Learmont v Commissioner of Police

ADJOURNMENT

1. When I adjourned shortly after 5 last evening, I had been discussing the material provided by the plaintiff to the NSW Police seeking to support his readmission to the Police Force and commented on what that material did not show. However, before the plaintiff actually re-joined the Police Force, he had a further experience of low back pain. On Monday 26 April 2004 the plaintiff's wife called the WGPAHS by telephone. I infer that the initials stand for the Wagga General Practice After Hours Service. The plaintiff's wife spoke to a triage nurse, Gillian Burmeister.
2. The plaintiff's wife advised Ms Burmeister that the plaintiff had hurt his back moving furniture more than a week before. She went on to say that over the last two days the plaintiff was having difficulty walking. She advised Ms Burmeister that the plaintiff was in severe pain. That call was made at 8.57am. At 10.49am the plaintiff saw Dr Adel Solomon, presumably at the WGPAHS, and told him that he had back pain. Dr Solomon prescribed Panadeine Forte and Valium and advised the plaintiff to see his normal general practitioner, Dr Keith, for a CT scan of his back. The progress notes made by the WGPAHS were forwarded to the Kooringal Road Surgery on Wednesday 28 April 2004 but the plaintiff did not attend Dr Keith in April 2004 at all. In fact, his next attendance upon Dr Keith was on 30 November 2004 when he complained of diarrhoea for three to four days and having abdominal pain as well as the diarrhoea. However, there was no history of vomiting. Dr Keith organised some pathology tests on that day and prescribed Imodium, presumably to stop the diarrhoea. It would appear, therefore, that the back pain which caused the plaintiff to consult the WGPAHS on Monday 26 April 2004 was transient but had been precipitated by moving furniture more than a week before 26 April 2004.
3. In April 2004 the plaintiff was working as a telecommunications cable installer and it is unclear whether the injury happened at home or at work. I assume that it happened when the plaintiff was at home. On 17 June 2004 the plaintiff sent a further letter to the recruitment branch of the NSW Police outlining his employment history after he left the Police Force in August 1999. That communication is exhibit 15. This application to re-join the Police Force was successful and the plaintiff re-joined the NSW Police on 3 April 2005. He took up a position as either the lock-up keeper at Adelong, or as a lock-up keeper at that town.
4. On 15 July 2006 the plaintiff submitted an expression of interest to undertake training as a weapons trainer. In that application the plaintiff pointed out that he had been stationed at Adelong for 14 months after completing his "re-joinee class in April of 2005." In that application he said this of his earlier service: "I have received specialist training in Specialist Weapons and Tactics (SWAT) at Wagga Wagga in my duties as a SPSU operator. I have been [an] SPSU operator from 1991 to 1998. During this time I have been involved in a number of high risk incidents where I was able to handle my duties competently and professionally. I have above average level of fitness and believe that I have the abilities and aptitude for undertaking this type of training." The important thing to note is the plaintiff suggested that he had an "above average level of fitness" and does not state that he was in any way incapacitated or incommoded by intermittent chronic low back pain. That application was supported by the duty officer as Tumut, the supervisor at the Tumut Police Station and the EDO, who noted on the application that the plaintiff was awaiting a position on the course as at 18 September 2006. The evidence does not disclose whether the plaintiff took up that role, as far as I can recollect.
5. On 31 August 2008, when he was still serving at Adelong, the plaintiff injured his lower back. The incident was reported to the plaintiff's supervisor on that day. The report, which is exhibit 17, tells me that whilst restraining a violent offender the officer twisted his back in "the wrestle," causing immediate pain and some discomfort to the lower back. However, this was a no time lost event according to the person making the report.
6. There was a further report of an incident when the plaintiff was at Adelong on 5 November 2008. Again, the injuries stated were an injury to the lower back and to the neck. The narrative supplied by the plaintiff is this: "Police were in the process of arresting an offender for a domestic violence assault. The accused person ran from police and concealed himself in long grass in nearby bushland. Whilst patrolling through bushland in the police vehicle searching for the accused, the police vehicle dropped heavily into a deep ditch in the long grass. The injured officer felt an immediate sharp pain in his lower back area, whiplash to his neck. The officer suffered a similar [injury] to his back recently in arresting a violent offender." This was a notification of the incident only and no time loss was envisaged. However, that did not remain the situation. Exhibit 19 is a claim form completed by the plaintiff on 14 January 2009. It is addressed to the Treasury Managed Fund and to Allianz. It appears that Allianz was acting as the agent or manager of the Treasury Managed Fund. It concerns the event of 5 November 2008. When asked if the plaintiff had suffered any similar injuries he referred to the event of 31 August 2009 but to no other event. One of the questions asked in the form is, "Was this part/s of your body normal before the injury? Give details." The answer given by the plaintiff is, "Yes," a representation that his low back was normal prior to the event of 5 November 2008.
7. On that exhibit "employer details" have been provided by a person other than the plaintiff on behalf of the employer. They recite that the plaintiff was transferring to the Wagga Wagga LAC on 25 January 2009 and that the claim would be managed by "Wagga Wagga", presumably meaning Wagga Wagga LAC. There was also a report made by the plaintiff on 22 March 2010 indicating that on completion of a three year term at Adelong the plaintiff transferred to the Junee Police Station on 11 January 2009 as a lock-up keeper, but then on 13 December 2009 transferred to the Wagga Wagga LAC "due to an injury as I wasn't able to continue my full duties". The inference to be drawn from the document is that the plaintiff was put on restricted duties as a result of a lower back injury that occurred on 5 November 2008.
