated 22 September 1995 (T20) the applicant despite improvement between the aggravations present at that time he continued to have an ongoing problem. He stated that the applicant after undertaking a partial discectomy in 1996 had improved and was able to return to work as a seaman. When asked what he implied by "acute attacks" in his report of 23 June 1997 (T27) Dr Guirguis stated that the description of "acute" refers to sudden onset and not severity and that the applicant was able to work and engage in recreational activities. He compared reports of 1995 and 1997 and the significance of improvement was brought about by the surgery but that following this there was an onward deterioration in the symptoms, namely, sciatica.

32. In his report dated 4 December 1998 (Exhibit A4) Dr Guirguis stated that the applicant continues to be incapacitated as a result of the 1997 injury whilst employed by the respondent, and that this incapacity in his view has certainly added to the level of the applicant's total incapacity. Therefore, when put to him he stated in his oral evidence that any suggestion the applicant was symptom-free would not affect his view. He further stated that a whole picture impression was obtained by his having advised the applicant not to return to duties and that when working at the Penneshaw Youth Hostel, which included the driving of the bus, and where the duties were less physical than when with the respondent, the applicant still continued to having problems.

33. When referring to the incapacity and in particular to the epidural received, Dr Guiguis stated that this would have helped the applicant for a period of time of at least six to eight weeks. He was then asked to consider his comments on permanent impairment set out in his report dated 22 June 1999 (Exhibit A5) and to express his views as to apportionment between the 1997 and 1998 injuries respectively. In reply Dr Guirguis referred to his report dated 19 September 2000 (Exhibit A6). He stated, inter alia, therein:

"To apportion the percentages of disability according to the different incidents, the injury in 1993/94 while working for RW Miller & Co caused 20% disability of the lumbar spine and 5% disability of the right leg. The injury with BHP in 1997 has caused 10% disability of the lumbar spine and 5% disability of the right leg, and the injury sustained while working for the Youth Hostel in 1998 has caused 5% disability of the lower back, and 2½% disability of the right leg. While this apportioning is difficult to undertake, the above figures have been based on the fact that the major injury occurred as a result of the initial injury sustained while working for Miller & Co, with the further aggravations occurring on a background of previous injury."

34. Dr Guirguis in comparing the 1997 and 1998 incidents stated that the lifting of the deck plate (1997 incident) in contrast to hitting the pothole (1998 incident) was more injurious due to the lifting movements, the heaviness of it and the probable twisting. It was put to Dr Guirguis that Dr Kelly in his report dated 17 April 2001 (Exhibit R3) stated that the pothole incident was of much more importance and likely to have caused the current condition rather than the deck plate incident. In response he stated that he could understand how an unexpected movement would cause injury but in his opinion bending and lifting would have more effect. He stated that the putting of more weight in the combined movements of bending, lifting and twisting would have greater effect than an unexpected jolt. When told that the suggestion of twisting was introduced for the first time in his oral evidence, Dr Guirguis stated that if there were present any evidence of twisting then such would add further weight to the 1997 injury. In his view the applicant's ongoing disability is the accumulative effect of all of the four injuries encountered from 1993 to 1998 inclusive.

35. Dr Guirguis stated in his evidence that the applicant has been unable to return to work since the July 1998 injury. The applicant's inability to return to work indicates how severe the pain had become. He did not disregard the fact that the 1998 injury caused further injury and he did not describe it as being a minor aggravation. When asked if the applicant is able to work he stated that the applicant was able to do sedentary work undertaking light duties such as those of a shop assistant, teller and receptionist. However, Dr Guirguis added that the applicant was able to do these jobs provided the applicant was able to move around and not do any lifting.

dr christopher kelly

36. Dr Kelly in his oral evidence stated that it was his belief that the 1997 incident caused a temporary aggravation to the applicant's condition based on the history of the back problem. His view was that the pain became more significant as a result of the 1994 incident which he regarded as the major incident. He adhered to the views he set out in his report of 17 April 2001 (Exhibit R3) wherein he described the July 1998 pothole incident as a very significant one. He supported this by the fact that it must have been a significant jolt to cause the windscreen of the bus to pop out. He said in his evidence that this was a large force going through an already damaged disc. Dr Kelly further felt that the fact that the applicant had been admitted to hospital indicated this injury to be more significant than any other injury.

