Davis and Comcare [2003] AATA 110 (6 February 2003)

Last Updated: 7 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 110

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/96

GENERAL ADMINISTRATIVE DIVISION	)
	Re	JOHN ANTHONY DAVIS

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Senior Member J A Kiosoglous, MBE

Date 6 February 2003

Place Adelaide

Decision

The Tribunal affirms the decision under review.

(signed)

J A KIOSOGLOUS

Senior Member

CATCHWORDS

Compensation - back injury - whether compensable injury still a factor in applicant's condition - whether applicant remains incapacitated for work as result of compensable injury - whether condition now due to occurring degenerative lumbar disease - applicant incapacitated from engaging in suitable work.

Safety, Rehabilitation and Compensation Act 1988.

REASONS FOR DECISION

6 February 2003

Senior Member J A Kiosoglous, MBE

1. This is an application for review by Mr John Anthony Davis (the applicant) for review of a decision dated 27 November 2000 (T45) which determined that the respondent was no liable to pay compensation to the applicant for musculo-ligamentous strain lower back being satisfied on the balance of probabilities that he no longer was suffering from a compensable condition. An Independent Review Officer (IRO) decided on 21 February 2001 to affirm the original decision (T49).

2. The Tribunal received into evidence the document lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1-T65) as well as seven exhibits, three lodged by the applicant (Exhibits A1 - A3) and four lodged by the respondent (Exhibits R1 - R4). In addition, the Tribunal heard oral evidence from the applicant, who also called Associate Professor Dr Norman Arthur Broadhurst, specialising in musculo-skeletal medicine. The respondent called Mr Paul Duthie-Mills, orthopaedic surgeon; Mr Felix Lim, orthopaedic surgeon; and Mr Timothy George Upsdell, psychologist and rehabilitation consultant. The applicant was represented by Mr G Britton and the respondent by Mr T McRae, both of counsel.

ISSUES

3. The issues before the Tribunal are:

* whether the applicant has recovered from the compensable injury by 8 December 2000;

* if yes, then whether the applicant continues to suffer from a compensable injury;

* if no, then whether the applicant since 8 December 2000 has been incapacitated for work as a result of the compensable injury as distinct from a naturally occurring degenerative lumbar disease;

* whether the applicant is incapacitated from engaging in suitable work; and

* whether the applicant's condition of low back pain is the result of degenerative changes in the lower back or has been contributed to a material extent by the applicant's work for the Australian National Railways.

HISTORY OF THE APPLICATION

4. On 29 February 1990, the applicant lodged a notice of work related injury (T5/10) for a strained lower back as a result of an accident in the course of employment on 2 January 1990, and which was aggravated on 9 January 1990. Liability was accepted by the respondent to pay compensation to the applicant pursuant to the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). On 12 September 1997 the applicant was made redundant, but continued to be paid compensation by the respondent in respect of the compensable injury until 8 December 2000. The decision that determined the cessation of liability was made on 27 November 2000 (T45). This determination was affirmed as a result of a review on 21 February 2001 (T49). He applicant applied to the Tribunal on 15 March 2001 (T2) for review of the determination.

APPLICANT'S EVIDENCE

5. The Tribunal whilst setting out the applicant's briefly, nevertheless takes into account his evidence as a whole. The applicant was born in Port Augusta on 27 January 1951 and is currently 52 years of age. At age 22 years, he commenced employment the Commonwealth Railways which in about 1970 was renamed Australian National Railways (ANR). At all times he has been based in Port Augusta working in various positions. In January 1990 he worked in a section referred to as the motor shop. His duties were to drive trucks and inspect cars out to various points on railway lines in South Australia and extending into the Northern Territory as far as Alice Springs and as far west as Kalgoorlie.

6. On 2 January 1990 he attended at a derailment at an area known as Bookaloo. Whilst lifting a metal place under a truck he suffered an injury to his lower back. A week later, about 9 January 1990 whilst working in the motor shop at Port Augusta, the applicant suffered an aggravation of that injury when lifting a heavy compressor. He submitted a claim which was dated 29 February 1990 (T5). This was accepted by the respondent. On about 23 September 1992 in the course of his work he was walking on a rough surface roadway when he felt a sudden sharp pain in his lower back and being in the same place as the initial injury and subsequent aggravation.

7. The applicant prior to this latter incident had been very careful with what he did and in particular what he lifted. He saw a Railways medical doctor, Dr Le Poidevin, who gave him a medical certificate to be off work until 29 September 1992 and advised him against lifting objects weighing more than 25 kilograms. He continued to work in the area referred to as the round house until 12 September 1997 when he was retrenched.

8. Prior to his being retrenched he was invited to a meeting ANR representatives and a union representative. At this meeting he was shown a copy of a report of Dr VKP Yeung dated 15 May 1997 (T18). This was the first time that he had been made aware of this report and as a result of its contents he was to be retrenched. He was further told that there was no position available at Port Augusta, not with ANR generally. The applicant then received compensation payments for a period of just over three years until 8 December 2000. The decision to stop payments was made on 27 November 2000 (T45) and the cessation dated was determined to occur on 8 December 2000. The reason given for the cessation of payments was that at the time of this determination the applicant no longer suffered a work-related condition. It was further advanced by the respondent that it was difficult to explain how a lifting episode back in 1990 would still cause any ongoing incapacity.

