The applicant, Mr Warner, was born in 1922 and has reached the great age of 96. Until 11 February 2016, he was receiving compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for a compensable back injury he sustained in the 1970s. He was receiving compensation for medical expenses, household services and also incapacity payments pursuant to s 136 of the SRC Act.
However, on 11 February 2016, a delegate of the respondent determined that Mr Warner had no present entitlement to compensation under the SRC Act on the basis that the effects of his compensable injury of 18 November 1975 had ceased. That determination was substantively affirmed by a reviewable decision on 25 August 2016,[1] and on 6 October 2016, Mr Warner applied to this Tribunal for review of that decision.
Two hearings were ultimately convened, on 30 November 2017 and 21 February 2018, at which Mr Warner was represented by his son, Mr Jack Warner.
[2]
There is no dispute between the parties that the effect of the relevant provisions of the SRC Act is that Mr Warner remains entitled to compensation under ss 16, 29 and 136 of the SRC Act respectively, so long as the effects of his injury of November 1975 are continuing.
It follows that the main issue for my determination is whether, as at 11 February 2016, Mr Warner continued to suffer the effects of his compensable injury of November 1975.
At the hearing, an issue also arose as to the correct description of Mr Warner's 1975 injury, and I will also need to resolve that issue.
[3]
Before proceeding further I should also note that one of the complicating factors in this matter is that it is clear Mr Warner had a previous compensable back injury in 1974, and some of the material suggests the effects of that injury may also have been longlasting. However, the information I have with respect to that injury is incomplete.
It is clear from the limited material I do have that Mr Warner suffered a fall at work in January 1974, and presented at the Darwin Hospital about a week later with "low back pain which had not improved".[2] An Xray showed a fracture through the "last segment of the sacrum without significant deformity".[3]
Subsequent correspondence suggests that after this incident, Mr Warner was off work for "approximately one month"[4] and in May 1977, his general practitioner, Dr Calnan, expressed the view that Mr Warner was suffering from "severe pain in lower back" directly attributable to "either or both of the incidents of 5/1/74 and 18/11/75".[5] He also indicated that Mr Warner's spondylitic changes at L12, L34, L5S1 had been "aggravated by his two falls".[6]
In May 1978, a Senior Surgeon Specialist, Dr Bromwich, also commented:
[4]
His first attendance complaining of back pain followed the incidence of 5 January 1974 and Xray on 1 February 1974 showed a crack fracture of the sacrum. This in itself had no lasting effect but would indicate that there had been a real and fairly severe injury. By 18 November 1975 the changes in the lumbar spine were visible on Xray and therefore the injury of 18 November 1975 could only have aggravated rather than produced these changes.[7]
[5]
Dr Bromwich's answers to the questions asked of him also indicated that he regarded Mr Warner's lumbar spondylosis as having been aggravated or accelerated by the two injuries. He further indicated that the effects of the aggravation were of a permanent nature and Mr Warner was "unfit for work involving bending or lifting".[8]
It is clear from correspondence between the relevant Department and the Commissioner for Employees Compensation (the Commissioner) in June 1977 that compensation liability was admitted for "fractured tailbone" on 14 February 1974, and Mr Warner was in fact incapacitated for work until 3 March 1974, in other words a period of about two months.[9] That correspondence also recorded that as at June 1977, Mr Warner had submitted a certificate certifying him incapacitated for work for 10 days from 28 April 1977 due to the 1974 incident.[10]
Following subsequent correspondence, the Commissioner agreed in May 1978 that "liability continues in respect of the back injuries sustained by the employee"[11] and incapacity payments were made in respect of the period 28 April 1977 to 10 May 1977, apparently attributable to the effects of the 1974 injury.[12] The Department of Social Security also apparently paid sickness benefits to Mr Warner from 22 March 1978 with respect to an injury which occurred in 1974.[13]
Much more recently, on 4 September 2015, a General Practitioner, Dr Dooland, also provided information to Comcare indicating that the "[o]riginal injury was L4/5 disc prolapse in 1974. Since then Mr Warner has developed much more significant spinal osteoarthritis with ongoing back pain and limited mobility".[14] In answer to a question about the 1975 injury, Dr Dooland indicated that "the fall and injury sustained by Mr Warner is likely to be a contributing factor to his current spinal arthritis".[15]
In correspondence and at Directions Hearings convened after the second hearing, I raised with the parties the potential implications of the 1974 injury, and the fact that some of the material suggested the effects of this may be ongoing. There was also no indication in the material before me that liability for this injury had been ceased.
