Compensation Court of New South Wales CITATION : Anderson v Charles Sturt University [2002] NSWCC 62 Patrick L Anderson PARTIES : v Charles Sturt University MATTER NUMBER(S) : 56486 of 2001 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 07/11/02 EX TEMPORE JUDGMENT DATE : 11/07/2002 FOR APPLICANT: Mr R G Hanrahan instructed by Steve Masselos & Co appeared for the applicant. FOR RESPONDENT: LEGAL REPRESENTATIVES: Mr Roberts instructed by PricewaterhouseCoopers Legal appeared for the respondent (GIO Workers Compensation (NSW) Ltd); Mr Barber instructed by Bartier Perry appeared for the respondent (NRMA Workers Compensation (NSW) Ltd); Mr Small instructed by Vardanega Roberts appeared for the respondent (Allianz). JUDGMENT: 1. Mr Patrick Leonard Anderson of Wagga Wagga claims weekly payments of compensation from 6 July 2000 to date and continuing for either total incapacity or partial incapacity. He also claims his expenses under s 60. I understand that only a general order is sought under s 60. The applicant relies on seven events which occurred to him in the course of his employment. Those events are dated between 21 May 1992 and 1 March 2000. The applicant also relies on what is referred to as "the nature and conditions of the applicant's employment with the respondent" from 1988 to 6 July 2000. It is common ground that the applicant's voluntary resignation took effect on 6 July 2000 so theoretically the applicant's claim for weekly payments ought commence on the following day, 7 July 2000. 2. The applicant is by calling an electrician. He grew up in Wagga Wagga where he attended the Christian Brothers High School. The applicant obtained his Intermediate Certificate. The applicant had been born on 18 April 1938. He is currently 63 years of age. After leaving 3rd Form the applicant obtained an apprenticeship as an electrician with the Southern Riverina County Council. The applicant completed that apprenticeship and obtained his formal qualification as an electrician. He continued to work with the Southern Riverina County Council for whom he worked, I am told, for some 11 years. He left that employment to find a job with a better salary. He then worked as an electrician for a company described as 'Brijob', working in commercial, industrial and domestic buildings. He did that work for some seven years until the company was placed into liquidation. He then worked for K & M Duff for six years but for that firm he did more workshop work as an electrician than field work. 3. On 27 June 1977 the applicant commenced working with a predecessor of the respondent which was then called the Riverina College of Advanced Education. It appears that the institution has undergone a number of changes of names over the years and is now called the Charles Sturt University. The applicant initially commenced working as a maintenance electrician but was promoted, I infer, shortly after his commencement with the respondent to the position of a plant electrician. He was in charge of the maintenance and repair of all electrical appliances and installations throughout what is now the University. He was the only person to be so employed. There was no other electrician employed and the evidence suggests that he did not even have a permanent trades assistant but shared a trades assistant from time to time with other tradesmen. 4. The applicant's duties were varied. A number of them were relatively arduous. For example, electricity was reticulated throughout the campus of the University on poles which belonged to the University rather than to the local electricity supplier. The applicant was required to climb the poles from time to time in order to carry out electrical work. The applicant would have to prepare and sometimes replace electrical motors in many different places. Some electrical motors would be underneath buildings, some of them would be in the ceiling of buildings and some of them would be on the roof of the buildings. The applicant was required to climb ladders, to crawl under buildings, to climb over roofs and often to work in confined and awkward spaces. 5. The applicant spent a large amount of time changing light globes and fluorescent tubes throughout the campus which was the size of a small suburb. The applicant also repaired many pieces of electrical equipment, including the equipment used in the veterinary faculty, the medical faculty and the engineering faculty. Anyone with any experience in a university could understand the very varied nature of the machinery to be found in such an institution, how much of it was electrically driven and how often things would need to be repaired. The applicant told me that his work involved the lifting of heavy electrical motors. 6. When the applicant first commenced working, the College as it then was (which I shall merely refer to as 'the University') had been an old Agricultural College and there were a lot of old buildings. I infer that as time went on, new buildings were erected, sometimes in replacement of old buildings but probably more in addition to existing buildings. The applicant's workload obviously would have increased over the years. The applicant told me that at times independent contractors would be arranged for large installation work such as installing the security lighting system at one time. 7. I accept that the applicant's work did involve heavy lifting, repeated climbing or working in awkward and confined spaces and work which threw stress and strain on his spine. The applicant, for example, told me of the need to regularly change light fittings and light bulbs, standing on ladders with his neck held in hyper-extension in order to look with his bifocal glasses into the place at which he had to work, and of feeling a sense of stress or strain down his spine after repeatedly doing such activity. 