8. As I stated yesterday, the plaintiff submitted his application under s 12D of the Act on 27 October 2010. In that application the plaintiff refers to the injuries of 31 August 2008 and 5 November 2008 aggravating his earlier back condition. By 30 October 2010 the plaintiff was on permanent restricted duties and eventually was discharged on 15 April 2012 and received the payout for PTSD that I mentioned earlier. On 21 July 2012 the plaintiff made an application for a Medical Discharge Benefit pursuant to s 10B(2) of the Act. I have been told from the Bar table that that application is still being considered. That application was made almost three years ago and probably consideration of it has been delayed by the current proceedings.
9. In support of this application the plaintiff relies upon the report of Dr W G D Patrick which I mentioned yesterday and has also placed before me reports from doctors who have treated him since 5 November 2008 and also reports from two other practitioners who have been qualified by the plaintiff's solicitors, Dr Peter Giblin and Dr James Bodel.
10. In the first paragraph under the heading "Opinion", Dr Patrick said this: "Mr Andrew Learmont presents as genuine. He has, I believe, sustained a significant back injury when hurt on duty on 3 March 1990 when he was punched, knocked to the ground and kicked in the back multiple times when assaulted by the offender in Wagga Wagga as described. I believe this incident has resulted in significant back injury with effect on both lumbar and lower thoracic spinal regions, with the likely lumbar facet injury with subsequent development of retrolisthesis at L2-3 level and also disc bulges at T12-L1 at the thoracolumbar region and possibly some disc injuries at L1-2 level below and also at L3-4 and L5-S1 discs. He was thought by Dr Haider in January 2009 to be suffering from some right sided radiculopathy at L2-3. A lumbar discography in about July 2009 there was positive discogram at L5-S1 level." Shortly thereafter Dr Patrick said this: "With the history and sequence of events as given, supported by findings on clinical examination, it appears that there is little doubt that he was generally unfit and unable to carry out his police duties at the time when he resigned in 1999, this unfitness being consequent ultimately upon his significant back injury sustained in March 1990. There were significant mental/psychological issues also at the time when he resigned in August 1999, but I believe the evidence is that he would have been unable to carry out his police duties on the basis of his physical injuries in isolation (back injury). I do believe that at the time when he has rejoined the police force in 2005 it is, I believe, highly unlikely he would have been capable of passing the physical involved in re-joining without the assistance of considerable medication, including analgesic and muscle relaxant medication, due to the degree of his continuing back injury."
11. The latter opinion is completely insupportable. The only reasons given and available on the evidence before me for the plaintiff's resignation in August of 1999 were the plaintiff's personal differences with his superiors at the Wagga Wagga Police Station and there was no mention contemporaneously of any back problem. The plaintiff was accepted back into the Force, having been certified fit for work, and worked between 3 April 2005 and, I infer, early 2009, as a general duties senior constable of police. The only suggestion of why the plaintiff stopped work is the event of 5 November 2008.
12. Further in his opinion Dr Patrick said this: "The specified infirmity of body or mind which so disables him consists of the thoracic and lumbar facet injury and thoracolumbar and lumbar disc injuries, with evidence of resultant radiculopathy." Dr Patrick goes on to certify a 31% permanent impairment of the back, an 8% permanent loss of efficient use of the left leg at or above the knee and a 5% permanent loss of efficient use of the right leg at or above the knee.
13. Dr Giblin saw the plaintiff on 11 October 2011. The diagnosis which he provided is this: "Based on his history and examination, this gentleman has the provisional diagnosis of a significant soft tissue injury to his low back, initially occurring in the course of his work in March 1990 and subsequently, being re-aggravated in a material fashions in the injuries as noted from 2008 and 2009." The latter two dates I infer are reference to the events of 31 August 2008 and 5 November 2008. Later in his opinion Dr Giblin expressed the view that there was a degree of permanent incapacity as at August 1999, as the plaintiff would not have been fully fit for unrestricted, normal full duties. The fact is he subsequently returned to unrestricted, normal full duties and was representing himself in that fashion from the time that he sought to re-join the Police Service at the end of the year 2000. Dr Giblin diagnosed an 18% permanent impairment of the back as a result of the event of 3 March 1990 and then he gives assessments of permanent impairment flowing from the event of 5 November 2008.
14. Yesterday I referred to the fact that the plaintiff was sent by Dr Keith to Dr Lewin, a psychiatrist, in December of 2003. I note that a report of Dr Lewin dated 15 December 2003 was provided by the plaintiff's then solicitors to Dr Selwyn Smith, a psychiatrist, who was qualified by the plaintiff's then solicitors. Dr Selwyn Smith saw the plaintiff initially at the request of Dr Haider on 2 February 2012, and further examined by him on 9 February 2012 and 19 April 2012. On 2 May 2012 Dr Smith provided a report to the plaintiff's then solicitor and in it the doctor refers to Dr Lewin's report of 15 December 2003. It is not necessary for me to consider the contents of Dr Selwyn Smith's report.