As the hearings had been conducted on the basis that only the November 1975 injury was relevant, it was ultimately agreed that I would proceed to reach a conclusion as to whether liability was ongoing in respect of the November 1975 injury only. If I concluded that it was not, the respondent accepted that it would be necessary for the Tribunal to give further consideration to whether liability was ongoing having regard to both injuries, and it would probably be necessary for a further hearing to be convened.
[6]
As noted above, Mr Warner suffered his second compensable back injury on 18 November 1975, when he apparently fell off a drum at work and was reported to have "injured his left sacroiliac region". The Senior Registrar of Casualty, Darwin Hospital, reported:
[7]
On examination the movements of his back were limited by pain, however, there was no local tenderness, X-Ray showed no fracture but severe L5S1 disc and osteoporosis. The patient was treated with doloxene for the pain and physiotherapy. He was discharged on 28 November 1975.[16]
[8]
In my opinion the incapacity on this occasion was due solely to the incident of the 18 November 1975. The patient does have preexisting osteoporosis and a post fractured sacrum, however, on this occasion I think these were not indicated in his injury and effect.[17]
[9]
On 23 May 1977, a Dr Crompton indicated that he considered Mr Warner fit for work "as far as the spinal problem goes and should resume duty as soon as possible".[18]
The more recent relevant medical evidence includes the report of Dr Dooland dated 21 October 2015, in which he states:
[10]
I do not have access to any of Mr Warner's medical notes from 1975, but I believe it would be reasonable to assume that an injury of magnitude he describes would be a contributing factor to osteoarthritis of the spine. Almost all patients in their 90s have significant spinal osteoarthritis with or without similar trauma, and this will also be a factor contributing to Mr Warners ongoing symptoms.[19]
[11]
He also stated "I believe that by this age Mr Warner would be suffering substantial spinal osteoarthritis with or without the fall of 1975, and thus by this stage the fall is a relatively minor contributor to his ongoing symptoms". He accordingly stated that the 1975 injury "no longer significantly contributes to the current condition and has been superseded by the osteoarthritis".[20]
The remaining relevant medical evidence consists of the reports and oral evidence of two specialists, Professor Malcolm Smith, the applicant's treating Rheumatologist, and Mr Frederick Phillips, a Consultant Orthopaedic Surgeon retained on behalf of the respondent.
[12]
Mr Phillips' first report is dated 22 March 2017.[21] In this report, Mr Phillips acknowledged that there were injuries in 1974 and 1975, and observed with respect to the 1974 incident that "[i]t is not at all clear from the documentation whether or not there was any continuing disabling pain following that incident, but he would appear to have been able to return to work".[22]
With respect to the injury suffered by Mr Warner on 18 November 1975, Mr Phillips stated "[t]he most likely injury would have been a lumbosacral strain noting that an Xray of the lumbar spine in 1978 identified generalised degenerative change and narrowing of the L5/S1 disc".[23]
As to Mr Warner's current condition, Mr Phillips stated "[i]n all likelihood Mr Warner would have developed his current condition as a natural progression of the preexisting condition", and "[i]n general, it would be my opinion that Mr Warner's age and overall degenerative condition is now the major source of his impairment and disability and that any ongoing effect of the injury is minor".[24]
In a subsequent report of 28 November 2017, he clarified his opinion, stating:
[13]
I would therefore clarify my opinion to state quite clearly that the cause of Mr Warner's impairment and disability, is his age and the degenerative condition affecting multiple levels of his lumbar spine as identified on the CT scan report (10 August 2017) that is now available.
Clearly there is more serious change at the level above the alleged injury level.
