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[2001] SAWCT 109
mixed. The Tribunal determined that Winchester employment contributed to the worker's low back disability and that St Basils employment did not. It found partial incapacity from 8 November 1999, with fitness...
The Tribunal accepted that the worker had a back disability and had to decide which employment, if any, contributed to it. It found that the worker's earlier Winchester employment contributed to the current low back disability. Although there were gaps and uncertainties in the history, the Tribunal considered Dr Barker's opinion persuasive enough to satisfy the balance-of-probabilities test. It found that the evidence against St Basils showed timing, but not causation. The worker could perform some flexible clerical work but could not return to personal-carer duties, and was partially incapacitated from 8 November 1999. The Tribunal left some financial and statutory questions open for further consideration.
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The judgment concerns Andrew Alexander Nemeth's claim that a back disability was connected with his employment first at Winchester Home for the Elderly and later at St Basils. The Tribunal recorded that the respondents conceded he had a back disability. The disputed questions were whether either employment caused or contributed to the disability, whether it incapacitated him from work, the date incapacity began, and certain financial and statutory matters ([1]-[2]).
1 cited instrument linked from this judgment.
Nemeth began work as a personal carer at Winchester on 22 August 1997. On 29 January 1998, while moving a chair occupied by a resident, he experienced an injury to his thoracic spine and stopped work. He later returned on light duties ([3]). He also described a laundry-trolley incident at Winchester on 31 March 1998, after which he said that lower-back discomfort developed gradually. He did not take time off or make a claim for that incident ([4], [13]).
There was a disputed and complicated medical history. Nemeth had experienced a back complaint in 1997 while working elsewhere, but the Tribunal assumed that it had fully resolved because there was no ongoing pain recorded in the evidence before it ([7], [12]). The first recorded complaint of low back and sciatic symptoms was in April 1998. The parties' accounts and the medical records did not align perfectly on dates and anatomy. In particular, the Tribunal noted that the certificate concerning recovery referred to cervical, thoracic and left buttock strain, while the subsequent determination described the worker as recovered from a lumbar injury ([8]).
Nemeth later worked at other nursing homes and started at St Basils on 28 June 1999. On 8 November 1999, while walking in the workplace without any specific incident, he experienced a significant increase in low-back and left-leg pain. The pain was similar to his earlier pain but worse ([9], [15]). The Tribunal considered whether that onset connected the disability to St Basils, and separately whether the current disability arose from the earlier Winchester employment.
The judge found the evidence supported a contribution from Winchester but not St Basils. He also found Nemeth partially incapacitated from 8 November 1999: he was not fit for nursing-home personal-carer work, but could perform clerical duties if there was flexibility ([34]). The Tribunal did not determine the average weekly earnings issue or the relevant-date question under s 4(9) at that stage. It indicated that further consideration under s 35 and further conduct of the matter remained ([34]-[35]).
The Tribunal did not treat the chronology alone as decisive. It expressly recognised evidence both supporting and weakening a causal connection with Winchester. Supporting factors included the severe pain associated with the January 1998 injury, the widespread dorsal-area pain, the absence of other known contributing events, Dr Barker's favourable opinion, and Dr Walters' willingness to defer to the treating doctor's assessment ([32]).
There were also substantial difficulties. The only identified specific work incident at Winchester was the January lifting event, while the first reported low-back symptoms to a doctor arose in April. Dr Barker had not been told of lumbar problems when Nemeth attended on 31 March after the trolley incident. The judge acknowledged that the connection was “by no means strongly demonstrated” ([33]). The decision therefore did not rest on a finding that the evidence was clear or immediate.
The decisive assessment was that Dr Barker's opinion was based on a generally correct understanding of the facts and was independently cogent. Weighing that opinion with the other evidence, the judge found a Winchester contribution more likely than not ([33]-[34]). The reasoning is specific to the evidentiary record described in the decision: the medical history, the worker's account, the timing of symptoms, and the expert opinion.