8. At some time it is clear that the applicant ruptured the L5-S1 disc. When the applicant did that is a matter of some conjecture. The applicant was seen by Dr Tony Christie, for the Government Insurance Office of New South Wales, on 8 January 1996. On that occasion Dr Christie found objective signs of a disc prolapse. He found a slightly positive sciatic stress test on the right side. He found 1 cm of wasting of the right quadriceps and 1 cm wasting of the right calf muscle. He was unable to obtain the applicant's right ankle jerk. The applicant's plantar responses appeared to be down. As Dr Christie said in his report, those findings are consistent with nerve root compression of the L5-S1 nerve root. 9. The rupture of the L5-S1 disc happened sometime prior to 8 January 1996. The applicant told me of an event which occurred on 10 November 1995. On that occasion the applicant was alighting from his vehicle on the University campus outside the Marsden Hall. When doing so, the applicant felt a sharp pain in his right lower limb, consistent with sciatica. The applicant's evidence to me, in-chief, was that was the first time that he had suffered low back pain. Were that the only evidence one could easily conclude that the applicant had suffered a lumbar disc lesion on 10 November 1995 when getting out of his vehicle outside the Marsden Hall. However, the applicant's recollection of events is inaccurate, and I do not mean any criticism of him by that remark. It is common when workers have suffered a number of injuries over a number of years to get themselves confused. 10. The first frank incident relied upon in the application for determination is one which is alleged to have occurred on 21 May 1992. On that occasion the applicant was loading a 30 ft extension ladder onto his van. He had the assistance of a painter who was at one end of the 30 ft extension ladder. The applicant indicated having to stretch up and raise the ladder onto the top of the van and having to raise his arms above shoulder height and he told me that he hurt the muscles in his neck and shoulders. However, it is clear that the applicant saw Dr Charles Oliver, a general practitioner, on 26 May 1992 some five days later. According to Dr Oliver's report the applicant gave a history of having fallen whilst carrying a ladder and of suffering low back pain and a neck strain. The applicant saw Dr Oliver again some four days later on 13 May 1992 and told the doctor that he was improving. It is clear that the doctor had prescribed back and neck stretches and massage and heat treatment. 11. Prior to seeing Dr Oliver on 26 May 1992, the applicant had seen Dr Osmond, who was the visiting medical officer to the respondent University. Dr Osmond recalls that when he saw the applicant on 21 May 1992 he had right sciatic nerve pain. If that were the only history, one might infer that the applicant injured his L5-S1 disc on or about 21 May 1992. However, the applicant had a low back injury in 1986. The injury occurred on 13 March 1986. The applicant had been to what is referred to as the Turkey Nest Dam to inspect an allegedly faulty electrical motor. When the applicant was returning to his van, he slipped down a muddy bank of the dam and sustained an injury. 12. The applicant's claim form, which is Exhibit 1, indicates that at the time of this event the applicant did not seem to have a problem, but over the three nights preceding 19 March 1986 or perhaps for the three nights preceding 17 March 1986, the applicant had a sleeping problem. It is clear from the claim form that symptoms were in the applicant's back and the diagnosis raised by him was of a strain. The applicant appears to have attended upon the practice of Dr Osmond not at the University but in the town, and to have been treated either by Dr Osmond or a Dr Theo Verbeek. Records indicate that the applicant saw Dr Verbeek on 17 March 1986 and on 26 March 1986 and that he saw Dr Osmond on 27 May 1986 and 3 June 1986. 13. Physiotherapy was provided to him by Ms Sally Williams, a physiotherapist, on 5 June 1986, 10 June 1986, 13 June 1986 and 17 June 1986. X-rays were taken of the lower back on either 29 May 1986 or 30 May 1986. It would appear, therefore, that after injuring his back early in March 1986, the applicant was still experiencing back problems in May and June of 1986, indicating he may have had some significant problem. Of this event the applicant told Dr Christie this when he examined the applicant on 8 January 1996: He describes an incident where he injured his back about 6 to 8 years ago when he said he slipped on the banks of a dam. He suffered some low back pain and was off work about four to five days. He recovered and has had no further problem. 