37. As to the lifting of the deck plate, Dr Kelly stated that that type of lifting essentially could injure a disc and could certainly aggravate the applicant's condition. However, he did not believe the applicant's condition was any different once the initial aggravation had settled down.

38. When asked his view as to why no further investigations were made, Dr Kelly said that Dr Hall chose not to undertake any further investigations and only conservative treatment was required by the applicant. Dr Kelly was of the view that the applicant's injury in 1993 to his lower back which resulted in two months off from work suggested that this was more than a muscular sprain and may have been the start of the disc problem.

39. Dr Kelly stated that when he saw the applicant on 12 March 2001, the applicant was severely restricted as to what he could do. He further stated that the applicant could only do light-lifting tasks and needed to avoid prolonged sitting. He also stated that once a person has a ruptured disc then heavy manual work is impossible.

40. Dr Kelly stated that any symptoms the applicant suffered were by way of aggravation up until he undertook surgery and then he showed signs of improvement. He further stated that after the 1998 injury the applicant's back deteriorated again. Dr Kelly said that it was likely that the 1998 injury constituted an intervening event and the applicant suffered a protrusion of the disc material since the discectomy.

41. When asked during cross-examination if he believed that the applicant's symptoms were the result of all of the four injuries encountered from 1993 to 1998 inclusive, Dr Kelly stated that this was possible. When asked if his opinion was based on history, scans and the views of other doctors, Dr Kelly said "Yes" and added that he is an occupational physician and not a spinal surgeon. Notwithstanding his admission that he was not a spinal surgeon as was Dr Hall, Dr Kelly when asked if he would defer to Dr Hall's pathology stated he would not and that he was quite capable of making up his own mind. At the same time Dr Kelly also stated that he would not expect Dr Hall to certify the applicant unless Dr Hall was satisfied that the applicant was fit for duties, that is, not certify someone to assist them in getting a risky job.

42. Dr Kelly was asked if he assumed the history by Dr Guirguis in his report dated 23 June 1997 (T27/56) was a fairly accurate history of the applicant's symptoms, namely,

"He continues to experience acute aggravations of his lower back and occasional top of legs pain."

Dr Kelly stated that he presumed so and that such was consistent with the applicant's type of injury. Dr Kelly further stated that it was difficult to separate which incidents are significant and that one can only look to examination findings after the incident and of the symptoms following on from there.

43. Dr Kelly stated that he would not have certified the applicant fit to return to sea following the 1994 incident. He also stated that he did not agree with Dr Hall's opinion that the applicant's permanent impairment was contributed to by the 1997 incident and posed the question that if this was the case then why did Dr Hall not undertake further investigations. He was referred to Dr Hall's evidence before the Workers' Compensation Tribunal (Exhibit A11, page 76) in which Dr Hall postulates the third tear in the L4-5 disc with the 1997 incident. Dr Kelly stated that he did not disagree with this and went on to say that Dr Hall refers to both discs being degenerative at that time (Exhibit A11, page 79).

44. Dr Kelly stated that he could not see any difference in the applicant's pre-1997 symptoms and the post-1997 symptoms. He further stated that the applicant's symptoms had been coming and going since 1994 and that he regarded the 1994 incident as being significant. He also stated that the applicant was able to return to work in 1996 and that people who do so often put up with pain. Dr Kelly also stated that it was not possible to demonstrate whether it was possible to go back to work after the 1997 injury.

45. When asked if, when he examined the applicant in 1997 there was present any clinical evidence of symptoms of L4-5 disc protrusion, Dr Kelly stated that there was evidence of disc pain but that it was not possible to pick where the problem existed.

discussion and findings

46. The Tribunal in arriving at its decision has taken the evidence as a whole into account including all of the medical evidence. In considering whether an injury arose out of or in the course of employment, regard must be had to section 9 of the Act, which provides:

"9.(1) This section does not limit the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment.

(2) An injury is also to be treated as having so arisen, for the purposes of this Act, if it happened:

...

(b) if the employee is a seafarer:

(i) while the employee was on board the prescribed ship on which he or she was employed or engaged; or

(ii) while the employee was temporarily absent from that ship during an ordinary recess in that employment and not at his or her place of residence;"

47. Section 3 of the Act provides the definition of "injury" as follows:

""injury" means

(a) a disease; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;"

48. The Tribunal finds on the medical evidence that the applicant's condition is an injury. It is further satisfied and finds that the applicant suffers from an injury within the meaning of section 3 of the Act. As such, to come within the definition of "injury" in section 3 of the Act, it must be "an injury or an aggravation that was contributed to in a material degree by the employee's employment". If this is satisfied then it also falls within the definition of an "injury" for the purposes of section 3. The Tribunal is satisfied that the appropriate test of causation is that of contribution in a material degree.

49. The Tribunal has also considered the various authorities to which it was referred including that of Purkess v Crittenden (1965) 114 CLR 164 at 168 wherein it was stated, inter alia, as follows:

"... We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake (3) was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be."

50. The Tribunal is satisfied and accepts the facts as presented to it and in particular as outlined by the applicant. In then turning to the medical evidence which has been fully considered the Tribunal is quite clear in its preference of the opinion of Dr Hall, who is supported by Dr Guirguis, in preference to that of Dr Kelly. On the balance of probabilities the Tribunal rejects the notion of Dr Kelly that whilst the applicant's symptoms were the result of all of the four injuries encountered by the applicant that the 1997 injury was only a temporary aggravation and that the pain became more significant as a result of the injury in 1994. The Tribunal also rejects his notion that the applicant's condition was not any different once the initial aggravation had settled down and that rather it was the 1998 injury that was the very significant one. This was in contrast to the views expressed by both Dr Hall and Dr Guirguis. The Tribunal has noted that Dr Kelly formed his opinion after examining the applicant on three occasions, whereas Dr Guirguis saw him on about six occasions and Dr Hall on numerous occasions and was the only spinal surgeon treating the applicant.

51. As to whether or not the applicant suffered incapacity or partial incapacity for work at all material times subsequent to 7 July 1997 and in particular beyond 5 October 1997, being the date on which the applicant's employment with the respondent was terminated the Tribunal notes that all three doctors are satisfied that the applicant continues to be incapacitated. Dr Hall agreed that both the 1997 and 1998 incidents remain significant in the applicant's condition. He was of the view that the applicant could not return to normal duties but rather undertake light work.

52. Dr Guirguis maintained that the applicant, notwithstanding the 1998 injury, continues to be incapacitated as a result of the 1997 injury. He was further of the view that the applicant's ongoing disability is the accumulative effect of all the four injuries encountered from 1993 to 1998 inclusive. As to the applicant's ability to work he stated that the applicant was able to do sedentary work undertaking light duties such as those of a shop assistant, teller or receptionist provided that there was the ability to move around and not to do any lifting.

53. Dr Kelly found the applicant to be severely restricted as to what he could do and that heavy manual work was not an option. He also stated that any work the applicant undertook could only allow light lifting tasks and that prolonged sitting should be avoided.

54. The Tribunal is satisfied and accepts that the medical evidence clearly indicates the applicant to have an ongoing incapacity, be it partial, and that he his able to undertake work notwithstanding that it is restricted as to the type of work he can undertake and that such has been and remains the case since the termination of his employment.

55. Accordingly, the Tribunal, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, sets aside the decision under review and in substitution therefor determines that the applicant suffered an injury within the provisions of the Act, which was contributed to in a material degree by his employment with the respondent and subsists beyond 5 October 1997, as a result of which he remains partially incapacitated. The Tribunal also determines that the respondent is liable to pay compensation and medical expenses to the applicant as well as costs of these proceedings incurred by the applicant. The Tribunal is mindful that at the conclusion of the hearing, Mr Wallace of counsel, requested that in the event of the Tribunal finding for the applicant, that he be heard as to the question of costs. In the absence of agreement between the parties, costs are to be taxed by a Deputy Registrar of the Tribunal and liberty to apply is reserved to both parties.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Dr J.T.B Linn, Member.

Signed: (Signed)

Barbara Armstrong, Associate

Date/s of Hearing 6 December 2001, 7 December 2001 &

11 December 2001

Date of Decision 28 June 2002

Counsel for the Applicant Mr M. Saies

Solicitor for the Applicant Palios Meegan & Nicholson

Counsel for the Respondent Mr J. Wallace

Solicitor for the Respondent Blake Dawson Waldron