District Court New South Wales Medium Neutral Citation: Learmont v Commissioner of Police [2015] NSWDC 136 Hearing dates: 14 – 15 April 2015 Date of orders: 15 April 2015 Decision date: 15 April 2015 Jurisdiction: Civil Before: Neilson DCJ Decision: Decision of Commissioner of Police confirmed Catchwords: WORKERS COMPENSATION – Police Superannuation – Claim for s 12D gratuity for impairment of back – Plaintiff relied on event on 3 March 1990 when he alleged he injured his "back" – Injury relied upon must be one to which the gratuity could be related – Gratuity was for an injury to low back – In the event relied upon, Court only satisfied that plaintiff injured upper back WORDS AND PHRASES – "Back" – Question of law not medical opinion Legislation Cited: Police Regulation (Superannuation) Act 1906 Workers Compensation Act 1987 Cases Cited: Clymer v Roads and Traffic Authority (1996) 13 NSWCCR 187 Commissioner of Police v Kennedy [2007] NSWCA 328; (2007) 5 DDCR 380 De Gracia v New South Wales (1993) 13 NSWCCR 23 Kennedy v COP (RJ462 of 2005, 27 October 2006, unreported) Texts Cited: Schmidt's Attorney's Dictionary of Medicine (Matthew Bender 1993) C H Leonard AM MD, Concise Gray's Anatomy (Omega Books Ltd , 1983) Category: Principal judgment Parties: Andrew Learmont (Plaintiff) Commissioner of Police (NSW) (Defendant) Representation: Counsel: Mr T Ower (Plaintiff) Ms L McPhee (Defendant) Solicitors: Harris Wheeler (Plaintiff) McCabes (Defendant) File Number(s): RJ332/13 Publication restriction: No Judgment 1. HIS HONOUR: The plaintiff is a former senior constable of police. He was attested as a probationary constable of police on 26 June 1987, and thereby became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 "the Act". The plaintiff voluntarily resigned his office as a senior constable of police on 12 August 1999. The plaintiff re-joined the NSW police on 3 April 2005 but by that time the Police Superannuation Fund had closed, the date of closure being 31 March 1988. The plaintiff's second period of service in the NSW Police is irrelevant to the current proceedings. 2. The plaintiff was ultimately discharged from the NSW Police on 15 April 2012. At the time of his discharge he was paid $295,169.81 on account of post traumatic stress disorder. The plaintiff on 27 October 2010 made an application to the SASTC for the payment of a benefit under s 12D of the Act. It is clear that the plaintiff was assisted at that time by a firm of solicitors. The injuries claimed by the plaintiff were each alleged to have occurred on 3 March 1990. The first injury claimed is an injury to the back, the second injury claimed was an injury to the left leg at or above the knee and the third injury claimed was an injury to the right leg at or above the knee. When asked to describe the circumstances that caused the injury the form was completed thus in respect of each injury: "Hurt whilst on duty" which is hardly a description at all. 3. With the well-known alacrity of the NSW Police, the current defendant by his delegate advised the SASTC on 27 February 2013 that the injuries to the plaintiff's back, and left and right legs, to which his application was related, were not caused by his having been hurt on duty. The plaintiff claims to be aggrieved by that determination of the defendant and brings an application to this Court under s 21 of the Act seeking to have that decision set aside and replaced by some other decision, clearly one favourable to him. 4. Appended to the plaintiff's application, which bears date 27 October 2010, is a report made by him which has typewritten the same date but written in handwriting at the end the date 30 October 2010. The report commences with a description of the occurrence relied upon by the plaintiff. It is this: "On 3 March 1990 I attended a violent domestic incident. Whilst attempting to arrest the offender I was punched to the ground and kicked repeatedly in the lumbar and thoracic regions of my back, resulting in immediate excruciating pain. I was subsequently treated at Wagga Base Hospital. Since this incident I have endured chronic back pain of varying intensity. My medical records show episodes of extreme back pain in 1991, 1994, 2001, 2004 and 2009. These were times when I was unable to manage the pain by myself with rest and medication. These were times when I was unable to manage the pain by myself with rest and medication. The injury was exacerbated by driving into a creek in a Ford WD vehicle whilst performing a search for [a] person of interest in November 2008. This was the last straw, when I felt I could no longer cope with the pain and I sought medical assistance to manage the effects of my injury and leading me to my present position as a Permanent Restricted Police Officer." The incident of November 2008 