14. Dr Christie's history then turns to the event of 10 November 1995. He was unaware, for example, of the applicant's complaints of low back pain and right-sided sciatica in May 1992 and the extent of the applicant's earlier problems. The problem in 1986 appears to have been understated to him. The applicant has seen Dr WGD Patrick on a number of occasions at the request of his own solicitors. The first occasion was 19 April 1996 Dr Patrick obtained this history of the event of 1986: On questioning, Mr Anderson states that he has a long history of some low back symptoms. He initially injured his low back on 13 March 1986 when he slipped on the muddy bank of the "Turkey Nest" Dam. He had significant low back pain which he locates to the low lumbar region, and was treated by Dr Osmond at this time. X-rays were performed on 30 May 1986, a little over two months after this incident, and these plain x-rays demonstrated some osteophyte formation, indicative of lumbar spondylosis. 15. The question of course is whether the applicant ruptured the L5-S1 disc in the event of 13 March 1986 or whether that rupture should be attributed to, for example, the incident alleged to have occurred on 21 May 1992. A report is in evidence from Dr Osmond written on the stationery of the respondent's health service. I infer that Dr Osmond at the time that he wrote the report did not have available to him the records of his usual practice in town. The doctor's report contains this piece of history: He was first seen on 21/5/92 and I noted that he had right sciatic nerve pain and that he had aggravated a previous right knee-hip injury which seems to have occurred on 13/3/86. 16. In other words the history that the applicant gave to Dr Osmond on 21 May 1992 was that in the event that happened about that time he aggravated a problem he had previously had in his right lower limb resulting from the incident of 13 March 1986. It is clear that the event of 13 March 1986 was a back injury. If the applicant had some right leg symptoms at the time, those symptoms would have been of sciatica. This very strongly points, in my view, in the direction that the applicant's low lumbar disc lesion occurred in the incident of 13 March 1986. 17. It is to be borne in mind that in following upon that event the applicant had treatment in March, May and June of that year and one can see that the problem was not a small, transitory one. Shortly after the event alleged on 21 May 1992 the applicant had right sciatica which he thought was the aggravation of the problem that started on 13 March 1986. I am not persuaded on the balance of probabilities that the rupture of the applicant's L5-S1 disc results from any of the injuries alleged in the application for determination before me. Why the event of 13 March 1986 was not pleaded, why the insurer at risk at that time has not been joined, I do not know. 18. A rupture of the L5-S1 disc is not the only problem which the applicant has. The applicant has widespread degenerative changes in his spine and in his knees. It is clear that as time has gone by the applicant has noted increasing problems with his low back, some related to the frank rupture of the L5-S1 disc, some related to a progression of degenerative disease of the low back. For example, when the applicant saw Dr Patrick on 11 June 1997 the applicant described himself to Dr Patrick as coping with 90 per cent of his work duties. When seen by Dr Patrick on 28 October 1998 the applicant described himself as coping with probably just about 70 per cent of the tasks required of him as an electrician at the University. The applicant told me in cross-examination that his ability after October 1998 to do the normal duties of his position was reduced further than 70 per cent. He agreed that as far as he was concerned by the middle of the year 2000 he was unable to do the work to any great extent at all. The applicant's evidence is of a gradual deterioration in his ability to perform his duties. 19. This case, like so many that come before the Court, raises the question of whether the applicant's reduced ability to do his job results from the natural progression of a degenerative condition or whether the applicant's work duties themselves have somehow contributed to the progression of the degenerative condition leading to a compensible incapacity for work. Whilst many approach such questions in a very simplistic fashion, such issues are quite complex. Here, I have a number of different medical opinions. I have one body of thought presented to me through the reports of Dr Christie, Dr Bornstein, Dr Burke and Dr Van der Rijt that the applicant's sole problem is caused by the natural progression of the underlying degenerative condition. 20. The next view is that of Dr Nicholls, a specialist orthopaedic surgeon in Wagga Wagga, to whom the applicant was referred by his general practitioner for advice as to treatment. He was of the opinion that the applicant's work was only a minor contributing factor to the development of the underlying degenerative condition. The third opinion comes from Dr Patrick, a general surgeon qualified by the applicant's solicitors. Dr Patrick accepts that the underlying condition has not been caused by the applicant's work but that the applicant's work has "significantly" aggravated the condition. 21. The remaining opinion has been expressed by Dr Warrick Huntsdale, an orthopaedic surgeon who practises in Wagga Wagga. Dr Huntsdale expressed this view: With regards to his back I suspect he has lumbar degenerative change and I believe that on the balance of probability this could be attributed to the type of work that he had done and the injuries he has sustained at work over the years. 