The overall multilevel changes in his lumbar spine have overtaken any possible effect of injury, i.e. the accepted back condition.[25]
[14]
Mr Phillips essentially adhered to this opinion in the course of his oral evidence. He also expressed the opinion that the fact degenerative changes were commented on in the report of the November 1975 Xray and not the report of the 1974 Xray did not necessarily mean that such changes were not already present in 1974, given the focus at that stage was on the fractured sacrum. He also commented "[y]ou would not expect a great deal in terms of change over a period of one year, whether or not there was an injury".[26] However he acknowledged that if as at November 1975, Mr Warner already had some arthritic change in the facet joints "it almost certainly would have been aggravated in"[27] the 1975 fall, and that the 1975 fall had continued to play a role in the way that the degenerative process had evolved.[28]
[15]
Professor Malcolm Smith has been treating Mr Warner since 1998, and his first report to Comcare is dated 21 January 2000.[29] In a report of 27 April 2006, he noted that Mr Warner's longstanding rightsided low back pain "appears to relate to an injury to his back while working for the commonwealth government in the Darwin Power Station many years ago".[30]
In a report prepared for the purposes of this matter dated 14 February 2017, Professor Smith expressed the opinion that:
[16]
While it is impossible to be certain about this, given that he did sustain an injury to his back in the 1970s which was investigated and accepted by Comcare, it is likely that his current age related degenerative changes in his lumbar spine are additive to his previous lumbar spine injury and possibly are more extensive than would have otherwise have occurred were it not for the previous back injury.[31]
[17]
During his oral evidence at the hearing, Professor Smith was asked about the nature of any possible connection between Mr Warner's injury in 1974 and the current condition of his spine. He stated:
[18]
he appears to have had some documented injury to his L5S1 disc, presumably as a result of that fall at the Darwin Power Station, and that was the accepted disability from the Department of Veterans' Affairs. From my point of view the question really is, does the injury to his L5S1 disc lead to any other problems in his spine, and the answer to that quite clearly is yes, that there is clear evidence in the literature that if you damage a joint or a structure that you will get osteoarthritis at an earlier age than you would normally get it, and it would be more severe at that level, and probably at a level above that level too ...[32]
[19]
Professor Smith was also asked about the report of the Xray taken on 18 November 1975 which commented on preexisting degenerative changes. He said:
[20]
basically they're implying that the degenerative changes they saw in the Xray on 18 November 1975 were not present on the previous Xray in February 1974. They certainly don't comment on them at that stage, which suggests the degenerative process has occurred over that period of time ... It does seem rather quick, however. That's only a period of, what, 21 months, so that's fairly quick to develop a degenerative process. But if you believe that report, they certainly haven't mentioned a disc degeneration in February 1974, but they have mentioned it in 1975. So it suggests that this occurred over that period of time, which again would suggest possibly that the fall contributed in some way to disc degeneration occurring, and then it could have been aggravated by the injury later on.[33]
[21]
So interpreting the information I've been shown there would suggest to me that if the documentation is accurate, that an event in 1974 has led to a degenerative process occurring at the L5S1 disc which became evident on radiological investigation in 1975, and we're assuming wasn't there in 1974, if they've recorded the Xray appropriately. So it is likely that it relates originally to the injury in 1974, possibly exacerbated by the injury in 1975, then the progression since then is what you would expect as a result of an injury to a disc leading to a degenerative process that has progressed up the spine.[34]
[22]
When Professor Smith was asked about separating out the effects of the 1974 fall from the 1975 injury, he stated:
[23]
I think if you accept that in '74 they have not reported any disc degeneration. There is disc degeneration in '75. It is likely that that process has gone on in between times, and that you would have to attribute the degeneration of that disc as a result of the fall in '74, not in '75, because a fall in '75 where there's already evidence of disc degeneration isn't the cause of the disc degeneration. Could the fall in 1975 have aggravated the disc degeneration and the symptoms related to it? Of course it could've and it probably did, if that answers your question, but it didn't cause the disc degeneration, it was already there.[35]
[24]
He went on to observe that if there was significant damage to the degenerate disc in the 1974 fall, this could have affected the rate at which the degenerative process in Mr Warner's spine subsequently progressed.[36]
As to the likelihood of a significant impact on the degenerative process from the 1975 fall, Professor Smith stated:
[25]
It's speculation, I'm not sure how useful it is, but given that that was a significant event at the time, then I would speculate it probably did impact on his L5S1 disc and it clearly led to more symptoms, it led to more investigation. So it's likely it did impact on his disc, and likely did exacerbate his degenerative process. Is that still going on now? I doubt it very much because age related problems have overtaken it, but is it any worse now than it would've been had he not had the injury? No one can answer that question with any honesty, so again it would be an opinion. My opinion is it probably did, but how much? I can't give you an honest answer ... It's certainly played a role.[37]
[26]
Asked as to whether Mr Warner's spine would be the same now without the 1975 fall, he responded:
[27]