occurred on 5 November 2008 but is not presently relevant as it occurred when the plaintiff was not a contributor to the Police Superannuation Fund. 1. Despite what the plaintiff stated in that brief description I have been unable to find any records of episodes of extreme back pain in 1991 or 1994 or in 2001. The plaintiff in his report has "Affects of injury on lifestyle" which I assume was intended to convey his level of pain and suffering, anxiety and distress resulting from the permanent impairment that he was claiming. The first two paragraphs of that description are these: "This injury to my back has significantly impacted all aspects of my life. Due to unrelenting pain I have needed to take analgesic medication since the initial injury. Due to the extreme nature of my pain I have often needed to resort to using muscle relaxant medication such as Diazepam and I require analgesia and sleeping tablets to sleep every night. I still wake regularly through the night due to pain. Some of the medications I have to take such as Tramadol, have had side effects such as chronic gastritis. I have also developed anxiety and depression which has troubled me intermittently since my injury occurred. I continue to take anti-depressant medication and regularly see a psychologist. I am now unable to do many of the things that I once found enjoyable. I used to be a keen road runner and am now unable to run at all. I enjoyed riding my motor cycle with my friends, which I cannot now do as my position on the bike caused severe back pain. I have had to sell my bike. I was once a keen equestrian and also liked to ski. Both of these activities are of interest to my young son, however I cannot teach him to either ride or ski. Travelling and driving are limited to hourly stretches because I have to stop and get out of the car regularly. This makes air, train or bus travel a nightmare, so I avoid it. I am unable to sit or stand for long periods of time. I have to get up and move around regularly. The most comfortable position is to lie down. Mornings are especially bad. I have trouble putting on my socks and boots and if I drop something on the floor it often has to stay there until someone can help me." In the penultimate paragraph of the report the plaintiff states that he was a member of the State Protection Support Unit (SPSU) but due to his "unrelenting physical and mental demands of the position" he had to resign from it in 1997. One might be forgiven, reading that description, for believing that the plaintiff had unrelenting pain in his back since the incident of 3 March 1990 but this pain was becoming more and more severe with the passage of time and he needed to take medication to ease his pain as well as muscle relaxants which could only be prescribed by a medical practitioner, that he required sleeping tablets each night to enable him to sleep and that he awoke often due to pain. As at 30 October 2010, more than 20 years had elapsed since the time the incident relied on by the plaintiff, 3 March 1990. One would expect a man, or indeed a woman, who has suffered from unrelenting pain of that severity for 20 years to suffer from anxiety and depression. One would think from reading the plaintiff's report that shortly after the incident of 3 March 1990 he became unable to run and gave up road running, that he gave up riding his motor cycle, that he ceased unnecessary travelling and driving and that he had given up horse riding and skiing. One would think that for the best part of 20 years his condition was worse in the mornings, causing him to have trouble putting on his socks, shoes and boots in order to dress to go to work. 1. The plaintiff relies upon reports prepared at the request of his solicitors by Dr W G D Patrick, a general surgeon, who saw the plaintiff on 6 July 2010, on a report of Dr Peter Giblin, orthopaedic surgeon, who saw the plaintiff on 11 October 2011 and on a report of Dr James Bodel who saw the plaintiff on 23 May 2014. The plaintiff supported his application for 12D benefits with Dr Patrick's report. On the first page of his report Dr Patrick records that the plaintiff resigned from the NSW Police in 1999 "both on physical and mental grounds." Dr Patrick reports on p 4 of his report that the plaintiff had no prior history of any accident, injuries or symptoms affecting his back before the event on 3 March 1990. On p 2 of his report Dr Patrick records a history that the plaintiff's back has never been the same since 3 March 1990 as it was before. The plaintiff gave Dr Patrick a history that he had ongoing intermittent back symptoms varying in severity both in the lumbar and lower thoracic regions. The doctor then recorded that during the second half of 1997 the plaintiff was suffering from some significant depression, however overall