The St Basils claim was treated differently. The judge agreed that the evidence established a temporal link between the worker's employment there and the later onset, but not a causal connection. Because the Tribunal regarded the lumbar condition as a secondary disability, it considered that a causal connection had to be proved. The fact that the symptoms arose while Nemeth was at St Basils was not, by itself, enough on the evidence presented ([30]).
On incapacity, the Tribunal distinguished between the worker's former physical duties and less demanding clerical work. The worker and both general practitioners described him as unsuitable for personal-carer nursing duties but capable of clerical work with some flexibility ([19], [23], [29]). The answer was therefore partial, not total, incapacity. The Tribunal fixed the relevant date for incapacity at 8 November 1999 ([34]).
This judgment applies the balance-of-probabilities standard to the factual question whether employment contributed to a worker's disability. The judge stated that the worker had to prove his case on that standard, explaining it as “more likely than not” ([33]). The judgment does not provide a comprehensive account of the law before the decision, nor does it cite earlier cases setting out a broader test.
The decision illustrates the distinction the Tribunal drew between a temporal link and a causal link. In the St Basils claim, the timing of the symptom onset was not enough to establish contribution. For Winchester, by contrast, the judge considered the whole evidence, including the medical opinion and the history, and found the causal contribution proved on the balance of probabilities ([30]-[34]). That is a description of the reasoning in this judgment, not a statement that it supplies a complete test for every later case.
The decision also applies an individualised assessment of capacity. It separates capacity for personal-carer nursing duties from capacity for flexible clerical work, and classifies the worker as partially incapacitated and fit only for light duties ([19], [29], [34]). The judgment's references to the Workers Rehabilitation and Compensation Act 1986 (SA) include s 4(9), s 35 and s 86(1). It identifies s 35 as requiring further consideration and notes the appeal provision and filing period, but the supplied judgment does not set out the substantive text of those statutory provisions ([1], [35]).
No subsequent judgments or later legal sources are included in the material provided. Accordingly, this analysis cannot establish how later courts or tribunals treated Nemeth, or whether later authority altered, confined or adopted its reasoning. The decision is best understood here as a tribunal determination based on its particular record and statutory setting.
At [30], the judge says that “all that has been provided on the evidence before me is a temporal link” for the St Basils claim. In plain English, the symptoms occurring during the period of St Basils employment did not, in the judge's view, prove that the employment caused or contributed to the disability. The judge added that because the lumbar condition was secondary, a causal connection had to be proved.
At [33], the judge acknowledges that the causal link with Winchester was “by no means strongly demonstrated”. The evidence against a link included the time between the January event and the first medical report of low-back symptoms, and the absence of a lumbar complaint when the worker saw Dr Barker after the March trolley incident. The judge nevertheless considered the evidence as a whole, including Dr Barker's opinion, and concluded that the worker had met the balance-of-probabilities standard.
At [34], the judge gives the central answers: Winchester employment contributed to the disability, St Basils employment did not, and incapacity began on 8 November 1999. The judge also explains what work remained within the worker's capacity. He was unable to perform personal-carer nursing duties but was capable of flexible clerical work and was therefore partially incapacitated.
At [35], the judge states that if the worker succeeded on either claim, the matter would need to be recalled for consideration under s 35, among other things. This means the causation and capacity findings did not complete every step in the matter. The judge invited submissions on the further conduct of the proceeding.
The judgment also comments at [18] on video evidence. The judge considered that the footage did not disprove the claimed incapacity, while warning that film can isolate selected moments and risk misrepresenting the overall picture. The judge said that he evaluated the evidence with those concerns in mind. This passage explains the approach to that evidence in this case; it is not a finding that video evidence is necessarily unreliable.
The decision is relevant as an example where a worker has an accepted or conceded disability but its connection to one or more periods of employment remains disputed. The judgment shows the Tribunal examining the full history rather than treating a single date or event as conclusive: the January 1998 injury, later onset of lumbar symptoms, the March trolley incident, medical records and opinions, and the absence of other known contributing events all formed part of the assessment ([12]-[14], [30]-[34]).
