Nash v Commissioner of Police

THURSDAY 10 NOVEMBER 2016

1. It is convenient at this time to refer to the medical evidence in greater detail than I have previously done. As I mentioned yesterday, the plaintiff saw Dr Sam Wakista at Narromine on 17 April 2013. Dr Wakista sent the plaintiff to have a CT scan of his lumbar spine. The findings of the CT scan are reported thus by the radiologist, Dr Dominic Collis: "The vertebral alignment appears normal. Bone density appears normal. 14% height loss of L1 vertebral body is noted with degenerative sclerosis and spurring at the anteroinferior margin of the L1 vertebral body." The disc spaces and boney structures appear otherwise normal. No spondylolysis defects were seen. The apophyseal and sacroiliac joints define normally. The vertebral soft tissues define normally. Scans were performed through the lower four lumbar discs. The L2/3 disc shows a normal posterior margin. The L3/4 disc showed a normal posterior margin. The L4/5 disc showed a flat posterior margin, indicating minimal diffuse annular bulging. Very minor anterior thecal sac flattening is present. No evidence of emerging nerve root compression is seen. The L5/S1 disc shows a normal posterior margin. No evidence of thecal sac or emerging nerve root compression was seen. Scans to the upper sacral spinal canal show no abnormality." The radiologist's report of the CT scan, it must be noted, is but one version of what the CT scan actually shows.
2. There is nothing in the evidence from Dr Wakista himself or from Dr Wade, the psychiatrist, or from Mr Bharat Pandya, the chiropractor, which assists me in any way in determining the medical dispute before me.
3. The first orthopaedic surgeon to see the plaintiff was Dr J K Walsh at the request of the defendant. Dr Walsh assessed the plaintiff on 9 December 2013. The relevant findings on examination of Dr Walsh were that the plaintiff had good movements of his lower back on forward and backward bending, that is, both flexion and extension, and sideways bending and sideways rotation. He noted flexion of 80 degrees and extension and lateral flexion and rotation to 30 degrees. Straight leg raising was 80 degrees and reflexes were normal at the knee and ankle. There was no peripheral weakness or sensory loss. In essence, on my understanding of it, the doctor found no objective abnormality. Dr Walsh's view was that the plaintiff had low back pain associated with some minor degree of degenerative change in his lumbar spine. He went on to say this: "I doubt that the degenerative disc noted at L4/5 has contributed to the symptoms, although his symptoms are suggestive of soft tissue injury, which could well have been associated with the wearing of his gun belt when he was an effective unit of the police force. I note that he has not been required to wear belts in the past almost three years." It is to be noted that the doctor did not take the view that the radiological abnormality at the L4/5 level was traumatic, but that it was degenerative. Furthermore, the doctor was not of the opinion that plaintiff's symptoms were in any way related to the radiological abnormality at the L4/5 disc.
4. When asked specifically what was his diagnosis, Dr Walsh said that the diagnosis was, "a minor age-related degenerative change in the lumbar spine." He pointed out that the cause of degeneration in the spine was increasing age. He went on to say in answer to a further question this: "Back pain is common throughout life in any event and I suspect he may well have been getting some symptoms at this stage, so there is the probability that the injuries or a similar injury would have happened anyway, at about the same time, or at the same stage of the worker's life if he had not been at work or had not worked as a police officer …"
5. The next question asked of the doctor was this: "In your opinion, is his current lower back condition related to the wearing of appointment belt, even though he has not worn the belt in over three years?" To that question, the doctor responded: "I do not think that the wearing of the appointment belt has been contributing to his ongoing symptoms." As I read Dr Walsh's report, the import of it is this: the plaintiff has age‑related degenerative changes in his low back, including at the L4-L5 level. That could cause the plaintiff pain/discomfort/symptoms when wearing his appointments belt. However, when the symptoms subsequently occur when the plaintiff was not wearing his appointments belt, those symptoms are referable to the underlying degenerative change and were not precipitated or in any other way related to wearing of the appointments belt.
6. The next doctor to see the plaintiff was Dr James Scougall, an orthopaedic surgeon qualified by the plaintiff's solicitor. Dr Scougall took a history of 11 frank injuries, each of which the plaintiff admitted he formally reported to his employer, the NSW Police, during the course of his service. The seventh of those frank injuries was that of 14 February 1995. Consistent with what the plaintiff told me, the history obtained by Dr Scougall was that the plaintiff believed he had made an effective recovery from that incident "some weeks later."
7. Dr Scougall also obtained a history of the plaintiff's developing a low back pain in the early 2000s, as I mentioned yesterday. Dr Scougall was concerned with a large number of medical conditions, in essence, a number of conditions referable to the 11 frank injuries that he records. As far as his findings on examination of the low back are concerned, the doctor pointed out that the plaintiff was able to flex his spine such that his fingertips reached his ankle level. He went on to say that the ranges of movement in other directions were comparable to the range of flexion. In other words, what that means is that the range of movements of the low back were normal. The doctor pointed out that there was no muscle spasm of involuntary muscle guarding. Straight leg raising was 80 degrees on each side. The plaintiff made no complaint of any sensory loss in either of his legs and the muscle power in all muscle groups in each leg was satisfactory. The deep tendon reflexes of the lower limbs were present and equal and there was normal dorsiflexion of the great toes. In essence, as I understand it, Dr Scougall found no objective abnormality on examining the plaintiff's low back.