his back was worsening rather than improving. The doctor then records that in 1999 the plaintiff was having physical problems as well as psychological problems, that he was becoming increasingly aware of his heavy police belt causing considerable pain and that in order to alleviate that pain he would unbuckle his belt frequently. The plaintiff also told Dr Patrick that he was not coping with the physical aspects of his job and was having difficulty being on his feet for long periods of time. The plaintiff told Dr Patrick that his back pain was worsening. What the plaintiff was able to do was very limited, physically, and that contributed to his stress and depression leading to his resignation in August 1999. In another piece of history Dr Patrick recorded that the plaintiff had never been free of back symptoms of one kind or another since the incident on 3 March 1990. Somewhat similar histories were given to Dr Giblin and Dr Bodel but they are not as floridly described by those two gentlemen. 2. The effect of the plaintiff's evidence-in-chief was to the same effect. Unfortunately there is little truth in any of the history given to Dr Patrick or the history given to other practitioners and what is contained in the plaintiff's application for s 12D benefits. There has been a challenge to the plaintiff's accuracy, reliability and honesty which has been largely successful. 3. The plaintiff was born in Tumut on 16 April 1962 which means tomorrow he will turn 53. He attended Tumut High School and obtained the School Certificate. He then completed an apprenticeship as a fitter and machinist. He then travelled overseas for six or seven months before returning to Australia, and then worked in his trade for a brief period of time. There is one history recording the plaintiff did not particularly like his trade and that was perhaps one of the reasons that the plaintiff decided to join the NSW Police. The plaintiff commenced his initial training on 1 April 1987 and, as I have earlier stated, was attested as a probationary constable of police on 26 June 1987. On the following day he commenced working at the Castle Hill Police Station. Two months later on 16 August 1987 he was transferred to the Windsor Police station. In each of those police stations the plaintiff performed general duties. On 25 September 1988 the plaintiff was transferred to the Wagga Wagga police station where he worked up until the time of his voluntary resignation on 12 August 1999. 4. The plaintiff took five days sick leave from 22 August 1987 to 27 August 1987. The nature of the illness recorded in the defendant's records is "sore back." This was not alleged to be caused by the plaintiff's having been hurt on duty. In evidence is one medical certificate issued by Dr Malcolm Carmichael of the Baulkham Hills Super Clinic. Dr Carmichael's certificate bears date 22 August 1987 and stated the plaintiff was unable to attend work commencing on 23 August 1987. The diagnosis provided is "right lumbar strain." The plaintiff told me in chief that prior to 3 March 1990 he could not recall having any problems in his back: T 12.30. In cross-examination it was suggested to the plaintiff that as early as 27 August 1987 he supplied a medical certificate to the defendant to the effect that he was suffering from a right lumbar strain and that he was provided with a medical certificate by Dr Carmichael of Baulkham Hills. When asked if he could recall that, the plaintiff asked for the year and it was pointed out it was August 1987, and plaintiff then gave an unequivocal "No" and that can only be interpreted as his having no recall of such an event. To state, however, that the plaintiff had no symptoms whatever in his back prior to 3 March 1990 is incorrect. 5. There is a contemporaneous record of the event of 3 March 1990. It is exhibit A. The substance of the report is this: "At 12.15am on 3 March 1990 attended 3 Toy Place re domestic. Constable [Graham] McDonald and myself entered the premises, did then see the offender Paul Leo Prior, who at the time was well affected by alcohol. A short time later Senior Constable Lunnon and Constable Heinjus arrived. It was ascertained that a current DEO was in existence for Prior for the following conditions […] Prior was then informed that he was under arrest. Whilst being escorted from the premises Prior became very aggressive and abusive. Prior then lunged towards myself and then pushed Constable Heinjus over. Prior then struck myself to the side of the head with a closed fist. Prior then put me in a headlock and a struggle then ensued between Prior and myself. Prior then knocked me to the ground and started kicking and punching me constantly to the back and kidney area. Constable McDonald, Constable Heinjus and Senior Constable Lunnon then assisted and a long struggle ensued during which Prior threw a number punches at all police. Prior then charged forward and knocked Constable McDonald over causing him to go over on his left ankle. Prior then decamped from the scene and was unable to be located." 