22. In other words Dr Huntsdale would attribute all of the applicant's problems to the type of work that he had done and the any number of "incidents" that have occurred to the applicant in the course of his employment. The opinion of Dr Huntsdale is different to that of every other practitioner in this case and I am unable to accept it. Indeed the parties, in particular the applicant, did not accept it because in earlier proceedings between the current parties one of the terms of settlement reached was this: The incidents pleaded aggravated the applicant's pre-existing degenerative condition of the spine which condition is not work-related. 23. Much of the argument in cases such as this often depends on semantics. Medical practitioners, legal practitioners and witnesses such as the applicant all use the word "aggravated" without turning their minds to what the word means. Often it is used as merely referring to setting off the symptoms of an underlying condition. Such is properly referred to as an exacerbation. One often hears medical practitioners express the view that the aggravation has ceased, meaning that the symptoms triggered off by the injury have gone away. To aggravate a condition means to make it much more grave or harsh, to increase the condition itself rather than to merely trigger off symptoms. Triggering of symptoms means an exacerbation. I must look in the evidence for something which suggests that the condition itself has been made worse by the type of work that the applicant has done and must not look merely to say whether the work activities that the applicant has engaged in have triggered off symptoms. It is common ground that after any particular incident symptoms would moderate to a large extent. It is a question of whether the condition is made worse itself by the work rather than the condition being drawn to the attention of the worker when he does something which his condition no longer allows him to do as he used to do it. As Sir Victor Windeyer said in the High Court of Australia, I am concerned with genesis rather than revelation. 24. It has been urged upon me that I am in a position to assess this issue for myself unburdened by the opinions of the medical experts. That is not the Court's role, as laid down by Lord President Cooper in Davies v the Edinburgh Magistrates. The Court is not a medical oracle. The Court must hear evidence or receive evidence from scientific experts who must give their reasons for their views so that the Court can test the validity of their reasoning by reference to the evidence in the case. I do know, for example, that here the applicant had plain x-ray of the low back on 13 May 1986 which demonstrated osteophyte formation indicative of the lumbar spondylosis. Lumbar spondylosis is another way of expressing degenerative disease of the low back. For such appearances to be shown up by plain x-ray on 13 May 1986, the condition must have been going on for at least six months if not a number of years. In other words at the time the applicant sustained the injury of 13 March 1986 his lumbar spine would then have been degenerative. 25. Dr Christie arranged for the applicant to undergo radiological examination by Dr John Korber on 8 January 1996. According to Dr Christie's report, that shows spondylosis at all levels in the lumbar spine with sclerosis of the antero-superior corners of the L2 and L3 vertebrae. The disc space heights were maintained and the L5-S1 disc space level was also maintained. 26. According to Dr Patrick, the same x-rays also demonstrate generalised spondylosis, maximal at T11/12 and also at L2/3. According to Dr Patrick, those x-rays show some narrowing of the lumbosacral disc space, although it is clear that Dr Korber thought that it was maintained. Dr Christie saw the applicant for a second time on 12 March 1997. From Dr Christie's point of view, the applicant had improved since the examination on 8 January 1996. Dr Christie expressed this view: This man's objective physical signs have recovered well since I last examined him in January 1996. The right ankle jerk has returned. The wasting of the quadriceps in the right calf have [sic] recovered. Mr Anderson however feels that he has deteriorated and described twice in the one interview of standing on a ladder trying to reach both ends of a 5 ft long fluorescent light "aggravated" his back. He describes pain in his back when he gets home at night. In my opinion this man has spondylosis in his lumbar spine. On the history given this was aggravated on 10 November 1995 by getting out of a van. Aggravation by that incident appears to have settled and this man now suffers the on-going effect of spondylosis. There are no objective signs of disc damage today although he still continues to complain of pain radiating down the right leg and does have a slight limitation of straight leg-raising on the right-hand side. Dr Christie then goes on to make some comments about s 66 and then says this: It is possible that his condition will be aggravated intermittently by the type of work that he does. 27. A question of course is what the doctor means by aggravated intermittently. Does he mean exacerbated? It seems impossible to me to have any form of intermittent aggravation, that that is making the underlying condition worse temporarily. If one makes it worse, it must remain in the state it was theretofore. There was a CT scan of the lumbar spine which was carried out on 25 June 1997. That is said to show changes of diffuse annular bulge of the L5-S1 level which bulge indents the dura but does not obliterate the epidural fat and according to Dr Van der Rijt shows no evidence of nerve root compromise or deformity and no evidence of resultant canal stenosis. 