9. The applicant explained that between the time he suffered the aggravation on 23 September 1992 when walking in the course of his work he was required every day to undertake physical activities which were quite heavy. In addition he continued the driving of trucks. As a result his back condition was constantly aggravated or exacerbated by the work.

10. The applicant has undertaken chiropractic treatment in Port Augusta all of which was paid for by the respondent. In fact the applicant has continued to see the chiropractor, Mr Andrew Hunter, from time to time since the cessation of compensation payments on 8 December 2000. During the period September 1992 through to September 1997 he was seeing the chiropractor every give or six weeks and for which he received temporary relief from the pain.

11. The applicant has had a minimal education and as such strongly believed that the only work for which he is suited is with the Railways as he has been a railway man since the age of twenty-two years. Despite his belief that he suffers an ongoing incapacity for work and knowing that there was no further employment with Australian National he has made good efforts to attempt to obtain work in Port Augusta (Exhibit A2).

12. The applicant is presently able to walk his dogs for about half an hour on most morning is able to perform household tasks, such as the dishes, making beds, vacuum and general house cleaning. He also stated that he tends his garden and backyard and does general maintenance work on the house as well as cleans and maintains his motor vehicle. He also stated that he is able to do some painting, woodwork and a little welding. He also stated that he has obtained a second-hand computer to obtain computer skills, but is not in a position to pay for tuition as he only receives about $80.00 per fortnight from Centrelink. He further stated that he goes into Port Augusta once a week to do his shopping and to check the notice board at the employment organisations for any job vacancies. When sore and unable to control his pain and discomfort he stated that he walks his dogs and that on occasions he takes pain killers and lies down until the pain has settled.

13. During cross-examination the applicant stated that he gave notice of each incident to his employer and that he did seek medical attention. He stated that he had no time off work as a result of the events of 2 January 1990. In describing the incident of 2 January 1990 he stated that he felt pain to the lower-left part of his back indicating to a sport left of the lumbar spine about three inches to the left of the lower lumbar spine at about the belt level. He agreed that his treating practitioners were Dr R Bohla and Dr VKP Yeung but occasionally he would see Dr B Singh all of the Port Augusta Medical Centre.

14. The applicant stated that between 1992 and the conclusion of his employment in 1997 he believed his back to get worse. He did not believe that from 1997 until the hearing of this matter that his back had gotten any worse. He stated and agreed that he had seen a chiropractor on a number of occasions and that Dr Yeung had prescribed the painkiller, Voltaran, due to the pain. He stated that he was also taking Panadeine Forte and Capadex.

15. The applicant agreed that generally in the five or six years that followed the incident of 1990 and 1992, despite his restrictions, he put in a normal full day's work and that he regularly reported for work. He explained that he attended his employment as he was fearful of losing his job if he should be regularly absent.

16. He stated that his pain was consistent but that in terms of pain it was worse during 1997. He described the pain as being more intense and extreme than in the past. He also stated that his bending and lifting was restricted. He further stated that he attended the Whyalla Hospital for injections to the spine. He believed that it was Dr Lim who recommended this course of action.

17. The applicant agreed that his duties were modified in the middle of 1997. He agreed that the modifications were that he not lift more than 15 kilos and not to bend repetitively. He further agreed that prior to the termination of his employment he had not returned to normal duties, but was still on the modified duties. He also agreed that after the termination of his employment in September 1997 he continued to visit the medical clinic. He disagreed that once his employment was terminated that many of the aggravating factors in relation to his back were taken away. He stated that his back was generally sore and that it was much the same at the end of 1998 as when he left his employment.

18. He agreed that in December 2000 he had injections to the spine by a doctor at the Ashford Hospital. This was done on referral from Associate Professor Dr Broadhurst. He stated that he had follow-up treatment at the Port Augusta Medical Centre from Dr D McQuistan in consultation with Dr Broadhurst in about January 2001. He stated that since June 2001 he has visited the Medical Centre about eight times on average of once every month or six months. He is not taking any medication in relation to his spine. He stated that had his employment not been terminated in September 1997, he would have continued that employment.

19. When asked what level of pain he currently experiences he stated that it is the same as that since he initially injured himself and that the pain is still there. He stated that if he stands around on one sport or if driving or sitting down for periods of time it increases the pain.

20. Since his employment was terminated he agreed that he has approached various employment organisations in Port Augusta with a view to finding employment. The applicant stated that he often goes to them and looks on the noticeboard about possible jobs. He was able to recall being interviewed by Mr Tim Upsdell of CRS Australia. He stated that he spent about three hours with Mr Upsdell, a psychologist, and whilst he was unable to remember discussing potential employment they did discuss a lot of detail.

21. He stated that he does not remember telling Mr Upsdell that the occupation of a security guard was of interest to him. In fact the applicant stated that although this was in Mr Upsdell's report (T63) he does not agree that he said this. He believes that he would have said that he would be able to work as a handyman or caretaker at a school, hospital or aged care centre. He did not know if he could work as a console operator as he had never considered such duties. He felt he could work as a storeperson, but as far as work as a gatekeeper there was not such job available in Port Augusta. He agreed that whilst he had not been reassessed between November 2000 and the beginning of 2002 by any possible employer or employment agency he nevertheless had during that time looked for a job.

ASSOCIATE PROFESSOR DR NORMAN ARTHUR, MUSCULO-SKELETAL PHYSICIAN

22. Dr Broadhurst is a specialist in musculo-skeletal medicine who examined the applicant and prepared the reports dated 8 December 2000 (T46) and 6 September 2001 (T64) respectively. A Patient Information form and notes by him was also tendered (Ex. R4). In his report (T46) as well as in his oral evidence he stated that the applicant was referred to him by Dr Lim. He stated, inter alia, in his report (T46/78) that:

"It would seem reasonable that this patient has sustained a significant injury which for unknown reasons has not resolved."

By this he stated in his oral evidence that he was referring to musculo-skeletal pain.

23. In reference to comments by Dr Mills that there are some degenerative changes, Dr Broadhurst stated (T46/79) that it is not possible to blame all pain on degenerative change. He further stated that Dr Mills cannot substantiate this as the cause of the pain would require a provocative discogram to be done. He further stated that it is likely that the applicant's pain has an ongoing relationship to the initial injury and the type of work that he has been doing.

24. In his subsequent report dated 6 September 2001 (T64) he stated, inter alia:

"In support of this man's claim, it must be noted that he has seen local doctors in Port Augusta on a regular basis since the incident in 1990 and that Dr Lim attributed 7% permanent impairment to the lumbar spine in relation to his claim. It needs to be noted that musculoskeletal pain can be persistent as is evidenced by people who have had whiplash injuries and the literature documents the fact that even after litigation settlement, pain doesn't settle. We also know of ongoing chronic pain related to conditions as tennis elbow when no inflammatory cells have been isolated, yet the patient has a considerable onset of pain with various activities and such activities perpetrate the impairment. Thus to say that there are no grounds for ongoing musculoskeletal pain because healing always occurs is not true."

He further stated that it is not feasible to say that his pain is solely due to degenerative changes, especially in light of the applicant's repeated complaints of pain. In conclusion he also stated that:

"Lumbosacral pain can be due to a multitude of causes. The consistent complaint of this patient together with the biomechanics of the initial injury and his ongoing manual labour would support employment as being a significant contribution to ongoing discomfort."

25. He stated in his oral evidence that what had occurred to the applicant between 1992 and 1997 had been a significant contribution to the condition. He, further stated that bearing in mind the applicant's occupation and the area in which he was working, Dr Broadhurst thought that it was very reasonable to assume that exacerbation in this type of work and the underlying initial cause of pain has been perpetually exacerbated.

26. In cross-examination Dr Broadhurst agreed that there is in the applicant a mild degenerative change in the L%-S1 facet joints. He went on to stated that such degeneration is quite common in the population and cannot be blamed as the sole cause of pain. He went on to emphasise that the radiology report and Dr Mills both say that there are minor to mild.

27. Dr Broadhurst in reference to the muscuo-skeletal component relating to some ligament damage in the lumbo sacral area stated that there are multiple ligaments that hold this crucial area in the human body together. He referred to this as a musculo-ligamentous strain "because there is just so much that can be damaged in that area".

28. Dr Broadhurst was referred to the report of Dr Lim (T44) and in particular to the comments:

"It is difficult to explain how a lifting episode that appeared to have caused muscular and ligamentous sprain of the lumbar spine should still be causing back pain more than 10 years later."

In response Dr Broadhurst stated if you have internal disruption for which there is no cure, unless you have a spinal fusion, then this is a likely cause of the pain. He further stated that Dr Lim's comments about muscular and ligamentous strain of the lumbar spine should still be causing back pain more than 10 years later is all very well provided there has not been exacerbation of the pain by the type of work the applicant has done. He stated that the type of low back pain complained of is common but does not mean that the applicant does not keep re-injuring it. He further stated that if there was one injury and no further injuries then Dr Lim's statement is reasonable. However, if there are further injuries then that statement would have to be looked at differently.

29. Dr Broadhurst stated that as he understood it the applicant suffered a very definite injury in 1990. Then there was the aggravation about a week later in 1990 and the further aggravation in 1992 when walking on a rough road. He went on to explain that one of the big problems with low back pain and any musculo-skeletal injury is whilst working the body is warm and it may be injured, but pain is not manifested until 24 to 48 hours later. Rest may then enable one to be in a reasonable condition. He stated that on the applicant's history he would attend a chiropractor as well as pursue some mild analgesic treatment to get him over the particular exacerbations.

30. He stated that it is reasonable to assume that in a particular stance and twist of the body a ligament can be injured. He further stated that the disc, by definition, is a ligament and that it is very reasonable to assume that this man has got internal disruption in that area and that it is a continual source of discomfort. He also stated that internal disc disruption is well recognised as an ongoing source of low back pain. He stated that he did not think that the source of the applicant's pain is degenerative changes but rather musculo-ligamentous, which also includes the disc and disc disruption.

31. In reference to his comments in his report (T46/78) concerning the applicant sustaining a significant injury which for unknown reasons has not resolved, Dr Broadhurst stated that most things do resolve, but no matter what is done for people they walk around with pain for a very long time. As far as his stating the presence of internal disc disruption, he felt this to be a plausible reason for the initial injury and its non-resolution. He stated that in such case where he is unable to assist a patient he then refers the patient to a spinal surgeon to determine if anything can be done.

32. Dr Broadhurst agreed that the applicant has not worked since his employment was terminated in 1997, but found that in terms of mobility the applicant's back at the date of hearing was generally much the same. He stated that whilst the body has the capacity to heal it is a case of how much the process is disrupted. As the applicant has not done anything now for some five years, the healing process to some extent has continued and that is in just pure stretching ligaments. He stated that such particular testing does not involve internal disc disruption. He was satisfied that the applicant's condition is not cured, but very slightly improved.

33. He referred to Dr Lim at one stage thinking that the applicant had some sacroiliac pain and actually injected into that joint and found that there was no benefit from that injection into the joint. He further stated that the sacroiliac ligament are very complex and over a period of time this particular test does stress them. He was satisfied that the sacroiliac ligaments are now not a source of discomfort, but that the applicant's other source of discomfort are still present. Dr Broadhurst agreed that provided any work did not involve heavy lifting or repeated bending the applicant ought to be able to do that, if such is available. He also stated that the applicant would be happy to be employed if work could be found by an employing institution which would ameliorate with the applicant's condition.

DR FELIX LIM, ORTHOPAEDIC SURGEON

34. Dr Lim prepared three reports. These are dated 30 November 1997 (T26), 19 November 2000 (T44) and 7 September 2001 (T65) respectively. In his report dated 30 November 1997 (T26) he stated, inter alia:

"Clinical examination showed tenderness and spasm of the left para-spinal muscular. Flexion was unrestricted but caused some pain. He also complained of pain on bending to either side. Straight leg raising test was restricted to 70^o on both sides due to hamstring tightness. Sacrioliac stress test caused pain on the left side. Neurological examination of the lower limbs was normal. At this visit, I expressed the view that he might have left sacrioliac joint strain causing chronic back pain. I arranged for x-ray examination and saw him again on 2 April 1997, X-ray of the lumbar spine and sacrioliac joint did not show any significant abnormality other than minor degenerative changes which is normal for his age ... .

Clinical examination on this occasion again showed tenderness and some spasm of the left para-spinal muscle...".

35. He further stated in this report (T26), inter alia, that:

"From clinical and x-ray examination in April 1997, it appears that he suffered ligament injury of the lumbar spine, probably in the left sacrioliac region. There was no clinical or x-ray evidence of any serious injury. This is consistent with the history of injury related to me. It is difficult to ascertain this from clinical examination carried out several years later.

He has x-ray evidence of degenerative changes of the lumbar spine which is consistent with his age. This is not necessarily symptomatic on its own but may have been aggravated by his work."

He concluded this report by stating that based on the examination in April 1997, he was of the opinion that the applicant was approximately 70% loss of function of the lumbar spine as a result of the ongoing symptoms.

36. In his report dated 19 November 2000 (T44) Dr Lim stated that there was no clinical evidence that the applicant suffered any lumbar disc prolapse or nerve root impingement. He further stated that it was difficult to explain how a lifting episode that appeared to have caused muscular and ligamentous strain of the lumber spine should still be causing back pain more than 10 years later. He further stated that the type of low back pain complained of is very common in the general population. He did not think it possible to determine in 1997 whether the applicant's back pain was caused by an injury in 1990. He also stated that the x-ray examination of the lumbar spine in 1997 showed very minor degenerative change. An x-ray taken in November 2000 also showed only minor degenerative changes. He was of the view that such changes are normal the applicant's age. He stated that there is no direct co-relation between such observed x-ray changes and the presence of low back pain in the general population.

37. In his reported dated 7 September 2001 (T65) Dr Lim was satisfied that at that date the applicant has ongoing symptoms at the lumbar spine and that his clinical findings on examining the applicant on 21 March 2001 were similar to those of previous visits.

38. In his oral evidence Dr Lim was referred to a report by Dr VKP Yeung, general practitioner, dated 15 May 1997 (T18) and in particular to an x-ray report (T18/26). Dr Lim stated that indicates that the applicant has slight degeneration of the lower lumbar disc. As to CT scanning control report (T18/27) in reference to a left sacroiliac joint injection, he stated that this indicates the applicant's pain same from specifically the left sacroiliac joint. He was satisfied that there was no evidence of any particular injury to that area as distinct from degenerative change. He stated that he could not be sure that the injury had been caused as a result of aggravation by the applicant's work. He agreed that it may have been related to age or other factors or it may have been related to the work.

39. As to his arrival at there being a 7% loss of function of the lumbar spine, he stated that this was a subjective assessment based on his perception of the applicant's symptoms and the applicant's difficulty with the lumbar spine. He agreed that the subjective assessment was as distinct from objective evidence of damage to the bony structure.

40. Dr Lim's report dated 19 November 2000 (T44) set out certain conclusions previously described. These were put to him and he adhered with his comments therein including that the applicant was suffering from muscular and ligamentous strain of the lumbar spine. He also found difficulty to explain how the lifting episode should still be causing back pain more than 10 years later, and that he did not think it was possible even years later to determine whether the back pain was caused by an injury in 1990. He assessed the applicant as having a residual working capacity and that he has restrictions such as lifting, bending and twisting while carrying loads.

41. In cross-examination he stated that he saw the applicant about his back on four occasions. He agreed that the applicant has a back condition which affects capacity for work. The history of events were put to Dr Lim in cross-examination, including treatment received by the applicant. It was put to Dr Lim that given the history would he agree with the proposition that the applicant is going to work each day and potentially being subjected to activities which may cause some sort of aggravation or exacerbation of any back condition that he had. In reply Dr Lim stated "Possible, yes".. It was then put to him that this history is ongoing after 1992 and he was asked if he had heard that before to which he replied "No".

42. Dr Lim also had put to him extracts from Dr Broadhurst's report (T64). He agreed with the proposition that "lumbosacral pain can be due to a multitude of causes". Nor did he disagree with Dr Broadhurst who further stated in the report (T64) that "The consistent complaint of this patient together with the biomechanics of the initial injury and his ongoing manual labour would support employment as being a significant contribution to his ongoing discomfort.".

DR PAUL DUTHIE MILLS, ORTHOPAEDIC SURGEON

43. Dr Mills prepared two reports. These are dated 14 September 2000 (T41) and 31 July 2001 (T62) respectively. As to the first report (T41) Dr Mills Stated that he adhered to the opinions expressed in it. He stated that on the information available to him it would appear that the applicant has suffered soft tissue injury of his lower back as a result of a lifting incident in his work in 1990. He further stated that recent x-rays demonstrate relatively minor but definite disc degenerative disease in his lumbosacral spine. He stated that it was notable that the applicant has complained of progressive deterioration in his symptoms despite chiropractic treatment and also, during the three years since he stopped working with ANR. He was of the view that the applicant's continuing and progressive deterioration in symptomatic is due to some progress in the underlying definite but mild disc degenerative disease in his lumbosacral spine.

44. In his opinion, Dr Mills believes that the applicant's current condition is related to the natural progression of an underlying condition, that is, the mild disc degenerative disease in his lumbosacral spine. He is further of the view that this condition was not caused by the applicant's employment, but rather it being an aged related condition. Notwithstanding this view, Dr Mills also stated in his report that no radiological or other special investigations are available from 1990 to confirm that the disc degenerative changes presently noted in the applicant's low back were present at that time.

45. Dr Mills was of the view that on the balance of probability the applicant would be in the same condition today regardless of the employment contribution on 2 January 1990. He was further of the view that the employment component of the applicant's condition has now ceased. He also was of the opinion that the applicant is not totally incapacitated for any employment and that the applicant would be fit to carry out a wide array of selected light work in respect of his musculoskeletal condition which does not involve any heavy manual labour, repetitive bending or heavy lifting. He believed that the applicant would be fit enough to undertake duties as a gatekeeper or working on a console in a service station.

46. In his report dated 31 July 2001 (T62) Dr Mills states that from an orthopaedic perspective the worker has a significant retained capacity for light to medium sedentary work. He further stated that the applicant would need only to avoid activities involving manual labour, repetitive bending or heavy lifting. Dr Mills also noted that the persistence of symptoms in the context of a soft tissue strain is inconsistent with clinical experience. The worker's asserted deterioration of symptoms following redundancy and (on the applicant's history) lack of significant activity is more consistent with a disease process than injury effects, which would expected to either remain static or improve.

47. Dr Mills in his oral evidence stated that he had read the reports of Dr Broadhurst including the written notes (Exhibit R4). In reference to the first report (T46) Dr Mills was asked what he thought Dr Broadhurst meant that "it would seem reasonable that this patients has sustained a significant injury which for unknown reasons has not resolved." He stated that he took this to mean that Dr Broadhurst considers that the applicant has suffered a soft tissue injury, a significant injury, and that for unknown reasons Dr Broadhurst can't offer an explanation why the applicant's symptoms persist.

48. He further understood from the contents of this report (T46) that Dr Broadhurst indicates that there is tenderness over the ilio lumbar ligament on one or other side. He stated that he believed that it would be proper to refer to that sort of injury as "soft tissue damage" which is ligamentous or muscular damage. Having considered the applicant's presentation that on the balance of probabilities, the applicant had a soft tissue injury of the back. He further stated that it would normally be expected that such an injury to repair over a relatively short period of three to six months at the most.

49. Dr Mills stated that it is his contention that the applicant's continuing symptoms are due to a degenerative change in the low back. He further stated that the comment by Dr Broadhurst (T64) that lumbo sacral pain can be due to a multitude of causes is obviously correct when taken by itself, in the context proposed by Dr Broadhurst it is meaningless.

50. Dr Mills was referred to a report by Dr b Singh, general practitioner, dated 18 January 1993 (T9) in which he states, inter alia, that when he reviewed the applicant on 29 September 1992 the applicant was better and agreed to go back to work, which he did. He stated that this indicates quite clearly that by September 1992 the applicant was better and went back to work. Dr Mills in his oral evidence took this to mean that the soft tissue injury which was reported initially in 1990 had resolved, or at least substantially improved, leaving the explanation for the applicant's continuing symptoms as the underlying degenerative condition of the low back. He further stated that in other words, the soft tissue injury had settled and any continuing symptoms were on the basis of the degenerative change in the low back.

51. It was put to Dr Mills that the applicant in his evidence stated that his back condition is unchanged now, as compared when he left Australian National Railways in 1997. Dr Mills responded that this history is not the same given him by the applicant in September 2000. He further stated that his records indicate that the applicant stated he was placed off work in September 1997 and that from that time the applicant had noted a further deterioration of his back symptoms with the pain now being more prolonged and severe. Dr Mills also stated that he applicant had told him that on some days his back felt terrible and in general he said his back pain was worse while standing and sitting, but better if he walked around and moved about. He was strongly of the view that the applicant was quite clear in his statement that there had been a significant deterioration in his symptoms from and after September 1997.

52. The applicant's work history was put to Dr Mills during cross-examination and he was asked whether he would accept that on a regular basis the applicant was subject to physical insults in his employment which could have affected his spinal condition. Dr Mills stated that he would have to agree on the basis that it could have affected the spinal condition in some way. It was further put to Dr Mills that when the applicant suffered soreness to the back whilst at work the applicant sought chiropractic treatment. On the history accounted for it was put to Dr Mills if he agreed that the applicant on a regular basis was exposed to physical stressors in the workplace which seem to have affected the applicant's back condition. Dr Mills responded that the applicant was referred for chiropractic treatment after the January 1990 incident. When asked if he agreed that it appears the applicant thought he had a back problem related to work, Dr Mills stated that the applicant and his chiropractor believed that there was a requirement for treatment.

53. Dr Mills stated that by the time he had examined the applicant in September 2000 the applicant had mild but definite degenerative changes in his low back. He contended that the symptoms of which the applicant complained at the time of being examined were due to a progressive degeneration in the low back and not due to the soft tissue injury which was reported on 2 January 1990.

54. Dr Mills was of the belief that after 1997 it was obvious that work played no part in the deterioration in the applicant's symptoms. He stated that he was not saying that the work conditions has caused the degeneration in the low back, but that he agreed that a degenerative condition of the low back can be aggravated by injury. Dr Mills further stated that it is not possible to exclude entirely that a degenerative condition has been aggravated by the incident which the applicant tole him about in 1990. He went on to say, however, that in the end he formed the opinion that the applicant's continuing symptoms were not in fact due to an aggravation of his pre-existing degenerative condition, but due to the degenerative condition itself, particularly taking into account the fact that by 1997 the applicant had stopped working.

TIMOTHY GEORGE UPSDELL, PSYCHOLOGIST

55. Mr Upsdell, a psychologist and rehabilitation consultant, provided the report dated 27 August 2001 (T63). He agreed that in reaching his conclusion as to the applicant's residual vocational options (T63/105) he took into account the information supply to him by the applicant, the contents of Dr Mills' report of 14 September 2000 (T41), and of various tests conducted with the applicant.

56. Mr Upsdell had put to him the availability of work referred to in the vocational options (T63/105) in the Port Augusta area and whilst he had not looked specifically at jobs he did look at general availability. He agreed during cross-examination that there is a high unemployment rate in Port Augusta and that there are many applicants available for the positions. He further agreed that the applicant has to compete with people who are younger than him, possibly better educated and possibly without any disability. He also agreed that the applicant had been offered only one job and that as a security guard at Woomera and that this was not something the applicant should expose himself to. As to various administrative positions including the handling of a cash register, Mr Upsdell agreed that the applicant would require considerable training to even get to that point.

57. In conclusion Mr Upsdell was asked if he agreed to the proposition that although the various job descriptions are statements about what these jobs entail, that when you analyse each particular job or circumstance it is imperative that you look at the individual profile of the person. In response he replied "very much so".

APPLICANT'S SUBMISSIONS

58. Mr Britton submitted that after the applicant's return to work following the incident in 1992 where the applicant was walking on the rough road he continued to essentially do the same works, but in some instances had assistance from a co-worker as well as avoiding certain activities. In addition he submitted that the applicant sought chiropractic treatment.

59. Mr Britton also submitted what the applicant had stated in his evidence, namely, that he had to continue to work and not take time off through fear of losing his job as ANR was going through a phase of significant restructuring. He further submitted that the work undertaken by the applicant caused him to experience aggravation to the back condition. He also submitted the views of the applicant's general practitioner, namely, that the applicant even though he had persistent low back pain continued to work on modified duties for some time. The applicant has been on constant pain killers and chiropractic treatment.

60. Mr Britton submitted that he applicant, as indicated by the report of Dr Yeung (T18) had an ongoing back problem, but was able to work. He was made redundant and it was submitted that this was due to his condition. Mr Britton submitted that the employer was going to put off the applicant, if anyone, as he was likely to be the person who is most likely not to be able to maintain his duties over time. He also submitted that the report of Dr R Bohla (T47) dated 3 January 2000 included the comment that the applicant because of his low back pain found it difficult to continue working as a truck driver and to do heavy lifting or exercise bending.

61. Mr Britton referred to the written and oral evidence of Dr Broadhurst and in particular the applicant's impairment and pain having been consistent for more than a decade. He submitted that Dr Broadhurst also stated that it is not feasible to say that the applicant's pain is solely due to degenerative changes of which employment is seen as a significant contribution to his ongoing discomfort.

62. To the suggestion of Dr Mills that it is a natural progression of degenerative change, Mr Britton submitted that Dr Bohla (T47) in his report stated that it is difficult to accept the diagnosis of Dr Mills as a total answer to the applicant's problems. It was further submitted that Dr Bohla accept this to be a complicated case with a mixture of symptoms due to low back strain and it being difficult to know how much of these are due to degenerative changes especially as the applicant had no symptoms prior to his injury in 1990.

63. Mr Britton submitted that in his evidence Dr Lim considered the duties of the applicant, such as truck driving, attending derailments and other things previously described, as having the affect of aggravating the condition which had existed for some years. It was further submitted that Dr Mills agrees with the proposition that a trauma in the form of an insult to the body, whether it be at work or somewhere else, can aggravate that degenerative condition.

64. Mr Britton submitted that the applicant made every effort to find work and his attempt to do so were more than just a token attempt. He referred to the various employment opportunities in Port Augusta and narrowed this to two potential areas of work, namely a store person and a console operator. He also submitted that in fact no suitable employment has been identified. He described the applicant as a man of very limited education and experience who has primarily only ever worked for the railways. It was also submitted that one would not expect a man of the applicant's age to look outside his environs. It was submitted that the applicant has a permanent incapacity and should be appropriately compensated.

RESPONDENT'S SUBMISSIONS

65. Mr McRae in his submissions stated that a delegate of the respondent arrived at the conclusion based on the medical opinion of both Dr Lim and Dr Mills and being satisfied on the balance of probabilities that the applicant was no longer suffering from a compensable condition. He submitted that Dr Lim found the applicant to be suffering from muscular and ligamentous strain of the lumbar spine and that there was no clinical evidence of any lumbar disc prolapse or nerve root impingement. He further submitted the query of Dr Lim that it is difficult to explain how a lifting episode that appeared to have caused muscular and ligamentous strain of the lumbar spine should still be causing back pain more than then years later. He also submitted the comment made by Dr Lim that the type of low back pain the applicant complains of is very common in the general population.

66. Mr McRae submitted that the only absences from work by the applicant were between 23 September 1992 to 29 September 1992, and then again one day in April 1997. He referred to Dr Singh's report (T9) where in Dr Singh stated that the applicant was reviewed by him on 29 September 1992 and was better and agreed to go back to work, which the applicant did.

67. Mr McRae submitted that Dr Mills in his evidence indicated that the applicant had mild, but definite disc degenerative disease. He further submitted that the applicant had as a result of his injury in 1990 and aggravation in 1992 some musculo-skeletal problems, but that soft tissue injury abated. He then submitted that the applicant was left with his pre-existing and mainly age-related degenerative disease.

68. Mr McRae submitted that Dr Broadhurst reported on two occasions that it would seem reasonable that the applicant has sustained a significant injury, which for unknown reasons has not resolved. Mr McRae further submitted that it was the view of Dr Broadhurst that the nature of that injury was ligamentous. He submitted that everyone seems to have agreed that there was some underlying degenerative change. He further submitted that there is a bit of a dispute as to what the significance of that was, or what the degree of it was and there had been some musculo-ligamentous damage.

69. Mr McRae referred to Dr Broadhurst introducing the notion of "internal disc disruption" for the first time during his oral evidence. He submitted that the Tribunal not accept that notion because it was rejected by Dr Mills who cast doubt on it. He also submitted that Dr Mills answered criticisms made about his process of analysis by Dr Broadhurst. He submitted that Dr Mills referred to the condition as one which over an extension of time one would normally expect to heal.

70. Mr McRae invited the Tribunal to find that the probabilities are that the applicant suffered a musculo-ligamentous injury, superimposed over degenerative changes of the spinal processes. He further invited the Tribunal to find that as time has gone on the musculo-ligamentous component has faded and the degenerative change accounts for his symptoms as they have continued after he left ANR when made redundant.

71. Mr McRae in relation to the applicant's attempts to find employment described such as only token efforts. He submitted that in the event that the Tribunal finds that the injury is compensable that no finding in relation to compensation be made. He concluded by submitting that the Tribunal find that there is a significant retained capacity to work. He submitted that this is accepted by the applicant, by Dr Broadhurst and by Dr Mills.

DISCUSSION AND FINDINGS

72. The Tribunal in arriving at its decision has taken the evidence as a whole into account including all of the medical evidence and the submissions of counsel. It is not disputed that the applicant suffered an injury to his lower back on 2 January 1990. Nor is it disputed that the applicant suffered aggravation on two occasions, namely 9 January 1990 and on about 23 September 1992. The Tribunal is satisfied that such was the case and so finds.

73. During the course of his employment the applicant worked in Port Augusta with the railways. When he first joined the railways it was known as the Commonwealth Railways. During his time there was restructuring and the name changed to Australian National Railways (ANR). With the changes there was the fear of employees losing their jobs. The applicant believing that if he stayed away or took too much time off as a result of his back condition that he may lose his job. He explained that, despite his back condition he attended at work in order to protect his job. On the evidence before it this explanation is acceptable by the Tribunal.

74. However, some five years after the 1992 incident, namely 12 September 1997 the applicant was retrenched. At that time the applicant went about his work but was cautious in the weight he lifted and not to bend repetitively. The applicant stated that when first brought to his attention of the pending retrenchment he became aware of Dr Yeung's report (T18) which referred to his back condition. Notwithstanding his retrenchment, the applicant continued to receive weekly compensation payments until cessation on 8 December 2000. The explanation given for the cessation of the compensation payments was that the respondent was satisfied that the applicant no longer suffered a work-related condition.

75. From the date of the cessation the applicant had not found nor been engaged in any other employment. The applicant submitted that throughout that period he has been unable to find any suitable employment and has tried to do so through employment agencies in Port Augusta. On the other hand the respondent contended that the efforts by the applicant to find employment were purely tokenistic. As to this issue the Tribunal without again setting out the facts nor conversing the law is satisfied that given the applicant's condition, his age, education, work opportunities and regional location that he had made every endeavour to find employment. The Tribunal rejects the submission of the respondent as to this issue.

76. As previously stated the Tribunal in arriving at its decision takes into account all of the medical evidence. Dr Broadhurst reported on two occasions that it would seem reasonable that the applicant sustained a significant injury, but for which unknown reasons has not resolved.. Likewise Dr Lim raised the question of it being difficult to explain how a lifting episode that appeared to have caused muscular and ligamentous strain of the lumbar spine should still be causing back pain more than ten years later.

77. There is no doubt and the Tribunal accepts that the nature of the applicant's injury was ligamentous, but that all the medical evidence revealed the presence of a degenerative change. Both Dr Lim and Dr Mills were satisfied that on the balance of probabilities the applicant was not suffering from a compensable condition. The only major factor before the Tribunal to support the applicant was introduced for the first time by Dr Broadhurst during his oral evidence, namely the notion of "internal disc disruption". This was dismissed by Dr Mills, who cast doubts on such notion.

78. There is no doubt and the Tribunal is satisfied and finds that the applicant suffered the initial injury and subsequent aggravation. To this end all the medical evidence is in agreement. The difference of opinion arises after the applicant's retrenchment and some ten years after the initial injury. Whilst the Tribunal is satisfied that Dr Broadhurst's evidence has much merit it is not satisfied that on the balance of probabilities that the applicant's condition since 8 December 2000 is related to the initial injury.

79. The Tribunal in arriving at its decision prefers and accepts the medical evidence of Dr Lim and Dr Mills. In so doing the Tribunal is satisfied that the applicant had mild, but definite disc degenerative disease and that as a result of his injury in 1990 and aggravation in 1992 had some musculo-skeletal problems but that the soft tissue injury had abated. The Tribunal is satisfied and finds on the medical evidence that the applicant had recovered from the compensable injury by 8 December 2000. The Tribunal further finds that the age related degenerative disease was the cause and not the compensable injury. The Tribunal is further satisfied that the applicant has not been incapacitated for work since 8 December 2000 as a result of the compensable injury but rather from naturally occurring degenerative changes in the applicant's lower back.

DECISION

80. Accordingly, for the reasons outlined above, the Tribunal affirms the decision under review.

I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member JA Kiosoglous, MBE

Signed: (signed)

John Howell, Associate

Dates of Hearing 26 & 28 March 2002, 12 April 2002

Date of Decision 6 February 2003

Counsel for the Applicant Mr G Britton

Solicitor for the Applicant TF Owen & Co

Counsel for the Respondent Mr T McRae

Solicitor for the Respondent Thomson Playford