1. As a result of the incident Constable Learmont and Constable McDonald attended the Wagga Base Hospital and were attended by Dr Anous-Le Chan. Constable Learmont received the following injuries - bruising to the back and rib areas. The plaintiff attended the Wagga Wagga Base Hospital accident and emergency ward at 2am. He was seen by the resident medical officer at 4am. The clinical notes record this: "Policeman. Assaulted at work. Painful back. On examination soft tissue injuries tender over rhomboid on left. Full movement with mild pain. For analgesia pro re nata [as the need arises]." There was no suggestion that a medical certificate was given to the plaintiff. There is no suggestion that an X-ray was required and there was no prescription of any analgesia which could not be bought from over the counter. 1. Exhibit A suggests that formal claims for hurt on duty benefits were submitted on 4 March 1990 but they are no longer in existence. The plaintiff was cross-examined as to whether they were completed and he maintained that they were. "They" of course are referring to not only his own but that obviously made by Constable McDonald. No adverse inference can be drawn from the fact that they can no longer be found. They may not have been proceeded with administratively because there would not appear to have been any time lost from work, no need to take any sick leave or hurt on duty leave and no need to pay for any medical attention or treatment. The sick leave records of the NSW Police, which were at that time maintained manually, record no absence from work immediately after 30 March 1990. They do record two absences from work in 1990, one on 14 May 1990 for a viral infection and one on 23 October 1990 for nausea. It is abundantly clear that after being seen at the Wagga Wagga Base Hospital at about 4am on 3 March 1990 the plaintiff did not seek any further medical treatment in any sense proximate to the injury and he took no time off work proximate to the injury. Indeed, the only time that the records of the NSW Police show the plaintiff having time off work on account of a back problem was the five day absence in August 1987. There is an absence in May 1995 for a back injury and an absence on 26 October 1996 for a lumbar complaint. 2. When cross-examined about the making of a claim for hurt on duty benefits or reporting an injury on 3 March 1990 the plaintiff said that: "It was submitted the next day, I think it was the next day and it is ticked off as being submitted. I did submit the forms, absolutely did submit those forms. I had Senior Constable Lunnon assist me submit those forms because I'd never submitted them before and I wasn't quite sure how to do it, so he helped me to the forms." The plaintiff was then challenged about the accuracy of that assertion and it came to pass that the plaintiff had filled in a report of injury form on 6 February 1990 for an incident that occurred on that day at the Wagga Wagga railway station when the plaintiff was punched in the mouth causing some dental damage. His report of injury/claim for compensation at the time is exhibit 1. It is one very minor indication of the lack of reliability in the plaintiff's evidence. 1. The plaintiff gave evidence of having been a keen road runner and a gym attender prior to 3 March 1990. The plaintiff said that he did continue going to the gym after 3 March 1990 but he was having a rehabilitation regime because the gentleman at the gym with whom he was dealing was a rehabilitation trainer and the need for having this rehabilitation training was because of the his sore back. The plaintiff, in essence, asked me to believe that there was a change in the nature and frequency of his attendance at the gym after 3 March 1990 and that the distances which he used to run on roads decreased and ultimately he gave up road running. The plaintiff's evidence asked me to believe that those changes were relatively shortly after 3 March 1990. However, there is extreme doubt about the accuracy of those assertions. The simple fact is that in 1993, three years after the event now in question, the plaintiff applied to join the SPSU and there was training involved for that work. There were camps held at least annually. On 17 August 1993 the plaintiff completed a form for the SPSU which is headed "Declaration for assessment for attendance at training camps." One of the questions asked was "Have you ever been diagnosed with or had treatment for any of the following conditions: joint or back injury?" to which the answer recorded by the