15. The plaintiff was seen by Dr James Bodel on 23 May 2014 at the request of the plaintiff's former solicitors. Under the heading "Examination" Dr Bodel said this: "Mr Learmont is a man of 52 years who is uncomfortable throughout the interview and he rises slowly. He is somewhat anxious in his manner. He does have tenderness on palpation at the lumbosacral junction and he reaches forward in flexion with his hands to the knees and there is back ache at this point and also on extension and there is a reduced range of lateral bending on the right. There is therefore some asymmetry of movement. Straight leg raising is 70 degrees on both sides and limited by hamstring tightness. There is no evidence of nerve root irritability and no clinical sign of radiculopathy. There is no wasting in either thigh or calf and no reflex abnormality or sensory impairment of the lower limbs." One might be forgiven for thinking, those clinical findings, that the plaintiff had a problem at the lumbosacral disc, L5-S1, without any nerve root compression, that is, any true radiculopathy. The doctor comments on the X-rays of 17 January 2003 and also on investigations made after 5 November 2008. Dr Bodel thought that the X-ray of the lumbosacral spine taken on 27 December 2008 showed disc pathology at L2-3 and bulging at the L5-S1 level. An MRI scan performed on 23 April 2009 was thought by Dr Bodel to confirm disc pathology at both L2-3 and L5-S1. The doctor also comments on the discogram of 10 June 2009 which confirmed pain reproduction on injection at the lumbosacral level but showed no abnormality at either L3-4 or L4-5. Dr Bodel provided this diagnosis: "The diagnosis here is a disc injury at the lumbosacral junction, caused by the initial injury on 3 March 1990 and further aggravated by subsequent events on 31 August 2008 and in a motor vehicle accident on 5 November 2008, as well as the further episode lifting the transformer in the year 2011." That latter event appears to have occurred at the Wagga Wagga Police Station when the plaintiff was in charge of exhibits.
16. In a supplementary report Dr Bodel said this: "In the terms of the Table of Disabilities he has a 10% overall impairment of function of the back, a 5% permanent loss of efficient use of the right leg at or above the knee and a 5% permanent loss of efficient use of his left leg at or above the knee, and this has arisen as a consequence of the original injury in 1990." The doctor does not state what is actually causing the loss of efficient use of each leg at or above the knee. His primary report rules out radiculopathy. It can only therefore be referred pain or merely, because of the impairment at the lumbosacral junction, an inability to fully use his right leg and his left leg in the normal fashion.
17. The defendant has qualified Dr Seamus Dalton, a consultant in rehabilitation medicine at the North Sydney Orthopaedic and Sports Medicine Centre. Dr Dalton has not examined the plaintiff. He has merely read such documentation as has been provided to him by the defendant. Much of that documentation is in evidence but it does not include the outpatient notes made on 3 March 1990 at the Wagga Wagga Base Hospital which became exhibit M, they only being made available to the plaintiff on 26 March 2015 and tendered in evidence on 14 April 2015.
18. In his report of 12 August 2014 Dr Dalton expressed this opinion: "Having carefully reviewed the contemporaneous medical records, I can find no evidence to support a causal connection between Mr Learmont's subsequent history of chronic recurrent lower back problems and the incident which occurred on 3 March 1990. It would appear that on 3 March 1990 Constable Learmont suffered soft tissue injuries to his back and rib region as a result of being kicked and punched. I can find no evidence that he was reporting any ongoing symptoms or restrictions subsequent to that injury. The contemporaneous medical records do not refer to any subsequent complaints of back pain, with the first significant episode of acute back pain being recorded as occurring in 1995. The next significant reference is on 16 January 2003 when he was seen by Dr Keith and reported a history of recurrent lower back pain and there was reference to the severe episode at home in 1995. X-rays at the time revealed evidence of degenerative disc disease and spondylosis at the L2-3 level. It is inconceivable that the soft tissue suffered by Mr Learmont in March 1990 could have resulted in the subsequent degenerative disc disease and lumbar spondylosis at the L2-3 level, which was noted on X-rays some 13 years later. If Constable Learmont had suffered a significant lumbar disc injury at the time of the alleged assault then his symptoms would have persisted and he would have undoubtedly had significant pain on an ongoing basis, which is not recorded in the contemporaneous medical records. Regardless of that, the mechanism of injury described by Constable Learmont would not, in my opinion, have resulted in an acute lumbar disc injury and certainly the contemporaneous medical records do not support any relationship between the soft tissue injury that he likely sustained at that time and the delayed onset of acute back pain some five years later. In my opinion the medical reports demonstrate the typical history of recurrent back pain attributable to degenerative disc disease and lumbar spondylosis. Typically this manifests as intermittent acute episodes of back pain and spasm, often short lived, with long pain free periods between episodes. It is also evident that the subsequent CT scan of the lumbosacral spine revealed widespread multi-level spondylotic change and degenerative disc disease, notably at the L2-3 level, but also with evidence of degenerative change in the sacroiliac joints and the lower lumbar facet joints. There is no conceivable way that such widespread changes could be attributable to a single traumatic incident, notwithstanding that punching and kicking to the lower back region would not result in such pathologies. It is evident from the various reports that Mr Learmont was not reporting chronic recurrent back pain as has been claimed, up until the time of his resignation from the police force in 1999. It is also relevant to note the report of Mr John Flockton in 1999 which confirms at the time that Mr Learmont was exercising regularly, including running and attending the gym, as a way of managing his stress. The contents of that report are not consistent with the assertions by Dr Patrick that at the time of his resignation in 1990 he was suffering from worsening back pain requiring analgesia and the claim that he was very limited in what he was able to do physically at that time. Such a claim is not consistent with the contemporaneous medical records. I also refer to the Medical Assessment Report and Questionnaire filled in by Dr Gerber which does not refer to any history of back pain or any requirement for regular analgesia. In my opinion Mr Learmont appears to have suffered soft tissue bruising to his back and rib region as a result of the alleged incident. The effects of that injury resolved rapidly, probably within a matter of days, with no indication that he was experiencing any ongoing lower back problems from that time on. The mechanism of his injury and injuries suffered at that time could not conceivably have resulted in the degenerative changes subsequently noted at L2-3 and later at multiple levels. There is no causal connection between the soft tissue injury sustained in 1990 and the later history of recurrent back pain which was attributable to degenerative lumbar disc disease at the L2-3 and other levels." The opinion of Dr Dalton continues for a further page and a further paragraph after that further page. It can be summed-up with the first sentence of the ante-penultimate paragraph: "It is my opinion that the acute episode which occurred in 1995 was consistent with a spontaneous episode of back pain and spasm related to degenerative disc disease."