28. Dr Van der Rijt has expressed this view: The two x-rays of the lumbar spine from 1986 and 1996 show progression in the degree and extent of the lumbar spondylosis, this reflects the known natural history of the underlying condition and is consistent with the degenerative and constitutional nature of the condition. The changes are present throughout the lumbar spine which is again consistent with the patient's having a widespread degenerative constitutional background. 29. Later in his report Dr Van der Rijt refers to lumbar spondylosis as having an age-related, degenerative and constitutional aetiology. 30. In the same report Dr Van der Rijt expresses his view which appears to me to have some validity: He [the applicant] does not allege or document any specific major incident or event. The majority of the incidents or circumstances where he alleges pain arose, would be considered "normal" day to day events in a normal active life. He recalls specific episodes of back pain and on occasions right leg pain. He describes having sensory disturbances in the right thigh. The nature of the symptoms he alleges occur are suggestive of him [sic] suffering from lumbar spondylosis, this being an age-related, degenerative and constitutional condition. 31. I have already referred to the first frank injury pleaded, which occurred on or about 21 May 1992. It is to be recalled that on that occasion the applicant felt pain whilst stretching his arms above his shoulder height in order to place his ladder on the top of his van. That is an event which the applicant would carry out many times every day of his working life. Immediately before telling me that, the applicant told me that he would be in and out of his van 20 or 30 times per day. He made reference to having to use his ladder on a number of occasions each day, a bit less than 20 or 30 times. However, even if one postulates it was 10 or 15 times per day, it is a common, every day event which the applicant would have carried out. 32. On 8 February 1993 the applicant was attending to an air-conditioner on a roof. He had taken an electric motor out of the air conditioning plant and was carrying that motor along the high-pitched roof of a building. The motor weighed about 20 kg. In doing that the applicant experienced pain in his right knee. According to the history obtained by Dr Patrick, on that occasion the applicant developed significant discomfort in his right hip, posterior buttock, the pain going to the right thigh and the right knee. The applicant told Dr Patrick that he was seen by Dr Osmond for that condition. There is reference in Dr Osmond's report to an event of 8 February 1993 and that is given under a history "re: injury lumbarsacral spine and associated right-sided sciatica." In other words, both according to the report of Dr Osmond and the history obtained by Dr Patrick, the event of walking down the roof on 8 February 1993 was an injury to the low back with right-sided sciatica. Again walking up and down inclines of any description was something the applicant had done daily in the course of his duties. 33. The next event alleged is that of 10 November 1995 when the applicant was alighting from his van outside the Marsden Hall. Again, it was a very usual thing the applicant would do, as he told me, 20 or 30 times per day. It is hardly an event likely to cause a lumbar disc lesion. A frank fall on a muddy dam might. What it does demonstrate is the applicant had a problem in his low back which made it difficult to carry out his normal activities. The next injury alleged in the application for determination is that of 26 February 1996. On that occasion the applicant was working in the respondent's gymnasium, replacing fluorescent tubes which were 5 ft long. The applicant was stretching above head height and holding his neck in extension while he was changing the fluorescent tubes, which were awkward because of their length. He noticed pain in his low back. Again, the changing of tubes and bulbs was something that the applicant had done constantly and continued to do constantly for the respondent. That on one occasion it caused pain is really a reflection of the underlying condition rather than an indication that the event of 26 February 1996 was making the condition worse. 34. The next event alleged is on 5 November 1997. Again, that was an incident where the applicant was alighting from his van at the property, a building described as "the properties office on the hill". The applicant parked his van on a slope and when he stepped forward he felt pain going down his thigh to his knee. Again, he experienced sciatica, doing a thing he would do 20 or 30 times per day. 35. The next event alleged was on or about 28 January 2000 when the applicant was removing an exhaust at the CRC building. In fact he was helping air-conditioning people remove an air-conditioning unit from the flat top of the roof of a building. The motor and housing and fan of the air-conditioning unit had to be removed. It was necessary for the applicant and those who he was assisting to "break the seal" meaning the tightness between the unit and the roof into which it had been fixed. When doing so the applicant noticed severe low back pain. However it is clear that the applicant recovered from that exacerbation and got back to doing some form of his normal work because on 1 March 2000 the applicant was replacing fluorescent tubes in a building on the campus of the University when he noticed increased back pain. The incident of 28 June 2000 appears to be different to many of the others in that it could amount to a frank injury. The only problem is that there is no suggestion of any additional pathology having been experienced at that time rather than merely the applicant's exacerbating the underlying pathology. 