It is particularly relevant to a fact pattern involving a possible secondary condition. Here, the judge treated the lumbar problem as a secondary disability and required proof of a causal connection, rejecting a merely temporal association with St Basils ([30]). The reasoning shows that evidence about how symptoms developed, medical opinions on whether one injury could contribute to another, and whether other explanations exist may be important to the Tribunal's factual assessment. It does not establish that the same outcome follows whenever a worker develops symptoms after an earlier injury.
The case also concerns competing employers and different alleged work connections. The Tribunal separately asked whether each employment contributed, rather than treating employment history as one undifferentiated period. It found a contribution from Winchester and none from St Basils ([30], [34]). The decision may therefore assist readers in identifying the need to distinguish the evidence relevant to each employer, while its findings remain tied to this particular evidence.
Finally, the decision addresses partial incapacity where a worker cannot return to former physical duties but may be able to perform less physically demanding work. The Tribunal differentiated nursing-home personal-carer work from flexible clerical work ([19], [29], [34]). This makes the decision relevant to questions about functional capacity, but it does not supply a universal list of light duties or a general assessment method beyond what the judge applied here.
The material supplied is the text of Nemeth itself. It contains no later decisions citing or applying the judgment, and no later statutory or appellate material. The judgment also does not identify prior cases as authorities that it applied, distinguished or followed. The precedent relationship field is therefore empty rather than inferred.
The case is a decision of the South Australian Workers Compensation Tribunal, delivered by Deputy President Judge JP McCusker on 26 September 2001. Its findings are based on the evidence and issues before that Tribunal. The supplied text provides a notice that an appeal under s 86(1) had to be filed in Form 11 within 14 days of delivery and served on all parties, but it does not state whether an appeal was filed or what happened afterwards ([35]).
Consequently, no conclusion about later treatment can be grounded in this source alone. A research account seeking to establish current precedential status would need later legal sources, which are not provided here.
Several matters remained unresolved within the judgment. First, the Tribunal expressly did not answer the questions about the average weekly earnings rate and the relevant date for s 4(9) ([1], [34]). Those questions were left for later consideration rather than decided in the reasons.
Second, after finding for the worker on the Winchester causation issue, the judge indicated that the matter would need to be recalled for consideration under s 35, among other matters. The judgment does not record the result of that later consideration or any final calculation of compensation ([35]).
Third, the judge's causation finding depended materially on Dr Barker's opinion, assessed alongside the history. The decision notes evidentiary difficulties, including the delay before the first recorded low-back complaint and the absence of a lumbar complaint at the 31 March medical attendance ([33]). The judgment resolves those difficulties for this claim but does not set out a general rule about how much delay or uncertainty is sufficient in another case.
Fourth, the decision identifies an incapacity date and describes suitable categories of work, but the supplied text does not state the longer-term course of the worker's condition, the availability of clerical work, or the eventual compensation outcome. It records that the worker had not been offered light duties, but does not determine what practical work was available ([15], [34]).
Finally, no later decisions or sources are supplied to answer whether subsequent courts or tribunals adopted, limited or distinguished the reasoning in Nemeth. Any statement about that subsequent legal history would go beyond the source material available here.
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1 This matter was conducted upon a Joint Statement of Issues filed in the Tribunal (AB 3). It states:-
1. The respondent concedes that the applicant suffers a back disability,
2. In Dispute No: 2077/2000, St Basils Home For Aged (`St Basils') denies such disability arose from its employment,
3. In Dispute No: 7316/1999 Winchester Residential Care (`Winchester') denies that such disability arose from its employment,
THE PARTIES AGREE THAT THE FOLLOWING ISSUES ARE TO BE DETERMINED BY THIS TRIBUNAL:-
1. Was employment at Winchester or St Basils the cause of the applicant's disability (sole or contributing cause).
2 Does such disability incapacitate the applicant from work at Winchester and/or St Basils.
3. If the answer to paragraph 2 herein is in the affirmative from what date has the applicant been incapacitated for work in each case.
4. Is the applicant currently incapacitated for work at Winchester and/or St Basils.
5. At what rate should the applicant's average weekly earnings be set.
6. What is the relevant date for the purposes of Section 4(9) of the Workers Rehabilitation and Compensation Act 1986."
2 The issues were restated during final addresses (266, 307). However leaving aside matters of quantification in par 5 (308) and save for the necessary inferences that may arise for par 6, the issues have not altered (17).