plaintiff was "No." The same form asked the plaintiff as to whether he participated in regular exercise to which he said he did. The details recorded are these "Four hours a week includes attending gym and road running". The time of exercise was answered "One to one and a half hours at a time." The form was accompanied by a medical assessment which bears date 30 November 1993. It is clearly made by a medical practitioner. The first part appears to have been completed by the plaintiff himself, it is his handwriting that appears on the first page. When asked if he suffered pain in either lower leg when walking or climbing stairs the answer given was a negative. When asked if he had any bone or joint injury he answered in the negative. When asked if he had any back ache or pain in his joints when exercising for 30 minutes continuously he answered in the negative. The medical examiner passed the plaintiff as being fit to work with the SPSU. 2. In 1996 the plaintiff again filled out a declaration for assessment for attendance at training camps. It was completed on 14 May 1996. Again it denied any back or joint injury and stated the plaintiff exercised between four to five hours a week. It was accompanied by a certificate of Dr Peter Purches of Wagga Wagga. In answer to a question as to the plaintiff's exercise habits Dr Purches has recorded that the plaintiff exercised five hours of gym/running. He clearly examined the plaintiff's musculoskeletal system and found no abnormality. The doctor was then asked this question "Is this person fit for maximal exercise?" The doctor answered that in the affirmative. The evidence suggests that these training camps may have been at Kapooka Army Base or similar and involved vigorous and sustained exercise. It would be hard to envisage doing such exercises with a "bad back". 3. In going to SPSU in 1996 I have jumped ahead chronologically. On 28 December 1994 the plaintiff attended upon a general practitioner at the Kooringal Road surgery at 547 Kooringal Road, Wagga Wagga. The plaintiff's normal attending doctor was Dr Peter Keith. The history recorded on 28 December 1994 is this: "On 26 December 1994 in Tumut for races: punched and fell heavily hitting head on concrete; drank a fair bit. Yesterday in bed mainly. Today when got up and about onset of rotational vertigo with nausea. No significant headache." The history is not particularly important other than showing some of the plaintiff's habit. However, it does record in the findings on examination that the plaintiff's reflexes were tested and the right reflexes were the same as the left reflexes and the knee jerks were upgoing and the plantar jerks were downgoing, essentially normal reflexes in the plaintiff's lower limbs. 1. On 21 May 1995 at 11.38pm the plaintiff attended the Wagga Wagga Base Hospital and underwent triage. The presenting problem is recorded as the plaintiff's having pain in his lower back and then appear the words "sore naturopath." The nursing assessment data is that the plaintiff found it difficult to dress. One wonders whether the word "sore" is a misspelling of "saw." There is no other reference in the material before me to a naturopath. The plaintiff was seen later by the RMO, Dr Butcherine. That practitioner has dated the entry 22 May so it clearly was made after midnight. The first notation made is that that patient was previously well, the following notations are then recorded: "Weights at gym. No specific history of trauma. Recent bronchitis. Increased back pain with cough since last Friday (three days ago). Constant pain right lumbar region, no leg radiation, no paraesthesia/weakness. Bronchitis now settled. No history of gastric/renal disease." The doctor's findings are then recorded: that the plaintiff had an antalgic gait, that he found it difficult to move and was found to be tender over the right lumbar area, but the straight leg test was negative. Sensation on both the left and right hand sides was normal, his reflexes on both the left and right hand sides were normal and power on both the left and right hand sides were normal and his chest was clear. The provisional diagnosis made by Dr Butcherine was of probable muscular pain but the doctor said, "but no clear trauma history." Dr Butcherine then prescribed an X-ray, Panadeine forte as an analgesic, Naprosyn, a work certificate until the following Friday and said the plaintiff ought to be reviewed if his pain failed to settle. 