That's really an impossible question to answer because we know that degenerative processes do occur as people get older, and we also know that they don't always get symptoms related to it, so I can't answer that question with any degree of honesty at all, only that it's likely that it's aggravated the problem. It may have occurred earlier, it maybe made it a bit worse than it would be, but there is a natural process of degeneration from ageing as well that is contributing clearly to this.[38]
[28]
During Professor Smith's crossexamination by counsel for the respondent, Mr Cole, the following exchange occurred:
[29]
Doctor, having heard your evidence today, if we assume that there was a fall of some sort in 1974, and that produced the changes which we have then had reported in 1975, and if we take out the 1975 fall, having regard to how Mr Warner is now, I presume you'd be comfortable in saying "Well I think that's a product of the age related changes and the effects of the 1974 fall"?---To some extent I would agree with you. I think clearly that the processes that we're seeing now in Mr Warner's spine are a result of degenerative processes which gets worse as you get older. I think the evidence that's mentioned in here clearly shows that the disc degeneration occurred at some stage between 1974 and 1975. So the fall in 1975 did not cause the disc degeneration. It was there at the time the Xray occurred, so it clearly occurred at a previous time, and if we assume that the report is correct it was not there in 1974, it's occurred in that period. So the only question then if we're isolating our comments to the fall in 1975, is how much did that fall contribute to any worsening of the degenerative process? And I think the honest answer to that is it almost certainly did. To what extent? Very difficult to put a figure on it because clearly age related changes have also contributed. So how much of that process is still due to the fall? Very hard to tell. It's all due to the degenerative process but the causes of that are linked. They've probably occurred earlier and to a greater degree were more severe as a result of the injury, but age related changes have certainly contributed greatly to those - to those changes in the spine as well.[39]
[30]
If we accept there's been some age related degenerative change, the '74 fall and the age related change could well explain how Mr Warner now is?---If there was no fall in 1975 I would agree with you.
Is it plausible that whatever the effects were from the 1975 fall, there was some impact for a period, perhaps a few years, but then the degenerative process catches up and takes over and continues its course; is that a plausible position?---That's plausible, yes.
Is it likely?---I think it's least as likely as the alternative explanation that a fall in 1975 aggravated the process and made it more advanced and more severe than would normally have occurred. They are equally plausible explanations. I can't give you an honest answer whether had Milton Warner not had a fall in 1975 whether his spine would be a similar state to what it is now. I think it's equally plausible either way.[40]
[31]
As I have already noted, one of the issues which emerged at the hearing was whether the description given by the Commissioner to Mr Warner's injury was correct.
The description initially given was "severe L5S1 disc and osteoporosis". However, both Professor Smith and Mr Phillips indicated this description was unlikely to be correct based on the contemporaneous medical information. They said the report of 13 January 1976 on which this description appeared to be based probably intended to convey something to the effect of "aggravation of severe L5S1 disc degeneration and osteoarthritis".
Unfortunately, at the time this issue was discussed at the hearings, neither the parties or the Tribunal realised that the Commissioner's description of the injury was amended in 1978 to "severe L5S1 disc injury".[41] However, based on the contemporaneous material and the evidence of both Professor Smith and Mr Phillips, I am satisfied that the injury sustained in the November 1975 incident is most accurately described as "aggravation of severe L5S1 disc degeneration and osteoarthritis", and that I have jurisdiction to amend this description and should do so.
[32]
Partly because of the lengthy history of this matter, this issue has become quite complicated.
Unsurprisingly, given the lapse of time, it has become extremely difficult to determine what the precise impacts were of the 1974 and 1975 injuries, and the extent to which either or both of those accidents continue to play some role in the condition of Mr Warner's spine. The situation has been made more complicated by the fact that prior to and at the hearings, it had not been appreciated that compensation liability had been accepted for the 1974 injury and, so far as I can ascertain, has not subsequently been ceased. Of course, one consequence of this is that, to the extent the 1974 injury continues to play a role in the condition of Mr Warner's spine, then liability to pay compensation to Mr Warner in respect of that injury also continues (albeit it may be that the description of that injury should also be amended to embrace the impact on Mr Warner's spine). However, the issue I have been asked to determine is a different and more limited one, namely, whether the subsequent incident of 1975 continues to play a role in Mr Warner's spinal condition and whether I am satisfied, on balance, that liability to pay compensation to Mr Warner in respect of that injury has ceased.
This is not an easy question to resolve. Some of the evidence before me, including that of Professor Smith, suggests that the 1974 injury was in fact a more serious one, and may well have precipitated the changes to the L5S1 disc which were subsequently observed in 1975. It is of interest that following the January 1974 incident Mr Warner presented at Darwin Hospital a week later complaining of low back pain. He was found to have tenderness in the lower lumbar region but the only significant finding on Xray was a fracture of the sacrum. It was only in November 1975, about 22 months later, that the change to the L5S1 disc was noted and commented upon.