3 The worker, now aged 28 years, commenced employment as a personal carer at Winchester Home for the Elderly on 22 August 1997. On 5 February 1998 he gave that employer notice of an injury sustained on 29 January 1998 when moving a chair a resident was sitting in (AB 7). He said this caused an injury to his thoracic spine requiring him to cease work forthwith (AB 10). He sought help from his doctor (AB 12). He was off work until 16 February 1998 when he resumed on light duties (AB 21). The claim was accepted (AB 32).
4 On 31 March 1998 he says he fell over a laundry trolley at Winchester and aggravated his thoracic injury and his neck (10, 24, 45, 46, 213 - 218). No time was taken off and no claim was made in respect to this incident.
5 On 15 April 1998, at the worker's request and amid extraneous concerns, (232) a certificate was issued by Dr Barker stating he was no longer incapacitated. That resulted in a determination that he was no longer incapacitated for work. Income maintenance payments ceased (AB 34).
6 On 28 April 1998 he submitted a new claim stating he sustained injury to his low back involving the left buttock and left leg on 20 April 1998 when lifting residents (AB 38 - 39). He saw Dr Barker who issued a certificate (AB 46, tr 230). Under cross-examination Dr Barker gave his understanding as follows (231 - 232):-
"Q Can I take you back to A6, please, doctor. Did you understand when you responded to WorkCover that you were being asked about an injury on 20 April 98 or did you assume that we were talking about 29 January 98 when you made those responses.
A Well, perhaps I did get the two matters confused in my mind in that - - -
Q You see in an answer under paragraph 1, `The worker said this was caused by general lifting duties at work.'
A Yes. Well, obviously this does refer to the January incident rather than the date, as you pointed out, of the (sic) April.
Q Ad (sic) that paragraph 1 doesn't refer to anything to do with the lumbar spine.
Q Paragraph 2 does or does not, when there's reference to left buttock and leg pain.
A Right. Well, that clearly refers to lumbar back pain.
Q Okay. So do you think in making the response to paragraph 2 that you might have been thinking of events at some stage after 29 January 98.
A Well, as I've stated, Andrew first mentioned the lumbar back pain on 15 April, but unfortunately at that time he requested that the WorkCover claim be ceased for reasons which he couldn't clearly explain to me. He said they were financial, and I thought this was unwise since the problem had appeared to become worse, and then subsequently he returned, saying the lumbar back pain was worse five days later."
7 The worker had experienced low back pain in 1997 while employed by the Hyde Park Nursing Home. He had consulted Dr Ewing at the Magill Clinic. That was confirmed by Dr Barker (224) using the records from the practice.
8 On 4 May 1998 the claim for a lumbar injury suffered on 20 April 1998 was accepted (AB 83). On 7 July 1998 a certificate was issued by Dr J Meegan certifying that the worker had ceased to be incapacitated for work in respect to the cervical, thoracic and left buttock strain from 7 July 1998. Despite the mismatch of anatomies, by determination dated 17 July 1998 (AB 86) the worker was declared no longer incapacitated by a lumbar injury and payments ceased (AB 86).
9 The worker then did some agency work until obtaining employment with the second respondent, St Basils Home on 28 June 1999. He experienced incapacitating symptoms in the low back on 8 November 1999 though without any specific incident (31). He was merely walking past the nurses station towards the sluice room when he suffered pain onset effecting his low back and left leg. It was the same pain as he had had before but, significantly worse (32). A certificate was issued by Dr Barker (AB 126), with some confusion of dates (see AB 126, 128). This was related to the January 1998 event. Moreover it was an onset with a history of back troubles from August, with deterioration over the last week. It had developed gradually rather than by a sudden onset.
10 On 9 November 1999 the worker submitted a claim against Winchester Nursing Home for low back left leg and neck pain consequent upon the incident that had occurred on 29 January 1998 (AB 110 - 111). On 9 December 1999 that claim was rejected (AB 159) because, "it is evident that your aggravation has occurred from your current employment (nursing/carer duties) and that you have been doing this since your full clearance 7/7/98 from Winchester".