8. Dr Scougall went on to diagnose, "Chronic soft tissue injury in his low back without radiculopathy." The doctor does not specify which soft tissues were injured. The phrase "without radiculopathy" merely means that there were no symptoms or signs of pain radiating from the low back into either of the lower limbs, nor was there any complaint of any referred pain, "referred pain" being not radiculopathy, but another form of pain in the lower limbs mediated by a problem in the low back. Dr Scougall went on to express this opinion: "The chronic soft tissue injury in his low back is, I believe, related to the nature and conditions of his work as an operational police officer, commencing as from in or about the early 2000s."
9. That is not a medical opinion; that is a lawyer's formulation. Many lawyers believe that the term "nature and conditions of employment" is a term of art. It is not. It is attributable to a dictum of a Lord Shaw in Simpson or Thom v Sinclair [1917] AC 127; [1917] S.C. (HL) 35; (1917) 10 BWCC 220 at 235. The full dictum refers to "employment as such - to its nature, its conditions, its obligations, and its incidents". The term is often used as a shorthand method of saying that the type of work that a person did or has done was the cause of the medical condition from which the worker was suffering: Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656 at 667B; Lazos v Aldo Cupillari Pty Ltd (1999) 17 NSWCCR 714 at [15].
10. Dr Scougall has not specifically identified the wearing of an appointments belt as the relevant stressor to the low back, but rather the type of work that a general police officer does, that is, in dealing with offenders, with wrestling with offenders, tackling them, putting them to the ground, manhandling offenders, and all the incidents that a police officer does in the course of his work and the many physical requirements of the job. There is a supplementary opinion from Dr Scougall, but I will turn to that after describing the primary opinions of the various medical practitioners.
11. The next orthopaedic surgeon to the see the plaintiff was Dr Bosanquet, whom, as I said yesterday, saw the plaintiff on 12 September 2014. As I also pointed out, Dr Bosanquet expressed the "diagnosis" that was chosen by PSAC as the relevant "infirmity." According to Dr Bosanquet's report, the plaintiff's symptoms were these: "Mr Nash has low back pain that sometimes shoots into his right leg. The pain is not constant. He always wakes with pain and it is made worse with standing or sitting. He can drive 30 or 40 kilometres and then has to change position. As he lives with his parents [since being stood down], his mother does the cooking and cleaning but Mr Nash helps with the shopping. He can play golf, but not walking. He uses a cart. He is able to lift and bend less than 10 kilograms. He sleeps for three to four hours and then wakes." The plaintiff does not complain and has never elsewhere complained of an inability to walk. The reference that the doctor makes to "not walking" is to a history that the plaintiff does not walk around the golf course, but in fact drives a self‑propelled vehicle. That does not mean the plaintiff complains of not being able to walk. The inference to be drawn from the last sentence of the history is that the plaintiff wakes after sleeping for three or four hours because of pain, but that is not a history that the plaintiff gave me in his evidence.
12. On examination, Dr Bosanquet was of the opinion that the plaintiff had tenderness around the L5 spinous process. I assume by that that he means about either the L5 vertebral body itself or the apophyseal joints, presumably those between L5 and L4. The plaintiff was able to forward flex to reaching his ankles, just as he was able to do when examined by Dr Walsh. Dr Bosanquet noted that extension, rotation, and lateral bending were "full" and, again, that appears to me to be saying that his movements were then the same as they were when he was examined by Dr Walsh. Straight leg raising was 80 degree on both sides and there was no motor or sensory deficit in either lower limb, and the plaintiff's reflexes were brisk. In other words, there was no objective abnormality. The only difference between Dr Bosanquet's examination and that conducted by Dr Walsh was of a complaint of tenderness around the L5 spinous process region.
13. Dr Robert Breit, also an orthopaedic surgeon, examined the plaintiff for the defendant on 19 October 2015 and prepared a report bearing that date. The doctor said this about this examination of the plaintiff: "This gentleman has an elevated BMI, he is not in distress, has a normal gait pattern, and is able to walk on heel and tip toe. There is no lumbar tenderness or spasm and he is able to forward flex almost to the level of the ankles with a smooth rhythm of recovery, but there is restricted extension. Straight leg raising is bilaterally 80 degrees with no evidence of sciatic nerve root irritability. There is normal tone, power, sensation, and reflexes." The only abnormality noted by Dr Breit was of some restriction of extension, that is, bending backwards. The second question asked of the doctor by the defendant's solicitors was to point out the binding nature of the infirmity certified by PSAC. The doctor went on to say this: "You state that the Police Superannuation Advisory Committee of 'chronic soft tissue low back pain' is binding so far as diagnosis is concerned. You indicate that the matter relates to causation, which is difficult because the diagnosis as described is essentially meaningless in medical terms. Is it a soft tissue injury to the skin, the subcutaneous fat, the lumbar spine, the ligamentous structures, et cetera? I can really only comment about the 'low back pain' component. The original injury in 1995 is really quite minor and rapidly settled with Mr Nash indicating there were no ongoing concerns. His X-ray shows no significant pathology so that he is essentially seeking to attribute his back problem to the use of appointments. Firstly, one should point out that they had not been used since 2010 yet his pain continues. Secondly, this is a common claim by police officers any time one of them has back pain. Why are all these items placed on a belt? The reason is that by placing them on a belt, the weight is taken through the pelvis and not the lumbar spine. If you have back pain, then wearing all this equipment can be awkward and uncomfortable, but it is not a cause of the pain but simply an effect of having a problem. There is no nexus."