19. The doctor also expresses surprise at the conclusions of Dr Patrick and Dr Giblin. That opinion is supported by Dr Dalton's further report of 4 December 2014, which comments on the report of Dr Bodel of 23 May 2014. In it he points out that one cannot determine whether the plaintiff had evidence of degenerative lumbar disc disease at the time of the incident in 1990 as there was no radiological investigation at the time. The opinions of Dr Dalton were provided to Dr James Bodel, together with the transcript of evidence given on 29 and 30 October 2014, essentially a transcript of the plaintiff's evidence. The diagnosis offered in Dr Bodel's supplementary opinion of 8 December 2014 is mechanical back ache associated with disc pathology at the lumbosacral junction. The doctor was asked to provide his opinion as to whether the plaintiff suffered an injury on 3 March 1990 to his lower back whilst working as a constable of police. The doctor succinctly stated that that had become "a very difficult question". The final paragraph of that section of Dr Bodel's report of 8 December 2014 is this: "There is, therefore, no medical documentation that I have been provided with or that I am aware of, which could confirm that there was a disc injury at the time, although based on the history given by Mr Learmont there certainly may well have been such an event." The doctor was then asked this question: "Please identify what pathological changes, if any, occurred in the incident, from bruising and abrasions up to more significant pathological changes?" The doctor answered that question in this way: "As I have indicated above, there is scant documentation in regards to the medical findings at the time. The history as given in answer under oath was that there were abrasions to the back and bruising but there was no mention as to whether an X-ray was taken at the time of that first presentation to the hospital on the evening of the event or at any subsequent stage to confirm any structural pathology identified at the time. Mr Learmont gave quite a plausible explanation as to why there is scant medical record, that being that he did not want to jeopardise his employment in the police force or his involvement in the SPSU from 1993 onwards. It is therefore very difficult to be absolutely certain as to whether other "significant pathological changes" occurred at that time in the absence of any documentation. Based on the history it appeared likely that a disc injury had occurred, although it is very difficult to confirm that now in light of the medical management of this injury which has occurred over the years, as indicated above." Two further questions were asked of Dr Bodel. He answered those two questions in this way: "Would you consider there is to be a causal connection [between] our client's current symptoms and the incident that occurred on 3 March 1990? With the extensive exposé of the recorded history presented in the transcript that you have provided it is difficult to connect the events of 3 March 1990 to his current complaints only. I accept this gentleman's history that he has been symptomatic since that time and there are plausible reasons as to why he did not seek much in the way of medical advice. The documentation, including various scans that have been done after the incidences in 2008 do show fairly well established disc pathology and it is probable in my view that this could have occurred as far back as 1990, but there appears to be no other medical evidence to confirm that. Any further comments in respect of the opinions and conclusions of Dr Dalton in his medical report dated 12 August 2014? Dr Dalton has made a straight forward assessment of the medical documentation in relation to this gentleman's medical injuries and he has based his conclusions on the documented history provided. I accept that that literal interpretation is quite correct, although Mr Learmont quite adamantly confirms that he has been in pain of varying degrees since the date of the episode of 3 March 1990 and it is possible that that event could have caused a disc injury which is the precursor of the abnormalities seen in the latest scan." Of course, saying that something is possible does not prove something on the balance of probabilities.
20. Were the matter res integra I would readily accept the opinion of Dr Dalton. As I mentioned yesterday, there was a significant challenge to the plaintiff's credibility. As I said yesterday, it appears to me that I cannot accept the plaintiff as an accurate, reliable, or indeed, honest witness. The most common matter agitated in litigation under the present Act is the question of causation of various medical conditions. To use shorthand, a common question is the causal nexus between an alleged injury and subsequently diagnosed pathology. This Court constantly deals with such issues when considering applications under s 10B(3) of the Act. That provision is this: "Where a member or former member of the police force is duly certified under subsections (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision." A person aggrieved by a decision of the Commissioner of Police under s 10B(3) has a right to make an application to this Court under s 21 of the Act. Section 10B relates to an annual superannuation allowance or a gratuity under s 10. The right there involved is a much more valuable right than a right that might arise under s 12B. However, the matter is not res integra. There is a decision of Truss DCJ, Kennedy v COP (RJ462 of 2005, 27 October 2006, unreported). Kennedy's case was a very different case to the present one. At [24] her Honour pointed out that there was no evidence to suggest any prior injury or any pre-existing problem in that plaintiff's back or neck.