11 The claim in respect to the low back and sciatica was also made on St Basils, though on the basis of it being a pre-existing injury that had re-occurred (AB 119). The insurer rejected this claim (AB 179) simply stating that the disability had not arisen out of employment with St Basils. Given the statement by the very same claims agent on the Winchester claim (AB 159), one is left to wonder about the integrity of that process. However that is not an issue I need to decide, albeit the worker was affected by it. I turn to a closer examination of the matters at issue. That is on the concession that the worker is not claiming anything other than partial incapacity (295).
12 The focus of the case was on the origin and progress of the low back injury. As indicated, the respondent conceded that the applicant suffered a back disability. Also, as indicated, there was a record in the medical notes of a back complaint on 20 May 1997 and that was confirmed by the worker (20). That had resulted in no ongoing pain. I have assumed it resulted in full resolution. The injury of 29 January 1998 was recorded as to the thoracic and cervical levels. I accept the certification of recovery cannot be relied on because Dr Barker and the worker said so (23, 232). The worker's evidence (23-24) is that:-
"Q When you continued with your employment after that date of 16 April 1998, did you have any ongoing problems with either your neck or your upper back, or your lower back.
A Only basically when I was overtired or the shifts were heavy shifts, meaning by that that there was less staff than what there usually is during the day on afternoon shifts.
Q You indicated that you were careful in the way you carried out your duties.
A Basically no patient lifting - resident lifting, sorry. We used an automatic lifter, a manual lifter, and if there was any heavy lifting that had to be manually done I'd get someone else to do it with my partner."
13 The worker dealt with the incident involving the laundry trolley on 31 March and referred to in par 47 and par 48 of his statement (AB 155). He relates the following (24, 26 - 27):-
"Q To the best of your recollection, you didn't take any time off as a result of that.
Q 98. Following that incident, did you have any discomfort in your lower back.
A It was more of a gradual come-on. It ended up being a piercing pain in my lower back. There was a lot of pressure. It wasn't instantaneous.
Q Was that lumbar back pain reported to Dr Barker on 20 April 1998.
Q On 20 April 1998, being a couple of weeks after the laundry basket incident, what was the problem then.
A I believe the lower back pain had come to a point where I couldn't work.
A Lower back pain. It felt sharp. It was pushing into my spine. I still had pretty bad leg pain and neck pain as well. I'd not experienced lower back pain, I don't believe, before that time.
Q When you say you don't believe you experienced lower back pain before that time - - -
14 He returned to light clerical duties from 12 May 1998 (AB 29). Upon resumption of duties he experienced pain in his upper back, lower back and left leg on regular basis (AB 156). The pain in the upper back was similar to the pain he had first experienced in the incident of 29 January 1998 (27). As indicated, he left Winchester in October 1998 and after engagement at various nursing homes, including St Georges, he commenced with St Basils on 28 June 1999 (303). During all this time he continued with pain in the low back and thoracic levels particularly when overtired (28, 30). No injury had occurred outside work (31).
15 The incident on 8 November 1999 was completely unremarkable (31). He was walking down the hall when he experienced a sudden onset of excruciating pain similar to the pain experienced with the trolley incident but much worse (32, AB 157). That pain has afflicted him since (35). It is variable and influenced by activity engaged in. He has not been able to return to unrestricted duties since 11 November 1998 (36). As I understand it, has not been offered any light duties.
16 In cross-examination, the laundry trolley incident was confirmed (41). It is true that some of the details were vague. The first report to Dr Barker of a sciatic pain in the left buttock and leg was on 15 April 1998. The worker stated (43):-
"Q When was it that you first had left buttock and leg pain.
A Sometime after my thoracic injury in my upper back.
17 He refers again to the order of events (54). He regards the sciatica as secondary to the thoracic injury of 29 January 1998. Certainly in terms of the sequence of presentation.
