Pascal and Australian Postal Corporation [2002] AATA 609 (25 July 2002)

Last Updated: 26 July 2002

DECISION AND REASONS FOR DECISION [2002] AATA 609

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N 2000 / 1765

GENERAL ADMINISTRATIVE DIVISION )

Re Michael Pascal

Applicant

And Australian Postal Corporation

Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr P D Lynch, Member

Date 25 July 2002

Place Sydney

Decision The decision under review is set aside pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides: (i) Mr Pascal has suffered an injury as defined in Section 4 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and is entitled to compensation in relation to his lower back injury pursuant to section 14 of the Act. (ii) Mr Pascal has ongoing incapacity as a result of his workplace injuries and is entitled to weekly payments of compensation pursuant to section 19 of the Act from 9 November 2000 to date and continuing. (iii) Mr Pascal is entitled to compensation pursuant to section 20 of the Act from 9 November 2000 and continuing. (iv) Mr Pascal is entitled to the payment of costs for reasonable medical expenses and treatment pursuant to section 16 of the Act. (v) In relation to the matter of permanent impairment, Mr Pascal has a 15 per cent whole person impairment of the thoraco-lumbar spine pursuant to Table 9.6 of the "Guide to the Assessment of the Degree of Permanent Impairment" ("the Comcare Guide"). The assessment of the appropriate whole person impairment of the left leg under Table 9.5 of the Comcare Guide is remitted to the Respondent as is the assessment of the combined whole person impairment under Table 14.1 to determine if Mr Pascal is entitled to an increase in permanent impairment pursuant to subsection 25(4) of the Act. (vi) Mr Pascal is entitled to compensation for non-economic loss compensation pursuant to section 27 of the Act. (vii) The Respondent is to pay for Mr Pascal's reasonable legal costs as taxed or agreed.

..............................................

Ms S M Bullock

Presiding Member

CATCHWORDS

AUSTRALIAN POSTAL CORPORATION - Workers Compensation - Back Injury - Aggravation - Incapacity - Medical Expenses - Permanent Impairment

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 19, 20, 24, 25, 27

AUTHORITIES

Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19

Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537

Martin v Australian Postal Corporation (1999) 29 AAR 420

Tippett v Australian Postal Corporation (1998) 27 AAR 40

Commonwealth v Beattie (1981) 53 FLR 191

REASONS FOR DECISION

25 July 2002 Ms S M Bullock, Senior Member Dr P D Lynch, Member

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Michael Pascal ("the Applicant") of a reviewable decision dated 3 November 2000 (T191), made by the Respondent, the Australian Postal Corporation Ltd. The reviewable decision affirmed the decision of a delegate of the Australian Postal Corporation made on 26 October 2000 (T188) to cease Mr Pascal's compensation payments for his back injury on and from 9 November 2000.

2. A hearing was held in Sydney on 30 November 2001. Mr Pascal provided oral evidence to the Tribunal. Evidence was provided by telephone by Dr G Carr, Rheumatologist. Mr Pascal was represented by Mr P Jeffriess of Counsel and the Respondent was represented by Mr B Skinner of Counsel. The Tribunal took into evidence documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T193) and the following exhibits:

Exhibit No. Description Date

A1 Report and Supplementary Report of Dr J S Scougall, Orthopaedic Surgeon 4 June 2001

A2 Report by Dr D Li, General Practitioner Undated

R1 Report by Dr N W McGill, Consultant Rheumatologist 30 August 2001

R2 Clinical Notes of Plumpton Marketplace Medical Centre in relation to Mr M Pascal Various

LEGISLATION

3. A decision in this matter requires consideration of the provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").

4. Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of "injury" under subsection 4(1) of the Act which states:

"4 Interpretation

(1) In this Act, unless the contrary intention appears:

...

"injury" means:

(a) a disease suffered by an employee; or

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

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

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

..."

5. Section 14 of the Act deals with compensation for injuries and as relevant states:

"14 Compensation for injuries

(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

...."

6. Section 16 of the Act deals with compensation for medical and other expenses and as relevant states:

"16 Compensation in respect of medical expenses etc.

(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 determines is appropriate to that medical treatment.

(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.

(4) An amount of compensation payable by Comcare under subsection (1) is payable:

(a) to, or in accordance with the directions of, the employee;

(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost--to that other person; or

(c) if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation--to the person to whom that cost is payable.

(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.

..."

7. Section 19 of the Act deals with compensation for injuries resulting in incapacity.

8. Section 20 of the Act deals with compensation for injuries resulting in incapacity where the employee is in receipt of a superannuation pension.

9. Section 24 of the Act deals with compensation for injuries resulting in permanent impairment and states:

"24 Compensation for injuries resulting in permanent impairment

(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 impairment is permanent, Comcare shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d) any other relevant matters.

(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6) The degree of permanent impairment shall be expressed as a percentage.

(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.

..."

10. Subsection 25(4) of the Act deals with possible increases in a permanent impairment assessment after an initial determination has been made. Subsection 25(4) of the Act states:

"25 Interim payment of compensation

...

(4) Where Comcare has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.

...."

11. Section 27 of the Act deals with compensation for the non-economic loss and states as relevant:

"27 Compensation for non-economic loss

(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.

(2) The amount of compensation is an amount assessed by Comcare under the formula:

[$15,000 x A] + [$15,000 x B]

where:

A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and

B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.

..."

ISSUES

12. The issues in this matter are:

(a) Whether or not Mr Pascal continues to be incapacitated for work because of a back injury sustained on 27 October 1995 and whether or not he is entitled to weekly compensation payments from 9 November 2000.

(b) Whether or not Mr Pascal is entitled to ongoing medical expenses under the provisions of section 16 of the Act from 9 November 2000 and continuing.

(c) Whether or not Mr Pascal is permanently incapacitated beyond ten per cent impairment which has already been accepted by the Respondent.

EVIDENCE OF MR MICHAEL PASCAL

13. Mr Pascal told the Tribunal that he was born in Mauritius on 8 May 1944 and came to Australia in 1969. He attended school until age sixteen years and then trained and worked as a welder in Mauritius. Mr Pascal is married and has two children, aged at the time of hearing, 23 and 25 years. Mrs Pascal works full-time.

14. In Australia, Mr Pascal had a variety of jobs including as a process worker at the Royal Mint in Perth and the Egg Marketing Board in Western Australia. He continued this processing-type work in Sydney in the 1970s. Mr Pascal then worked for seven years as a clerical assistant in the then Corporate Affairs Commission. He returned to Perth, working as a process worker and as a contract cleaner. Back in Sydney in 1992, Mr Pascal worked as a process worker in a brake manufacturing company. Mr Pascal commenced work with Australia Post in late 1992. He initially worked as a part-time cleaner, working for a few months at the rate of five hours per day, five days per week. Mr Pascal stated that he commenced work in the Support Services Section of Australia Post located at the Leightonfield Mail Centre. Mr Pascal commenced full-time work, Monday to Friday, commencing at 6am until 1.45pm. He had morning tea at approximately 8am.

15. The Support Services job involved him collecting, sorting and cleaning reusable items which had been sent back to the Leightonfield Mail Centre from various Australia Post offices. The items were then sent back to those post offices. Mr Pascal explained that "ULD's" or crates would arrive at the Mail Centre containing the reusable items in mail bags and trays. These ULD's were basically a metal cage, one and a half metres wide by two metres long with the sides one and a half metres high. The ULD was made of thick metal mesh, with the floor made of solid steel. The sides had a metal gate which was folded down to allow the contents to be retrieved. The crates would contain a number of items including bundles of missorted mail and mail bags containing various other reusable items including empty mail bags which needed to be cleaned. Sometimes the crates would also contain pieces of wood, Mr Pascal stated.

16. Mr Pascal informed the Tribunal that he had experienced back pain approximately 27 years ago. The pain lasted about two or three hours and Mr Pascal attended his local doctor who told him to go home and rest. Mr Pascal went to work the next day and had no treatment or physiotherapy.

17. Mr Pascal told the Tribunal that apart from that pain, he had no other back pain before he joined Australia Post. In cross-examination, Mr Pascal recalled that seven years ago, there was an incident involving his back when he lived in Perth. He stated that he "slipped" his disc when he was lifting a carton of beer. Mr Pascal later stated that on 31 October 1995 he may have told Dr Lim, his General Practitioner that in 1970 he experienced back pain when lifting a beer carton (Transcript pp 35,36). Mr Pascal was questioned about an incident recorded in Dr Lim's clinical notes, in which it was recorded that on 14 November 1994, Mr Pascal had back pain after lifting his daughter who had fainted. Dr Lim indicated that Mr Pascal was given a medical certificate for two days off work. Mr Pascal told the Tribunal that he did not accept that he had hurt his back in 1994 lifting his daughter and as recorded by Dr Lim. Mr Pascal did not know why Dr Lim would record this in his clinical notes. Most recently, Dr D Li, General Practitioner, noted in an undated report that Dr Lim, who was at the same Plumpton Marketplace Medical Centre, had recorded that on 14 November 1994, Mr Pascal had consulted Dr Lim and complained of back pain after lifting his daughter after she had fainted (Exhibit A2).

18. Similarly, Mr Pascal did not recall having problems with his knees following a fall at work, when he reported to his doctor that he had pain and could not get himself out of bed. Mr Pascal did not recall any problem in his back, thigh or having any trouble bending or getting out of bed, which is also recorded as having been reported to Dr Lim in June 1995 or that he had x-rays taken of his lower spine.

19. Mr Pascal described the incident, the subject of this review, which occurred on 27 October 1995. Mr Pascal stated that he was performing his usual duties in the Support Services Section at the Leightonfield Mail Centre, unloading the ULD's. Mr Pascal had unloaded all but one mail bag, which is known as the "No. 9 yellow or jumbo mail bag" which was completely full of folded up empty mail bags. Mr Pascal believed that the weight of this jumbo bag was 40 or 50 kilograms. Mr Pascal lifted the bag and felt something inside his back - he felt "that my back was gone" (Transcript, p15). It was not the same pain, Mr Pascal stated, as that which he had felt 27 years ago. The pain was lower. Mr Pascal told the Tribunal that he felt unable to get to his feet, later saying that he was actually sitting down, pulling the mailbag out of the ULD. Mr Pascal stated that he called his supervisor, Mr Tony Shewan. He rested for an hour until morning teatime at about 8am. Mr Pascal stated that his back was still painful. He completed a claim form before leaving work and attending his General Practitioner, Dr Lim. Dr Lim provided a medical certificate for a week off work. No treatment was prescribed but Mr Pascal had an x-ray on 27 October 1995. Dr Lim later referred Mr Pascal to an Orthopaedic Surgeon (T160), Dr A L G Smith, who Mr Pascal consulted on 8 November 1995 (T9).

20. Mr Pascal stated that on 27 October 1995, he told Dr Lim about the incident at work. Mr Pascal denied that he had not told Dr Lim about their being a specific incident at work. He agreed that he had told Dr Lim in October of his previous back injury in Perth in 1970. Mr Pascal stated that he again consulted Dr Lim on 31 October 1995. Mr Pascal did not recall telling Dr Lim at that time about the lifting of beer cases in Perth in 1970. Mr Pascal denied that what he wrote in the claim form was false. He did not agree that the true situation on 27 October 1995 was that pain started in his back at the end of the day and that in fact nothing specific had happened at work. Furthermore, Mr Pascal could not recall telling Dr Lim on 27 October 1995, that he had had previous back problems or that he had slipped a disc in Perth. Mr Pascal reiterated to the Tribunal that he had a back problem some 27 years ago.

21. As a result of the October 1995 injury to his back, Mr Pascal was affected in terms of what he could do around the house. Prior to that date, he would undertake the cooking and cleaning and the lawn mowing. After the October 1995 incident, Mrs Pascal took over the cooking and cleaning and their son did the mowing. Mr Pascal stated that he has not been able to return to any of these duties.

22. Mr Pascal denied not telling Dr Smith on his first consultation with him of a specific incident when he was required to remove a mailbag from an ULD, rather saying his back pain developed during the course of duties bending and lifting at the Leightonfield mail centre. Furthermore, Dr Smith had recorded back pain twenty years ago from which Mr Pascal was noted to have recovered. Mr Pascal did not tell Dr Smith about the 1994 incident lifting his daughter or the June 1995 problems getting out of bed.

23. Mr Pascal told the Tribunal that Dr Smith prescribed "Valium" and "Panadeine Forte". Mr Pascal also recalled that he had physiotherapy for one week, the week before he returned to work. He was referred for an MRI Scan of his back on 8 November 1995 at which time his back was still very painful. Mr Pascal noted that physiotherapy helped him whilst he was having the treatment but the effects of this treatment did not last and once he had returned home, the pain was to the same intensity as it had been prior to the physiotherapy. Mr Pascal told the Tribunal that he returned to work on light duties as recommended by Dr Smith but when no further light duties work was available, he returned to normal duties. Whenever Mr Pascal had any lifting, pulling or any physical work to do, he would ask the assistance from his supervisor, Mr Shewan, who Mr Pascal stated was a great help to him. Mr Pascal's duties at that time included taking phone orders from post offices. At work, Mr Pascal was taking "Panadeine Forte", two tablets when he started work each day. Sometimes he would take another "Panadeine Forte" tablet during the day. Mr Pascal stated that he was in pain when undertaking his normal duties.

24. Mr Pascal told the Tribunal that he continued to work at Australia Post with pain until early 1996. At the end of April 1996, Mr Pascal had two weeks off work because of the pain in his back and because he was very sore. After two weeks, he went back to work to normal duties working until March 1997. Mr Pascal stated that he continued to be in pain but he did his job.