14. Having been provided with a "binding" diagnosis, Dr Breit does not provide one of his own. In answer to further questions, he merely states that the plaintiff is not suffering from any infirmity and that the employment of the plaintiff, that is, his work as a member of the NSW Police, was not a substantial contributing factor to what was thought to be an infirmity, which the doctor did not accept. It is axiomatic that if one does not have an infirmity, the employment cannot be a substantial contributing factor to the existence of the infirmity.
15. The opinion of Dr Breit that the diagnosis as described was "essentially meaningless in medical terms" is a statement with which I readily concur. I averted to this at the commencement of these reasons yesterday. It is an opinion that has been adopted by Dr Bodel, an orthopaedic surgeon qualified by the plaintiff. The penultimate paragraph, leaving aside the last sentence of the doctor's opinion, points to the argument that since it is alleged that the wearing of the appointments belt was a causative factor of the plaintiff's low back pain, how does it come about that the low back pain has continued if the plaintiff has not for the last four years been wearing an appointments belt? The argument is simply that if the wearing of the appointments belt is the aetiological factor, then once the aetiological factor was removed the symptoms should go away, should abate, but that has not occurred. The doctor is clearly raising the point that the persistence and, indeed, deterioration of the condition after ceasing to wear the appointments belt indicates that the appointments belt was not an aetiological factor in the development or progression of the plaintiff's low back pain.
16. The last sentence of the penultimate paragraph is completely irrelevant and indicates, if anything, some bias of Dr Breit against members of the NSW Police. I have been a judge for 22 years and have been dealing in those 22 years with claims under the present legislation. This is only the second case in which I have had to deal with an allegation that the wearing of an appointments belt was an aetiological factor in the development of low back pain. I am completely unaware of any "common claim" by members of the NSW Police that officers complain of wearing their appointments belt causing low back problems. I place that observation aside completely.
17. However, there is force in what Dr Breit says in the last paragraph which I have quoted. The belt is generally worn such that it rests on the top of the iliac crest of the body. If one draws a line through the iliac crest, one draws a line through the L4/5 disc space. When a person points to a problem at their belt level, provided the belt is being worn in the correct anatomical position, a patient is generally referring to the L4/5 level. Most patients who complain about low back pain indicate an area a little below the belt line and that is generally a complaint about pain at the L5/S1 level. However, there is no issue in the current case that the wearing of appointments on an appointments belt is so that the weight of the items on the appointment belt is taken through the pelvis and not on the spinal column itself. The last clause of the penultimate sentence of the final paragraph needs careful analysis. The clause might appear oxymoronic, but appears to me to be saying that the wearing of an appointment belt could cause the symptoms of an underlying condition, but was not the cause of the underlying condition. The doctor, however, does not say what the cause of the underlying condition is. However, he postulates that there was such an underlying condition the only underlying condition might be some early degenerative change in the low back.
18. The final medical opinion before me is that of Dr Bodel. The doctor's findings on examination are these: "Mr Nash is a man of 51 years who is uncomfortable when sitting on a chair and he rises slowly. His back is still and there is tenderness on palpation at the lumbosacral junction on the right side. There is guarding in that area and he reaches forward in flexion with his hands to his knees. There is some back ache at this point and also on extension, and he has reduced range of lateral bending to the right. He has asymmetry of back movement therefore. Straight leg raising is 70 degrees on both sides and limited by hamstring tightness. There was no evidence of nerve root irritability and no clinical sign of radiculopathy. There is no reflex abnormality or sign of sensory impairment in the lower limbs." The findings of Dr Bodel are quite different to the findings of each of the other three orthopaedic surgeons whose opinions I have canvassed thus far. Like Dr Wright, Dr Bodel found restricted extension. However, Dr Bodel was the only person who found a restricted range of flexion. Each other practitioner noted the plaintiff could reach his ankles with his fingers, but, as far as Dr Bodel was concerned, the plaintiff could only reach his knees with his hands, indicating restriction of flexion to about 45 degrees. Dr Bodel also found a restriction of lateral flexion the right-hand side, which had not been found by any of the other three orthopaedic surgeons. Dr Bodel also noted a restriction of straight leg raising to 70 degrees, whereas other practitioners had found it to be 80 degrees, but on this occasion it was limited not by any intrinsic low back problem, but by "hamstring tightness." Tightness of the hamstrings is not necessarily due to any low back problem. Objectively, if the findings of Dr Bodel be correct - and there is nothing to say they are incorrect - then the plaintiff's condition deteriorated between 2014 and 2016 and, indeed, between 2015 and 2016. That ties in with the history obtained by Dr Bodel of the plaintiff's having deterioration in his back function, causing the need to see Dr Wakista and to undergo the CT scan.