18 A large amount of time was spent in testing the worker's level of capacity and credit, particularly through observations of him on video (Exhibit R3). I have formed much the same view of the contribution the film makes to this case as that formed by the general practitioners. The films do not contradict the worker's claim to being incapacitated by back disability, though as indicated to Ms Chambers (297), they do indicate the worker is not overly forthcoming with information and that care should be taken in evaluating his evidence. On the other hand, as frequently with film evidence in the context of compensation claims such evidence has the capacity to segmentalise and as a consequence surreptitiously misrepresent the total picture. I have evaluated this evidence keeping these matters in mind. As a whole I have accepted the worker as accurate.
19 The worker gave details of his medications (79-80). He also described the restrictions on his abilities caused by the disability (80). The nature and extent of the disability was partial only (122, 126). He was capable of doing the clerical work at St Basils (139) though perhaps not on a continuous basis. He is not and has not been fit for nursing duties (87, 141).
20 Dr Walters, a general practitioner of 29 years experience, (155) the worker's doctor for most of that period, gave evidence. That was supplemented by two reports, (AB 140 - 141, Exhibit A4). He attended on the worker following the incident on 29 January 1998. He concluded a thoracic disc strain. The first mention of low back symptoms was on 15 April 1998 to Dr Barker when the worker complained of mild sciatica. Dr Walters was unable to relate the thoracic injury to the subsequent lower back and sciatic symptoms at that time (AB 141).
21 In evidence Dr Walters related the history obtained on 29 January 1998 (159). The worker had presented with significant pain in the back. As to causation he originally thought the thoracic and lumbar presentations unrelated (166) as indicated in his report. But reconsideration resulted in the following change of opinion (166):-
"A I don't think I should make that judgment because I don't think I can. I didn't see him through all that period when he had that lower injury. I know that's (sic) it's been written in the notes that it may be overcompensating for his upper injury that caused a secondary injury of his lumbar spine, and that could well have been the case with his work at the nursing home, but I really wouldn't like to actually say that was the cause. I would sooner prefer to leave them separate.
Q Would it be appropriate to ask that question of Dr Barker.
A Yes, it would. He's written in here that he feels that it perhaps is overcompensation. I know that, but I really haven't been in a position to make that judgment."
22 In cross-examination Dr Walters returned to the issue of causation (213) and references were made to the laundry trolley incident of 31 March 1998. While prepared to accept the notion of the lumbar condition being secondary to overcompensating the thoracic condition, he repeated his deference to the treating doctor, Dr Barker, in the matter. Dr Walters stated (213 - 214):-
"A I'm saying that the symptoms on 15 April could be related to the fall on 31 March 98. I'm not sure that I would say that they related to the original WorkCover injury in January."
23 He dealt with the event at St Basils on 8 November 1999 and rejected a cause or contribution between employment at St Basils and the onset of disability on that day (219). Lastly, he testified the worker was incapacitated for extraneous reasons from 19 October to 1 November 2000 (177). Otherwise the level of incapacity had been partial and he was fit for clerical duties (195). He was not suitable for his previous nursing home duties (201). This accords with the worker's evidence.
24 Dr Barker gave evidence, and apart from the reports in the Book of Documents (AB 58 - 61, 137 - 139, sup AB 1), the worker tendered one further report (Exhibit A7). Exhibit A6 was merely to provide for deficit in the report in the Book of Documents supplied to me.
25 In his report of 13 May 1998, Dr Barker concluded the left buttock and leg pain was secondary to the right trapezius and neck pain. These had been worsened by the laundry trolley incident on 31 March 1998 (par 12 AB 59). The low back claim was therefore linked in Dr Barker's opinion to Winchester Nursing Home. In his report of 17 April 2000 he regarded it reasonable to attribute the aggravation in his back in November 1999 to St Basils Nursing Home, "while performing normal heavy lifting duties" (AB 138).
26 In his report of 1 November 2000 he stated his opinion as follows (sup AB 1):-
"On further review of my medical notes and medical reports, made about Andrew Nemeth and on further reflection, I would like to state that the sciatica pain in Andrew's left buttock and leg, were reported to me on the 15th April 1998, which had commenced two days previously, was related to Andrew's upper back injury of January 1998.
I think it likely that he sustained a further injury during normal nursing duties while overcompensating for his upper back and neck pain."