36. Again, the incident of 1 March 2000, the incident when the applicant experienced pain replacing fluorescent tubes, is an incident occurring in the sort of activity that the applicant performed nearly every day. In his report of 28 October 1998 Dr Patrick expresses this view: Following further re-examination of Mr Patrick Anderson on 28 October 1998, in my opinion, he is suffering from significant constitutional/degenerative lumbar osteospondylosis, maximal at the lower thoracic, upper lumbar and lumbosacral regions. I believe this has been significantly aggravated and accelerated by the nature and conditions of his work over more than 20 years, working as an electrician in the university, frequently working in awkward situations, climbing ladders, bending, squatting and overhead work, and the like. 37. In the same section of that report, the doctor, after having assessed entitlements under s 66, stated that no component of his assessments related to any pre-existing constitutional, developmental or degenerative condition which, of course, gainsays what he initially had said. In the supplementary opinion he expressed the view that some 10 per cent of the assessments which he made under s 66 should be reduced because of a "constitutional pre-disposition to degenerative arthrosis/spondylosis". 38. The applicant's case is based on Dr Patrick. I merely have his assertion that there has been a significant aggravation and acceleration of the condition by reason of the applicant's work over a number of years. He gives me a result without explaining the reasons which had led him to express that view. For example, Dr Patrick in none of his reports, as I read them, deals with the issue raised by Dr Van der Rijt that the progression shown on the x-rays between 1986 and 1996 is consistent with the natural progression of the degenerative condition. Dr Patrick does not suggest, when one compares the two x-rays, that the rate of the progression of the condition is much greater than one would normally expect. 39. Indeed, it is the thesis of Dr Peter Burke, qualified by one of the insurers of the respondent, that the applicant only has "minimal degenerative change" consistent with the applicant's age. That was the formulation he uses in his report of 14 July 1997. In his report of 8 March 1999 Dr Burke says this: This man apparently has minor degenerative spondylosis consistent with his age. This is undoubtedly abetted by his obesity. In a report of 11 February 2002 Dr Burke expressed these diagnoses: 1) Moderate obesity. 2) Early degenerative spondylitis in the cervical, thoracic and lumbar areas. 3) Possible insipient [sic] nerve root embarrassment affecting the right S1 nerve root. 4) Apparent probable osteoarthritic change at weight-bearing joints. 5) Possible peripheral neuritis. 6) Apparent hearing difficulties. 7) Hyperkeratoses on dorsa of hands. 40. It is not clear to me whether Dr Burke was using the word "spondylitis" as meaning the same as spondylosis. The former term relates to an inflammation of the vertebrae themselves, the latter to their degeneration. What the doctor means by "early" I do not understand. If it is to suggest that the applicant developed these problems prematurely, that appears inconsistent with his earlier opinions. Under the heading "Attributability" Dr Burke expressed this view: The spondylitis, nerve root embarrassment and osteoarthritic change are due to deteriorative factors. He describes a number of incidents which could have caused strain and temporary aggravation of the underlying degenerative problems. There is no evidence of any more serious injury having occurred, whether in the workplace or elsewhere. Indications are that any injury or aggravation caused by his work incidents would have resolved within several days or a few weeks of each occasion. It appears that he is required only brief periods of time off work. However, the history also indicates the gradual deterioration of underlying degenerative problems. These are present on a genetically-determined basis. There are no residua of any work injuries. No sequelae need be expected. Again, I hazard the observation that Dr Burke appears to be using the word "aggravation" as being synonymous with exacerbation. 41. I have a series of reports from Dr David Bornstein. Dr Bornstein first examined the applicant on 14 July 1997. On examination he found the applicant's back to be "entirely normal". However, he accepted the applicant as being genuine and accepted that he had a mild disc protrusion in the lumbar spine, a condition which I accept does exist but is not related to any of the events pleaded in the application for determination. Dr Bornstein examined the applicant a second time on 8 March 1999. Again, as far as Dr Bornstein was concerned examination of the back was entirely normal. He expressed this view: It would appear to me that Mr Anderson has suffered from periods of discomfort which may be work-related with periods of discomfort due to underlying progressive degenerative changes consistent with his age. It would seem on the basis of my previous and current consultations that his problems, in fact, are constitutional in origin, gradually progressive and therefore increasing discomfort over time is reasonable and it is not related to his employment. The natural history of the condition being the gradual progressive deterioration whether or not Mr Anderson were in employment. 