1. On 23 May at 9.34am the plaintiff again attended the Wagga Wagga Base Hospital. He presented for review. He saw the medical practitioner at 10.30am. The doctor noted the plaintiff was still having lower back pain and was unable to tie his shoelaces and had only used Panadeine and some other medication as the need arose at night. The plaintiff made no complaint about walking. On examination there was no complaint of tenderness, and straight leg raising tests were again normal. The plaintiff's sensations and pulses were again normal and again the diagnosis was of muscular spasm and again an X-ray was ordered. The X-ray is reported thus: "There are mild spondylotic changes. The disc plates are normal. The anterior posterior alignment is within normal limits. No pars defect identified. There is a moderate scoliosis convex towards the left side." Muscle spasm would cause a scoliosis of the spine, alteration of the normal curvature of the spine. Muscle spasm explains the scoliosis, otherwise all the X-ray shows are some "mild spondylotic changes." Spondylosis can be described as degenerative change. Spondylosis is a condition of the vertebrae, spondyle being the Greek word corresponding to the Latin vertebra. For a vertebra to show degenerative change indicates that there may be degenerative disc disease because degeneration of the vertebra is secondary to degeneration of the disc. In other words this X-ray suggests some degenerative disc disease. The X-ray was taken on 23 May 1995. The plaintiff was then 33 years old. There is nothing abnormal with incipient spondylotic changes at that age. The spine only matures when a person is about 27 or 28 years old, and as soon as it fully matures, it starts to degenerate. 1. On 27 May 1995 Dr Keith attended the plaintiff's home at 12.50pm. A home visit voucher was made by the doctor at the time and has been stapled into the records of the Kooringal Road surgery. The notes contain this matter: "Right low back pain without radiation for some days. Was seen twice at emergency department Wagga Wagga Base Hospital. X-rays and exams apparently normal. Increasing pain again today in shower. ? Cause." The doctor then noted what medication had been prescribed and there wrote further prescriptions for medication. The plaintiff has a clear recollection of this event of the doctor's coming to his house. It was unusual in the experience of the plaintiff and there is no suggestion it happened at any other time. 1. The plaintiff clearly could not give the hospital any explanation of why the pain occurred or commenced on Friday 22 May 1995 nor could he give any history to Dr Keith of the reason for having back pain at the time. However, the plaintiff now asks me to believe that this episode of low back pain is causally related to the event of 3 March 1990 because it was part of a chronic history of back problems ever since 3 March 1990. The plaintiff did not say so and did not so allude in May 1995. The plaintiff presented a certificate of incapacity for work to his employer, NSW Police, from Dr Keith bearing date 27 May 1995 certifying him as being unfit from that date until 30 May 1995. The records of the NSW police show the plaintiff as receiving sick leave between 17 May 1995 and 29 May 1995. All told 70 hours off work, 64 of which were for a back condition and 16 hours of which were for bronchitis or pleurisy. It is clear that the certificate of Dr Keith dated 27 May 1995, exhibit 2, was submitted to the defendant by the plaintiff. That makes the plaintiff's protestations that he was loathe to inform his employer, the defendant, about having a back problem because he was afraid of being medically discharged, without any substance. 2. The next record of any problem with the plaintiff's back is exhibit 3 which is a "Sick Leave Report" made by Senior Constable Swain following upon one of his colleagues reporting an absence from work. The plaintiff phoned the Wagga Wagga Police Station at 2.02pm on 26 October 1996. He was rostered to attend work on that day. He reported that he had a back injury but it was unknown whether it was work related or not. There then six questions which are unnecessary to recite. Suffice to say that recorded telephone call again suggests the plaintiff was not adverse to telling his employer that he had a back complaint. It would have been easy if he had been trying to conceal such a back complaint to advance the usual reason given for absences from work, namely a cough, cold, sore throat, flu, vomiting or diarrhoea, especially when it was only necessary for members of the NSW Police to lodge a certificate of absence from work if there were to be three consecutive days of absence from work. However, there is some suggestion that in October 1996 the plaintiff may have had problems other than back problems. There is no medical evidence suggesting a back complaint in October 1996. 3. The general practitioner's records tell me that on 29 May 1996 the plaintiff complained of tendonitis of the left wrist which he had had for some five weeks from an original hyper-flexion type injury which was not work related. The plaintiff told Dr Keith that he had been advised by the SPSU that he could not do pistol practice until his left wrist improved because the plaintiff was left handed. Again that indicates that in May 1996 the plaintiff was still active in the SPSU and that the only problem he had was because of this left wrist injury which was not work related. 4. It appears that towards the end of 1996 the plaintiff's father, who was severely ill with cancer, died of that condition. That caused the plaintiff some emotional distress. However, the first record of any distress in the plaintiff's general practitioner's notes does not occur until 15 September 1997. The entry for 15 September 1997 was made by Dr Peter Keith and records that the plaintiff was very depressed "still". However, there is no earlier entry concerning depression. Dr Keith noted the plaintiff was on Prozac 20 milligrams per day. The plaintiff told Dr Keith that he didn't want his "boss" to know about his problem. The plaintiff told the doctor that he was "battling on at work." The plaintiff told the doctor that he was not eating at all well and couldn't be bothered with feeding himself. The doctor scheduled a review in a week's time. That occurred on 23 September 1990. The plaintiff was then even more depressed, he was only just coping at work and by that stage the plaintiff had advised his employer by telling Acting Inspector Kane. The plaintiff was going to stay with his brother-in-law as it was thought it was not satisfactory for the plaintiff to be by himself. The plaintiff was not eating or sleeping at that time. Dr Keith noted that the Police Service would try to get the plaintiff assessed by a psychologist. The plaintiff was given a certificate of between two and four week's unfitness for work, he was to continue taking Prozac and he was to try obtain appointment with another, I infer, expert practitioner. 5. In fact the plaintiff saw Dr Rodney Morice, a specialist psychiatrist at Albury, on or shortly before 9 October 1997. The history recorded by Dr Morice commences thus: "Thank you for referring this 35 year old police officer who has been troubled by depression since his partner left him three months ago. He says he is devastated by this break up. She, in fact, went to Queensland before going overseas and he was planning to meet her overseas next year, and three months ago she phoned him and told him she no longer wanted to have anything to do with him. She had previously wanted to separate in January on the basis that he would often push her away and not hold her hand in public, but he tried to mend his ways and he believed that their relationship was a very happy one until this separation." The doctor increased the plaintiff's Prozac from 20 milligrams each morning to 40 milligrams each morning and then added a further 1.5 grams of another drug to be taken at night. There is a further report from Dr Morice which bears no date but appears to have been made shortly after 1 November 1997. The report continues thus: "After several visits with increase in his medication, Mr Learmont has finally recovered from his quite severe depression with some obsessional features. In fact he worked last Thursday feeling much better. He decided he would go home and get back into his normal life. He is now doing everything that he used to do. He is able to do shopping, he has taken up his running regularly and his attendance at the gym. He returns to work this afternoon on a fulltime basis and now he only occasionally thinks about his ex girlfriend." I know the plaintiff's sick leave expired on 1 November 1997 so he would have returned to work either on 2 November 1997 or shortly thereafter. At that time the plaintiff was on 16 milligrams of Prozac and the plaintiff was advised by Dr Morice to stay on that medication until September 1998. 1. In March 1998 the plaintiff saw Inspector Jennifer Lette, the chief psychologist of the NSW Police. Her synopsis of what occurred at that time is this: "Andrew was interviewed by me as part of the ongoing psychological management of SPSU personnel of which he was a member. During that interview Andrew told me that in September 1997 he suffered from a depressive illness that required treatment with a Psychiatrist and anti-depressant medication for five weeks. He also allowed himself of five weeks sick leave followed by two weeks of annual leave while he recovered. Andrew told me that his depression arose after his then fiancée ended their relationship." It is significant that Inspector Lette was examining the plaintiff as a result of the "ongoing psychological management of SPSU" of which the plaintiff was then still a member. 