27 In cross-examination Dr Barker referred to the history of attendance of the worker on 31 March 1998 when he fell pushing the laundry trolley (228). At the time there was no mention of a lumbar problem. However he remained of the view that the lumbar onset had been caused by overcompensating the thoracic back injury which occurred on 29 January 1998 (230). That was the relevant date leading eventually to his low back disability (231). This despite the preference for temporal proximity between the event and the onset (235). Like Dr Walters, he felt there was nothing on 8 November 1999 when walking in St Basils that contributed to his injury (239).
28 Dr Barker felt the link was more likely given the January incident had presented symptoms to T 12 (246) and taking an overview of the history it was unlikely the events were divorced one from the other (251). It was the end of this process that had occurred in November 1999 (251).
29 As with Dr Walters, Dr Barker felt clerical work was suitable as long as some flexibility was allowed (258). The worker was partially incapacitated (259). He did not regard a personal assistant in a nursing home as suitable work (259).
30 I agree with Ms Kelly, of counsel for the respondent, in her contention that the claim against St Basils must fail. All that has been provided on the evidence before me is a temporal link (see arguments 269). Since this was a secondary disability, a causal connection had to be proved. The issue therefore confines itself as to whether the lumbar problem was caused by his employ at Winchester.
31 On careful examination, the available material does not provide an easy answer. If the onset of lumbar pain and disability was contributed to by employment then, on the available evidence, I am satisfied that disability continued up to the present. The issue is whether Winchester made a contribution.
32 Matters that may be relevant include the degree of symptoms presented to Dr Walters on 29 January 1998, ie the worker was in severe pain and entered the surgery in a wheelchair. Also the fact that pain in the dorsal area in January 1998 was widespread and the fact that no other known events contributed. There is the favourable opinion of Dr Barker and the indication from Dr Walters of some preparedness to defer to Dr Barker's opinion.
33 The matters against the relationship are the only available incident being the lifting of the patient on 29 January 1998 and the length of time between that and the first complaint of low back symptoms to a doctor in April 1998. Also the fact that Dr Barker was not told of any lumbar problems on 31 March 1998 even leaving aside the problems recognised by Ms Chambers of no claim in respect of that incident (301). The link is therefore by no means strongly demonstrated. However the worker has to prove his case to the balance of probabilities (ie more likely than not). In this regard the evidence of Dr Barker, which I find is based in a generally correct understanding of the facts and is independently cogent, tips the scale in the worker's favour.
34 I find on the balance of probabilities that there is a contribution due to the injury in January 1998 and the onset of the lumbar and sciatic condition in November 1999 which is now the central source of the worker's disability. That deals with the central matter at stake in this trial. With that in mind I would answer the questions put by the parties as follows:-
1. Was employment at Winchester or St Basils the cause of the applicant's disability sole or contributing?
Answer: His employment at Winchester contributed to his current low back disability. His employment at St Basils did not contribute to his low back disability.
2. Does such disability incapacitate the applicant from work at Winchester and/or St Basils?
Answer: The disability incapacitates the worker from employment as a personal carer in a nursing home but not from employment in clerical duties so long as this involves a degree of flexibility.
3. If the answer to par 2 herein is in the affirmative from what date has the applicant been incapacitated for work in each case.
Answer: The worker has been incapacitated from 8 November 1999.
4. Is the applicant currently incapacitated for work at Winchester and/or St Basils?
Answer: The applicant is partially incapacitated and fit for only light duties.
35 As indicated to counsel (293), if I found in favour of the worker in respect to either of the claims the matter would have to be recalled for s 35 consideration, inter alia (see also 307). I will hear counsel as to the further conduct of the matter.
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.
Nemeth
Workcover/Allianz Australia
The Tribunal determined that Winchester employment contributed to the worker's low back disability and that St Basils employment did not. It found partial incapacity from 8 November 1999, with fitness for light duties including flexible clerical work but not nursing-home personal-carer duties. It made no determination on questions 5 and 6, and indicated that the matter would be heard further in relation to s 35 and other conduct ([34]-[35]).