42. Again, the opinion of Dr Bornstein is consistent with the evidence I have heard. The applicant has gradually got worse. That gradual deterioration in his condition is explicable by an underlying degenerative condition. I have no opinion here, for example, from Dr Patrick that the progression shown on plain x-ray of the symptomatic progression, is quite inconsistent with the natural progression of the degenerative condition. 43. Dr Bornstein's final examination of the applicant was on 11 February 2002. Dr Bornstein said this: The man certainly is suffering from mild degenerative changes but then this is well within the bounds of what one would expect of a person of his age. 44. There is no opinion to the contrary, for example, from Dr Patrick. However, one piece of history recorded by Dr Patrick on two occasions indicates to me that the thesis advanced by, for example, Dr Bornstein is the preferred one. 45. Dr Patrick saw the applicant on 28 October 1998. At that time the applicant was able to do about 70 per cent of the tasks of his office. Dr Patrick next saw the applicant on 24 November 2000 some five months after the applicant's resignation. The applicant accordingly had not worked for five months. Dr Patrick had this history: Mr Anderson continues now with significant on-going symptoms, worse if anything than when last seen in October 1998. 46. Dr Patrick's next examination was on 2 August 2002. In the report the following was stated: If anything, symptoms are becoming gradually worse. 47. The applicant tells Dr Patrick that having given up work the condition nevertheless has continued to deteriorate. It is clear when one reads the applicant's complaints as at, for example, 2 August 2002, that they are greater than they were at earlier times. The applicant's worsening of symptoms of course is due to the underlying progressive condition. If one thought that the applicant's work activities were aetiological, that they were a contributing factor to the applicant's condition, then one would expect a lessening of the deterioration or a stabilisation of the deterioration after the applicant stopped the work which was impugned as being aetiological. The applicant has given up the work but his condition has still continued to worsen. That argues very strongly against the applicant's employment being an aetiological factor in the progression of the underlying lumbar spondylosis. 48. That proposition has not been addressed at all by Dr Patrick in his reports. One must always be cautious in cases of this nature when the Court is confronted with experts qualified by each party to the proceedings which opinions might be thought to be weighted in favour of the party who qualifies the expert. That is why the Court often likes to rely upon the opinion of treating surgeons. The applicant, as I earlier mentioned, has been seen by Dr Allan Nichols, an orthopaedic surgeon of Wagga Wagga. In the report addressed to Dr Osmond of 9 April 1996 Dr Nichols says this: He has degenerative lumbar spinal disease and although he wanted to attribute the major problem to his work this, to my mind, is only a minor contributing factor to what is, essentially a primary and slowly progressive degenerative process. 49. The incapacity with which I am dealing commences on 7 July 2000. S 16 of the Workers Compensation Act 1987 requires that from 12 January 1997 the applicant's employment must be a substantial contributing factor to the aggravation, acceleration, deterioration et cetera of an underlying non-compensible disease. 50. Dr Nichols refers only to the applicant's work as being "a minor contributing factor". That has caused counsel for the applicant, Mr Hanrahan, to embrace the proposition that a minor contributing factor is a substantial contributing factor. That proposition has not gained much weight with his Honour, Judge Burke in Dayton v Coles Supermarket Pty Limited (unreported, 30427/99) or by the Court of Appeal in the same case reported at [2001] NSWCA 153 and nor does it obtain any approval from me. In Dayton v Coles Supermarkets Pty Limited in the Court of Appeal, his Honour, Mr Justice Meagher, quoted Judge Burke as finding the main cause of that worker's problem was his addiction to marijuana. His Honour, Judge Burke regarded the work incidents as constituting "a rather minor" factor in the aetiology of the psychiatric disease, although perhaps constituting a triggering factor in an otherwise latent condition. 