21. There was uncontested evidence that before the event relied upon by that plaintiff, which occurred on 31 March 1997, the plaintiff was physically fit and played competitive hockey, touch football, rode a bicycle, jogged and swam. Like Mr Learmont, Mr Kennedy had applied for the SPSU and on 21 March 1997, ten days before the event relied upon, a motor vehicle accident, the plaintiff successfully completed the induction module of the SPSU course, which involved "intensive fitness training". After the motor vehicle accident of 31 March 1997 the plaintiff had pain in his neck and muscle soreness and he took some painkillers and went to bed. He then had two days rostered leave. Three days after the incident the plaintiff consulted his general practitioner, Dr Smith, who issued a certificate, and the plaintiff was off work until 30 June 1997, returning to work on restricted duties and not returning to full duties until 3 October 1997. From that time on, until payment of sick pay stopped in May 2002, Mr Kennedy had a lot of time off for neck problems. He made a number of successful applications for sick pay to be treated as "hurt on duty" and those determinations were exhibited before her Honour. In 1998, the year after the event, the plaintiff was referred to a neurologist and an MRI scan was performed on 1 March 1998.
22. On 7 July 1998 the plaintiff saw a new general practitioner whom the plaintiff consulted "on a number of occasions". On 10 October 2000 the plaintiff in that case felt a tearing sensation in his neck and suffered pain and tingling when he was in the process of attempting to start a power generator at the Ballina Police Station when there had been a blackout. After that incident the plaintiff went off work and had never returned to work. It would appear that the defendant argued that whatever was wrong with the plaintiff as a result of the initial injury, and perhaps the injury of 10 October 2000, had passed and that the plaintiff had completely recovered and was fully fit and not suffering any permanent impairment or loss.
23. The judgment leads me to infer that one of the arguments raised in that case was that any aggravation due to an underlying condition caused by the events relied upon by Mr Kennedy had ceased. Her Honour was called upon to construe s 12D. It has been submitted by the defendant in that case (the current defendant) that the Court could determine whether or not the plaintiff had sustained a permanent impairment or loss as a consequence of the injuries relied upon; in other words, whether he would have an entitlement to lump sum compensation under s 66 of the Workers Compensation Act 1987. At [15] her Honour said this: "In my view what s 12D contemplates is the following process: (a) a claim for a member to STC for a gratuity; (b) a referral by STC to the Commissioner for a decision as to whether or not the injury to which the claim relates was caused by the member being hurt on duty; (c) s 21(1)(b) gives a member the right of appeal from such decision; (d) if the Commissioner decides in the member's favour, STC is then required to make a determination under s 12D(1); (e) s 21(1)(a) gives a member a right of appeal from such determination. Her Honour then referred to subs (5) and (6) of s 21 and continued thus: "[17] This is an appeal from a decision of the Commissioner, not STC. What the Commissioner, and therefore this Court, are authorised by s 12D to determine is whether the injury to which the application relates was caused by the plaintiff being hurt on duty (subs 4(a)). [18] In my view injury in s 12D(4) and the reference to s 1, to the member being "injured" are to be given the same meaning as "injury" as defined in s 4 of the Workers Compensation Act 1987 [...] [19] In other words, what those sections refer to is trauma due to one or more events, such as would found an entitlement to compensation but which does not include matters such as permanent impairments and losses or incapacity as a consequence of such trauma. [20] For these reasons I reject the assertion by the defendant that on this application the Court is required to determine whether the plaintiff has sustained any permanent impairment or losses, or to put it another way, a finding of "hurt on duty" in this case is not dependent upon a finding of permanent impairment." That case was argued by Mr Ower, who has been appearing for the plaintiff since the recommencement of these proceedings on Tuesday.