There is a clear possibility on the evidence that the 1974 injury caused the compromise of the L5S1 disc which was apparent by November 1975 and that this disc was further disturbed and aggravated in the 1975 injury. As I have noted, Dr Bromwich, a Senior Surgeon Specialist, observed in a report of 2 May 1978 that the 1974 injury was "fairly severe" and noted that "[b]y 18 November 1975 the changes in the lumbar spine were visible on Xray".[42] A conclusion that the 1974 injury was the more significant one would also be consistent with the fact that as at April 1977, Mr Warner's incapacity was being attributed to the 1974 incident, and Mr Warner was also apparently paid sickness benefits by the Department of Social Security in respect of the 1974 injury from 22 March 1978.[43]
Having said that, the effect of the evidence is that following the 1974 injury Mr Warner returned to his normal duties, whereas he was not able to do so following the 1975 injury. He was also hospitalised for 10 days after the 1975 injury and in fact ceased work about 18 months after that injury. This would suggest that the 1975 injury in fact had a more severe impact on his capacity for work, albeit the L5S1 disc may have been originally compromised by the 1974 injury and further disturbed by the 1975 fall.
It is also highly significant that Dr Guirguis assessed Mr Warner in 2009 as suffering from a 20% permanent impairment under Table 9.5 of the Comcare Guide to the Assessment of Permanent Impairment, and a 10% impairment under Table 9.6, as a result of the 1975 injury. Of course, if that assessment was correct, it would be expected that the effects of the 1975 injury would be ongoing and would not have ceased.[44]
On the evidence I have, I consider it likely that, taken together, the falls of 1974 and 1975 are continuing to play a role in Mr Warner's spinal condition for the reasons explained by Professor Smith. In my view, it is likely that the degenerative changes in Mr Warner's spine would not have been as severe or progressed as quickly without both the 1974 and 1975 falls. The more difficult question, however, is whether the 1975 injury alone is continuing to play a role in Mr Warner's condition.
With respect to this question, I have ultimately concluded that I am not persuaded by Mr Phillips' opinion that Mr Warner sustained only a "strain" in the 1975 fall. Taking the evidence as a whole, I consider it likely that the L5S1 disc which was damaged or disturbed in the 1974 fall was further damaged and/or disturbed in the 1975 fall, producing significant and ongoing symptoms, and contributing to progression of the degenerative process. As Professor Smith acknowledged, the question of whether the 1975 fall is continuing to play a role, and whether Mr Warner's spine would have been in the same condition without that fall, is a finely balanced one. However, the question before me is whether I am positively satisfied that the effects of the 1975 injury have ceased.[45] I note the question of whether Mr Warner would have been in the same position without the injury is not the right question in this context. The issue is whether the effects of the injury are ongoing and are continuing to make a contribution to any incapacity, need for medical treatment, or need for household services.[46]
As I have indicated, this is a relatively artificial question in the circumstances, given that it appears on the evidence before me that the effects of the 1974 injury are ongoing in any event. On balance, however, I have concluded that having regard to the impact of the 1975 injury on Mr Warner's work capacity, the subsequent significant degeneration at the level above the L5S1 disc, Dr Guirguis' opinion that the 1975 injury resulted in a significant permanent impairment, and Professor Smith's evidence at the hearing as to the likely impact of the 1975 fall, I am not positively satisfied that the effects of that injury have ceased. I consider it likely that the 1975 injury played a role in hastening and worsening the degenerative process, and I am not satisfied that the impact of that injury is spent.
I have accordingly concluded that I should set aside the decision under review and in substitution for that decision, decide that as at 11 February 2016, the respondent remained liable to pay compensation to Mr Warner under ss 16, 29 and 136 of the SRC Act in respect of the injury of 18 November 1975. As I have pointed out, it is likely in any event that liability is also ongoing in respect of what appears to have been the more serious back injury sustained by Mr Warner in January 1974.
[33]
The decision under review is set aside and in substitution for that decision it is decided that:
(a) The description of the compensable injury suffered by Mr Warner on 18 November 1975 is amended to "aggravation of severe L5S1 disc degeneration and osteoarthritis"; and
(b) As at and from 11 February 2016, the effects of Mr Warner's injury of 18 November 1975 were ongoing and the respondent remained liable to pay compensation pursuant to ss 16, 29 and 136 of the SRC Act.
[34]
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean