Agresta and Comcare [2003] AATA 989 (2 October 2003)

Last Updated: 7 October 2003

DECISION AND REASONS FOR DECISION [2003] AATA 989

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/439

) & 440

GENERAL ADMINISTRATIVE DIVISION	)
	Re	JOSEPH AGRESTA

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Mr M J Sassella. Senior Member

Date 2 October 2003

Place Canberra

Decision

The tribunal affirms the decision under review. The applicant qualifies for no costs associated with these applications.

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

Senior Member

CATCHWORDS

WORKERS' COMPENSATION - Degeneration of lumbar spine - aggravation of condition as injury - whether permanent impairment exists - whether permanent impairment results from injury - whether current Act or 1971 Act applies

Safety, Rehabilitation and Compensation Act 1988 ss 4(1)("aggravation", "ailment", "disease", "impairment", "injury", "permanent"), (8), 7(6), 14(1), 24(1), (2), (3), (4), (5), (6), (7), (7A), (9), 53, 54, 62, 123("commending day"), 123A, 124(1), (1A), (2)(c), (3)(b)(iii), (4)(c)

Compensation (Commonwealth Government Employees) Act 1971 ss 5(1)("injury"), 39(11), (12)

Bessey, Australian Postal Corporation v (2001) 32 AAR 508

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Lees v Comcare (1999) 56 ALD 84

Moon, Comcare v [2003] FCA 569

Oudyn, Australian Postal Corporation v [2003] FCA 318

Power v Comcare (1998) 56 ALD 141

REASONS FOR DECISION

2 October 2003

Mr M J Sassella. Senior Member

APPLICATIONS

1. Mr Joseph Agresta ("the applicant"), born 16 December 1954 (T59), applied to the Administrative Appeals Tribunal ("the tribunal") for review of a Comcare ("the respondent") decision dated 11 May 2001 (T100) which was affirmed by Comcare on internal review on 31 August 2001 (T109). The decision was to reject the applicant's claim for permanent impairment of his back and leg. The two applications have separated out compensation in the form of a lump sum for an impairment (no 439) and for non-economic loss from the permanent Impairment (no 440), however both are covered in the one decision and are related under the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act")[1] and success in relation to one application would result in success in the other.

HEARING

2. The tribunal convened a hearing in this matter in Canberra on 1 November 2002, 4 November 2002 and 7 July 2003. The following witnesses gave oral evidence: Mr Agresta (applicant), Dr R J Kitchin (orthopaedic surgeon), Mrs D G Agresta (applicant's wife), Dr P Hilton (applicant's treating doctor), Mr M A Hyland (applicant's colleague), Mr K J Charlton (another of the applicant's colleagues) and Dr W M Wearne (orthopaedic surgeon).

3. The tribunal took into evidence the following documents:

Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T110) provided by the respondent.

Exhibit A1 - Applicant's statement of facts and contentions, 24 April 2002.

Exhibit A2 - Witness statement by applicant, 25 October 2002.

Exhibit A3 - Permanent impairment claim form, 3 December 2000.

Exhibit A4 - Report by Dr Hilton, 12 July 2000.

Exhibit A5 - Report by Dr Kitchin, 28 November 2000.

Exhibit A6 - Applicant's medical benefits claim history, 20 October 2002.

Exhibit A7 - Report by Dr Hilton, 3 December 2000.

Exhibit A8 - Statement by applicant's wife, undated.

Exhibit A9 - Letter dated 26 August 1997 from Comcare to applicant.

Exhibit A10 - Proof of evidence of Mr Hyland, 17 October 2002.

Exhibit A11 - Proof of evidence of Mr Charlton, 16 October 2002.

Exhibit A12 - Letter dated 26 February 1998 from Dr Hilton to Dr G Speldewinde (rheumatologist).

Exhibit A13 - Superannuation medical report form, 16 August 1978.

Exhibit R1 - Respondent's amended statement of facts and contentions, 21 May 2002.

Exhibit R2 - Report by Dr Wearne, 5 April 2002.

Exhibit R3 - Report by Dr Wearne, 5 April 2002.

Exhibit R4 - Report by Dr G Speldewinde, 12 December 1996.

Exhibit R5 - Report by Dr Hilton, 19 April 1999.

Exhibit R6 - Dr Hilton's clinical notes.

Exhibit R7 - X-ray of lumbar spine, 3 March 1994.

Exhibit R8 - Clinical notes

Exhibit R9 - National Mutual Life Insurance income protection claim form.

Exhibit R10 - Letter dated 23 November 1996 from Dr Hilton to Dr Speldewinde.

Exhibit R11 - Return to work plan, 27 October 1997.

LAW

4. Mr Agresta was seeking a permanent impairment lump sum compensation payment in respect of an impairment affecting his lumbar spine and his use of his legs. Mr Agresta's compensation history stretched back to an injury in 1974 (T14). Comcare, or its predecessor, the Commissioner for Employees' Compensation ("the CEC"), accepted liability for this old incident (T21). The respondent in the current matter concluded that Mr Agresta's condition had become permanent before 1 December 1988, the date of effect of the 1988 Act. The applicant argued that he had a valid claim even if the respondent was correct in stating that the condition was permanent before 1 December 1988. The transitional provisions in the Act are thus relevant.

TRANSITIONAL PROVISIONS

5. The starting point is s 124 of the 1988 Act:

Application of Act to pre-existing injuries

124. (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

...

(c) in any other case-under the 1971 Act as in force when the injury, loss or damage was suffered.

(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:

...

(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:

...

(iii) in any other case-under the 1971 Act as in force when the impairment or death occurred.

(4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:

...

(c) in any other case-the 1971 Act as in force when the impairment or death occurred.

...

6. The following propositions therefore apply:

(a) The 1988 Act applies even though Mr Agresta appeared to suffer an injury before the commencing day, ie 1 December 1988 (s 123 ("commencing day") of the Act) (s 124(1) of the Act).

(b) Mr Agresta will qualify for compensation under the Act in respect of an injury suffered before the commencing day if compensation would have been payable to him in respect of that injury under the Compensation (Commonwealth Employees) Act 1971 ("the 1971 Act")[2] (s 124(1A) of the 1988 Act). Conversely, Mr Agresta is not entitled to compensation under the Act in respect of an injury suffered before the commencing day if compensation was not payable under the 1971 Act (s 124(2)(c) of the 1988 Act). Section 124(3)(b)(iii) reinforces this in relation to permanent impairment claims under s 24 of the 1988 Act.

(c) If Mr Agresta was eligible to receive compensation for a permanent impairment under the 1971 Act the amount of compensation he can receive under the 1988 Act is the amount he would have received under the 1971 Act (s 124(4)(c) of the Act).

THE 1971 ACT

7. Section 123A is useful in identifying whether Mr Agresta has an injury under the Act.

Injuries suffered before the commencing day

123A. A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.

The 1971 Act defined an injury as follows in s 5(1):

''injury'' means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease;

8. On 18 March 1974 Mr Agresta injured his back using a crowbar while rolling some poles (T17) when working for the ACT Electricity Authority ("ACTEA"). Liability for this injury was accepted by the CEC on 2 April 1974 (T21). There was thus an injury under the 1971 Act and so, under the 1988 Act in accordance with s 123A.

9. Under the 1971 Act there was potential for lump sum compensation for permanent impairment in s 39. The applicable provision in the current case was:

Compensation payable in respect of certain losses.

39.

...

(11) The compensation payable under this Act in respect of an injury resulting in partial loss by an employee of the efficient use of a part of the body specified in sub-section (4) of this section or of the efficient use of such a part of the body for the purposes of the employment of the employee immediately before the injury, not being a loss referred to in sub-section (6), (7), (9) or (10) of this section, is such percentage of the amount of compensation that would be payable under sub-section (3) of this section in respect of an injury resulting in the loss by the employee of that part of the body as is-

(a) the percentage by which the injury resulted in the efficient use, immediately before the injury, of that part of the body being reduced; or

(b) the percentage by which the injury resulted in the efficient use, immediately before the injury, of that part of the body for the purposes of the employment of the employee immediately before the injury being reduced,

whichever is the greater percentage.

(12) A reference in this section to the loss by an employee of a specified part of the body shall be read as including a reference to-

(a) the total loss of the efficient use of that part of the body; and

(b) the total loss of the efficient use of that part of the body for the purposes of his employment immediately before the injury that resulted in the loss.

...

10. The issues thus become whether Mr Agresta, in accordance with s 39(11) of the 1971 Act:

(a) Has an injury;

(b) Which injury has resulted in partial loss of the efficient use of his legs;

(c) The percentage loss being what percentage.

THE 1988 ACT

11. A primary argument, however, was that Mr Agresta qualified for a permanent impairment under the 1988 Act. This would be on the basis that Mr Agresta's impairment became permanent only on or after 1 December 1988. An employee must have suffered an injury, as defined in s 4(1) of the 1988 Act, if he or she is to receive any compensation under the 1988 Act. An injury is defined in s4(1) as:

(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;

12. Where a disease is involved it must satisfy the definition of a disease in s 4(1):

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

13. The definition of a disease refers to an ailment and an aggravation as relevant concepts. These are defined also in s 4(1):

aggravation includes acceleration or recurrence;

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

14. An aggravation may also be present where the conditions set out in s 7(6) of the Act are met:

(6) An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

(a) the incapacity or impairment would not have occurred;

(b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or

(c) the extent of the incapacity or impairment would have been significantly less.

15. If an injury is present then s 14(1) of the 1988 Act provides that Comcare is liable to pay compensation to the employee:

Compensation for injuries

14. (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.

16. In the present case the applicant is seeking a lump sum payment of compensation in respect of permanent impairment. An impairment is defined in s 4(1) of the 1988 Act:

impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;

An impairment is permanent in accordance with the definition of "permanent" in s 4(1) where it is:

likely to continue indefinitely;

17. For an employee to succeed in a claim for an alleged permanent impairment the requirements in s 24 of the Act must be satisfied:

Compensation for injuries resulting in permanent impairment

24. (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, if:

(a) the employee has a permanent impairment other than a hearing loss; and

(b) Comcare determines that the degree of permanent impairment is less than 10%;

an amount of compensation is not payable to the employee under this section.

(7A) Subject to section 25, if:

(a) the employee has a permanent impairment that is a hearing loss; and

(b) Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;

an amount of compensation is not payable to the employee under this section.

...

(9) For the purposes of this section, the maximum amount is $80,000.

18. Section 4(8) of the 1988 Act makes abundantly clear that the "injury" referred to in s 24(1) must be one for which the respondent is liable under s 14(1) of the 1988 Act:

(8) A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.

19. The issues in respect of which the tribunal must be satisfied if Mr Agresta is to succeed under the 1988 Act are:

(a) Whether Mr Agresta has an injury;

(b) Whether Mr Agresta has an impairment resulting from the injury;

(c) Whether any impairment is permanent.

ONUS OF PROOF

20. On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Commission (1989) 86 ALR 399, 412-413:

"In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression `onus of proof' where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s..33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.

"It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:

`Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:

"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."'

"Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant."

21. The applicant's case, as put for him by Mr Anforth at the outset of the hearing, was that Mr Agresta had an injury, probably an aggravation of a degenerative back condition. The condition was asymptomatic before the date of injury. He was off work after the injury for several months. He never fully recovered. The symptoms continued. He began lodging claims with Comcare only in 1996 (T66) as he was unaware before that date that he had claims. By December 1988 Mr Agresta had an entrenched back condition with his legs affected by referred pain. Mr Agresta had become self-employed. His employment was constant through the years. He had adjusted his work methods to account for his disability.

EVIDENCE

APPLICANT

22. Mr Agresta's oral evidence was to the following effect. On 18 March 1974 Mr Agresta had been jerked to the ground when a pole rolled onto his crowbar. He saw a doctor on the same day, Dr Roach (T15), who gave him a medical certificate for four days off work. He actually needed a month off work before returning to light duties. He was not to carry heavy objects. He worked for ACTEA until November 1978. His duties after 1974 changed but were still light. These included climbing poles which he managed to do but which caused him pain. He saw a number of other doctors, Dr Kitchin, Dr Robson (a neurologist) and some Commonwealth Medical Officers over the years.

23. He described his symptoms up to November 1978 as like a heavy weight on his back all the time with pains running down to the backs of his legs and sometimes a testicular pain. Low back pain was constant. Leg pain was aggravated by climbing ladders or bending forward. Leg pain remained present at all times as a dull pain. The pain was always in the left leg and sometimes in the right.

24. Mr Agresta was incarcerated in Long Bay and Goulburn for three and a half years upon leaving ACTEA. He was not very active during that period. There was little in the way of work although Dr Wearne recorded that he did do some electrical work (ex R2). There was no climbing. He was locked up for 18 ½ hours a day. His exercise involved walking and gym work using punching bags. He had occasional back and leg pain. Walking brought on pain. He saw no doctors in this period, having to rely on a male nurse.

25. Between November 1982 and September 1985 Mr Agresta worked for Hertz Rent-A-Car doing petrol and cash register work. There was little need to walk on grades or stairs. He could recall no back or leg pain at that time. However, he said he saw some doctors, eg Dr Roach, for back pain. He engaged in no notable physical work discrete from the requirements of his employment.

26. Between September 1985 and June 1990 Mr Agresta worked for Pantos Electrical Company. This was fairly active work. He engaged in carrying. He went up and down ladders. He said he did the work but felt the consequent pain. He was assisted to some extent by his co-workers. The ladder and stairs work caused greatest pain. He found he had to stop and rest if walking distances - 50 metres was about the limit before stopping. He would feel a sharp pain in the thighs. He said he could not negotiate the stairs at the supermarket.

27. From June 1990 to October 1991 Mr Agresta worked for R K Joinery. He conveyed goods to workers in the field. He drove vehicles but did no climbing or carrying. He had some pains but nothing too bad. He engaged in no other strenuous work. That company failed. At about this time Mr Agresta added an extra bedroom to his house. He did the electrical work and had help with the rest of the work.

28. In April 1992 Mr Agresta returned to work at Pantos where he engaged in clerical work and delivered bits and pieces such as screws. He did some on-site electrical work.

29. In later 1992 until 1994 Mr Agresta did office work for a firm called Feeways.

30. In 1994 Mr Agresta returned yet again to Pantos doing clerical work and working as an electrician. He was still at Pantos when the hearing was held in November 2002. He was attending work regularly in 2002. He was involved in paperwork on a normal day. He started at 7.30 am. He would get up every five or six minutes from the paperwork. He spent two or three hours at the computer. He would talk to visitors. He assisted the more active staff. He could not drive a van and found driving a car difficult because of severe leg pain. He then said he could drive the van but with rests. He said he has done bits and pieces of electrical work for Pantos but avoids ladder work.

31. As regards treatment, the applicant reported that Dr Speldewinde had given him injections which remedied his leg pain for about 12 months. This was not a complete cure as he could get twinges if he acted without thinking such as in climbing or picking up cable drums or twisting. Since 1994 he had seen general practitioner Dr Hilton who prescribed painkillers. Mr Agresta has had further injections but was finding he needed them more often by the time of the hearing. The last injection had been six weeks prior to the hearing.

32. When his pain is greatest he has difficulty getting up, putting on socks and standing for any length of time. His legs limit him in climbing ladders - the pain can make his legs give way - and walking on the flat. He can walk only 20 or 30 metres before having to rest five or so minutes. This improves after an injection when he can walk 100-200 metres, even a kilometre on a good day.

33. As regards house renovations Mr Agresta's sons do everything for him. They mix concrete, carry bricks and act as labour.

34. As at November 2002 Mr Agresta was building a house for himself at Bateman's Bay. He was doing the work with assistance from other contractors and his sons. His own work involved carpentry and small jobs, sometimes holding things for carpenters. He admitted to using ladders a little after a fresh injection. He also admitted carrying some roof tiles to a conveyor belt. He agreed in cross-examination that he has shovelled gravel during the building process, after an injection. Building had begun in June 2002. Mr Agresta was spending three days a week at the house and two days a week at Pantos. The house was almost finished in November 2002. The intention was to move to the coast full-time. He was living from the proceeds of sales of two houses.

35. In cross-examination Mr Agresta emphasised that he had had severe and continuous pain since 1974. He denied a pattern whereby he had had pain for a period in the 1970s and then no great problems until 1986. Mr Dubé's questions were based on notes from Dr Tan (ex R8). In 1986 Mr Agresta was recorded as telling Dr Tan he had had back trouble years ago.

36. Dr Speldewinde's notes also suggested an injury in 1974 and then little problem until 1994. Mr Agresta refused to accept this. He insisted his pain had been constant.

37. In cross-examination counsel attempted to have Mr Agresta agree that he was engaged in considerable electrical work until about November 2002. Mr Agresta insisted, however, that he was engaged mainly in administrative work in 1999-2002. Mr Dubé referred to Dr Wearne's report (ex R2) in which he recorded that the applicant was working approximately 40 hours a week as an electrician. Dr Wearne recorded that until recently the applicant's work had been administrative but a partner had left the company and Mr Agresta was back installing and maintaining electrical equipment. However, he was assisted by another employee who did heavy and difficult work in ceilings and under houses.

38. Mr Agresta was asked further about the use of ladders and said he does use them at work if he has to do so. As regards sitting, he said he has to change position every five or six minutes. Mr Agresta did not appear to do this, however, during the tribunal hearing. At home he changes posture every half-hour or so.

MRS AGRESTA

39. In ex A8 Mrs Agresta said she had known the applicant since age 13. Before his accident he had been a fit, healthy and hard working man. Since the accident Mr Agresta had never been able to do things he used to do without pain resulting. Mr Agresta's injury was said to have affected his back and legs on a daily basis. The pain was said to constantly hinder him from enjoying recreational activities, normal day-to-day working and living activities. Mrs Agresta said that there had been times when she had had to help her husband dress when he had not been able to lift his legs. Mrs Agresta had been woken on a regular basis by Mr Agresta moaning from being in extreme pain from the ache in his legs which was causing him to wake from his sleep. Mrs Agresta referred also to depression and short temper which resulted from Mr Agresta's years of pain and frustration from his limitations. The only time when Mrs Agresta could recall her husband not having pain was when he had been injected with Cortisone.

40. In oral evidence Mrs Agresta was somewhat vague. However she said that her husband tries to do everything but suffers pain as a result. She said that house renovations, digging and walking bring on complaints of pain. She said that he tended to avoid seeing doctors because he did not want to be an invalid. He regarded seeing doctors as inconsistent with being a breadwinner. In cross-examination Mrs Agresta said that Mr Agresta would go for weeks with problems before he would see a doctor which he would not do unless he was "really, really bad". She would make Mr Agresta go.

41. She said he has climbed ladders with bad after-effects. When he uses stairs he always regrets it and tries to avoid them. Grades limit his walking because of the resulting pain.

42. Mrs Agresta said that her husband seldom misses work because of pain. Mrs Agresta told the tribunal that the family intends to retire to the coast where she will find work. The climate on the coast is better for Mr Agresta's problems. Mr Agresta may retrain for non-physical work.

43. In cross-examination Mr Dubé asked about house renovations. Mr Agresta had engaged in renovations of houses at Chisholm and Bungendore. At Chisholm other friends had assisted. Mr Agresta had done the wiring. At the coast Mr Agresta did some carpentry after an injection and he and Mrs Agresta had helped with roof tiling. She said that Mr Agresta still goes fishing and tries to do things around the house, eg shovelling gravel, home maintenance.

MR HYLAND

44. Mr Hyland's statement (ex A10) recited that he had known the applicant since 1982 as employer and business partner. He had witnessed constant pain in Mr Agresta's back and legs over the years. He wrote, "Joe would complain about the pain in his back and legs and you could see it, that is, half the time he could not walk around". Mr Hyland said that Mr Agresta could not do his work properly, citing problems with him going up ladders, rising from a bending situation, difficulty walking, and impossibility of working overhead. He said the bending and overhead restrictions were serious for an electrician. Mr Hyland attested to the apparent benefit received from injections. However, Mr Agresta was said to still have discomfort in bending and ladder work.

45. In oral evidence Mr Hyland said he was a director of Pantos. Initially, in 1982, Mr Agresta was an employee working as an electrician on construction sites. In about 1986 Pantos had taken on more of a maintenance role and Mr Agresta had concentrated on that work. Compared to work on construction sites, maintenance work involved a variety of activity and no heavy lifting. There was some work done overhead and in strange postural positions. Mr Hyland was unaware of any informal arrangements that may have existed between Mr Agresta and other workers whereby they would cover him for difficult work tasks. It was at this time that Mr Hyland noticed Mr Agresta's difficulties rising from a seated position. Mr Hyland's duties included receiving work injury reports. He was aware that Mr Agresta had a back problem but he never reported any injury to Mr Hyland.

46. In cross-examination Mr Dubé raised as an issue that Mr Agresta had a shoulder injury in 1987 that required surgery. Mr Hyland conceded that Mr Agresta had reported that injury and took time off work.

MR CHARLTON

47. Mr Charlton wrote in ex A11 that he had known the applicant since 1984 as a friend and colleague. They were partners and drove together in a van doing electrical work. He had witnessed the pain in Mr Agresta's back and legs over the years. He said the applicant was always in pain, that he would complain of pain and the pain was evidenced by the strain on his face and on occasions when he would hold his back.

48. Mr Charlton took on the hard physical part of their work. Mr Charlton did the overhead and bending work. "He could fit a power point but when it came to more physical work, like climbing ladders or the bending and lifting, I would do it." It was said to reach a stage where Mr Agresta could hardly do anything and was doing all the office paperwork in the end. In cross-examination Mr Charlton said Mr Agresta concentrated on the firm's paperwork in about the final four years Mr Charlton was with Pantos.

49. He said that the applicant's discomfort appeared relieved only when he received his increasingly regular injections. He said that Mr Agresta needed time off when having injections. He then wrote, "...in fact there is not one week I cannot remember Joe not going to see a doctor".. In cross-examination Mr Charlton said that was the case in the last eight years of his time at Pantos. After an injection Mr Agresta could do some of the heavier work. However, the injections were variable in their effects.

50. In oral evidence Mr Charlton said he is now self-employed as an electrician. He was director of Pantos from 1994 to 2002 when he left. Prior to that he was a Pantos employee from 1984. He worked closely with the applicant. He said that from 1984 to 1986 Mr Agresta wired buildings but that, after 1986, he did electrical maintenance.

51. Mr Charlton saw the applicant suffer no specific injury at Pantos.

MEDICAL EVIDENCE

DR KITCHIN

52. Dr Kitchin has treated Mr Agresta since 1974. On 28 November 2000 he wrote (ex A5) that Mr Agresta suffered from multilevel degenerative disease of the lumbar spine and pain in his legs. The incident in 1974 caused an aggravation of the underlying condition. He had a 10% whole person permanent impairment under each of tables 9.5 and 9.6 of the Comcare guide[3]. Dr Kitchin conducted a thorough examination at the consultation that occurred on 27 November 2000.

53. In oral evidence Dr Kitchin said that he would assess Mr Agresta's percentage loss of efficient use of his legs under s 39 of the 1971 Act as 20%.

54. In cross-examination Dr Kitchin agreed that his report of 14 August 1974 (T35) referred only to pain in the lumbar back and left buttock and not to any leg pain. He agreed that, if leg pain and occasional pain in the testes had been reported to him, he would have included reference to it in his report. The inference was of course that Mr Agresta had not reported these pains in 1974.

55. Dr Kitchin further agreed that, if there were no radiology studies between the time of the injury in 1974 and 1994, it is more difficult to conclude that a connection exists between the 1974 injury and the progression of lumbar degeneration as perceived more recently. Dr Kitchin also agreed that, as lumbar spine x-ray results in 1994 (ex R7) showed only minor changes it was unlikely that the 1974 injury led to permanent aggravation.

56. Dr Kitchin said that he had assumed Mr Agresta had continuous symptoms between 1974 and 2000 in framing his conclusion in 2000 (ex A5). Dr Kitchin said that, if Mr Agresta was symptom free from 1975 to 1986 that would suggest the aggravation occurring in 1974 was not permanent.

57. In re-examination Mr Anforth put to Dr Kitchin a different history. This was that:

* Mr Agresta had been symptom free in the back and legs before 1974.

* In 1974 he had the accident.

* In 1974-1975 he had relatively intensive treatment.

* Between 1975 and 1978 Mr Agresta had back pain with leg involvement.

* In 1978 Mr Agresta was incarcerated and continued to suffer back and leg pain.

* When released in 1981 he consulted Dr Roach in Queanbeyan for back pain. He was prescribed medication and the pain continued.

* In 1986 he saw Dr Tan about back and leg pain.

* Since 1986 he has continued to have the same symptoms.

* In some of these periods Mr Agresta was incarcerated and in others he did not see a doctor.

Dr Kitchin agreed that that scenario would support a link between the 1974 accident and the continuous symptoms.

DR HILTON

58. Dr Hilton began treating Mr Agresta in 1997 (T69). She provided several reports. On 19 April 1998 she wrote (T80) regarding Mr Agresta's attendances at Chisholm Medical Centre from 1986 to 1996. She recorded that he did not attend between 1986 and 1990, 1990 and 1993 and 1994 and 1996. However, there were frequent attendances between 1996 and 1998. Mr Agresta had told her that he also attended Queanbeyan and Royal Canberra Hospitals for his back problems within the designated period. Another report dated 12 July 2000 (ex A4) covered attendances between 1986 and 1996 and from 1996 to date. On 3 December 2000 Dr Hilton wrote (ex A7) that Mr Agresta's whole person permanent impairment was 20% under table 9.5 and 15% under table 9.6.

59. Dr Hilton's evidence was somewhat frustrating. Asked by Mr Dubé to address certain hypothetical situations, Dr Hilton refrained from doing so. These hypotheticals asked Dr Hilton to assume lengthy periods between Mr Agresta's reports of symptoms. Dr Hilton continued to assert that Mr Agresta had experienced continued symptoms which had been reported to either Queanbeyan or Canberra Hospital but in respect of which there were no notes extant.

60. On 19 April 1999 Dr Hilton reported to QBE Insurance (ex R5) stating, among other things, that Mr Agresta was not needed for clerical work in his own electrical business which had never required a secretary for 25 years. There was a low volume of administrative duties. These were carried out by his partner who had an aptitude for such work.

61. In oral evidence Dr Hilton assessed Mr Agresta's loss of efficient use of legs as 25%. In cross-examination Mr Dubé addressed Dr Hilton's assessment in ex A7 that Mr Agresta's current difficulties were causally related to his work accident in 1974. She wrote, "I have formed an opinion from past medical records and from my examinations and investigations since 1996 that the condition of March 1974 and the current back condition and subsequent leg impairment suffered by Mr Agresta are causally related to the 1974 injury. The original claim for compensation was for `low back strain' but since the original injury, there have been exacerbations or aggravations of Mr Agresta's low back disability with awkward actions (eg twisting and bending). Subsequent investigations have shown degenerative L3/4, L4/5 and L5/S1 disc conditions with annular tear with CT scan lumbar spine March 1998 and degenerative changes in facet joints. ..."

62. Dr Hilton agreed that it had been somewhat difficult to reach her conclusions in the absence of progressive investigations over the period, however she noted that there had been progressive worsening since 1994. She conceded that her opinion was based on an amount of self-reporting by Mr Agresta.

63. Dr Hilton conceded that, if Mr Agresta had no medical attention between 1974 and 1994, that could change her opinion. However, she had accepted that Mr Agresta had sought attention in hospitals even if there were no surviving records of those attendances.

64. Mr Dubé took Dr Hilton to her 12 July 2000 report (ex A4). She reproduced notes dated 6 May 1986 (ex R8) written by Dr Tan in the same medical practice. She reproduced the notes as, "3 day history of low back pain stating that he had had back trouble for years with `locked joints' ...". In fact the notes were, "... he had had back trouble years ago...". Dr Hilton advised that she had adjusted this material to reflect what Mr Agresta had told her.

65. Mr Dubé referred to ex R9, the National Mutual Insurance income protection claim form. Dr Hilton agreed that Dr Tan had completed the required medical certificate on 30 June 1996. In doing so he had described the applicant's condition as degenerative lumbar disc aggravation caused by trying to climb onto a boat on 8 June 1996. Dr Tan said Mr Agresta had been a patient of the practice since 1985 and that he had had other disease or condition related to the same disability on 6 May 1986, 4 January 1994 and 3 March 1994. There was no reference back to the 1974 incident. Dr Hilton agreed that her assessment had become more difficult to justify.

66. Mr Dubé then referred to Dr Speldewinde's report dated 12 December 1996 (ex R4). He wrote:

"Many thanks for your referral of this delightful 42 year old gentleman whom I saw today 11/12/96 with his recent onset of low back pain, that is over the last two years. I note that there is a distant history in 1974 of a severe back pain problem which he felt was more in the lumbar spine requiring up to a year off work but returning to full normal function with no problems until an episode in 1994 of pain which was of a similar nature to his current difficulties. However, he managed to return to work as a self-employed electrical contractor with quite manageable pain with some fluctuating difficulties but six months ago he had a severe episode which settled quickly allowing him to return to normal work and then a month ago he had a recurrence, again from a trivial incident of twisting whilst getting into a fishing boat and the pain was less severe but on this occasion it is not settling."

DR WEARNE

67. Dr Wearne reported on 5 April 2002 (ex R2 and R3). Dr Wearne's opinions were accorded considerable weight by the respondent. He examined Mr Agresta on 27 March 2002. Mr Agresta told Dr Wearne that he was injured in 1974 and that this led to several periods off work with back pain. He was off work for eight months to April 1975. When he returned to work he was transferred to a branch where the work was less heavy than that he had done as a linesman. He worked there until he was incarcerated in 1978.. Mr Agresta said that he had continued to experience low back pain ever since 1978, although Dr Wearne noted that no receipts or accounts were submitted to Comcare until October 1990. Dr Wearne had scrutinised the Chisholm Medical Centre notes and found no reference to back pain any earlier than 6 May 1986. There was then frequent reference to back problems from 1994 onwards.

68. Dr Wearne recorded the following symptoms as at March 2002:

* Low backache much of the time.

* Occasional pins and needles in feet and down the back of both legs or over both thighs.

* Awakening every morning at 4.00 am with sharp pain in buttocks and left thigh.

* Stiff and sore back first thing in the morning after getting up.

* Sitting during the day limited to 45 minutes. Standing was up to 45 minutes with weight shifted from foot to foot.

* Minimal difficulty walking but aching in the back and groin followed walking a long distance.

* Difficulty bending to tie shoe laces.

* Had to avoid lifting as much as possible.

* Driving was possible with rests and walking every 30 minutes

69. Medication was Panadol and Norgesic. He was seeing a physiotherapist weekly.

70. In examination by Dr Wearne Mr Agresta was seen to stand and walk with normal posture and gait. There was no particular difficulty dressing or undressing. He unfastened shoelaces knelling on one knee. There was no apparent difficulty climbing on or off the examination couch. Head and neck posture were normal and he managed a full and free range of movement of neck. He demonstrated a full and free range of movement of both shoulders. As regards the back and legs:

* There was slight restriction of the thoracolumbar spine - forward flexion was 60 degrees (90 degrees being normal) and accompanied by complaint of pain. Extension was normal at 30 degrees. This was so also for lateral flexion to both sides and for rotation.

* Straight leg raising was 60 degrees bilaterally.

* There was a normal range of movement of both hips.

* There was normal range of movement of both knees.

71. Dr Wearne concluded:

"Mr Agresta now has the symptoms, clinical signs and radiological confirmation that he is suffering from well-established degenerative disease of his lumbar spine but I find any connection between the injury of 1974 and his current symptoms as difficult to establish. There is a gap of eleven years between the last recorded medical evidence in 1975 and the next recorded medical evidence is in 1986. Thus, a continuity of symptomatology has not been established.

"Based on the available evidence, I would have to state that I find there is no connection between the documented injury of 1974 and Mr Agresta's current degenerative disease of his lumbar spine."

72. In ex R3 Dr Wearne said that Mr Agresta did have a permanent impairment in accordance with the Comcare guide, however he could find no evidence that the permanent impairment arose from a work-related condition. He went on to say that there was no proof that the impairment of Mr Agresta's back was permanent prior to December 1988. Dr Wearne reiterated that Mr Agresta's condition was degenerative, constitutional and age-related. He considered there to be no further medical or rehabilitative treatment likely to reduce Mr Agresta's then current level of impairment.

73. In oral evidence Dr Wearne saw a gap of 11 years in recorded reports of back symptoms in Mr Agresta's history as suggesting some doubt as to the cause of the current symptoms. Dr Wearne said he saw no objective clinical signs of any loss of use of Mr Agresta's lower limbs when he saw him in March 2002.

74. In cross-examination Dr Wearne was asked to assume that during the period where there is an absence of complaints about his back to doctors Mr Agresta was complaining to workmates. Asked whether this would suggest a continuity of symptoms, Dr Wearne agreed that it would but was most uncomfortable making the assumption. Mr Dubé called Dr Wearne's attention to Mr Agresta's earlier evidence in paragraph 25 above that between 1982 and 1985 he could recall no back or leg pain at that time.

SUBMISSIONS

MR ANFORTH

75. Mr Anforth relied on Dr Wearne's evidence to press that Mr Agresta had a permanent impairment that became permanent after December 1988. He further argued that Comcare was liable to pay compensation under s 14(1) of the 1988 Act. The only question was whether Mr Agresta's impairment arose from the injury in 1974. The effects of the injury were said to wax and wane over the years but had continued since 1974. Mr Anforth said that it was irrelevant that the underlying condition would have progressed in any event. The condition had been rendered symptomatic by the work accident in 1974 and had never recovered. Mr Anforth submitted that Mr Agresta merited permanent impairment ratings of 20% and 15% under tables 9.5 and 9.6 respectively.

76. The Comcare guide contains descriptors for these ratings:

* Under table 9.5 a 20% rating means "Can rise to standing position and walk but has difficulty with grades, steps and distances".

* Under table 9.6 a 15% rating means "Loss of half normal range of movement".

77. Mr Anforth cited the recent decision of the Federal Court of Australia in Comcare v Moon [2003] FCA 569. He said that in that decision the respondent had, at the tribunal, retracted its earlier finding that the injury affecting the applicant had occurred. The tribunal proceeded to make a decision that the applicant was entitled to a permanent impairment payment. This was upheld in the Federal Court.

78. The tribunal noted that the Moon case (above) was also important because the respondent argued for the first time at the tribunal hearing that the applicant's condition had not been caused or aggravated by his employment in military service but that there was an underlying condition aggravated by activity. The court saw this as inconsistent with a decision made by the respondent two weeks earlier that the applicant was entitled to a 10% whole person impairment lump sum compensation payment.

79. Mr Anforth questioned whether, given the Moon decision (above), this tribunal could find the absence of a causal link between Mr Agresta's current condition and his work injury in 1974.

MR DUBé

80. As regards the Moon decision (above) Mr Dubé referred the tribunal to the decision of the Federal Court in Power v Comcare (1998) 56 ALD 141. Mr Dubé stressed that an impairment in this case, to be compensable under s 24 of the 1988 Act, must have been related to the 1974 incident. To this end an aggravation which was once effective to attract compensation can cease to have effect. He cited Australian Postal Corporation v Bessey (2001) 32 AAR 508, 509 in which the Federal Court said that the aggravation will be only temporary and will attract compensation only for the duration of the pain where the pain ceases after a time and leaves the underlying condition no worse than before.

81. Mr Dubé referred to medical evidence supporting the respondent. Dr Wearne had seen continuity of symptoms as lacking. Dr Kitchin in October 1974 (T43) had written that there was insufficient objective evidence of trouble to justify more sophisticated investigation of Mr Agresta's condition with a view to operative treatment. X-rays taken in 1974 and 1994 (T27 and ex R7 respectively) were similar. There had been little change in 20 years. Dr Tan in May 1986 (ex R8) had taken a history from Mr Agresta of back pain "years ago". Dr Speldewinde (ex R4) had recorded in December 1996 that there had been no problems with Mr Agresta's back from about 1975 until 1994 (ex R4). Mr Dubé referred to the above material in cross-examination of Drs Kitchin and Hilton where they each admitted assuming a continuity of symptoms over the years and where each conceded that a discontinuity of symptoms would cast doubt on a connection between the 1974 injury and any current impairment.

82. Mr Dubé further referred to ex R9, the income protection insurance claim form dated 8 June 1996 in which the applicant had referred to having similar lower back pain in 1994 but at no other time. Dr Tan's contribution to ex R9 also made no reference to the 1974 injury. This was said to reinforce that there had been a significant ion the experiencing of symptoms.

83. Mr Dubé said that Mr Agresta's evidence regarding the nature of his condition had been inconsistent. Mr Agresta had told the tribunal that from 1974 to 1978 he had continuing symptoms affecting his back, legs and testes. However, Dr Kitchin had written in August 1974 a report (T35) making no reference to leg or testicular pain. Dr Kitchin's evidence was, of course, that he would have mentioned these symptoms had they been reported to him. Mr Dubé then referred to Mr Agresta's time in incarceration. Mr Agresta had said that in this period, in response to whether he had back or leg pain, every now and then he had pains in the back of his legs. In relation to 1982-1985, Mr Dubé recounted, the evidence in response to a similar question was that he could not recall pain in his back or legs in that period although there might have been odd times when he experienced pain. By 1985 Mr Agresta was working at Pantos. Mr Dubé recounted that he said in evidence that he could walk only 50 metres in the 1985-1990 period. However, he later admitted to being able to walk 100, 200 or 1,000 metres, albeit following a Cortisone injection.

84. Mr Dubé referred to Mr Agresta's work for Pantos in 1994. As noted earlier, evidence had been that he did office work and deliveries of small items. Mr Dubé referred then to later evidence from Mr Charlton that suggested Mr Agresta did significant electrician work for Pantos at that time. Mr Charlton's evidence suggested that the office work became prevalent only in 1997, 1998 or 1999. Mr Dubé referred to Mr Agresta's return to work program (ex R11, October 1997) which contained a list of duties required of one working as an electrician:

* Climbing ladders.

* Changing light bulbs.

* Carrying equipment to and from site.

* Removing and cleaning of diffuses.

* Driving.

* Climbing stairs.

* Squatting and crawling.

Some of these were qualified by, for example, requiring regular breaks or imposed carrying limits.

85. Mr Dubé observed that, although Mr Agresta told the tribunal he had to rise from seated every five to six minutes, in the tribunal hearing he had not had to stand for over an hour by the time questions on this theme were raised. Mr Agresta said it had been five or six years since he had been up and down a ladder. However, in cross-examination he conceded that he had been up and down ladders more than his earlier evidence had supposed.

86. Mr Dubé referred to Mr Agresta's strenuous work renovating houses. He admitted to assisting other tradesmen and shovelling gravel. The evidence above detailed the work Mr Agresta had done to assist in building the house at Bateman's Bay.

87. A matter of contention between the representatives was ex A6, material from the Health Insurance Commission. This was said to indicate that Mr Agresta had consulted doctors about his back pain. The applicant had relied on attendances with Drs Hunt and Roach on 14 and 20 September 1982 as evidence he consulted doctors about his back at that time. However, Mr Dubé said, all that these materials indicated was that Mr Agresta had seen a general practitioner on each of these two dates. The material did not indicate whether it was for back or leg pain.

88. Mr Dubé referred to inconsistent evidence from Mrs Agresta and Mr Charlton. Mrs Agresta had said she had to work hard to convince her husband to agree to see a doctor whereas Mr Charlton said Mr Agresta saw a doctor every week.

89. Mr Dubé suggested that Mr Agresta's back pain seemed to return in 1994 and to attract attention from 1996 onwards.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

90. The tribunal began by finding that Mr Agresta has a permanent impairment affecting both back and legs. The tribunal relied on evidence from Drs Kitchin, Hilton and Wearne for this finding.

91. The tribunal found that the condition was not permanent before 1 December 1988. Mr Agresta's permanent impairment entitlements therefore fell for determination under the 1988 Act. The tribunal relied on Dr Wearne's report (ex R3) for this finding.

92. The tribunal found that Mr Agresta had sustained an injury in 1974 as defined in the 1971 Act and hence the 1988 Act. This was uncontroversial. The tribunal further found that the injury in 1974 was an injury in the sense of an aggravation of an underlying degenerative condition that had not previously been symptomatic. This was consistent with the applicant's submissions to the tribunal and was the assessment of Dr Kitchin (ex A5), the earliest treating specialist.

93. The CEC had found the existence of an injury in 1974. Such a finding remains on foot indefinitely unless one or more of a number of relatively unusual circumstances exists. In Australian Postal Corporation v Oudyn [2003] FCA 318 the Federal Court (Cooper J) held as follows:

"31 The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including s 24. These determinations give substance to the liability `.... to pay compensation in accordance with this Act', provided for in s 14. They do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act. The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated.

"32 The power of APC to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees. A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury. The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14.

"33 Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.

"34 APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 (FC) at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act."

94. The reference in paragraph 32 of the Oudyn case (above) to cessation of liability on one of the five grounds referred to in Lees v Comcare (1999) 56 ALD 84 is a reference to the following grounds:

* Failure to provide the required notice under s 53 of the Act.

* Failure to make a claim in respect of an injury in accordance with s 54 of the Act.

* A finding that the claimant for compensation was not an "employee" at the time of the alleged injury.

* A finding that the employee did not suffer an injury.

* A finding that the injury did not result in death, incapacity for work or impairment.

95. The Court held that, where a cessation is to occur in accordance with one of these grounds, the relevant authority should do so by way of reconsideration under s 62 of the Act.

96. Thus, an injury having been found to exist, that finding could be dislodged only for one of the reasons bulleted in paragraph 94 above. None of these was considered applicable in Mr Agresta's case.

97. The tribunal did not regard Mr Dubé's arguments that there was a lack of connection between Mr Agresta's injury and his current permanent impairment as an attempt to deny the existence of the initial injury, as was the case in Moon (above). The tribunal saw Mr Dubé as presenting arguments addressing the requirement in s 24(1) of the 1988 Act that there must be "an injury to an employee [that] results in permanent impairment", the "injury" being an injury as defined in the 1988 Act. This provision recognises that a person may suffer from a permanent impairment that has no connection with any work injury suffered at an earlier time. The impairment might result, for example, from the body's natural degenerative processes or from a traumatic event not related to employment. In such a case the impairment is not compensable under the 1988 Act.

98. The argument that Mr Agresta's current impairment resulted from his injury in 1974 was based in the main on lay evidence from Mr Agresta and those who worked with him. Drs Kitchin and Hilton provided some expert evidence in support of Mr Agresta but each had tended to minimise the problems arising from a lack of any record of any consistent reporting of back and leg problems by Mr Agresta to his doctors between 1975 and 1994, albeit with some isolated reports in 1986. As regards the suggested presentations to general practitioners in 1982 for back and leg pain, the tribunal could not discern anything in the available material that pointed to such pain as the reason for those attendances.

99. A substantial reliance on lay evidence need not be fatal in a situation such as this. The tribunal considered Mr Agresta a likeable witness who was doing his best to present his evidence honestly. The tribunal gained the impression that Mr Agresta has, and has had, a solid work ethic and probably a higher than average tendency to work on despite pain. The tribunal was not surprised that Mr Agresta was able to enlist support from work colleagues who were also likeable witnesses who appeared to do their best to assist the tribunal and Mr Agresta. There was a noteworthy lack of certainty regarding dates and times among the lay witnesses. This was not surprising, given the periods involved, and was certainly not a cause for criticism. However, it did not assist Mr Agresta's case. It led to a number of Mr Dubé's justified submissions detailing inconsistencies in the lay evidence.

100. The tribunal thus had difficulty working out from the evidence of Mr and Mrs Agresta and Messrs Hyland and Charlton just what medical history Mr Agresta had had and how that affected his activity at work in as much as that would demonstrate his range of movement. The tribunal was impressed by Mr Dubé's unfortunate list of inconsistencies in the evidence as set out above in paragraphs 84-88 above.

101. From the other perspective, the tribunal found Dr Wearne's evidence convincing and noticed that, when factors influencing Dr Wearne were put to Drs Kitchin and Hilton, they found it difficult not to be somewhat swayed by them. The tribunal therefore found on the available evidence that it was not satisfied that Mr Agresta's impairments resulted from his compensable injury because there was insufficient evidence to permit the tribunal to reach satisfaction on the balance of probabvilities that there had been a consistency in Mr Agresta's experiencing of symptoms since 1974. Had the tribunal found differently it would seem that the Comcare guide ratings that would apply were 10% under table 9.6, ie loss of less than half normal range of movement of the thoracolumbar spine, and 20% under table 9.5 in recognition of Mr Agresta's "difficulty" with grades, steps and distances.

CONCLUSION

102. The tribunal found that the available evidence was insufficient for it to be satisfied on balance that Mr Agresta's impairments, which are permanent, resulted from the compensable injury Mr Agresta suffered in 1974. In accordance with s 24 of the 1988 Act this meant that Mr Agresta did not qualify for payment of lump sum compensation. This in turn meant that Mr Agresta did not qualify for costs associated with the two applications.

DECISION

103. The tribunal affirms the decision under review. The applicant qualifies for no costs associated with these applications.

I certify that the 103 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella. Senior Member

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

Associate

Dates of hearing 1, 4 November 2002 and 7 July 2003

Date of decision 2 October 2003

Counsel for the applicant Mr Alan Anforth

Solicitor for the applicant Maliganis Edwards Johnson

Counsel for the respondent Mr Ben Dubé

Solicitor for the respondent Sparke Helmore Solicitors

[1] http://www.austlii.edu.au/au/legis/cth/consol_act/sraca1988368/.

[2] http://scaleplus.law.gov.au/html/histact/3/1986/top.htm.

[3] Guide to the Assessment of the Degree of Permanent Impairment (http://www.comcare.gov.au/publications/pig/fs-cover.htm).