24. There was an appeal by the Commissioner of Police from her Honour's decision: Commissioner of Police v Kennedy [2007] NSWCA 328; (2007) 5 DDCR 380. The primary judgment was given by Hodgson JA, with whom Hislop JA concurred. Further reasons were given by Basten JA, with whom Hislop JA also agreed. In essence, their Honours agreed with the reasoning of her Honour. The appellant was represented by Mr S Campbell SC [as his Honour then was]. At [24] Hodgson JA said this: "Mr Campbell submitted that the matter could not be resolved by reference to the assumed respective functions of the Commissioner and STC, with the former being concerned with matters requiring operational knowledge and expertise and the latter being concerned with matters requiring medical knowledge and expertise. The question of whether a s 4 injury has been suffered may require medical expertise, for example, where the alleged injury is a disease or aggravation of a disease. Further, in cases under s 10B of the Superannuation Act, when STC has identified a 'specified infirmity' under s 10B(1), medical expertise will be required to determine whether that infirmity was caused by a s 4 injury under s 10B(3)(a)." Commencing at [26], Hodgson JA said this: "[26] In my opinion the Superannuation Act does disclose an intention that, in a broad sense, medical issues be addressed by STC and operational issues by the Commissioner. However, for reasons given by Mr Campbell, there can be no clear demarcation: the Commissioner must have to determine medical issues at least in the areas identified by Mr Campbell. [27] In my opinion the expression 'the injury to which the claim relates' in s 12D(4)(a) must have the same meaning in relation to claims for Div 4 payments as it has in relation to claims for Div 3 and Div 5 payments. [28] In relation to claims for Div 3 payments, the Workers Compensation Act refers to no injury apart from the s 4 injury; and in my opinion, 'injury' in s 12D(4)(a) cannot reasonably be understood as referring either to the medical expenses themselves or to some condition, apart from a s 4 injury, that was the immediate occasion for the relevant medical treatment. Although 'injury' is used in s 26 of the Workers Compensation Act to refer to financial loss, in my opinion it would be a strained and artificial understanding of the word 'injury' in s 12D(4)(a) to take it as referring either to medical expenses or to some condition apart from a s 4 injury. Also, it would mean that every time that there was a claim for further medical expenses, the claim would require both a determination by the Commissioner under s 12D(4)(a) and a determination under s 12D(1) by the STC; and in my opinion it is unlikely in the extreme that this was intended. [29] In relation to claims for Div 5 payments, the Workers Compensation Act does not require that there be any s 4 injury. However, the definition of 'hurt on duty' in the Superannuation Act does require that the member be injured, so it would seem that Div 5 claims can be made by members only if there has been a s 4 injury. In my opinion, in relation to Div 5 claims, 'injury' in s 12D(4)(a) cannot reasonably be understood as referring to the physical damage to an item of the kind referred to in s 74 of the Workers Compensation Act and must be taken as referring to the s 4 injury. [30] In relation to claims for Div 4 payments, in my opinion the same applies: 'injury' in s 12D(4)(a) refers to the s 4 injury. I accept that there is some grammatical awkwardness in this, in that the definition of 'hurt on duty' applies only if there has been a s 4 injury; so that, on this construction, what is determined is whether there is an injury caused by the member being injured, where the injury is not something separate from that already suggested by the expression 'being injured'. However, in my opinion, this consideration is insufficient to outweigh the other considerations I have discussed. [31] On the question of what has to be determined by the Commissioner under s 12D(4)(a), I accept that does include issues under s 9A and s 14 of the Workers Compensation Act, and where applicable, s 10 and 11. I would not, however, have understood what was said in Calman [Calman v COP [1999] HCA 60] at [38] as requiring that the Commissioner also determine whether some total or partial incapacity has resulted: s 9 of the Workers Compensation Act asserts entitlement to compensation without reference to incapacity, and medical expenses are payable under the section without proof of incapacity." Basten JA dealt more extensively with the grammatical awkwardness referred to by Hodgson JA. At [42] his Honour said this: "Broadly speaking, claims for compensation turn upon two issues. The first is whether a worker has suffered an injury and, if so, the nature and extent of the injury. The second question is whether the injury arose out of or in the course of employment or otherwise satisfied the conditions identified in s 4, 9A (employment, a substantial contributing factor), 10 (journey claims), and 11 (recess claims) of the Workers Compensation Act, subject to s 14 (exclusion of injuries solely attributable to serious and wilful misconduct and self-inflicted injuries). In a crude dichotomy, the relevant questions can thus be identified as those involving quantification of compensation payable and those involving causal connection with the employment. Because s 12D(3) and (4) refer to causation, the apparent intention is that the Commissioner should determine questions involving causal connection with employment and the STC questions relating to the nature and extent of the compensation payable. On that basis, her Honour was correct in concluding that questions of permanent impairment were for the STC, thus the Commissioner was required to determine whether Mr Kennedy had received an injury arising out of his work as a member of the police force, whereas the STC would determine, whether the injury had resulted in permanent impairment for the purpose of s 66(1) of the Workers Compensation Act." The penultimate paragraph of the reasons of Basten JA needs also to be borne in mind. It is this: "[55] It is thus apparent that a gratuity under s 12D may be granted either where paragraph (a) is satisfied and an allowance is payable to the member under s 10 or, where paragraph (b) of sub-s 12D(3) is satisfied. It is clear that, for the purposes of the first alternative in paragraph (a), any question of incapacity, resulting in discharge, is to be determined by the STC whereas the relationship of the infirmity to the member's work is to be determined by the Commissioner. It would be curious if the function to be performed by the Commissioner were of a materially different kind, where the second alternative under paragraph (b) is invoked. As already noted, the language is consistent with the function being the same in each case. The interrelationship of ss 10, 10B and 12D thus support the conclusion that the function of the Commissioner is the same in each case and is limited to determining the causal connection between the infirmity or injury and the officer's employment."
25. This latter dictum can lead to some opacity. What his Honour is not discussing is the relationship between the injury and the certified infirmity or the pathology resulting from the injury. However, reading the judgment as a whole, it appears to me clear that their Honours were of the view that the relationship of causation between the event relied upon and the pathology giving rise to the claim is a question not for the Commissioner of Police but for the STC. This, in essence, is what has been submitted by Mr Ower on behalf of the current plaintiff.