19. After setting out his findings on examination and his view of the radiological investigation, Dr Bodel comments on "relevant documentation." He comments on the reports of Dr Walsh, Dr Scougall, Dr Bosanquet, and Dr Breit. He went on to say this: "These reports confirm that this gentleman has had some intermittent mechanical back ache. It is considered that the back is due to degenerative change. Dr Breit, in particular, noted that the description of the 'injury' in terms of the 'chronic soft tissue low back pain' as a diagnosis is meaningless in medical terms and I am inclined to agree with him. Causation, therefore, is a difficult issue if it is not really known as to what the pathological diagnosis is. Clinically, in my view, the pathological diagnosis is a minor disc injury at the L4/L5 level and this arises as a consequence of the original incident in 1995 and may have been further aggravated by the wearing of his appointment belt. A statement from Mr Nash is also noted. In his statement, he indicated that he was involved in the secondary work but had no injury during that period of employment. There are then various articles from various sources in regard to the appointments belt and various trials that had been undertaken to try and investigate this as "problem." This referred to the advent of the use of vests to carry the tasers to try and distribute some of the load away from the belt. I am well aware of these articles and have seen over the years, in relation to this chronic matter of pain associated with the wearing of an appointments belt."
20. The first paragraph that I just quoted needs some interpretation. The second sentence, "It is considered that the back is due to degenerative change," cannot be taken literally. The back is part of normal human anatomy. What the doctor appears to me to be saying is that his interpretation of the other reports which he had been given was that the plaintiff's low back pain was due to degenerative change. In saying that, the doctor is not accepting that the pain in the plaintiff's low back is due to degenerative change. The last three paragraphs of what I have just quoted are of no moment, in my assessment, because I have not been provided with a statement of the plaintiff and, as I have mentioned yesterday, the various articles to which Dr Bodel referred were not admitted into evidence as evidence of any fact, but merely only as to what Dr Bodel was referring to. The articles in question appear to me to be all made by either serving police officers or serving members of police associations. None of them can be identified as being authored by a medical practitioner, an anatomist, or an ergonomist, or even a physiotherapist.
21. Dr Bodel was asked a number of specific questions. Those questions can be found in exhibit L. The doctor's response can, however, be read without referring to questions. Dr Bodel expressed this view: "I note that you have asked for a determination in regard to whether the wearing of this gentleman's appointments belt can be deemed as an infirmity as a Hurt on Duty Injury, as a personal injury. That particular activity alone (the wearing of the appointments belt), in my view, is not the entire cause of the infirmity in this circumstance. This gentleman does have early degenerative disc disease at the L4/5 level. He had an event that occurred at work, which was accepted as HOD injury in 1995 and that may have caused some disruption of the L4/5 disc. The wearing of the appointments belt after that, through the rest of his policing career, has caused aggravation, acceleration, exacerbation and deterioration of that infirmity as a disease process aggravated by work. I am satisfied, therefore, in that circumstance that there is a causal link between the initial incident and the nature and conditions of work as an aggravating factor causing aggravation, acceleration, exacerbation, and deterioration of that minor disease process at the L4/5 level and that is work related." The doctor finished his primary report by assessing a whole person impairment due to the pathology he identified in the plaintiff's back.
22. With unfeigned respect to Dr Bodel, whose opinions I generally find to be extremely helpful, the doctor's opinion is essentially an ipse dixit. The doctor postulates that, in the event of 14 February 1995, the plaintiff injured his L4/5 disc. The doctor says that that event "may have caused some disruption" of that disc. The use of the word "may" merely raises it as a possibility and not a probability. Furthermore, the doctor does not tell me why the plaintiff may have injured the L4/5 disc at that time. The doctor does not tell me what one looks for to ascertain whether a disc has been injured. A radiological investigation made more than 18 years after the event is of little utility. A radiological abnormality at the L4/5 level, shown on a CT scan, merely indicates that the damage had been sustained more than six months previously. It does not indicate that the condition had been in existence for 18 years. Furthermore, Dr Bodel himself accepted the change at L4/5 to be "early degenerative disc disease" and, therefore, does not exclude the possibility that it is merely a degenerative condition as accepted by both Dr Walsh and, from what I am about to say, by Dr Scougall and, impliedly, by Dr Breit.
23. A complaint of back pain persisting for up to two weeks could be due to anything. It could be due to a musculoligamentous strain, it could be due to some facet joint strain, it might be due to a disc injury, it could be due to a number of various conditions. There is nothing that Dr Bodel points to, to assist me in ascertaining whether the plaintiff did injure a disc on 14 February 1995. In the Court's experience, disc injuries generally cause major symptoms. Here, symptoms persisted for, at most, two weeks, but the plaintiff did not lose any time from work nor did he have any medical treatment at all. The symptoms could not have been of any great moment. If there had been frank injury to the disc at that time and the wearing of the appointments belt caused a problem because of damage done to that disc, one would think that the wearing of the appointments belt after 14 February 1995 would have caused problems. However, problems did not arise, on my analysis of the facts, until over ten years later and, even on the plaintiff's own version, until almost six years later. I am afraid that the opinion of Dr Bodel that the plaintiff injured his L4/5 disc on 14 February 1995 is merely speculation, guesswork.
24. The second part of the opinion which I have quote, again, is not medical art, but legal art. The doctor uses terminology found in the definition of "injury" contained in s 4 of the Workers Compensation Act 1987 and formally found in s 6(1) of the Workers Compensation Act 1926. The definition of "injury" includes, "the aggravation, acceleration, exacerbation, or deterioration," of a disease. I leave out of that formulation the more recent requirement that the employment be a substantial contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the disease. One will note from the quotation I have made from Dr Bodel's opinion that the doctor uses the conjunction "and" rather than the conjunction "or," indicating that the plaintiff had both an aggravation and an acceleration and exacerbation and a deterioration of the underlying disease, which is presumably the L4/5 disc injury. Once a part of the anatomy is injured, that can be thought to be a disease and that can be aggravated, accelerated, exacerbated, or made worse by subsequent events. Dr Bodel has not sought to distinguish between the nouns aggravation, acceleration, exacerbation, and deterioration. Each of them has a different meaning, albeit that some of those meanings are almost synonymous. The root of aggravation is the adjective "gravis," meaning "heavy." To aggravate a condition is to make it heavier, more ponderous, more weighty, more meaningful. It can be synonymous with the making worse of a condition. "Acceleration" is based on the adjective "celer," meaning swift, speedy, and means the speeding up of the process. Most motorists are aware that to accelerate a car, one pushes the accelerator pedal and, to decelerate the car, that is, to reduce speed, one applies the brake. The root of the noun "exacerbation" is the adjective "acer," meaning sharp, and is generally taken to mean the triggering of the painful symptoms of a condition. "Deterioration" is making a condition worse and could be taken as being synonymous with "aggravation." Dr Bodel does not say whether the condition was made worse, or accelerated, or had its symptoms triggered off by the wearing of the appointment belt. To concatenate the four nouns is, in my view, an indication that the doctor is merely using the terms of the Act to answer the question. He is being a lawyer and not a medical practitioner. He does not explain exactly how or when the appointments belt might do any of the four things that he says that it did.
25. I can accept that the wearing of a weighty belt around the low back at the level of iliac crest scould cause symptoms in the low back, that is, exacerbation. However, the doctor does not tell me how the wearing of the appointments belt could make the hurt to a lumbar disc worse. He does not tell me, for example, that it could cause nucleus pulposis of the disc to extrude through any tear in the annulus fibrosis of the disc or make any protrusion of discal material onto the theca worse. There is just no explanation from him at all. Unfortunately, Dr Bodel has not done his duty as an expert as laid down by Lord President Cooper in Davie v Edinburgh Corporation [1953] SC 34. See also Bonham v Evans Shite Council (1985) 1 NSWCCR 76 at 80.
26. I turn now to the supplementary opinions provided by both Dr Bodel and by Dr Scougall. Those provided by Dr Breit merely address the question of whether the plaintiff's work with Auscott between 13 June 2012 and 27 May 2013 may have caused "aggravation" of the condition diagnosed. Dr Scougall's supplementary opinion bears the date 26 September 2016. The first question which Dr Scougall was asked was this: "You take a history that our client developed back pain as from the early 2000s due to wearing his appointments belt. By stating our client's low back injury is related to the nature and conditions of his employment with the New South Wales Police Force, are you stating that our client's injury is due to wearing his appointments belt?" The relevant part of the doctor's answer to this question is this: "My reference to the nature and conditions of his work refers to his duties as an operational police officer. These duties include his involvement in physically demanding tasks, in confrontational activities, and in tasks requiring bending, lifting, and working in a bent position. His need to wear his appointments belt probably contributed to the condition in his low back, but I believe was certainly not the sole cause." Unfortunately, that answer does not tell me what the other cause or causes may have been. The doctor may be referring to other aspects of the plaintiff's work as a police officer, the other "physically demanding tasks," which the doctor goes on to summarise, but he might be referring to some underlying condition. I should point out that if Dr Scougall was referring to the type of work the plaintiff did as an operational police officer, such as "confrontational activities" and "tasks requiring bending, lifting, and working in a bent position," such has not been pleaded in the statement of claim as a relevant stressor.
27. The third question asked of Dr Scougall was this: "As noted in your report, our client was suspended from duties with New South Wales Police Force on 13 July 2010. From this time, he was not required to wear an appointments belt. Please kindly explain how and why our client continues to suffer from the infirmity when he was not required to wear the appointments belt since 2010?" I have already pointed out that the opinion of Dr Breit raises this very question and I have pointed out that Dr Breit's opinion suggests that because the condition continued and, on any view of it, worsened after 2010, that the wearing of the appointments belt was not an aetiological factor. The opinion given by Dr Scougall is this: "I believe it is probable that he continued to complain of back pain after he was no longer required to wear his appointments belt due to persistence of aggravation of degenerative conditions in his lumbar spine due to his work prior to his discharge on 13 July 2010 and due to his subsequent work for Auscott Cotton, commencing in June 2012." This postulates that the presence of degenerative conditions in the plaintiff's lumbar spine was a causative factor in the symptoms. When the wearing of the appointments belt ceased, the symptoms persisted not because the plaintiff had worn an appointments belt, but because he was suffering from the persistence of aggravation of degenerative changes in his lumbar spine. The doctor then states in this answer that the degenerative changes in the lumbar spine were due to the plaintiff's "work" prior to his being stood from work on 13 July 2010. That, on my analysis of the evidence, is the only opinion to that effect. Furthermore, the doctor clearly is referring not merely to the wearing of the appointments belt, but also to the other activities that he had earlier identified in answer to the first question he was asked, the "confrontational activities" and "tasks requiring bending, lifting, and working in a bent position." That opinion is not supported by that of any other medical practitioner. Then, to make things even more complicated, Dr Scougall that the condition was, in fact, made worse by the work he did for Auscott Cotton, which is inconsistent with the plaintiff's history to Dr Scougall, with the plaintiff's evidence, and with whatever was contained in the plaintiff's statement.
28. The fifth question asked of Dr Scougall was to point out that Dr Breit believed that the plaintiff's infirmity was caused by plaintiff's employment with Auscott. The doctor was asked if he disagreed to please explain why. He said this: "I believe that his employment with Auscott had further aggravated the degenerative changes in his lumbar spine that were present prior to commencing that work." The doctor then referred to his earlier comments on Dr Breit's reports.
29. Dr Scougall, in this supplementary report, then goes on to make comments upon other medical examiners' opinions. He agreed with the opinion expressed by Dr Walsh that increasing age is associated with the development degenerative changes in the spine. He then said this: "However, I also believe the findings indicate that the nature and conditions of his work during his employment with the NSW Police in operational duties from the early 2000s until 13 July 2010, when he ceased active duties, which is for 15 years, is a contributing factor for aggravation of degenerative changes in his lumbar spine." That, I am afraid, is another ipse dixit. Furthermore, I do not know what "the findings" are. If he means his findings on examination, they were essentially of no objective abnormality. Those findings on examination cannot in any way, in my view, lead one to a diagnosis and, therefore, to an opinion as to the cause of the infirmity or the condition found. Furthermore, the doctor is mathematically challenged, in which case he is the same camp as me, because he believed that between 2001 and 13 July 2010 there were 15 years, when, in fact, there could only have been less than ten. That latter opinion is of no moment, however, the opinion that he expressed in agreeing with Dr Walsh that increasing age is associated with the development of degenerative change is confirmative of the opinion of Dr Walsh.
30. Dr Scougall then comments on Dr Breit's various reports and in that he said this: "I find it hard to accept that his work NSW Police over so many years in an operational capacity, including after the incident in early 2000s, is not a cause for aggravation of degenerative changes in his lumbar spine." Again, that answer accepts the existence of degenerative change in the lumbar spine and re-asserts the doctor's thesis, not relied upon in these proceedings, that it was the type of work the plaintiff did, as distinct from merely wearing the appointments belt, which was the cause of the degenerative change.
31. In commenting on another report of Dr Breit, the doctor reiterated his assertion that the "findings," whatever they may be, showed that the plaintiff's work with Auscott Cotton was a contributing cause to the aggravation of degenerative changes in the plaintiff's back. Dr Scougall commented also commented on Dr Bodel's statement that the wearing of the appointments belt was not the entire cause of the plaintiff's infirmity. Dr Scougall agreed with that proposition. However, he did not agree with Dr Bodel's proposition that the incident of 14 February 1995 caused a disc lesion. He does not state that specifically or by inference, but clearly these earlier answers indicated that, as far as Dr Scougall was concerned, the radiological appearances indicated degenerative change in the low back rather than a traumatic injury to the L4/5 disc. The final paragraph of the supplementary opinion is this: "On reconsideration, I believe the findings indicate that the infirmity of chronic soft tissue low back pain was aggravated as a result of his duties with New South Wales Police for ten years from the early 2000s until 13 July 2010 and it is also causally related to his employment with Auscott Cotton for one year from June 2012 to June 2013, where his duties and his work were a contributing factor to the aggravation of that condition." If this were an ordinary workers compensation case, pursuant to s 16(1) of the Workers Compensation Act 1987, compensation would be payable by the employer who last employed by the worker in an employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the disease and that would be Auscott Cotton; not the defendant.
32. Dr Bodel had two additional questions put to him by the plaintiff's solicitor. The first question was this: "Our client was suspended from duties with the New South Wales Police Force on 13 July 2010. From this time, he was not required to wear an appointments belt. Please kindly explain how and why our client continues to suffer from the infirmity when he has not been required to wear the appointments belt since 2010." After referring to the infirmity certified by PSAC, Dr Bodel went on to say this: "In reality, over time, the correct pathological diagnosis of this gentleman's source of back pain is an internal disruption of the L4/5 disc, as evidenced by the abnormalities on the CT scan done on 19 April 2013. The disc is a 'soft tissue' in the lower part of the back and is the likely source of this gentleman's symptoms and associated disability. It is likely in reality, from a medical point of view, that the internal disc disruption which is the basis of the pathology seen on the CT scan occurred with the initial incident in 1995 and that the nature and conditions of his work over his period of employment, whilst still wearing an appointments belt up until 2010, has caused aggravation, acceleration, exacerbation, and deterioration of that disease process. The fact that there is an abnormality seen on a CT scan confirms that there is pathology. It is likely, therefore, in my view, that the aggravation, acceleration, exacerbation, and deterioration of that disc injury was caused by the nature of his work in general while wearing the appointments belt up until the time that that was withdrawn. The natural history of this pathology is therefore for a steadily [sic] deterioration over time and that is the reason for his continuing symptoms." I assume that in the last sentence Dr Bodel meant to say "a steady deterioration." Why he chose to seek to modify a noun with an adverb rather than qualifying the noun with an adjective is completely beyond me and I daresay would be quite regretted by the doctor if he re-read the document he signed. The problem with this opinion is this: the doctor said that, as in his primary report, the event of 14 February 1995 may have caused an internal disc disruption, that is, some frank injury to the L4/5 disc. It was raised merely as a possibility. It is, as I pointed out at the time, a merely conjecture. It cannot be established with any certainty, nor has the doctor explained to me how and why that pathology is due to such a frank injury rather than the mere process of degenerative disc disease in the low back, which is what is postulated by Dr Walsh and Dr Scougall and impliedly by Dr Breit.
33. Furthermore, the doctor reiterates his view about aggravation, et cetera, of the condition by not merely the wearing of the appointments belt, but also by the type of work the plaintiff did, the same conclusion reached by Dr Scougall. Furthermore, the doctor implicitly is stating that the aggravation, et cetera, is permanent, but he does not explain why. He points out the "natural history of this pathology" is steady deterioration, but that is the natural process of any degenerative condition in the spine and, indeed, of any degenerative condition in any part of the body as far as I am aware. The doctor is merely again providing ipse dixits without any adequate explanation.
34. The final question asked of the doctor and his answer to it are these: "Dr Breit states that the infirmity is caused by our client's employment with Auscott. If you disagree, please explain why. We note our client worked for Auscott for approximately 12 months from June 2012 to June 2013, working on average 30 hours per week. Our client's duties involved him [sic] driving forklifts and trucks and engaged in general cleaning/sweeping-up of grain and seed. All lifting was done with either the forklifts or an overhead lifter, which was mechanically operated, and our client was not required to sit for more than seven minutes? I have reviewed the report from Dr Breit and I note the statement that you have referred to. He describes his understanding of the type of work involved, but does not indicate that pain in the back appeared during that period of work, but on the balance of probabilities that this gentleman's lower back complaint 'was caused by his employment at Auscott'. It would be my view, however, that the established disc pathology at the lumbosacral junction may have been further aggravated by his work at Auscott, but that the nature of his work, the original injury in the police force, and the wearing of the appointments belt from 1988 through until 2010 [22 years] is a substantial contributing factor to the development of the infirmity in the back, as I have in indicated in my report. The work at Auscott may have caused further temporary aggravation." Again, that opinion is flawed because it is based on the doctor's view that, on 14 February 1995, the plaintiff suffered a frank injury to the L4/5 disc. It is also flawed because, in his earlier answer, it was not merely the wearing of the appointments belt but "the nature and conditions of his work" which caused the aggravation, et cetera. Furthermore, the earlier answer postulates that it was only the wearing of the appointments belt after the injury to the disc that was a relevant aggravating factor, that is, the work after 1995, but in this last answer the doctor goes back to 1988, a period of 22 years.
35. The doctor appears to have accepted aggravation by the work at Auscott, but what caused him to say it caused only "temporary aggravation" is completely unknown. Furthermore, it is inconsistent with numerous histories, including his own, which is set out at p 3 of his primary report: "On 19 April 2013, because of his deteriorating back function, he did eventually see his doctor and had a CT scan done. This reports disc pathology at the L4/L5 level. There is some annulus bulging but no nerve root compression." The doctor's history, as I said, is based upon his going to see the doctor because of deteriorating back function and that is consistent with the history obtained by the chiropractor, who commenced treating the plaintiff in May 2013, Mr Pandya. It is consistent with the thrust of the evidence I have heard and the thrust of the evidence I have read, that is, of a gradual deterioration with the passage of time. If that be the case, how the doctor could reach the view that if the work with Auscott was a contributing factor, how it only caused a temporary aggravation is inexplicable.
36. Were the matter res integra, that is, I was not bound by the findings of PSAC, I would conclude that the plaintiff suffered degenerative disc disease in the lumbar spine, affecting not only L4/5, but also the L1 vertebral body; that it was degenerative in nature, absent any positive evidence it was caused by the injury of 14 February 1995; and that the wearing of the appointments belt caused symptoms from time to time. However, I could not be satisfied on the evidence before me that the degenerative condition in the plaintiff's low back was caused by his work or, in particular, by the wearing of the appointments belt. The continuation of the plaintiff's symptoms after he was stood down on 13 July 2010 is explicable by the underlying condition and has nothing to do with the wearing of an appointments belt. Equally, the continuation of the symptoms and their steady deterioration between 13 July 2010 and the plaintiff's first seeking treatment from Dr Wakista on 17 April 2013 is due to the natural history of degenerative disc disease in the lumbar spine. In other words, were the matter res integra the plaintiff would fail.
37. However, the matter is not res integra; I am bound by the finding of PSAC that the plaintiff was suffering from an infirmity described by it as "chronic soft tissue low back pain," which I can conclude is "pain due to injuries to soft tissues of the lower back." If the soft tissue of the lower back concerned is the L4/5 disc, then I am not satisfied on the balance of probabilities that it was caused by the event of 14 February 1995. Furthermore, if the soft tissues are musculoligamentous structures, then I cannot be satisfied on the balance of probabilities that any musculoligamentous condition existing on 12 September 2014 and extant when the plaintiff's condition was considered by PSAC on 30 October 2014 and extant when the plaintiff was medically discharged on 20 November 2014 was caused by the plaintiff's wearing an appointments belt prior to 13 July 2010.
38. It has not been argued in this case that any soft tissue injury was caused by the event of 14 February 1995 other than a discal injury. It is not suggested, for example, that there was some musculoligamentous strain caused by the event of 14 February 1995 and that somehow continued for almost ten years up until the date of the plaintiff's medical discharge. Such would be unarguable because the plaintiff himself thought he had completely recovered within two weeks of the event of 14 February 1995.
39. This is a case in which the plaintiff has failed to discharge the onus of proof which lays upon him. Having said that, I should make these comments; I accepted that the plaintiff has done his best to tell me the truth. Whilst I do not accept the plaintiff suffered symptoms from early 2001 or from 2001 onwards, I accept that he suffered symptoms when wearing his appointments belt from sometime after 31 May 2006 and well prior to his being stood down from duty on 13 July 2010. The plaintiff struck me as a man not prone to complaining. For example, the plaintiff did not seek any psychiatrist assistance after being stood down from work until he was referred by Dr Wakista to Dr Sinha on 12 June 2013. In the course of evidence, I pointed out to the plaintiff that I could accept when he was stood from duty, when the allegations were made against him of having criminally conducted himself in relation to the female police officer, he would have been devastated. In essence, he says that was the case, but nevertheless he did not seek treatment until three years later. However, Dr Wade's report of 18 March 2014, tells me exactly what I believed. When the plaintiff first saw Dr Wade on 3 July 2013, Dr Wade took a history recorded as this: "Mr Nash then returned [in his history giving] to the day he was charged, how his world fell apart, how for three days he could not sleep; how those first three days he does not remember much. He talked about crying and then he talked about reliving old police jobs." The history goes on to record the various incidents in the plaintiff's working career which led to his suffering from chronic PTSD. However, the report also tells me something about how the plaintiff had to survive after being stood down from the police force with serious allegations made him by another police officer. The relevant part of Dr Wade's history is this: "In terms of effective communication, as Mr Nash in the last several years has indicated, the only people that he can communicate with, with any degree of civility, are first-degree family members and some old friends. He does not talk to them about the things that really concern him for he does not want to burden other people, but in the police context, Mr Nash has built up such a degree of alienation and estrangement from the police establishment and also fears that anyone who had a genuine concern for him has been treated harshly for any contact. There is a lot of damage there in terms of Mr Nash's ability to trust colleagues and know how to communicate with them, but within the PTSD symptoms there again are problems of his ability to judge what should be communicated …" In other words, what I referred to earlier as the plaintiff's having been sent to Coventry, as far as the police was concerned, was in effect what happened to the plaintiff. Nevertheless, he did not seek any psychiatric assistance until more than three years after he had been stood down from working for the police. As I said, the plaintiff was not a complainer and, in many respects, the plaintiff was laconic.
40. I carefully weighed that in consideration when yesterday I reached the conclusion that the plaintiff's symptoms only arose some time after 31 May 2006; not merely because he had not complained to doctors about the back pain, but because the existence of back pain would have been relevant to the complaints that he did make to Dr Blyth at the Port Macquarie Base Hospital in May 2006 and to Dr Jacob in the same year back in Dubbo after he had returned from Port Macquarie.
41. As I tried to indicate yesterday, it is not necessary in this case for me to determine whether the plaintiff suffered any aggravation of his pre‑existing condition by his work with Auscott Cotton, but, in my view of the plaintiff's evidence, despite what a number of doctors have had to say, I would be not prepared to accept that the plaintiff's work with Auscott Cotton caused any ongoing problem for the plaintiff's pre‑existing complaints which, as I said, appear to me to be mediated by underlying degenerative disc disease, or degenerative change, or lumbar spondylosis, to use the alternative diagnostic monikers.
42. HIS HONOUR: Any further reasons required? OWER: No.
43. HIS HONOUR: I have inquired of counsel for the parties if any further reasons are required and am told that none are so required. For those reasons, I confirm the decision of the Commissioner of Police made on 14 November 2014.
44. I should just add this: pleaded by the defendant was a defence under s 10B(2) of the Act. Before Mr Dodd embarked on his submission concerning that, Mr Ower kindly referred him and me to my earlier decision in Grose v COP (1) [2012] NSWDC 215. Eventually, after some earnest debate between Mr Dodd and myself, Mr Dodd abandoned the submission and did not press that defence, rightly so, in view of what I said in Grose, which I still believe to have been correctly decided.

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