51. His Honour said at 14: The appellant's attack on this finding is based on the language of Deane J. in Tillmanns Butcheries Pty Limited v Australian Meat Industry Employees Union (1979) 27 ALR 367, who expressed the view that "substantial" meant (in the context of different legislation) "real or of substance and not insubstantial or nominal". In the present context the appellant submitted that it then can be "minor" without being either "insubstantial or nominal", and since the work experiences of the appellant were neither "insubstantial" nor "nominal" the fact that they were only "minor" did not prevent them from being "substantial". This argument should be rejected. Logically, it would mean that all causative happenings would have to be treated as "substantial" however insignificant they were or, in other words, that the word "substantial" has no meaning. Many judges have spent a great deal of time and difficulty analysing and pondering the meaning of the word "substantial" but this word is a plain English word which is understood by anyone who is not a judge. Nor have the endless judicial lucubrations on the word contributed to anyone's understanding of it. And nobody in their senses would regard a cause which could be correctly categorised as very "minor" as "substantial". 52. It is very clear that the reasoning accepted in Mercer v ANZ Banking Group Limited (2000) 48 NSW LR 740 is open to some further challenge. As one who might be described as a lucubrator of the word 'substantial' (see Stewart v NSW Police Service) I am heartened that his Honour, Mr Justice Meagher should give the word a meaning consistent with that that I have adopted, that is that the word 'substantial' is quantitative and requires a large input of a causative nature to the occurrence of the event in question. As Mr Justice Meagher accepted in Dayton's case and as his Honour, Judge Burke, did before him, I cannot accept that a minor contributing factor is to be regarded as a substantial contributing factor. I acknowledge that the antonym of 'minor' is 'major' but in my view the concept of a minor contributing factor is quite antithetic to the substantial contributing factor which the Act requires. 53. Here, unfortunately, the applicant's claim must fail. The applicant has the onus of proof. The applicant must establish on the balance of probabilities that the reason that he is now unable to work results from a compensible injury or results from the aggravation, acceleration, exacerbation of an underlying non-compensible disease. Here the evidence in my view points in one direction that the applicant has an underlying constitutional disease which is progressive and degenerative and which would progress in the course that it did in any event. Nothing in the evidence persuades me that it is more probable than not that the applicant stopped work prematurely because the work was acting to such an extent on the underlying degenerative condition that it was made more grave or its process was speeded up or that the condition was permanently exacerbated by the work which the applicant did from time to time in the course of his employment with the respondent. 54. Indeed, it is often said that work of a physical nature inhibits the advance of degenerative conditions and that those of us who lead more sedentary existences are more likely to suffer from progressive degenerative conditions than those who are more active. However, there is no evidence to that effect in this case. Nevertheless the evidence as I said does not persuade me that it is more probable than not that the applicant's current incapacity for work results from any compensible condition. 55. I have enquired of counsel for the parties whether any further reasons for judgment are required. I am told that none is so required. I should merely add this. That in addition to the allegation that the applicant's incapacity resulted from his back condition, in the application for determination it is alleged that the incapacity results inter alia from the aggravation, acceleration of cervical spondylosis and the aggravation, acceleration of an osteoarthritic condition of the applicant's right knee. The applicant expressly disavowed that his incapacity for work resulted from any condition in his neck. Even if he had, the same considerations about the applicant's lumbar spondylosis could be made about the applicant's cervical spondylosis. 56. The applicant's right knee appears to me to have been more affected by sciatica from time to time due to the rupture of the L5-S1 disc probably in 1986 than by symptoms of the right knee. However, there is nothing to suggest here that the applicant has for example ruptured the anterior cruciate ligament or the posterior cruciate ligament, any of the collateral ligaments or any of the menisci. The applicant does have osteoarthritis of his knees. That is consistent with his having lumbar spondylosis and thoracic spondylosis and cervical spondylosis. That is he has a progressive degenerative condition affecting his joints. 57. Again, here there is no evidence which persuades me that that has been made permanently worse by the type of work that the applicant has been doing for the respondent. The same principles that I have stated in relation to the applicant's lumbar spondylosis can be said of the applicant's osteoarthritic right knee. 58. For those reasons, I make an award for the respondent. Mr Hanrahan instructed by Steve Masselos & Co appeared for the applicant. Mr Roberts instructed by PricewaterhouseCoopers Legal appeared for the respondent (GIO Workers Compensation (NSW) Ltd). Mr Barber instructed by Bartier Perry appeared for the respondent (NRMA Workers Compensation (NSW) Ltd) Mr Small instructed by Vardanega Roberts appeared for the respondent (Allianz). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.