26. In substance, the plaintiff submits that all I am concerned with is whether the plaintiff injured his back on 3 March 1990 and it is then up to the STC, or to give it its full title, the SASTC, to determine the relationship, if any, between the impairment claimed and that injury, and if the plaintiff is aggrieved by that determination of the STC the plaintiff can bring an application from the decision of the STC. This was alluded to by Truss DCJ in [34] of her reasons, in which her Honour said this: "A considerable amount of medical evidence was tendered and the defendant showed film taken in March 2002 and December 2005. However, the main thrust of the defendant's case was that whatever was the nature of the plaintiff's injury, in particular in March 1997, he had recovered and was now fully fit and not suffering any permanent impairments or losses. However, for reasons already expressed, that is not an issue I am required to determine at the present time and I do not therefore consider it necessary to refer to the medical evidence." [My emphasis.]
27. In the current case it is to be borne in mind that the plaintiff in his application under s 12D referred to an event on 3 March 1990 leading to permanent impairment of the back and loss of efficient use of each leg at or above the knee. There is no suggestion that the plaintiff injured either of his legs in the event of 3 March 1990. However, it is common for a low back injury involving damage to a disc to ultimately lead to some permanent loss of efficient use of each leg at or above the knee because of either radiculopathy or referred pain or a mere mechanical problem which inhibits the use of each leg.
28. The injury therefore that the plaintiff relies upon must be one which had the potential to lead to the loss of efficient use of each leg. Equally, it has to be borne in mind that the word "back" can mean a number of different things. De Gracia v New South Wales (1993) 13 NSWCCR 23 was a decision of Grayson C. In that case the plaintiff was claiming a lump sum for permanent impairment of his back. Commencing at 25F, the Commissioner said this: "The respondent argues that the coccyx is not part of the back within the meaning of the Table to Div 4 of Pt 3 of the Act. Counsel are unable to refer the Court to any judicial pronouncements on this particular question and I am therefore left to decide the point unaided in that regard. I am aware of a case recently decided on appeal from Burke J where certain organs were held not to be part of the pelvis, but that does not seem to be the point here. See Concrete Constructions Group Pty Ltd v Nelson (1993) 9 NSWCCR 213. Ordinarily, it would not be questioned that the sacrum and the coccyx form part of the back in the everyday manner of usage of the term. The Table to Div 4 of Pt 3 of the Act, however, distinguishes between the back and the pelvis and it is therefore necessary to consider more closely what might be intended by that statutory distinction. I have been taken by way of extrinsic aides to various dictionary definitions of the word 'back' and 'pelvis', including those found in the Shorter Oxford Dictionary and the Attorney's Dictionary of Medicine. The back is thereby found to be the posterior part of the trunk from the neck to the pelvis but not including either the neck or the pelvis. The pelvis is found to be the bony ring at the lower end of the trunk, made up of the hip bones, the sacrum and the coccyx. Dr Conrad's assessment of back impairment, although urged upon me with some vigour, does not assist in answering the question of whether the coccyx is part of the pelvis or the back, nor can it, the respondent contends, because that question is one of statutory interpretation. It is what the statute should be taken to mean, and medical evidence, in this case at least, cannot be used to determine that. I am of the view that the respondent's argument is correct and that the Act clearly intends injuries to the sacrum and the coccyx, or rather, permanent impairment resulting therefrom, as referable to the pelvis and not the back. I am not asked to decide whether there is permanent impairment of the pelvis. I must hold that the applicant's claim for permanent impairment of the back fails."
29. I quoted that decision with approval in Clymer v Roads and Traffic Authority (1996) 13 NSWCCR 187. At 189A I pointed out that I had referred counsel to the decision of Commissioner Grayson, which I remembered quite well, as I was counsel for the respondent in that matter. I then quote what the Commissioner said and then continue thus at 189D: "Mr Saul was unable to cite to me any other authority. It should be noted that what the Commissioner referred to as 'the hip bone' was in fact the ilium. In the current matter, there is no dispute that the applicant's coccyx forms part of his pelvis and that it was injured. Mr Saul maintains that the sacroiliac joint is part of the back and not of the pelvis, although if the decision of De Gracia v NSW be correct (as I think it is) then as both the sacrum and the ilium are part of the pelvis, the sacroiliac joint must be part of the pelvis. Mr Saul submitted that what the word 'back' means in the Act must be determined not by me as a matter of law, but by what the doctors say it is. I reject that submission, it is contrary to law in my view and well established authorities. The word 'back' in the Act must be given its ordinary meaning subject to the confines of the Act. As the Commissioner pointed out, the Act distinguishes between the back, neck and pelvis. Therefore, a part of the body cannot be both in the pelvis and in the back. Medical practitioners often use the word 'back' synonymously with the spine, but of course the back includes many other structures than the spine. For example, the back includes the thoracic spine and must necessarily include the rib cage, that is, the thorax in so far as it is part of the back, and must also include the musculature of the whole of the back, that is, from each flank. Therefore the significance given to words by doctors is not determinative of the issue. It appears to me that all the injuries that the applicant sustained to his torso were injuries to the pelvis, that is, to the damage to the pubic ramus, the coccyx and the sacroiliac joint were all injuries to the pelvis."
30. Popularly, "the back" can refer to the whole of the posterior segment of the thorax, that is, the thoracic spine, the posterior of the thorax, the adjacent or overlying musculature, the nerve structures within that area of the body, to the lumbar spine and the overlying musculature to each flank and the nerves involved in the back, and popularly, although not within the terms of the Workers Compensation Act 1987 as it formerly was, would it include the pelvis and the coccyx, although in popular parlance "back" would include the pelvis and the coccyx and probably also the buttocks.