25. Mr Pascal thought that between November 1995 and March 1997, his back was improving for a time but then it worsened. Thus, in January 1997, he was taking the medication "MS Contin", a narcotic analgesic, for his pain. He was also prescribed "Valium". Mr Pascal stated that he was not sleeping because of his pain and medication helped him with his sleeping pattern. Specifically, Mr Pascal noted that he was not sleeping in 1996 and continuing on from that time.

26. Mr Pascal told the Tribunal that there was another incident at work in February 1997. He was working in the loading dock when he was hit by an ULD carried by a fork lift truck. The ULD hit him in the middle of his back and he remembered being dazed. Mr Pascal developed a headache and lower back pain. The headache eventually subsided but the back pain stayed. Mr Pascal stated that he did not take any time off work after this accident. He kept working until the end of March 1997. At that time, Mr Pascal was given another referral by his General Practitioner to Dr Smith. Mr Pascal reported that his back was hurting at about the same level. He was certified unfit for work and had seven months away from his work duties. Mr Pascal noted that there was nothing specific that he could recall which caused his General Practitioner to refer him to Dr Smith at that time. By mid 1997, Mr Pascal reported pain down the side of his left leg but he believed that there was in fact pain down the left leg prior to March 1997.

27. Dr Smith admitted Mr Pascal to hospital and undertook a manipulation under anaesthetic. Mr Pascal was also injected at that time with a pain killing or nerve block agent. Mr Pascal was provided with a "knight's brace" which he wore every day for years, taking it off at night. Mr Pascal told the Tribunal that he did not believe that the brace assisted him.

28. In October 1997, Mr Pascal returned to work. He stated that he was still in pain but that he was undertaking duties in the Technician's Room, working on computers for approximately three months. Mr Pascal was then sent to the "Bulk Work Room", undertaking clerical office duties. Mr Pascal told the Tribunal that he coped with his work until December 1998 and then took five weeks holiday into early 1999. Mr Pascal was not ready to return to work after this holiday period as his back was sore. He was successful in obtaining a further three weeks leave from work. Mr Pascal returned to work on 23 February 1999. He stayed at work for one or two days and then had to leave because of his extremely painful back. Mr Pascal made a claim for compensation. He has not worked for Australia Post since that time or for anyone else. Mr Pascal told the Tribunal that his back was worse in 1998 than it was in 1997, noting there had been a slow change.

29. Mr Pascal continued to consult Dr Smith, who prescribed his medication. In the December 1998 holidays, Mr Pascal was taking the medication "Valium" and "MS Contin". Mr Pascal did not take sleeping tablets as the "MS Contin" made him drowsy. Mr Pascal stated that he had also ceased taking the medication "Voltaren".

30. Up until February 1999, Mr Pascal had been paid compensation for his absences from work. There were threats to cut him off from workers compensation which finally became a reality on 9 November 2000.

31. Mr Pascal told the Tribunal that he still consults Dr Smith approximately once per month. Dr Smith wants him to have an operation and initially, Mr Pascal did not agree to a procedure. Currently Mr Pascal is equivocal about whether or not to have an operation. Dr Smith has continued to prescribe medication for him including "Mersyndol Forte" which was prescribed over the last six months.

32. Mr Pascal has also consulted a psychologist, Mr B McGuire. Mr McGuire discussed strategies of dealing with pain with Mr Pascal. Mr Pascal was provided with some exercises to help manage his pain but he has not kept them up since late 1999 because the exercises are too painful.

33. In April 1999, Mr Pascal was admitted into Blacktown Hospital, he told the Tribunal. At that point, he had had no bowel motions or been able to urinate for three days. Mr Pascal spent sixteen days in hospital. There was found to have been a bowel obstruction which was treated and Mr Pascal has not suffered any problems since.

34. Mr Pascal told the Tribunal that since February 1999, he considers that his back condition has further worsened. He is also in more pain in his left leg and the left leg, according to Mr Pascal, is smaller and has lost weight. Mr Pascal cannot sleep properly and pain has commenced in his right leg. The pain in Mr Pascal's lower back is there constantly. He now must use a walking stick, and this has been the case since April 1999. If Mr Pascal does not have the support of the walking stick, he will fall over. Mr Pascal told the Tribunal that he could not return to work at Australia Post now because his back condition is so bad.

35. Mr Pascal spends his days watching television, reading the newspaper and occasionally visiting his daughter. Mr Pascal can drive a car but only short distances, for example, driving his wife to work which takes ten minutes. Mr Pascal did not know whether he could drive further. Mr Pascal sat in the Tribunal for approximately one hour but stated that he needed a break from sitting.

36. In terms of walking, Mr Pascal does not undertake this activity very much these days. He had tried a few months to go for a walk but had to return home because he was in such pain. Mr Pascal estimated that he can walk 50 or 60 metres up his street.

37. Before 1995, Mr Pascal used to play soccer, cricket and petangue but had to stop these sporting activities because of his lower back condition. Mr Pascal also used to regularly go on picnics with his family and members of the Mauritian community.

38. Mr Pascal differentiated the pain in his back to that he experienced in his left leg. Mr Pascal described the pain in his back as an aching type pain while the pain in his leg is stabbing or sharp pain. Mr Pascal stated that he first noticed the leg pain in April 1999 in Blacktown Hospital.

39. Mr Pascal told the Tribunal that he had also undertaken physiotherapy and the physiotherapist had noted that he had improved with the exercise program. Mr Pascal stated that he initially did very well and then the physiotherapist told him that he should loose some weight. He would be involved in lifting certain weights which would then eventually increase. This caused him pain. While he was trying to comply with the exercise he found that there was pain all the time and he would then go home and find himself in great pain. Mr Pascal undertook stretching exercises at home after he had completed the physiotherapy program but he ceased this activity because of the pain it caused.

40. Mr Pascal was asked about his clinical examination by Dr G Carr, Rheumatologist, who reported on 22 June 1998 that following an incident at work on 27 October 1995 when Mr Pascal was bending to lift a bag containing 30 kilograms of empty bags from the bottom of an ULD container, he had experienced lower back pain some 15 to 20 minutes after. The history reported by Dr Carr was that Mr Pascal told him that he had three weeks off work, saw his General Practitioner, Dr Lim, had physiotherapy for a week but after three weeks his back seemed to "settle one hundred percent" (T84). Mr Pascal told the Tribunal that he could have told Dr Carr this. He explained however that his back settled but then it got worse after two or three months. Dr Carr noted however that Mr Pascal reported to him that there was no back problems but by mid 1996 he was experiencing some back symptoms gradually worsening as he was doing the same job of bending and lifting.

41. Mr Pascal told the Tribunal that sometimes it is very hard for him to remember and he forgets things which happened a long time ago. He had done his best to recall events as they had happened and reported these to the doctors to the best he could. It was noted that during the period under question, his medication included "Panadeine Forte", "MS Contin", "Valium" and sleeping tablets. He was feeling distressed over the years since 1995 about his condition and with this medication the pain and the emotional factors involved with his back condition, it made it hard for him to remember things well (Transcript, p57).

Evidence Of Dr G Carr, Rheumatologist

42. Dr Carr provided oral evidence to the Tribunal. He had also provided a report to Australia Post dated 22 June 1998 (T84). Dr Carr noted that Mr Pascal told him that he had not had any lower back pain until 1995. However Dr Carr had noted various radiological studies which indicated that there was no doubt that Mr Pascal has advanced L4/5 and moderately advanced L5/S1 degenerative disc disease. Dr Carr concluded that any effects of employment from the 27 October 1995 incident on Mr Pascal's back would provide a temporary aggravation only as Mr Pascal had well entrenched degenerative disc disease.

43. In relation to the specific incident on 27 October 1995, Dr Carr stated that Mr Pascal did not mention any specific lifting event referable to that date. The history provided to Dr Carr was consistent with the history recorded by Dr Lim, General Practitioner, who reported that there was no specific injury on 27 October 1995 but by the end of that day, Mr Pascal had very bad lower back pain radiating to his left or lower buttock. Dr Carr was referred further to Dr Lim's recorded history of Mr Pascal having previous back injury, notably a slipped disc in Perth which related to a lifting injury in 1970. Dr Carr agreed that the presentation he saw in his rooms on 22 June 1998 was consistent with Mr Pascal having lower back pain before October 1995.

44. In relation to the radiological examinations, Dr Carr stated that he thought Mr Pascal's back condition was more advanced than was commonly found for people of his age. Dr Carr noted that he had seen both the CT and MRI scans and that the MRI scan suggested that the degenerative changes were less than perhaps shown in the CT scan.

45. The findings on the MRI scan fitted better with the radiological report which indicated that the degenerative changes in the lumbar spine were consistent with the degree commonly found in people of Mr Pascal's age.

46. Mr Jeffriess noted for Dr Carr that Mr Pascal's evidence at hearing is that he had ongoing pain and restriction in his back from the injury on 27 October 1995 and that these symptoms were continuing. Furthermore, Mr Jeffriess told Dr Carr that Mr Pascal was continuing to take significant amounts of medication including "Panadeine Forte" on a daily basis, "MS Contin" and "Valium" and other medication including sleeping tablets because Mr Pascal was unable to sleep because of his back pain. Given that evidence, Dr Carr was asked whether or not that would lead him to the conclusion that rather than being a temporary aggravation which had ceased, that the aggravation caused by the injury on 27 October 1995 had indeed continued up until the time Dr Carr saw him in 1998. Dr Carr noted that if the evidence was correct then he would consider that there was a continuing problem but he could not reconcile this with the evidence given to him by Mr Pascal that his back pain settled one hundred per cent after the October 1995 incident. Dr Carr noted that it was a very specific question he had asked Mr Pascal and he asks this of all his patients. The answer is either "yes" or "no". That answer caused Dr Carr to opine that the incident on 27 October 1995 caused a temporary aggravation. Dr Carr noted that he would still, on the evidence provided to the Tribunal by Mr Pascal, need to be satisfied about a number of things. Dr Carr would look to the local doctor's documentation at consultation and of there being records of ongoing pain week after week, month after month and that the medications were being used continuously.

47. In relation to Mr Pascal's evidence that he had a "slipped disc", Dr Carr noted that this term is often used by patients and lay people, more than medical practitioners. Dr Carr noted that back pain is common in the workforce and 95 per cent of incidents of back pain resolve within five to six weeks. On the history that Mr Pascal provided to Dr Carr, this was not suggestive of Mr Pascal having a prolapsed disc. The history provided to Dr Carr was that Mr Pascal was standing and bending to lift a bag containing approximately 30 kilograms of empty mailbags from the bottom of an ULD but that he had no pain at that time and it was only after 15 or 20 minutes later that, with recurrent bending, Mr Pascal had backache. There was no history or evidence provided to Dr Carr of radicular pain.

48. Dr Carr noted that with this disease, it is said that MRI scans and CT scans are both equally good for looking at degenerative changes in the lumbar spine. There was, in Mr Pascal's case, a variance between the two reports but when Dr Carr considered the films of the CT scan, he was convinced that there were quite significantly advanced degenerative changes. Dr Carr noted that he was very used to looking at CT scans of the lumbar spine and there was no doubt with Mr Pascal that he was experiencing canal stenosis suggesting long standing disc disease from disc degeneration, perhaps previous disc injury. There was also a finding of secondary facet arthritis.

49. Dr Carr noted that a disc lesion can occur superimposed on a degenerative disc. In other words, these two conditions are not mutually exclusive and it is possible that a person could suffer a lesion to which he or she was predisposed by degenerative change. In Mr Pascal's case, the instance at work could be a precipitating factor for the lesion and this can be the case when there is a degenerative disc.

Evidence Of Dr J S Scougall, Orthopaedic Surgeon

50. Dr Scougall provided a report and supplementary report dated 4 June 2001 (Exhibit A1).

51. In his report, Dr Scougall described an incident on 27 October 1995 in which Mr Pascal was cleaning out mailbags and boxes from an ULD when he developed back pain whilst lifting a bag which was unexpectedly heavy. Dr Scougall reported that Mr Pascal had to momentarily pause but he continued to work despite the persistence of back pain. The history provided to Dr Scougall further noted that Mr Pascal rested and stopped work before the end of the shift. He saw Dr Lim and was later referred to Dr A G L Smith, Orthopaedic Surgeon. Dr Scougall noted Mr Pascal was certified unfit for work, had physiotherapy and at the end of three weeks was certified fit for light work. He was told that there was no light work available for him and returned to his pre-injury work and hours, taking one "Pandeine Forte" tablet every morning. Dr Scougall noted that three or four months later, because of the persistence of back pain and some increase in it, Mr Pascal had to cease work again for a further two or three weeks, returning at the end of that time to his usual work and hours whilst still experiencing back pain. Mr Pascal continued at work with his back pain causing him increasing difficulties. At some time in 1997, Mr Pascal was transferred to a clerical position. Mr Pascal then remained at work until the end of 1998, still experiencing back pain. Mr Pascal then went on five weeks annual leave with a three weeks extension. At the end of that time the history provided to Dr Scougall was that Mr Pascal may have returned to work for a day or two. He then ceased work and has not worked since, a period of two and a half years. During the two and a half years prior to Dr Scougall's examination, Mr Pascal was reported to have had an injection into his back, a manipulation and also physiotherapy, all without much benefit.

52. On examination, Dr Scougall noted the pain in Mr Pascal's back is across the lower back. Mr Pascal reported the pain is present constantly although it varies in intensity for no apparent reason. Mr Pascal protects his back by avoiding activities requiring him to bend or lift as these aggravate his back pain. He stated that he was unable to pick up even a light article from the floor. Lying down does not help Mr Pascal's back pain. He can walk within the confines of his own home for short distances without a walking stick. However, when Mr Pascal goes out and is walking for a longer distance, he uses a walking stick for support. With the aid of the walking stick, he can only walk for five or ten minutes, pain in his left leg limiting him. The pain in Mr Pascal's left leg is felt throughout the whole of that leg including the thigh, calf and foot. Pain in Mr Pascal's right leg is felt in the back of his thigh, generally in his knee, sometimes at the front of the thigh and in his calf to his ankle. The pain in Mr Pascal's left leg is present all the time whereas the pain in the right leg is felt from time to time but at least sometime during every day. Mr Pascal had reported to Dr Scougall that his leg pain had commenced in or about 1998 and is made worse by the same activities that make his back pain worse. Dr Scougall noted that Mr Pascal denied having had any further injuries since the one described in October 1995. There was back pain prior to October 1995 and in this regard, Mr Pascal reported to Dr Scougall that he had lost "one or two" days from work. Those episodes of back pain had first commenced in the 1970s. Mr Pascal denied having any leg pain before the onset of the pain occurring in association with his back pain from the 27 October 1995 incident. Mr Pascal denied having any related illnesses, accidents or operations in the past.

53. At home, Mr Pascal does light cleaning and sometimes goes shopping with his wife or son, Dr Scougall reported. Mrs Pascal undertakes the cooking. Mr Pascal does not do any gardening. He drives a car but frequently this aggravates his back pain. Dr Scougall noted that Mr Pascal is having a quiet and lonely life at present which has been the case for the past two years. Dr Scougall noted that Mr Pascal is very much overweight. He has a restricted range of movement of his neck and shoulders, the restriction apparently related to fear of aggravating his back pain. Back movements were limited to about half the normal range in each direction. Mr Pascal stood with his left hip abducted and he walked with a marked limp. He complained of tenderness over his lower lumber spinous processes.

54. Dr Scougall noted the CT and MRI scans which show the presence of some degenerative changes, the extent of those changes not being remarkable. The scans also showed some bulging to the right of centre of the L4/5 disc with some hypertrophy of the ligamentum flavum at that level, and some associated degenerative changes, those features combining to give Mr Pascal some spinal stenosis. The examinations also showed a small disc bulge at the L5/S1 level.

55. Dr Scougall opined that Mr Pascal has chronic soft tissue lesions in his lower back. These legions are the cause for his back and bilateral leg symptoms. The leg pain is probably radicular in origin and due to nerve route irritation from those chronic soft tissue lower back lesions. Dr Scougall further opined that the findings indicate that the instance at work in October 1995 was a substantial contributing factor for the development of lower back lesions. Dr Scougall noted that it is also likely that Mr Pascal had some degenerative changes at the L4/5 level prior to the incident described and the findings are consistent with his statement that the lesions had been asymptomatic. Accordingly, Dr Scougall concluded that the lesions were aggravated when Mr Pascal lifted a bag that had been unexpectedly heavy.

56. Regarding Mr Pascal's fitness for work, Dr Scougall noted that he is unfit for work requiring bending and moderate lifting. Therefore, Mr Pascal is unfit for his pre-injury work which over the years has been physically demanding. Mr Pascal would be fit for sedentary work, Dr Scougall commented.

57. In relation to treatment, Dr Scougall noted that Mr Pascal should loose a substantial amount of weight and should continue to protect his back and avoid unnecessary activities which aggravate his back pain. The problem at present is not a surgical one, Dr Scougall opined. Should Mr Pascal develop findings of neurological abnormality in his lower limbs, then he may be a candidate for decompression lamenectomy.

58. Under Table 9.6 of the Comcare Guide, Dr Scougall concluded that there was a 15 per cent whole person impairment. If there was to be a decompression lamenectomy, the cost would be $4,467.00 to which would need to be added the fee for an Assistant (about one fifth of Surgeon's fee), and the fee for an anaesthetic (just under one half of the Surgeon's fee). Mr Pascal would be unfit for work, if he was working, for a period of 12 weeks.

Evidence Of Dr D Li, General Practitioner

59. Dr Li provided an undated report in relation to Mr Pascal (Exhibit A2). Dr Li noted that Mr Pascal had been a patient of the Plumpton Marketplace Medical Centre since 24 August 1994. In Mr Pascal's notes held by the practice, it was reported that on 12 October 1994, Mr Pascal consulted Dr Lim for a work-related problem of his left knee when he fell on his left patella. On 14 November 1994, Mr Pascal consulted Dr Lim and complained of back pain after lifting his daughter after she had fainted. On 27 October 1995, Mr Pascal consulted Dr Lim and Dr Lim recorded that Mr Pascal gave a history of prior back injury. He complained to Dr Lim about his right knee problem. Mr Pascal also complained that at the end of the day of work, he experienced very bad lower back pain radiating to his left buttock. Mr Pascal did not specify any particular injury as a cause of his back pain. Examination by Dr Lim showed tenderness in the L5/S1 region.

60. Dr Li noted that on 30 October 1995, 1 November 1995 and 5 November 1995, Mr Pascal consulted Dr Lim and complained of pain in his back, left buttock and anterior aspect of his left thigh. Mr Pascal was noted to have felt that because of his left knee pain, he was unable to bend his knee which, in turn, aggravated his back pain whilst lifting. Dr Lim recommended physiotherapy, prescribed analgesics and organised a CT scan. Dr Lim further referred Mr Pascal to Dr Smith, Orthopaedic Surgeon. A CT scan on 2 November 1995, showed that at the level of L4/5, there was a moderate size right paramedian disc protrusion causing indentation of the right anterior aspect of the thecal sack. There was also mild to moderate changes of the spinal stenosis at this level. At the L5/S1 level, there was some moderate size broad-based disc protrusion. Facet joint degeneration was noted.

61. The notes further recorded that on 8 November 1995, Mr Pascal consulted Dr Smith who was of the opinion that while Mr Pascal was performing the duties of lifting and bending that this aggravated his existing back problem and he expected Mr Pascal to recover with appropriate conservative treatment.

62. It was noted that on 12 November 1995 and 16 November 1995, Mr Pascal consulted Dr Lim and discussed work duties. He was prescribed Voltaren suppositories for his pain. On 29 April 1996, 1 May 1996, 3 May 1996 and 5 June 1996, Mr Pascal consulted Dr Trinh for exacerbations of his back pain.

63. Mr Pascal further consulted Dr Trinh on 20 May 1997 and 26 May 1997 and was treated with acupuncture. Further consultations were made with Dr Trinh concerning back pain and pain in the right and left thigh on 4 June 1997, 7 July 1997 and 30 July 1997. Mr Pascal was referred for an MRI and bone scan. On 8 August 1997, Dr Trinh reviewed Mr Pascal. The bone scan showed facet joint arthritic change of the lumbar spine, particularly involving the L4/5 facet joint. There were also degenerative changes in the right knee. The MRI scan on 1 August 1997, showed abnormality of the L4/5 disc with scattered areas of increased water content with associated irregularities of the L4/5 end plates and possible elevation of the posterior longitudinal ligament. The overall features were suggestive of discitis. Mr Pascal further consulted Dr Trinh for back pain on 6 November 1997, 5 December 1997, 19 December 1997 and 6 January 1998. He was again prescribed "Panadeine Forte", "Aspalgin" and was treated with a TENS machine.

64. On 24 February 1998, 25 February 1998, 9 March 1998, 16 March 1998, 11 April 1998, 17 April 1998, 22 April 1998, 24 April 1998, 1 May 1998, 7 May 1998, 11 May 1998 and 29 May 1998, Mr Pascal attended the medical centre consulting variously with Dr Datt, Dr Trinh and Dr Sipeli and was prescribed "Panadeine Forte", "Prothiadene", "Feldene", "Valium", "MS Contin" and "Zoloft". On 23 June 1998, 3 July 1998, 13 July 1998, 20 July 1998, 8 September 1998, 17 September 1998, 21 September 1998, 30 September 1998, 16 October 1998, 19 October 1998, 26 October 1998, 19 December 1998 and 25 January 1999, Mr Pascal consulted Dr Trinh for aggravation of his pain. He was prescribed "Panadeine Forte", "MS Contin", "Temazepam" for his insomnia and was referred to Dr Sunderaj, a pain management consultant. There were further consultations with Dr Trinh during February, March and April 1999. On 29 June 2000, Mr Pascal was seen by Dr Ng for an aggravation for his back pain and that was the last time he presented to the Plumpton Marketplace Medical Centre concerning back pain.

65. Dr Li opined that Mr Pascal aggravated his back condition as a result of lifting and bending at work on 27 October 1995. He has been presenting complaining of back pain and pain in his left buttock and left thigh since that time. Dr Li thought it was more appropriate that specialist comment be sought in terms of Mr Pascal's long term prognosis.

Evidence Of Dr N W McGill, Consultant Rheumatologist

66. Dr McGill provided a report dated 30 August 2001 (Exhibit R1). Dr McGill noted that he had previously examined Mr Pascal on 21 August 2000. At that time, Mr Pascal thought that he had not had any previous back problem although Dr McGill noted at that time that Dr Smith and Dr Chase had both obtained a history of previous back pain episodes over many years. During the consultation on 30 August 2001, Mr Pascal recalled that in 1973 while he was in Perth, he experienced back pain in the absence of any injury. Mr Pascal could not recall for Dr McGill whether he had subsequent episodes of back pain prior to 1995. Dr McGill recorded that in 1995, Mr Pascal became aware of lower back pain over a period of time when he was involved in cleaning out an ULD in the absence of any specific incident. Mr Pascal's history to Dr McGill was that he continued to experience lower back pain and had pain in the left lower limb. Mr Pascal had previously thought that his left lower limb symptoms developed in 1997 but in a letter by Dr Smith dated 15 November 1995, there was an indication that Mr Pascal had burning pain in his left leg in 1995 which had resulted by the time of Dr Smith's review on 15 November 1995.

67. Dr McGill reported that Mr Pascal has continued to experience back pain since 1995 and there had been fluctuations of his pain in the absence of injury or specific incident. Mr Pascal reported to Dr McGill that he feels stiff and sore from lower back pain in the morning which improves a little with walking but the pain recurs during the day. Mr Pascal usually drives his wife to work each morning and then for the remainder of the day sits at home reading or watching television. He continues to experience pain in the lower back with intermittent pain in the left lower limb.

68. On examination, Mr Pascal had muscle development in the lower limbs which was good and symmetrical. The circumference of the right calf was 25 cms proximal to the medial maleolus and was 45.5 cms, compared with 42 cms on the left. Mr Pascal demonstrated give way reflexes with extension of both knees, explicable either on the basis of back pain or lack of full effort but not indicative of genuine lower limb weakness. Dr McGill noted that Mr Pascal forcefully resisted hip movements. Dr McGill did not gain the impression that there was any hip joint problem but that Mr Pascal was unwilling or unable to relax his lower limb muscles. In his general movements, Mr Pascal demonstrated a lot of pain behaviour and was overweight. Dr McGill reported that Mr Pascal offered very restricted back movements less than 25 per cent of normal. Dr McGill did not have confidence that the range offered was a true representation of Mr Pascal's capacity but nor did Dr McGill observe any inconsistency with respect to back movement. Dr McGill noted investigations showed degenerative lumbar disc disease with changes at multiple levels, T11/12, T12/L1, L3/4, L4/5 and L5/S1. There were normal x-rays done on the pelvis and hips on 29 May 2001.

69. Dr McGill reported that there had been little change since he first examined Mr Pascal in August 2000. At 57 years of age, Mr Pascal has wide spread degenerative change involving the lumbar and lower thoracic discs. Mr Pascal also has degenerative arthritis in the facet joints at the lower three lumbar levels. Dr McGill opined that it is reasonably clear that Mr Pascal had some back symptoms prior to the 1995 incident but that his back symptoms increased in 1995 at a stage when he was handling bags filled with empty mailbags. His back symptoms have continued and he also has had symptoms radiating into both lower limbs predominantly on the left. The diagnosis is widespread degenerative lumbar and lower thoracic back disease incorporating degenerative disc and facet joint changes. With respect to causation, Dr McGill opined that Mr Pascal has had an aggravation, acceleration or recurrence of a pre-existing condition by some event attributable to employment. Thus, Dr McGill concluded that it is quite possible that the work duties Mr Pascal was performing in 1995 and subsequently did cause a temporary aggravation of his back symptoms at that stage. On the presumption that Mr Pascal's work duties caused some aggravation, Dr McGill concluded that the aggravation was temporary and restricted to a change in the level of symptoms. Dr McGill did not believe that Mr Pascal's work caused any pathological change in his back nor caused any other physical effect resulting in a change in his long-term status. Dr McGill thought that the temporary aggravation of Mr Pascal's back would have ceased within a few weeks of him ceasing work. Noting that Mr Pascal reports that there was little change in his symptoms after ceasing work, Dr McGill concluded that it seems probable that Mr Pascal's work duties played only a small role if any on a temporary basis.

70. In light of Mr Pascal's behaviour and physical findings, Dr McGill concluded that he is not fit for work involving bending or lifting. On the first occasion Dr McGill examined Mr Pascal, Dr McGill concluded that there was clear evidence of falsification. On examination on 30 August 2001, Dr McGill opined that there was again a strong suggestion of embellishment without clear evidence of falsification. As Mr Pascal presents, Dr McGill opined that he would be able to perform any duties within the range of experience that he has. It is reasonable for Mr Pascal to continue analgesic medication and Dr McGill did not consider that surgery would improve Mr Pascal's situation.

OTHER MEDICAL EVIDENCE

Evidence Of Dr A L G Smith, Orthopaedic Surgeon

71. Dr Smith is Mr Pascal's treating Orthopaedic Surgeon. There are some 53 reports in the T Documents from Dr Smith dating from 8 November 1995 until 30 October 2000.

72. In Dr Smith's first report dated 8 November 1995, he reported that Mr Pascal had been at work on 27 October 1995 performing his duties lifting and bending when he developed pain in his lower back and to some extent the left leg. He reported this and sat and rested for a while but the pain continued so he went home and consulted his General Practitioner that same day, Dr H. Lim. Dr Smith noted an incident in the past where Mr Pascal had lower back pain which recovered in a week or two and occurred 20 or so years ago, which would have been in 1975. Dr Smith reported that Mr Pascal had been fit and well since. Dr Smith noted that CT scans demonstrated facet joint degeneration at L3/4, L4/5 and L5/S1 with a disc bulge at L4/5, and L5/S1. Dr Smith concluded that Mr Pascal had aggravated these changes at work and he expected Mr Pascal to recover with appropriate conservative treatment. Voltaren suppositories were prescribed and he was further prescribed "Norflex". Mr Pascal was also advised to continue taking "Panadeine Forte". On 15 November 1995, Dr Smith reported that Mr Pascal's back was settling and the burning pain in his left leg had gone. Dr Smith noted that Mr Pascal felt that he could return to work and Dr Smith had recommended that he do so.

73. There were many subsequent reports to the Respondent and solicitors but on 3 March 2000, Dr Smith wrote to Etheringtons Solicitors, providing a useful history. Dr Smith noted the first consultation with Mr Pascal on 8 November 1995 and that he had injured his back at work. It was Dr Smith's opinion at the time of the first consultation that Mr Pascal aggravated his degenerative changes at work and Dr Smith expected him to recover with appropriate conservative treatment and Voltaren suppositories. "Norflex" was given as a muscle relaxant and Mr Pascal was recommended to continue "Panadeine Forte" and daily physiotherapy. Dr Smith did not see Mr Pascal again until March 1997 at which time Mr Pascal described having ongoing pain in his back and left leg since 1995, varying in severity. Dr Smith noted that Mr Pascal took two weeks away from work in 1996 with these symptoms. Dr Lim re-referred Mr Pascal to Dr Smith on 21 March 1997. At that time, Mr Pascal had reported going home from work on 13 March 1997 experiencing increasingly severe lower back pain and left leg pain. He was off work since that injury until Dr Smith saw him on 21 March 1997. On examination on 3 March 2000, Dr Smith noted that Mr Pascal had a restriction in lumbar extension to only ten per cent of the expected range. An x-ray and CAT scan performed on 26 March 1997, demonstrated discs space narrowing at L4/5. There was also bulging at L4/5 and an irregular end plate at that level. The spinal canal was somewhat narrowed and the facet joints demonstrated some arthritic change. Dr Trinh, in the same practice as Dr Lim, referred Mr Pascal to Dr Smith on 26 May 1997 as Mr Pascal required acute treatment. An MRI and bone scan were performed. The bone scan demonstrated increased uptake at L4/5 on the right while the MRI demonstrated hydration at L3/4 with loss of disc height at L4/5. There was a disc bulge at L4/5 and what appeared to be extrusion disc material superiorly to some extent and also inferiorly into the back of the body of L5. There was some suggestion that Mr Pascal had discitis. The bone scan did not demonstrate changes consistent with that. Considering all this history, Dr Smith opined that on the balance of probabilities, Mr Pascal had ruptured the L4/5 disc and that was the source of his symptoms. In all probability, Dr Smith concluded that this disc rupture went back to 1995.

74. Dr Smith did not see Mr Pascal again until July 1998 when he reported to be no better. Mr Pascal was reporting continuing pain in the back and leg being the same permanent symptomatology noted in 1997. On 5 August 1998, Dr Smith reviewed Mr Pascal and declared him fit for lighter work. Dr Smith noted that on 1 September 1998, Mr Pascal's rehabilitation counsellor had suggested Mr Pascal might benefit from pain management counselling. Dr Smith thought it would be unlikely to provide any benefit because Mr Pascal had a mechanical problem with his lower back and furthermore, Dr Smith did not consider that he had any significant psychological component to his illness. When Mr Pascal was reviewed on 30 October 1998, his condition was slowly deteriorating. He was coping with restricted work and was seeing a clinical psychologist. On 30 October 1998, Dr Smith opined that Mr Pascal has post traumatic arthritis in his lower back and that it would not benefit from any psychiatric treatment any more than hip arthritis would. On 11 December 1998, Dr Smith discussed with Mr Pascal the possibility of an operation to fuse L4/5 and suggested an anterior approach to avoid adjacent sigmate disease. On 23 December 1998, Mr Pascal requested the operation at L4/5 and arrangements were made to have the operation. However Australia Post did not approve and Mr Pascal did not see Dr Smith again until 16 April 1999 at which point Dr Smith noted that Mr Pascal was very acutely affected with pain in the lower back and left leg. At that time he could hardly walk at all and Dr Smith arranged an urgent admission to Blacktown Hospital for bed rest and analgesia, hoping that the condition would settle. Mr Pascal was discharged from hospital after about a week and then developed urinary retention problems in hospital and was seen by a Urologist. A CAT scan performed at Blacktown Hospital, demonstrated canal stenosis at L4/5 and Dr Smith opined that on the balance of probabilities, Mr Pascal would require decompressive surgery from the back rather than anterior surgery. He would require this at two levels L4/5 and L5/S1. Arrangements for the procedure were made for May 1999 but again approval was refused by Australia Post.

75. Dr Smith noted that on 26 May 1999, Mr Pascal's left leg pain was so severe and he had lost one inch of girth in the left calf by comparison with the right. An EMG was performed that was normal but the difference in calf girth is pathological for there was no significant leg length inequality.

76. Dr Smith again saw Mr Pascal on 23 June 1999 still with significant symptoms in his back and left leg. An updated MRI scan was undertaken and this was compared with the 1997 scan. The disc space at L3/4 had become much more narrow and the signal loss more marked. A plain x-ray demonstrated narrowing at L3/4 which had not been apparent previously. Dr Smith opined on that balance of probabilities that from a surgery point of view, one would have to look at the lowest three levels from a posterior approach if anything was done at all. Dr Smith has continued to see Mr Pascal on a regular basis and he is no better. Dr Smith opined that Mr Pascal has been unfit for any work since August 1999. On the balance of probabilities, Dr Smith opined that the rupture at L4/5 occurred while Mr Pascal was bending and lifting at work in 1995 and while he obtained some measure of recovery, he has never really recovered from that and the condition has steadily worsened. While Mr Pascal has pre-existing degenerative disease in the lumbar spine at that level and the level below at the time of the accident and he has gone on to develop further degenerative change at level L3/4, the prognosis for Mr Pascal's condition remains substantially unaltered for the foreseeable future and will slowly deteriorate.

77. While Dr Smith noted that the injury sustained at work in 1995 was at L4/5, one could not simply treat that level without having regard to the rest of the lumbar spine. Dr Smith opined that as at 3 March 2000, Mr Pascal was at a stage where he needs a three level decompression and postero lateral fusion to have any chance of relieving his symptoms (T166). Dr Smith opined that Mr Pascal probably will not be able to get back to any manual work but he could undertake light work. Dr Smith had never considered that Mr Pascal has any psychological component to his illness as he has always had a fairly obvious mechanical problem with his lower back.

78. Dr Smith concluded that Mr Pascal suffered an injury during the course of his employment, that is a disc rupture at L4/5 in all probability on 27 October 1995. He has an impairment of his lumbar spine representing 35 per cent of the lumbar spine. There is a loss of the efficient use of the left lower limb representing 20 per cent of the left lower limb.

79. On 20 March 2000, Dr Smith opined that Mr Pascal had a whole person impairment consequent to his lower back and left leg pain and the three level changes in the lumbar spine representing a 25 per cent whole person impairment (T169). On 1 May 2000, Dr Smith informed Dr Trinh that Mr Pascal needed a decompression at L4/5 in particular and L3/4, L4/5 and L5/S1 required to be fused. This could be arranged for the 14 June 2000 (T177). It would be expected that Mr Pascal would be in hospital for seven to ten days and he would not be able to resume light duties until two or three months later.

80. Dr Smith continues to treat Mr Pascal and prescribe medication. The last report available to the Tribunal, dated 30 October 2000 indicated that Mr Pascal continued to be unfit for work (T190).

Dr R W D Middleton

81. In his first report dated 17 July 1997 (T28), Dr Middleton had noted the history given to him by Mr Pascal lifting a heavy bag on 27 October 1995 and then noticing back pain. Dr Middleton's history was that Mr Pascal continued at work but the next day could not continue and ceased. He saw his local doctor and Dr Smith and was off duty for a month, then returning to work. After a few months, back pain again increased and Mr Pascal required another two weeks off work. He again went back to work after that time. It was in February of 1997 that Mr Pascal reported to Dr Middleton that he was hit in the back by a fork lift truck at work. He continued his duties. However, on 13 March 1997, Mr Pascal again noticed worsening back pain on lifting. He ceased work and as at 17 July 1997 when Mr Pascal consulted Dr Middleton, he had not been back to work. Mr Pascal had been treated with physiotherapy for one week, had manipulation and was wearing a lumbar sacral brace. Dr Middleton noted that at that time he could not provide any answers to questions asked of him by Australia Post and was waiting until the results of an MRI and bone scan were received.

82. Dr Middleton then further reported on the results of the MRI and bone scans in a report of 3 September 1997 (T42). In Dr Middleton's second report dated 3 September 1997, he diagnosed Mr Pascal as having degenerative disc disease at the L4/5 level. Dr Middleton noted that Mr Pascal's presentation is inconsistent with this diagnosis. Dr Middleton stated that he remained concerned that he was not adequately able to explain the symptoms given the investigations of the MRI and bone scans which appeared to rule out significant major pathology. Dr Middleton further opined that he was unable to see any significant connection between Mr Pascal's back condition and his work. He did not believe that there was a connection on a physical basis and furthermore, did not conclude that his unfitness to return to normal work could be attributed to the effects of a work-related injury. Dr Middleton noted that on examination, Mr Pascal's presentation appeared to be genuine but not supported by the MRI and bone scans. Dr Middleton concluded that the only alternative diagnosis to a major physical disorder which needed to be excluded is that there was malingering and that a medical opinion should be sought in that regard.

Dr J G Bodel, Orthopaedic Surgeon

83. Dr Bodel provided a report to Australia Post dated 2 October 1997, having examined Mr Pascal on 1 October 1997 (T51). Dr Bodel reported the history of Mr Pascal suffering an injury to his back at work in October 1995 and reporting to Dr Bodel that he has never previously had any problems with his back. Mr Pascal had told Dr Bodel that the pain came on as a result of repetitive bending, twisting and lifting. Mr Pascal went off work for a period of three weeks and was treated conservatively with analgesic and anti-inflammatory medication and physiotherapy. He returned to work after three weeks and took medication which allowed him to stay at work. Mr Pascal reported to Dr Bodel that he was not better and that the symptoms deteriorated in about April 1996 without specific accident or injury. He reported to Dr Bodel that the nature of the work aggravated his symptoms and he again had to go off work. There was a deterioration again in March 1997 without additional accident or injury.

84. Dr Bodel opined that Mr Pascal had suffered an injury to the lumbar sacral region involving the L4/5 and possibly L5/S1 discs and clinically this has arisen as a result of an initial incident at work in October 1995. He was treated conservatively and improvement was minimal, with flare-ups of pain in April 1996 and March 1997 with Mr Pascal continuing to have intermittent symptoms in the back. Dr Bodel opined that Mr Pascal's complaints are quite genuine and the disc pathology at L4/5 is probably causally linked with work. The diagnosis is of a disc prolapse at L4/5 directly related to an injury at work in October 1995 and the nature and conditions of his work subsequent to that time had continued to aggravate this abnormality. There is no clinical indication of other pathology which would have prevented Mr Pascal at that time from doing his normal duties if it were not the injury to the L4/5 disc. Dr Bodel did not recommend a surgical procedure as there was no objective sign at that time of nerve root irritability and the outcome of spinal fusion is very unpredictable (T51).

Dr R Chase, Occupational Physician

85. Dr Chase provided two reports dated 9 November 1998 (T115) and 3 March 1999 (T128).

86. Dr Chase noted that Mr Pascal is a poor historian, easily confused, apprehensive and became increasing flustered as the consultation progressed. The history documented by Dr Chase should therefore be interpreted in that light, Dr Chase noted. Mr Pascal admitted to occasional lower back pain on and off for 20 years. The pain was never serious and he admitted to pain up to twice per month. On 27 October 1995, Mr Pascal was cleaning out some ULD's and lifting mailbags containing empty mailbags when he noted the onset of lower back pain. Mr Pascal saw his supervisor, then his General Practitioner, Dr Lim. Mr Pascal was put off work for three weeks and during that time saw Consultant Orthopaedic Surgeon, Dr Smith, in November 1995. He returned to work on full duties as there were no light duties available. He still had lower back pain and indeed, Dr Chase reported that the pain never settled. After Christmas 1995, Mr Pascal's pain increased and he had more time off work, once again returning to full time duties. The pain never went away and flared up in March or April 1997. Mr Pascal saw Dr Smith again and was off work for seven months eventually returning to work on suitable duties. At or around that time Mr Pascal was sent to the International Mail Centre for training as a Mail Officer but could not concentrate or perform tasks well. In 1998, Mr Pascal attended "Rehab One" where he allegedly did well although at first the gym work increased his pain. Mr Pascal was given a gym membership but it ran out so he stopped attending. At that stage, Dr Chase commented that the history became somewhat confused, but he understood that three weeks prior to the consultation with Dr Chase in November 1998, Mr Pascal's lower back pain increased once more. He consulted his General Practitioner, Dr Trinh and was put off work for eight days. When the pain was no better he returned to work in any case. Mr Pascal had then been referred to Mr B McGuire, Clinical Psychologist, for pain management. He had attended two visits with Mr McGuire and was to continue. There was some benefit received from these visits.

87. Dr Chase opined that Mr Pascal sustained an acute lower back injury on 27 October 1995 and subsequently was found to have widespread degenerative changes and in particular he has an intervertebral disc degeneration at L4/5 and L5/S1 with active facet joint arthritis particularly in the right L4/5 facet joint. This diagnosis is supported by plain films, CT scan, MRI and bone scans. Dr Chase opined that Mr Pascal's intervertebral disc degeneration and facet joint arthritis predate the incident of 27 October 1995. There were clear degenerative changes in Mr Pascal's lower back on the day that he developed pain in his lower back. Dr Chase noted that degenerative disease is a combination of age, genetics and multiple environmental factors such as employment and trauma from sport or other activities. Dr Chase opined that it was probable that Mr Pascal's degenerative disc disease became symptomatic as a result of the incident on 27 October 1995 but that incident did not cause the degenerative disc disease. In other words, Dr Chase opined that it is not solely caused by Mr Pascal's employment but, nor was it a natural progression of pre-existing condition but rather an aggravation of a pre-existing condition to which the incident on 27 October 1995 contributed. Dr Chase opined that he did believe that Mr Pascal was suffering from lower back pain but his own fear and avoidance behaviour had resulted in "a reluctance to mobilise with the development of clear global patterns of muscle weakness and easy fatiguability, postural and other biomechanical causes of pain as well as the adoption of pain behaviour" (T115). This opinion was supported by the fact that Mr Pascal had quite good improvement in his functional ability after the Rehab One program but his pain and apparent disability recurred significantly after ceasing that program.

88. Dr Chase concluded on the balance of probabilities that it was unlikely that Mr Pascal would have developed any significant problems had the incident at work on 27 October 1995 not occurred. The condition suffered by Mr Pascal is an aggravation of an underlying and pre-existing condition, however, Dr Chase would have expected that Mr Pascal's symptoms should have settled by the time of his consultation. Mr Pascal has well and truly fallen into the sick role, with altered biomechanics and ongoing lower back pain, Dr Chase reported. Furthermore, Dr Chase concluded that Mr Pascal's condition is permanent and he will suffer from lower back pain the rest of his life. Mr Pascal requires ongoing pain management counselling, Dr Chase opined. He may also benefit from the use of an antidepressant to be used in the role as pain modifier rather than for its antidepressant qualities. Mr Pascal should return to a structured exercise program and it may be useful for him to be reassessed by Rehab One. Spinal surgery was not indicated as there was no evidence of neurological disability or radicular pain. The prognosis for Mr Pascal's condition is poor, Dr Chase concluded. He has poor insight into his problem and is very much focused upon pain avoidance. This makes Mr Pascal's management difficult as he is very much focused upon organic disease and being "fixed" by other persons rather than him taking responsibility for his own management. Dr Chase concluded that Mr Pascal will continue to suffer from pain for the rest of his life and this will wax and wain according to a multiplicity of factors too numerous to list. Dr Chase reported that it was essential that Australia Post rehabilitation continue to input into Mr Pascal's management. He should be encouraged to remain at work. Dr Chase recommended that there may be value in referring Mr Pascal to a pain management specialist such as Dr Sunderaj. As Mr Pascal's basic organic problem is degenerative disc disease and facet joint arthritis, Mr Pascal would have nothing to loose by considering a joint ablation and/or epidural injection of steroid.

89. In Dr Chase's second report of 3 March 1999, he noted that he reassessed Mr Pascal on 2 March 1999 (T128). Dr Chase noted that he had previously concluded that Mr Pascal's prognosis was poor and that he had predicted that each time his pain increased he would reduce his level of activity. This in fact was what has occurred and in this regard, Dr Chase noted that Mr Pascal's passive approach to the problem, and the supervening psychological factors as well as the undoubted back pathology and pain, is now feeding each other to produce a very poor outcome. In reality, Dr Chase opined that Mr Pascal is permanently unfit to return to work. All future management should be aimed at attempting to improve his general physical fitness and his quality of life.

Mr B McGuire, Clinical Forensic Psychologist

90. Mr McGuire provided a report dated 16 November 1998 (T116). Mr McGuire reported that Mr Pascal has a moderately severe level of pain, "7/10", aggravated by physical activity. He obtains relief from the pain through use of medication but had few other pain coping strategies. At that time, Mr Pascal's medication included "MS Contin" and "Panadeine Forte". He had also recently been prescribed sleeping tablets by his General Practitioner. Mr Pascal described to Mr McGuire generalised functional impairment both in terms of his work capacity and in terms of his ability to participate in household activities and leisure interests. Mr McGuire noted Mr Pascal's reports of significant sleep disturbance caused by pain and discomfort and a tendency to worry and ruminate about his situation. He is concerned about his health, future prospects and the possibility of having surgery. Mr Pascal's appetite is poor although his weight had increased due to low levels of activity. Mr Pascal reported depressed mood most days and a tendency to worry. Mr McGuire opined that there is evidence of adjustment difficulties related to Mr Pascal's loss of function, reduced sexual activity and reduced leisure activities.

91. Mr McGuire opined that Mr Pascal has poor pain coping strategies other than passive techniques such as avoidance of activity, rest and use of medication. He presented also as suffering from depression, most likely reactive to the chronic pain and loss of functional ability. Mr McGuire noted that given that Mr Pascal's pain management strategies are so externalised, it may be difficult to change this pattern though it was worth a try. Mr McGuire recommended six sessions of pain management counselling.

92. On 20 January 1999 (T124), Mr McGuire recorded that Mr Pascal had attended for six sessions of pain management. Mr Pascal was noted to have improved in some areas such as having reduced his use of analgesic medication and reporting no additional aggravation of pain. Mr Pascal was practising relaxation exercises and reporting benefit. Mr Pascal was working full hours performing selected duties and reported that he was coping reasonably well although his level of pain behaviour and obvious disability would suggest otherwise. Mr McGuire noted that despite these improvements, Mr Pascal still had significant levels of pain and disability and was continuing to have ongoing sleep disturbance. He was reporting feelings of stress and pressure arising from the rehabilitation process itself and in particular his difficulty in that one specialist, Dr Chase, had indicated that Mr Pascal could increase his work capacities while another, Dr Smith, had indicated that this was not the case. Mr Pascal reported to Mr McGuire that he was feeling pressured into performing work activities which would cause him to experience extra pain and disability. Mr Pascal was requesting further counselling and Mr McGuire opined that it may assist him to get through the day in less discomfort with less focus on pain. There may be improvement to Mr Pascal's sleep disturbance problems as a result of further counselling. Mr McGuire recommended that Mr Pascal be offered four further pain management counselling sessions.

93. Approval was given on 9 February 1999 for a further four counselling sessions (T126).

Dr A Hodgkinson, Orthopaedic Surgeon

94. Dr Hodgkinson provided a report to Australia Post on 13 June 2000 (T178). Dr Hodgkinson had examined Mr Pascal on 5 June 2000.

95. Dr Hodgkinson noted the history of Mr Pascal experiencing back pain on 27 October 1995 following a lifting incident with bundles of empty mailbags. He reported to his General Practitioner, was off work for two weeks and then resumed light duties which he undertook for a period of two weeks. Because the light duties work was unavailable, Mr Pascal returned to full duties. Dr Hodgkinson reported that Mr Pascal's back pain returned and he was off work again for three weeks, again resuming full duties with pain which required medication. He had further problems during 1996 and early 1997 and about that time he underwent a manipulation of his back under general anaesthetic performed by Dr A Smith. There was a report of an injury in 1997 to Mr Pascal's lower back when he was hit accidentally by a forklift. He did not lose any time from work after this incident.

96. Dr Hodgkinson opined that the medical status of Mr Pascal related to his excess weight and increased blood pressure problems. He had evidence of constitutional degenerative change in the lower spine which Dr Hodgkinson did not consider related to Mr Pascal's work activities. Dr Hodgkinson considered that the current condition related to the natural progression of Mr Pascal's constitutional degenerative changes over a number of years. Dr Hodgkinson did not consider that Mr Pascal would gain any benefit from spinal surgery. He did not consider that Mr Pascal's present condition related to the work incident in 1995. At the time of Dr Hodgkinson's examination, Mr Pascal's general physical condition was very poor and this would probably prevent him from resuming normal working activities. Dr Hodgkinson did not consider that at that stage, any treatment would bring about sufficient improvement in Mr Pascal's physical condition or motivation to resume any form of useful work.

Dr A Carless, Medical Services Adviser, Human Resources And Strategy Department

97. Dr Carless provided a report to Australia Post's South Western Suburbs Mail Centre dated 20 May 1997 (T22). Dr Carless noted a history of a work-related injury to Mr Pascal's left knee causing incapacity from 19 October 1994 until 22 October 1994. There was also a history of admission to Blacktown Hospital on 21 September 1994 for six days to allow the investigation of abdominal pain. At examination, Mr Pascal denied having any lumbago, sciatica, aches or pains in his back, any back or neck injury or slipped disc. Mr Pascal had claimed on 27 October 1995 that he developed back pain while emptying an ULD full of empty mailbags. Mr Pascal resumed work three weeks later. In April 1996, Mr Pascal had a further episode of back pain from 30 April 1996 to 3 May 1996. Mr Pascal noted a further aggravation of his back pain on 13 March 1997 and was at the time of examination still absent from work.

98. Dr Carless reported that Mr Pascal had failed to disclose material when examined by the Commonwealth Medical Officer. Had Mr Pascal disclosed the history of back pain, he would not have been employed to do what are essentially labouring tasks. Certainly, Dr Carless noted that had he been aware of his back condition he would not have recommended his employment or if Dr Carless had become aware of a predisposition to back pain which predated commencement of employment, Dr Carless may well have recommended termination of his employment, after it became obvious that his work was likely to aggravate the back condition.

99. Dr Carless recommended that Mr Pascal's employment files should be examined to determine if there are declarations made about his state of health and furthermore, Dr Carless suggested that Mr Pascal's workers compensation process should be monitored. It may well be, Dr Carless opined, that Mr Pascal has repeatedly failed to make material disclosures in support of compensation claims. Dr Carless did not believe that the time which had elapsed since he first failed to disclose his back condition would be an important consideration. The most important consideration would be the nature of his back condition and whether or not it was one which an employer could reasonably have expected him to have disclosed on or prior to commencement of work.

Dr R Brighton Orthopaedic Surgeon

100. Dr Brighton provided a report to Dr M Trinh of the Plumpton Marketplace Medical Centre, dated 28 May 1998 (T81). Dr Brighton opined that Mr Pascal has lumbar spondylosis which had recently suffered an acute exacerbation. Dr Brighton noted that Mr Pascal wanted an opinion as to whether or not he should have surgical intervention. Dr Brighton told Mr Pascal it was not a good idea to make a decision about surgical intervention when he was in the middle of an acute episode.

APPLICANT'S SUBMISSIONS

101. Mr Jeffriess submitted that Mr Pascal is without question a very poor historian. Reading through various medical reports and interviews contained within the T Documents, would undoubtedly reveal to the Tribunal that there has always been a difficulty obtaining a complete or detailed history from Mr Pascal. In so submitting, Mr Jeffriess was in no way conceding that Mr Pascal had given to the Tribunal anything other than his best recollection of the truth of the matters concerning his back condition. Mr Jeffriess noted that many medical practitioners have in fact reported that they consider him to be genuine, but a poor historian. Mr Jeffriess submitted that is exactly what Mr Pascal is, a genuine but poor historian. Furthermore, Mr Jeffriess noted that having been born in Mauritius, English is not Mr Pascal's first language although he clearly is quite proficient in English. Mr Jeffriess pointed the Tribunal to Mr Pascal's difficulty during the hearing in fully understanding questions put to him or explaining himself in a complete and coherent manner. Mr Jeffriess noted that Mr Pascal has been on a considerable amount of drug therapy over a long time. He is also in a considerable degree of pain and his back condition has deteriorated over time.

102. Mr Jeffriess referred the Tribunal to the reports of Mr McGuire, Clinical and Forensic Psychologist, and particularly the report at page 336 of the T Documents where Mr McGuire had noted improvement in some areas of Mr Pascal's functioning as a result of pain management but still reported significant levels of pain and disability and ongoing sleep disturbance. At that time on 20 January 1999, Mr Pascal was reporting feelings of stress and pressure arising out of the rehabilitation process itself and the fact that one specialist had indicated that Mr Pascal could increase work while another specialist had indicated that that was not the case. Clearly, Mr Jeffriess submitted, in the early part of 1999 there is evidence from Mr McGuire that Mr Pascal was suffering from a considerable amount of distress from the rehabilitation process. Mr Jeffriess submitted that any confusion or lack of coherent history provided by Mr Pascal can be explained in the context of the matters discussed by Mr McGuire.

103. Specifically regarding the records of Mr Pascal's General Practitioners, Mr Jeffriess noted that on 14 November 1994, there is a note indicating back pain after lifting Mr Pascal's daughter after she fainted. From that note, Mr Jeffriess contended that it could be inferred that Mr Pascal was unable to recall this incident because he was worried about his daughter who was quite unwell. There is a further record on 5 January 1995 when Mr Pascal is complaining of a cough and hoarse voice. That is less than two months after he attended with his daughter and Mr Pascal makes no complaint of ongoing problems of any kind with his back until five visits later in June 1995 when the complaint is not of back pain on 16 June 1995 but of pain in the left leg. There are two further visits in June and September 1995 which do not make any mention of back pain.

104. In October 1995 there is the relevant entry after the injury complained of and at this time straight leg raising was 45 degrees only on the left, which is the side complained of by Mr Pascal, and 90 degrees on the right. From that point on, there are frequent and constant returns to the surgery with complaints of pain in the lower back and into the left buttock and thigh and reduction in straight leg raising. On none of the previous records where back pain had been mentioned, was there any suggestion of a referral to a specialist for treatment, whereas, within a few days of the visit on 27 October 1995, the General Practitioner has considered that Mr Pascal's condition is serious enough to refer him to Dr Smith, Orthopaedic Surgeon.

105. Mr Jeffriess submitted that the Tribunal could not necessarily come to the conclusion that Mr Pascal was attempting to mislead the Tribunal but rather, had a very vague recollection of what happened to him and when reminded by Mr Skinner of events, Mr Pascal showed no evasion whatsoever, such as when it was put to him that he had suffered an injury in Perth when he lifted a carton of beer.

106. In relation to the reference in the clinical notes provided by the Plumpton Marketplace Medical Centre, to "a slipped disc", Mr Jeffriess submitted that the Tribunal could not infer from that statement by the Applicant to the doctor that there was any form of lesion or a diagnosis of disc injury back in the 1970s from a statement made by Mr Pascal to his doctor in 1995. There were no records available of what exactly had happened in 1970s.

107. Mr Jeffriess submitted that from the claim of injury, and the evidence provided to the Tribunal at hearing, there was complete consistency between the report of injury filled out on 27 October 1995 and Mr Pascal's evidence to the Tribunal. Thus, at T6, p16, Mr Pascal noted that he was emptying ULD bags and the last ones were very heavy. Soon after he felt a severe pain in his lower back and he advised his senior of that incident. Mr Pascal then left work to see a doctor. Mr Jeffriess concluded that Mr Pascal's history of the occurrence of the injury is accurate and his recollection in that regard is accurate, honest and truthful. Mr Jeffriess foreshadowed that the Respondent may raise an issue concerning the report to the General Practitioner of there being no particular incident, but Mr Jeffriess asked the Tribunal to consider the language difficulties experienced by Mr Pascal. The history continues that Mr Pascal went back to work after a period of time and continued to work, to his credit, despite his being in ongoing pain and having difficulties. There was a deterioration in his condition in March 1997. Mr Jeffriess acknowledged that Dr Carr had a different history (T84) in that he reported that Mr Pascal's pain settled after three weeks. That is an obvious problem in the history that the Applicant has given to doctors over a period of time. Mr Jeffriess submitted that the uncontested evidence before the Tribunal was that Mr Pascal continued to have problems with his back, continued to have treatment, to take medication and at no time after the incident on 27 October 1995 did his back pain resolve one hundred per cent. The report from Dr Li of the Plumpton Marketplace Medical Centre (Exhibit A2) indicates that Mr Pascal continued to visit the Centre until the middle of November 1995, returning in April 1996 for exacerbations and for follow up with Dr Smith. In 1996, Mr Pascal was visiting his General Practitioner complaining of ongoing back problems and furthermore, ongoing medication and difficulties performing his duties, all evidence which was uncontested during the hearing.

108. Mr Jeffriess noted that in February 1997, Mr Pascal gave evidence of a further injury which does not seem to have been raised by many of the doctors although it was mentioned by Dr Carr (T84). Soon after that in March 1997, Mr Pascal is reporting that his back problems are significant enough for him to return to see Dr Smith and then have a period of seven months off work, during which time Mr Pascal was paid workers compensation.

109. Mr Jeffriess contended that there could be little doubt that the medical evidence has indicated that Mr Pascal was totally incapacitated for work during that period. He subsequently returned to work on light duties. This is attested to at T192 where there are details of Mr Pascal's return to work in October 1997 and a number of attempts to place him in various positions. Mr Pascal's evidence is that whilst he continued to try his best at work, he had ongoing difficulties which resulted in him ceasing work in early 1999.

110. The Tribunal was referred to Mr McGuire's first report (T116), in which Mr McGuire has taken a history that in November 1998, Mr Pascal was enjoying his current work activities but was finding it difficult because of the pain wearing him down. That is a contemporaneous record, Mr Jeffriess submitted, that Mr Pascal was still trying to do his best at work, was enjoying his work and the reason that he was having trouble related to his back pain.

111. After leaving work in February 1999, Mr Jeffriess submitted that there is medical evidence of ongoing difficulty. The series of reports from Dr Smith indicates an ongoing lower back problem. Thus in November 1995, Dr Smith reports aggravation of changes at L4/5 and L5/S1 and in March 1997, Dr Smith discusses the lesion at L4/5 being responsible for Mr Pascal's symptoms. This position has been maintained firmly in Dr Smith's subsequent reports. From a very early point, Dr Smith had suggested surgical intervention. Mr Pascal is equivocal about surgery but Dr Smith is in no doubt about what is wrong with Mr Pascal and what needs to be done to assist him.

112. Referring to the report by Dr Bodel in October 1997 (T51), Dr Bodel takes a history of the injury and opines that the problems experienced by Mr Pascal have arisen as a result of an initial accident at work in October 1995. Dr Bodel notes flare ups of pain in April 1996 and March 1997, with Mr Pascal continuing to have intermittent symptoms in his back. Dr Bodel considers Mr Pascal's complaints to be quite genuine that the disc pathology at L4/5 is probably caused or linked to Mr Pascal's work. Dr Bodel also notes that in addition to the injury in October 1995, the nature and conditions of Mr Pascal's work have continued to aggravate his abnormality.

113. The Tribunal was referred to Dr Chase's report of November 1998 (T115) in which Dr Chase opined that there is an intervertebral disc degeneration at L4/5 and L4/S1 with facet joint arthritis. Dr Chase had opined that while Mr Pascal's difficulty was not caused solely by his employment nor was it a natural progression of a pre-existing condition but is an aggravation of pre-existing condition to which the October 1995 incident contributed to Mr Pascal developing lower back pain. Dr Chase had concluded that it was unlikely that Mr Pascal would have developed any significant problems had the incident not occurred. Thus Dr Chase was firmly of the view that the incident on 27 October 1995 played a significant part in Mr Pascal's symptomatology as he saw it in November 1998 and he did not change that opinion in a further report of March 1999 (T128).

114. Mr Jeffriess submitted that the issue of how one defined Mr Pascal's problem is troublesome. There are two possible ways of considering it. Firstly, Mr Jeffriess considered the definition of injury contained within section 4 of the Act. Mr Jeffriess submitted that there was a distinction between disease and injury in the Act. The fact that someone is suffering from a disease which is unrelated to employment, does not disentitle the person, when he or she suffered an injury simpliciter, superimposed on a disease process. Mr Jeffriess used the example of a person who has osteoporosis and then breaks his or her leg. The breaking of the leg is an injury in its own right, rather than having to consider it as an aggravation of an underlying condition or an aggravation of a disease unrelated to his or her employment. This view is well supported in Darling Island Stevedoring and Lighterage Co. Ltd v Hankinson (1967) 117 CLR 19. At pages 26 and 27 of the decision, it was quite clear from Barwick CJ that where incapacity results from acceleration, the entitlement to compensation is identical with that which would flow from the like incapacity resulting from any other kind of injury. Where the injury is merely an aggravation, acceleration, exacerbation or deterioration of a pre-existing non-employment disease, Mr Jeffriess submitted that it is quite clear from that decision that the fact that one has a disease process, does not exclude a finding that there has been an injury simpliciter. Thus, the Tribunal could find on the evidence before it that Mr Pascal suffers from a degenerative condition, osteoarthritis of the lumbar spine, but that the incident on 27 October 1995, caused an injury, being a prolapse of the L4/5 disc. It is that injury, regardless of any underlying degenerative process, which has caused and continues to cause Mr Pascal's incapacity and impairment.

115. Mr Jeffriess referred the Tribunal to Dr Carr's evidence in cross-examination which conceded that from a medical point of view it is entirely appropriate and consistent that one can have an osteoarthritic condition, and then suffer a prolapse as a result of a simple injury. Mr Jeffriess submitted that that opinion is consistent with the opinion of Dr Smith who is very clear throughout his numerous reports that Mr Pascal suffers an L4/5 disc protrusion. Thus, regardless of Mr Pascal's underlying condition, he had a simple injury and that continues to cause Mr Pascal incapacity and impairment. Furthermore, Dr Scougall opined that Mr Pascal has chronic soft tissue lesions in his lower back and these were aggravated. This opinion, Mr Jeffriess submitted, is consistent with there being a simple injury in the course of Mr Pascal's employment, superimposed on an underlying condition. Dr Scougall's evidence is also consistent with Dr Carr's opinion.

116. A further ground upon which the Applicant relies is that Mr Pascal has an aggravation of a disease process within the definition of section 4 of the Act. The overwhelming preponderance of medical opinion supports one or other of those propositions. Dr Carr's view that there is a temporary aggravation must be viewed in light of his concessions in telephone evidence, that if one accepted that Mr Pascal has ongoing pain and treatment, including medication, throughout 1995, 1996, 1997, then at the time Dr Carr saw him, he would concede if that evidence was found to be correct, that the aggravation continued to have an incapacitating effect. The medical evidence to the contrary that any aggravation was temporary and ceased before the time of consultations, is unconvincing, in light of the views that the doctors who give that opinion do not particularly provide any reason for it. In this regard, Mr Jeffriess referred the Tribunal to Dr McGill's opinion who simply noted that Mr Pascal has moderately severe widespread degenerative changes and that the work duties performed contributed to a temporary aggravation. Mr Jeffriess submitted that at that stage, Mr Pascal's symptoms were predominantly due to constitutional degenerative change and Dr McGill did not justify his conclusion. Dr Hodgkinson (T178) simply stated that Mr Pascal has evidence of constitutional degenerative change. There is no support or reasoning behind this finding.

117. Mr Jeffriess submitted that given Mr Pascal's evidence and the overwhelming preponderance of medical opinion, the Tribunal should conclude that Mr Pascal's current condition and his condition since 9 November 2001 (the date of cessation of compensation) is the result of either an injury being an L4/5 disc lesion, or an aggravation of an underlying disease. That aggravation, in the absence of any convincing evidence that it has ceased, continues to date.

118. Mr Jeffriess submitted that as he understands the Respondent's case, it is conceded that the Applicant is totally incapacitated. The issue is one of causation. That being the case, if the Tribunal was to so find, Mr Pascal is entitled to a 70 per cent net weekly earnings award pursuant to section 19 of the Act.

119. A matter which remains to be determined is also whether Mr Pascal is entitled to any increase in his whole body impairment. Considering Table 9.6 of the Comcare Guide, Mr Jeffriess submitted that Mr Pascal has a loss of more than half the normal range of movement in his thoraco columnar spine and therefore is at least impaired to the degree of 20 per cent.

120. In relation to Mr Pascal's complaints concerning pain in his left leg, Dr Smith had opined on 20 March 2000 that Mr Pascal has a 25 per cent whole person impairment. There was no assessment made by Dr Smith or other medical experts of the left leg symptoms under Table 9.5 of the Comcare Guide. If the Tribunal made a finding of impairment of the left leg, Mr Jeffriess submitted that the matter be remitted for assessment of that condition.

121. Mr Jeffriess concluded that it is not the Applicant's case that Mr Pascal had no back problems before October 1995. There were back problems but they were not of a significant nature so as to lead the Tribunal to conclude that the injury of October 1995 was only a temporary aggravation of this underlying back condition. It is clear from the evidence, Mr Jeffriess contended, that Mr Pascal continued to have problems from 27 October 1995 onwards as a result of that incident. Mr Jeffriess further submitted that there is a clear written statement by Mr Pascal on 27 October 1995 which records what happened to him on that day. This should be accepted above the note of a doctor who records what he believes to have been said to him in the course of his examination. Mr Jeffriess submitted that Mr Pascal did not at any time go back to his full duties. Although he returned to his old job, Mr Pascal was helped from then on by his supervisor. Furthermore, Mr Pascal had never told Dr Smith that he was asymptomatic prior to October 1995, referring the Tribunal to Dr Smith's report of 8 November 1995 (T9) which noted that there was an incident in the past where he had lower back pain which recovered in a week or two and occurred 20 years ago. Furthermore, Dr Scougall took a history of prior back pain.

122. Mr Jeffriess contended that the Respondent's submission that the decision under review should be affirmed is inconsistent with the Respondent's determination that Mr Pascal suffers from a ten per cent permanent impairment for which he has been paid a sum of money.

RESPONDENT'S SUBMISSIONS

123. Mr Skinner submitted that there are two evidentiary matters critical to this case. Firstly, Mr Skinner asked the Tribunal to reject the proposition that Mr Pascal had no back problems prior to October 1995. The second matter which Mr Skinner urged the Tribunal to reject is the proposition that there was a specific incident on 27 October 1995 and that what flows from that was that there was some form of prolapse on that particular date. Mr Skinner noted that there was no doubt that there was a complaint of pain in October 1995, but afterwards Mr Pascal returned to the pre-incident level following what was an aggravation of a pre-existing condition. Mr Skinner submitted that the effects of the aggravation ceased by 1996. In such circumstances there could be no increase in the permanent impairment. Considering the Comcare Guide under the heading of aggravation, it is noted:

"An assessment should not be made unless the effects of an aggravation are considered permanent. If the employee's impairment is entirely attributable to a pre-existing or underlying condition, or to the natural progression of such a condition the assessment for permanent impairment should be nil." (Comcare Guide, p6)

124. Mr Skinner submitted that if the Tribunal accepted that there was no permanent effect from aggravation and that it is the natural progression of the disease process that lead to Mr Pascal having his present condition, then there would be no warrant for an increase in the permanent impairment assessment.

125. In the alternative, on a careful examination of the material relating to permanent impairment, Dr Scougall attributes a 15 per cent permanent impairment figure by reference to the Tables but Dr Smith, who nominates a 25 per cent whole person impairment, does not do so by reference to the Tables. In those circumstances, Mr Skinner submitted that the Tribunal would be bound by what Dr Scougall opined, although Mr Skinner accepted that the Applicant's submission is correct that by reference to the Tables, a 20 per cent whole person impairment appeared appropriate. Nevertheless, Dr Scougall, for whatever reasons, restricted the matter to a 15 per cent whole person impairment by reference to Table 9.6. If Dr Scougall's evidence was accepted then there would be no increase by ten per cent so therefore no increase in the previous assessment of permanent impairment at ten per cent.

126. Mr Skinner submitted that the proposition that Mr Pascal had no back problems before October 1995 is clearly incorrect for a host of reasons. Mr Pascal's treating General Practitioner recorded quite clearly incidents of back pain before October 1995. Throughout the T Documents there are a number of occasions on which Mr Pascal has given a history that he did have back pain from time to time prior to October 1995. The clearest example of that proposition is to be found in Dr Chase's record of 9 November 1998 at page 2, where Dr Chase noted that Mr Pascal is a very poor historian, easily confused, apprehensive and easily flustered. Mr Pascal admitted to Dr Chase having occasional lower back pain over a period of 20 years. The importance of a finding a fact on the issue of prior pain to October 1995 is that in many of the reports underpinning doctors' opinions, there has been a proposition that Mr Pascal was asymptomatic before October 1995 and there are a number of doctors who have written reports based on that proposition, not the least of which is Dr Smith. Dr Smith had proceeded on the basis that although there were degenerative changes, Mr Pascal was asymptomatic before October 1995. Dr Scougall had also recorded a history of no back pain prior to October 1995. Dr Bodel took a history of no back pain prior to October 1995. The error in these doctors' histories makes it more likely that if Mr Pascal was asymptomatic before 27 October 1995, then it is more likely than there was an aggravation or a prolapse on that particular day. Dr Scougall had in fact concluded that there was an aggravation of lesions when Mr Pascal lifted the heavy mailbags. If one was to start with an incorrect proposition that Mr Pascal was asymptomatic then if one was to fall into error and assume that there was a specific incident on that day, then that would give greater weight to the concept either of an aggravation or a pre-existing lesion as Mr Jeffriess put to Dr Carr.

127. In Mr Skinner's submission, there is an abundance of confusion as to what exactly did occur. The factual matrix compels a finding, Mr Skinner submitted, that there was no specific incident. The matter on which the Respondent relies most heavily is the clinical notes of the doctors. The first doctor Mr Pascal consulted, noted there was no real injury but there had been pain for one and a half months worsening especially when Mr Pascal descended stairs. Dr Lim recorded "No specific injury". Furthermore, Dr Lim noted that Mr Pascal had very bad lower back pain radiating to his left buttock at the end of the day. That evidence is contrary to what was given by Mr Pascal to his employer and on Mr Skinner's submission, the account given to Dr Lim is more likely to be accurate. In Mr Pascal's first dealing with Dr Smith and as recorded in Dr Smith's report of 8 November 1995, a reading of the report makes it more likely that the history taken by Dr Smith was correct in that there was no specific incident. Dr Smith had recorded that Mr Pascal was performing duties, lifting and bending and developed pain in his lower back and to some extent his left leg. There is no reference to an ULD or a heavy bag. Dr Smith noted, "I think he aggravated these changes at work and one would expect him to recover with appropriate conservative treatment" (T9). Given the evidence, Mr Skinner submitted that it is more likely than not that there was nothing out of the ordinary which occurred on 27 October 1995 and that Mr Pascal simply developed pain as a result of the usual process at work.

128. Mr Skinner turned to consider the issue of any aggravation which might have occurred on 27 October 1995. A key to that issue is the history of physiotherapy, the history from Dr Carr that the back problem had settled one hundred per cent and the report of Dr Smith that significantly noted Mr Pascal was able to return to work. It was not until 1996 that there was a further incident. Mr Skinner submitted that no one has really turned their attention to the incidents in 1996 and 1997 as though they were fresh aggravations or fresh incidents. But it is clear, Mr Skinner submitted, that that is in fact the case. It is clear that Mr Pascal returned to work after the October 1995 circumstances and that he returned to duties after which there were further exacerbations of his back pain. Mr Skinner submitted that the whole of the case had been predicated on the basis that Mr Pascal had no back problems before October 1995 and that on that day there was a specific incident which gave rise to either an aggravation of a lesion as Dr Scougall said, or a prolapse. The fact that Mr Pascal returned to work, in Mr Skinner's submission, makes it overwhelmingly obvious that Mr Pascal returned to his pre-accident condition and therefore an aggravation had ceased. Mr Pascal has been treated extremely favourably by Australia Post with a number of favourable determinations and reconsiderations.

129. The analysis of improvement past October 1995 is to be found in Dr Smith's second report of 15 November 1995 (T10), in which Dr Smith noted that Mr Pascal's burning pain in the left leg had gone and his back was settling. Mr Skinner acknowledged that Dr Smith did not say that the back had settled but it was in the process of settling. In March 1997, Dr Smith wrote to Dr Lim noting that Mr Pascal continues with pain in the back and left leg since he last saw him in 1995 and therefore in the two year gap, there is a suggestion that things had settled until March 1997. There was no mention of a continual back pain but of intermittent symptoms. Dr Smith described Mr Pascal having two weeks off work in 1996 which lead to the conclusion that Mr Pascal did indeed get back to work following the 1995 incident, then there was a problem in 1996 and a further problem in March 1997 when Mr Pascal's back played up on his way home from work. The idea that there was a second episode is verified by Dr Carless in his report of 20 May 1997 (T22). Dr Carless notes that in April 1996, Mr Pascal had a further episode of back pain. Mr Skinner was asking the Tribunal to infer that post October 1995, Mr Pascal's back settled down until April 1996 when there was a further absence from work because of back pain.

130. Dr Middleton in his report dated 17 July 1997 (T28), refers to a history of an incident on 27 October 1995, which Mr Skinner submitted was erroneous. Furthermore, Mr Middleton notes that after a few months back at work after the 1995 incident, pain again increased and Mr Pascal required two days off work. Mr Skinner submitted that this is the 1996 incident. Mr Skinner also referred the Tribunal to Dr Bodel's report dated 2 October 1997 (T51) which also had an incorrect history of what occurred in October 1995 but Dr Bodel recorded that there were symptoms deteriorating in about April 1996. This occurred without specific accident or injury and is a critical issue, Mr Skinner submitted.

131. Mr Skinner contended that Dr Carr got the history correct that there was no specific incident. Mr Pascal had not given Dr Carr a history of back pain before 1995. Dr Carr had concluded that the present condition was not attributable to a lifting incident. Any effects could account for a temporary aggravation only. This is not a case, Mr Skinner submitted, where Australia Post says that Mr Pascal is fit for all forms of full time duties. Dr Carr, as early as June 1998, anticipated a worsening of Mr Pascal's condition due to the nature of the underlying degenerative condition.

132. Mr Skinner concluded his analysis of the medical evidence by reference to Dr McGill's most recent report. Dr McGill clearly picked up that there was a problem with Mr Pascal's back before 1995. He noted that Dr Smith and Dr Chase had both obtained a history of back pain over many years. Dr McGill was correct, in Mr Skinner's view, in concluding that there was no specific incident in October 1995. Dr McGill supports the conclusion that there was a temporary aggravation of Mr Pascal's back condition. Accordingly, Mr Skinner concluded that it is reasonably clear that Mr Pascal had some back symptoms prior to October 1995 and these increased when he was handling bags filled with empty mailbags. Mr Pascal was off work for approximately six weeks and then returned to normal duties for the next one and a half years. He later ceased work because of his back problems. Dr McGill had concluded it was quite possible that work duties Mr Pascal was performing in 1995 and subsequently did cause a temporary aggravation of the back symptoms at that stage. On the presumption that the work duties caused aggravation, Dr McGill concluded that the aggravation was temporary and was restricted to a change in the level of symptoms. Dr McGill noted Mr Pascal's report that there was little change in his symptoms after ceasing work and accordingly thought it probable that Mr Pascal's work duties played only a small role if any on a temporary basis.

133. In conclusion, Mr Skinner submitted that whatever the reasons for Mr Pascal's poor history giving, there was a misapplication of the facts and a misapplication of the analysis based on that incorrect history and made by a number of doctors. In these circumstances, Mr Skinner submitted that the Tribunal should reject that there were no back problems prior to October 1995, reject that there was a specific incident in October 1995 and accept that there was, by return to work, an absence of symptoms and thus there was an aggravation which was only temporary in nature. The decision under review should therefore be affirmed, Mr Skinner contended.

FINDINGS

134. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.

135. It is clear from Mr Pascal's oral evidence that he is a very poor historian. This characteristic is also noted in the documentary medical evidence. The unreliability of the evidence and inconsistency in detail was confusing not only to the medical experts but also to the Tribunal. For example, Mr Pascal's details of symptoms, when they occurred and medication, to mention a few instances, left the Tribunal with difficulties in making findings of fact. These difficulties were confirmed at hearing, for example, when Mr Pascal was cross-examined, he recalled that he did have back problems, prior to 27 October 1995 although he could not recall the problem in 1994 lifting his daughter who had fainted. Nor could he recall the two months of leg pain in June/July 1995, which was diagnosed as sciatica, as recorded in the Plumpton Marketplace Medical Centre Clinical Notes.

136. Dr Chase explicitly notes that Mr Pascal is a poor historian, is easily confused, apprehensive and was increasingly flustered as the consultation progressed. This observation mirrors the Tribunal's experience of Mr Pascal at hearing. The Tribunal finds therefore that Mr Pascal's evidence was at times inconsistent but faced with this and his demeanour, the Tribunal felt that Mr Pascal was not deliberately trying to mislead it. Mr Pascal gave evidence to the best of his ability, however unsatisfactory this was at times. There are a number of factors such as Mr Pascal's facility with the English language, comprehension and pain which impacts upon him and which the Tribunal took into account. While Dr McGill raised the possibility of embellishment as did Dr Middleton and Dr Hodgkinson, and, Dr Carless was concerned about Mr Pascal's failure to report previous back pathology, the majority of doctors considered Mr Pascal to be genuine as did the Tribunal, on the balance of probabilities. This finding is based on all the evidence available to the Tribunal, corroborating material where it could.

137. In making a determination in this matter, the Tribunal must consider a number of inter-related issues. Firstly, the Tribunal must decide whether or not Mr Pascal suffered a discrete incident on 27 October 1995 when he was at work. The Tribunal must also determine whether Mr Pascal had back problems prior to October 1995 and then if so, whether or not a work-related incident has caused him to be incapacitated beyond being a temporary condition or aggravation.

138. The Tribunal has considered Mr Pascal's "Incident Report" which was completed by him on 27 October 1995 (T6). In this report, Mr Pascal noted that he was emptying an ULD bag and the last bag was very heavy. He then felt a pain in his lower back. He advised his "senior" of the incident, was advised to have a rest but the pain was so severe that he left work to see a doctor. Mr Pascal's supervisor, Mr A Shewan, noted on that incident report that the injury occurred when Mr Pascal was handling bags and trays in the ULD. The "Supervisor's Action Report" completed by Mr Shewan noted that the incident occurred when Mr Pascal was "lifting extra heavy bags" (T6, p18). Mr Pascal's "Claim for Rehabilitation and Compensation" noted that he was emptying an ULD of empty bags and the last lot was very heavy and he hurt his back severely lifting the bags. This occurred in the loading dock area of the Leightonfield Centre. The claim was signed on 27 October 1995. Parts 11 and 12 of the claim form were completed by the manager, M Wright, who on 27 November 1995 indicated that the circumstances of the claim as asserted by Mr Pascal, were substantially correct and that the claim should be accepted. The manager noted that Mr Pascal first went off work on 27 October 1995. Mr Shewan noted in a "Witness Statement" that he first saw Mr Pascal at approximately 8.30am on 27 October 1995 sitting in the cleaner's office in a chair, leaning on table, "wracked in pain" (T6, p23). A medical certificate was completed by Dr Lim on 27 October 1995 and noted lumbar sacral back pain radiating to left buttock and lateral thigh, CT and x-rays show facet joint degeneration, disc pathology and bulging and recommended physiotherapy (T7). A further medical certificate signed by Dr Lim on 5 November 1995, reports lumbar sacral back pain and sciatica which was aggravated at work, according to Mr Pascal. X-ray and CT scans show facet degeneration L3 and S1, disc pathology and bulging L4/5.

139. While Dr Lim in his notes, records no specific incident, Mr Pascal's evidence in his claim and to the Tribunal as supported by the majority of medical reports, leads the Tribunal to conclude that an incident did happen at work on 27 October 1995, when Mr Pascal was lifting the last item from an ULD, which consisted of a mailbag containing a number of empty mailbags. The Tribunal notes that liability was accepted by the Respondent for that incident and Mr Pascal was paid compensation from that date with liability ceasing on and from 9 November 2000. He has also been accepted as having a ten per cent whole person permanent impairment as determined on 16 December 1999.

140. Mr Pascal has, on the Tribunal's understanding of the evidence, told the majority of the doctors who have examined him, that he had back problems prior to 27 October 1995. Some of the doctors he has consulted are of the view that there was no back condition or problems prior to 27 October 1995. Thus, Mr Pascal told Dr Smith, Dr Chase, Dr Scougall and Dr Lim that he had previously experienced back pain since the 1970s on and off. Dr Bodel, Dr Middleton and Dr Carr were not told of any previous back problems. Dr McGill was initially told in 2000 that Mr Pascal had no back problems but on a subsequent examination in 2001, Mr Pascal told Dr McGill that there were back problems prior to 1995 and occurring in 1970.

141. The Tribunal finds that on a consideration of all the evidence, Mr Pascal did have back problems prior to 27 October 1995 which were apparent from time to time, but not so significant as to prevent him going on outings and undertaking usual activities of daily living.

142. Having found that there were back problems before 27 October 1995, the Tribunal further determines that these back problems were indicative of a pre-existing quite advanced degenerative back condition upon which was superimposed an incident at work on 27 October 1995 causing the increase of symptoms including increased pain.

143. Dr Smith, the treating orthopaedic surgeon since November 1995 and continuing to treat Mr Pascal, initially thought that Mr Pascal's back condition would settle and noted on his second consultation on 15 November 1995 (T10) that the left leg burning pain had gone and Mr Pascal's back was settling. However, Dr Smith's report of 3 March 2000 (T166) noted that while his initial opinion was that Mr Pascal had aggravated degenerative changes at work and he had expected him to recover with appropriate conservative treatment, this in fact had not occurred. Dr Smith noted that Mr Pascal described ongoing pain in his back and left leg since 1995, varying in severity. Dr Smith's report of 3 March 2000 varies slightly from his contemporaneous report of 21 March 1997 (T13) of "intermittent trouble" with Mr Pascal's back and left leg pain from the 1995 incident. Dr Smith's 3 March 2000 report seems to have blurred the distinction between back pain and leg pain and the contemporaneous 1997 report noting intermittent episodes. The 3 March 2000 report refers to ongoing, continuous pain. This was not helpful to the Tribunal in trying to understand Mr Pascal's symptoms and their causation.

144. Having considered Mr Pascal's history, Dr Smith concluded on the balance of probabilities that Mr Pascal had a rupture at L4/5 which occurred while he was bending and lifting at work in 1995 and that while Mr Pascal obtained some measure of recovery, he had never really recovered from that and the condition has steadily worsened. Mr Pascal, on Dr Smith's assessment of the situation, had a pre-existing degenerative disease in the lumbar spine at the L4/5 level and the level below at the time of the accident and he has gone on to develop further degenerative change at L3/4.

145. Mr Pascal's evidence was that he had returned to work undertaking light duties for a short period and then had to return to his former job. It is not true and the Tribunal accepts Mr Pascal's evidence, that he was doing his job as usual, because he was receiving help from his supervisor, Mr Shewan. Mr Pascal was also taking pain killing medication and reporting ongoing pain in his back to varying degrees. The ongoing treatment and pain management of the back condition is attested to, in the Tribunal's view, when consideration is given to the report of Dr Li (Exhibit A2) in which is provided a detailed listing of the dates and type of treatment Mr Pascal was receiving during 1994 and then 1995 through until June 2000. The Tribunal notes some gaps in Mr Pascal's reporting of back pain to his local doctors. However, when the reporting of back pain and related symptoms is considered in totality from those clinical notes, in combination with Mr Pascal's evidence and reports of other medical experts, the Tribunal finds that on the balance of probabilities, there was an ongoing presence of back-related symptomatology with varying intensity from 27 October 1995.

146. The Tribunal notes Dr McGill's opinion that the October 1995 work injury caused a temporary aggravation of Mr Pascal's degenerative back condition with symptoms settling and Mr Pascal returning to his former work. The Tribunal considers that the evidence does not support this in that Mr Pascal did return eventually to his former work but was not able to undertake the usual duties without obtaining the assistance of his supervisor or pain treatment. Furthermore, considering the General Practitioners' consultations with Mr Pascal, as previously detailed, the Tribunal considers that there was ongoing treatment and management of Mr Pascal's back condition on a regular basis, more regular than can be seen occurring in 1994 when there were isolated incidents. Thus, the Tribunal finds that Mr Pascal was continuing to take medication, he was helped on the job by his supervisor and his back condition was being continually managed far beyond what could be considered as a temporary period.

147. The Tribunal considers that on the evidence and as noted in Dr Smith's report of 4 August 1999 (T151), there are a significant number of patients who do have degenerative disease that is asymptomatic and then one day with activity at work such as bending and lifting, they cause further damage to that degenerative process and render it permanently symptomatic. There are other patients who aggravate a pre-existing degenerative disease and commonly what happens is that the aggravation resolves and the patients return to normal. The Tribunal does not consider that this last scenario fits Mr Pascal's history.

148. Dr Carr, when given a history of Mr Pascal's continuing symptoms stated that this could indicate a permanent aggravation but he would want to check other information such as reports from General Practitioners or other doctors and ascertain whether or not there had been ongoing treatment, pain management and the like. On the Tribunal's assessment of the evidence in this matter, this is precisely what happened to Mr Pascal in that he had ongoing treatment by his General Practitioners, pain management, rehabilitation, a psychologist's intervention and ongoing treatment which continues from a treating orthopaedic surgeon. Dr Carr had commented that Mr Pascal's symptoms are quite genuine but could not relate them to work on the history he had. He agreed that if Mr Pascal's history was correct, as given at hearing and gleaned from the many medical assessments, then that could indicate a permanent aggravation. Furthermore, Dr Carr agreed in general terms that it was quite possible to have a ruptured disc superimposed on a degenerative process that is, that a lesion to which Mr Pascal was predisposed by his degenerative condition could be made worse with the incident at work as a precipitating factor.

149. Dr Scougall opined that Mr Pascal has back lesions and the incident at work was a substantial contributing factor for the development of those lower back lesions. Dr Scougall further opined that Mr Pascal had degenerative changes at the L4/5 level prior to the incident and the findings are consistent with his statement that the lesions had been asymptomatic although Dr Scougall had noted that Mr Pascal had back pain prior to October 1995 commencing in the 1970s.

150. Dr Bodel's opinion on 2 October 1997, is that Mr Pascal's complaints are quite genuine and the disc pathology at L4/5 is probably causally linked to his work (T51). On the Tribunal's understanding of all the available evidence, the Tribunal agrees with this opinion. Similar to many of the Orthopaedic Surgeons reporting in this matter, Dr Bodel did not recommend a surgical procedure at that time as there was no objective sign of nerve root irritability and he further noted that the outcome of spinal fusion is very unpredictable.

151. Dr Hodgkinson's opinion on 13 June 2000 (T178) is that Mr Pascal's problems are related to his excess weight and increased blood pressure problems. Mr Pascal has constitutional degenerative change in the lower spine unrelated to a work incident in 1995. Upon examination, Dr Hodgkinson opined that Mr Pascal's responses were inclined to show embellishment. The Tribunal notes that Dr Hodgkinson did not refer to clinical notes of Mr Pascal's General Practitioners. While Dr Hodgkinson referred to the detailed history supplied to him by Australia Post, it is not apparent from his report that he had available to him any of the other reports from medical experts including the treating Orthopaedic Surgeon Dr Smith, or from Dr Bodel, Dr Chase, Dr Scougall, Dr Carr, Dr Middleton Dr McGill or Dr Carless. The Tribunal has had the benefit of considering a wide range of evidence, which it considers provides a more comprehensive or complete picture than that which seems to have been available to Dr Hodgkinson.

152. Considering the plethora of opinion, the Tribunal prefers the opinions of Dr Chase and Mr McGuire which compared to other opinions are more comprehensive and accurate. Dr Chase and Mr McGuire reflect a more complete understanding of all the evidence. These experts also show a consideration of Mr Pascal's individual circumstances which includes his psychological response to his painful conditions. Dr Chase's opinion is that Mr Pascal's condition of disc degeneration at L4/5 and L5/S1 with active facet joint arthritis particularly in the right L4/5 facet joint, is an aggravation of an underlying and pre-existing condition. The condition is permanent. Dr Chase also noted and the Tribunal agrees with this assessment, that Mr Pascal's condition relates to a combination of factors namely his pathology, his psychological response to it, and other social factors which may be supporting him in his pain behaviour. Dr Smith does not recognise the psychological component of Mr Pascal's condition. Dr Chase's opinion is supported by Mr McGuire who concluded that Mr Pascal has poor pain coping strategies other than passive techniques such as avoidance of activity, rest and medication. Mr Pascal's pain management strategies are considered to be externalised by Mr McGuire. There was an improvement with pain management counselling which has now ceased. Dr Smith , the treating doctor, and Dr Scougall and Dr Bodel are all supportive of there being a work-related contribution to the aggravation of Mr Pascal's pre-existing low back degenerative condition. Dr Carr was prepared to accept a work-related contribution to Mr Pascal's degenerative condition, if there was evidence of continuing problems and treatment. The Tribunal has accepted on the balance of probabilities, that there is such evidence of a continuing low back condition beyond what could be consider to be a temporary aggravation.

153. In Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537, Windeyer J noted that an existing disease has been aggravated if it has been made worse, not that it has simply become worse. More recently, in Tippett v Australian Postal Corporation (1998) 27 AAR 40, Finkelstein J noted at 45:

"What Beattie [Commonwealth v Beattie (1981) 53 FLR 191] also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable. This proposition was confirmed by the Full Court in Commonwealth Banking Corporation v Percival (1988) 20 FCR 176; 9 AAR 206 where it was said that while for many medical purposes it may be necessary to draw a distinction between the underlying injury and the symptoms of it that it is not so for compensation law where it is fundamental that the symptom of an injury is a part of that injury.

Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a resultant of an employee's employment then the employee will have suffered a compensable injury: Commonwealth Banking Corp v Percival at 179-180; 209-210. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee's employment..."

154. The Tribunal finds that an incident which occurred at work on 27 October 1995 caused persistent back pain superimposed on Mr Pascal's pre-existing degenerative back condition. This was no minor flare-up and on an examination of all of the history, there has been continuing symptoms since 1995, regardless of their varying intensity, which the Tribunal finds is a permanent aggravation of the pre-existing degenerative back condition. The Tribunal finds that the work injury sustained on 27 October 1995 made Mr Pascal's degenerative condition worse. The symptoms which Mr Pascal continued to experience subsequent to 27 October 1995 are not simply part of the progress of the degenerative condition. The Tribunal notes the evidence by Mr Pascal to Dr Carr that the pain had settled one hundred per cent but this is at odds with the predominance of other evidence, including objective evidence provided by CT and MRI scans and the clinical findings of a majority of doctors. This highlights the difficulty for all concerned in dealing with Mr Pascal as a poor historian. It may be, as the Tribunal found from its questioning of Mr Pascal, that the reports of symptomatology represent both radicular and musculoskeletal pain which are quite distinct-radicular pain being severe and episodic with musculoskeletal pain being more constant. If this were the case, and it is by no means certain, it could explain the varying intensity of symptomatology.

155. As was noted in Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (supra) and repeated in Martin v Australian Postal Corporation (1999) 29 AAR 420, an aggravation of a condition could become symptomatic, but would have to do so for not just a short time but to continue increasingly to cause pain and disability thereafter. The Tribunal therefore concludes that there was an injury at work which caused aggravation of the degenerative back condition which made that condition worse. In reaching this conclusion, the Tribunal has taken into account the requirements of the Comcare Guide in relation to the definition of aggravation. Considering the combination of medical evidence and Mr Pascal's evidence, the Tribunal concludes that Mr Pascal is unable to work. He is entitled to ongoing compensation and payment of reasonable medical expenses. The Tribunal notes Dr Smith's opinion that Mr Pascal requires surgical intervention. The Tribunal also notes that the majority of orthopaedic opinion is that any operation is unlikely to be successful and there do not seem to be objective signs of nerve root irritability.

156. In relation to Mr Pascal's permanent impairment, the Tribunal notes that Mr Pascal received a determination on 16 December 1999 that he had a ten per cent whole person impairment. Subsection 25(4) of the Act requires that after a permanent impairment determination has been made, there can be no further increase in permanent impairment unless it is of the nature of ten per cent or more. Considering the opinion of Dr Scougall, the Tribunal finds that Mr Pascal has a 15 per cent whole person impairment in relation to the thoraco-lumbar spine, arrived at by utilising Table 9.6 of the Comcare Guide. The Tribunal also finds that there is an impairment of the left leg but is not, on the medical information available, able to make a determination under Table 9.5. While the Tribunal notes Dr Smith's opinion of 20 March 2000 (T169) that Mr Pascal has a whole person impairment consequent to his lower back and left leg pain representing a 25 per cent whole person impairment, the Tribunal is not assisted by this because there is no reference to the requisite Comcare Guide tables. Accordingly, the Tribunal determines that the matter of permanent impairment assessment be remitted to the Respondent to assess the percentage whole person impairment of the left lower leg in combination with fifteen per cent whole person impairment accepted by the Tribunal as representing the whole person impairment of the thoraco-lumbar spine.

157. In all of the circumstances and for the reasons set out above, the Tribunal sets aside the decision under review pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975 and substitutes its decision therefor, that:

(i) Mr Pascal sustained an injury on 27 October 1995 in the course of his employment with Australia Post and is entitled to compensation in respect of this injury pursuant to section 14 of the Act.

(ii) Mr Pascal has ongoing incapacity as a result of his injury at work and is entitled to weekly payments of compensation pursuant to section 19 of the Act from 9 November 2000 and continuing.

(iii) Mr Pascal is entitled to compensation pursuant to section 20 of the Act from 9 November 2000 and continuing.

(iv) Mr Pascal is entitled to have the cost of all medical expenses incurred from the treatment of his back condition to date and continuing, paid pursuant to section 16 of the Act.

(v) In relation to the matter of permanent impairment, Mr Pascal has a 15 per cent whole person impairment of the thoraco-lumbar spine pursuant to Table 9.6 of the Comcare Guide. The assessment of Mr Pascal's whole person impairment of his left leg pursuant to Table 9.5 is remitted to the Respondent, as is the combined whole person impairment for Mr Pascal's back condition and left leg symptoms to ascertain whether or not there is an increase in the degree of impairment pursuant to subsection 25(4) of the Act.

(vi) Mr Pascal is entitled to compensation for non-economic loss pursuant to section 27 of the Act.

(vii) The Respondent is to pay for Mr Pascal's reasonable legal costs as taxed or agreed.

I certify that the 157 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr PD Lynch, Member.

Signed: .....................................................................................

Ms J Purches, Associate

Date of Hearing 30 November 2001

Date of Decision 25 July 2002

Counsel for the Applicant Mr P Jeffriess

Solicitor for the Applicant Mr M Burns, McClellands, Solicitors

Counsel for the Respondent Mr B Skinner

Solicitor for the Respondent Mr D Hanger, Blake Dawson Waldron