31. When the plaintiff refers to a "back" injury one must be careful to know to what he is actually referring. Of course, the plaintiff now says that he injured his low back. There is some corroborative evidence in that regard called from the plaintiff's former de facto wife, René Anne McDonald, who would appear to be the lady with whom the plaintiff ceased to have a relationship in late 1996 or early 1997, and from the now retired Senior Constable Lunnon, who was a person present at the time of the assault suffered by the plaintiff on 3 March 1990. However, neither Ms McDonald nor Mr Lunnon distinguished which part of the body was meant by "the back".
32. I cannot accept the plaintiff's current assertion that he injured his low back as such. I have to rely upon the contemporaneous medical evidence. The only contemporaneous medical evidence is, of course, the outpatient notes of the Wagga Wagga Base Hospital contained in exhibit M. I quoted them yesterday but it is necessary to revisit them. There is a recorded complaint of a "painful back" but it does not tell me what part of the back was involved. There is reference to "soft tissue injuries" but which soft tissues were involved is not specified. There is reference to tenderness over the rhomboid on the left-hand side. There was found to be full movement but with it was associated "mild pain". Not stated is where the mild pain was.
33. The only thing which can guide me is the tenderness found over the rhomboid on the left. There are two rhomboid muscles. They are the rhomboideus major and the rhomboideus minor. The Attorney's Dictionary of Medicine provides these definitions: "Rhomboideus major. A muscle of the upper part of the back. One end, the origin, is attached to the first, second, third and fourth thoracic vertebrae (thoracic vertebrae are the vertebrae to which the ribs are attached). The other end, the insertion, is attached to the margin of the shoulder blade (scapula) which is closest to the spine (the vertebral margin). It is supplied by the dorsal scapula nerve. Contraction of the muscle draws the shoulder blade toward the spine... Rhomboideus minor. A muscle of the upper part of the back, just above the rhomboideus major. One end, the origin, is attached to the seventh neck vertebra and the first thoracic (chest) vertebra. The other end, the insertion, is attached to the upper part of the margin of the shoulder blade (scapula) which is nearest to the spine. It is supplied by the dorsal scapula nerve. The action of the muscle is the same as that of the rhomboideus major, which see." There are illustrations on p R153 of the work, which clearly indicate the position of both the rhomboid muscles. Unfortunately the same work does not tell me what is the dorsal scapula nerve, but by referring to the Concise Gray's Anatomy I know that each muscle is innervated by the fifth cervical nerve root. I can therefore readily accept that, in the event of 3 March 1990, the plaintiff injured his upper thoracic back. The lowest part of the rhomboideus major is no lower than midway between the eighth and ninth thoracic vertebrae, that is, it terminates in the T8-T9 disc space but a long way away from the spine itself, its terminal being, in essence, part of the musculature relating to the articulation of the arm. That can be seen in the diagram of muscles at the back in the Concise Gray's Anatomy on p 75.
34. The plaintiff's case is postulated on an injury to the low back because only an injury to the low back could cause a problem in either of the plaintiff's legs. A reference to any dermatomal chart shows that the legs are innervated by the nerve roots numbered L1 to S5, although S3 and S4 are confined to the peri-anal region in the natal cleft. For there to be some affectation of either leg there must be injury to a nerve root between L1 and S2, that is, to either the thoracolumbar disc down to the second sciatic nerve root, which passes out of the sacrum, the level above the S1 level coming from the L5-S1 disc level.
35. As I said, I can only infer from exhibit M an injury to the upper thoracic spine no lower than T8-T9. The injuries postulated by the plaintiff require a finding that he has injured some discal structure from T12-L1 to the S2 level and on the evidence before me I am unable to so find.
36. In argument I postulated to learned counsel for the plaintiff the suggestion that if the plaintiff alleged merely an injury to his body resulting, for example, in an impairment of the neck, back and pelvis and a loss of efficient use of each arm and a loss of efficient use of each leg, what could the Commissioner do if the only injury reported were, for example, some soft tissue muscle strain to some muscle of the back such as the quadratus lumborum. In such circumstances the Court would be entitled to find an injury to the low back but not an injury to any other part of the body. The question posed by a claimant under s 12D cannot fix the inquiry which must be made as to whether the body part in question was injured in a compensable event. Merely by saying that the plaintiff injured his back in the event of 3 March 1990 does not answer the question of what part of the body was injured. The question that has to be determined on this plaintiff's application under s 12D is what part of the body was injured such that it could lead to impairment of the back and the loss of efficient use of each leg. The only answer to that question is some type of damage to the back at a level of T12-L1 or lower. I am not persuaded the plaintiff sustained any such injury in the event of 3 March 1990.
37. In discussing the voluminous medical evidence before me I have not referred to the many attendances by the plaintiff upon Dr Keith or the Kooringal Road Surgery, nor his various attendances at the Wagga Wagga Base Hospital, in which no complaint was ever made about some chronic ongoing back complaint. However, the reader of the documents will observe that there is no mention of that, other than when I stated that he did so in these reasons for judgment.
38. For those reasons, I confirm the decision that the Commissioner of Police made on or about 27 February 2013, as pleaded in par 17 of the statement of claim.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2015