1. Exhibit 27 is two certificates from Dr Edward Mishricky of the Kooringal Road Surgery in total certifying the plaintiff is unfit for work between 31 March 1990 and 10 April 1990. Unfortunately the contemporaneous records of the practice are not before me, despite attempts by everyone to put them before me. What is missing is p 5 of the manuscript progress notes of the practice. From 16 January 2003 the records were computerised. However, in April 1990 the plaintiff was reviewed by the police psychologist. Inspector Lette's summary is this: "Andrew was seen by intern Psychologist Michelle Mattar after he was referred by his then commander Mr Bradshaw. Mr Bradshaw was concerned about Andrew's anger and irritability at work as well as some performance concerns. During that interview Andrew informed Ms Mattar that he had acquired six months of antidepressant medication during 1997 rather than the five weeks he had earlier reported to me and that his GP had prescribed a fresh course of antidepressants for him two weeks ago but that he had not yet started that medication. Andrew further told Ms Mattar that he was experiencing anger management problems and that he had recently experienced an angry outburst during which he assaulted another police officer. As a result of that interview Andrew was referred to Clinical Psychologist John Flockton in Wagga Wagga for assessment and treatment." 1. Mr Flockton examined the plaintiff on 11 May 1999. Mr Flockton noted the plaintiff was showing mild to moderate distress, evident by apprehension and handwringing. His primary facial expression was "muted to worried." His mood was "neutral to anxious." After taking a personal history, the history obtained by Mr Flockton is this: "He set out completing his training at Goulburn, he was appointed to Castle Hill/Windsor then Richmond before being transferred to Wagga Wagga some ten years ago as a constable. In the intervening period he served in a special weapons section [scil.SPSU], however then referred to "problems." He said he was told by a supervising officer at the time to "go and sort yourself out a bit," an apparent reference to his "attitude problem" and the persistent relationship difficulties, particularly with trainee instructors. He said after four years he withdrew from his role and since then has basically served in general duties." One will note that the reason the plaintiff resigned from the SPSU was an interpersonal relationship with is instructors, it had nothing to do with his allegedly bad back. Eventually the plaintiff conceded that may have been the case. The plaintiff's attitude problem may have been the result of a psychiatric illness but the reason I have quoted the psychiatric histories so far is to show that the psychiatric condition has nothing to do with the plaintiff's allegedly bad back. There are then a further three paragraphs which describe interpersonal conflict with the public, his employer, his superiors and his workmates. In par 9 of Mr Flockton's report is this: "In relation to his health, SC Learmont reported being physically fit due to regular attendance at a local gym and running. He said as a result he was able to "settle down a bit" and it seemed he was reliant on physical exercise as a primary means of arousal and stress management." Again, that is completely inconsistent with what the plaintiff asked me to believe about his bad back and of a reduction in his capacity to do gym work and running. In fact he was continuing to do both because they helped to control his mental condition. 1. Mr Flockton's report then continues thus: "SC Learmont then spoke at some length about a previous depressive episode, some two years ago. This appeared to be precipitated by the death of his father from cancer and SC Learmont's difficulty in being able to deal with constant exposure to his father's deteriorating condition. About the same time he reported the termination of a two year relationship with his girlfriend departing for overseas. He said he made an arrangement for him to join her at some stage, however she contacted him two weeks after she left to say that she did not want this to happen. He suggested that this was probably a deliberate strategy on her part, and remains a perceived rejection which holds some impact for him. SC Learmont describes his current alcohol use as being 'pretty good'. He said that at the time of his previous depressive episode he engaged in regular heavy binge drinking, mainly with two or three other police colleagues. He said during this time 'it just got worse'. Although he denied any specific sequelae he commented that some four days prior to present interview he had drunk continuously from 1pm to 3am the following morning after the Wagga Wagga Gold Cup race meeting. He said he consumed full strength beer and did not eat at all during this time. He described himself as being obviously drunk and then mentioned 'a few blank spots of memory.' This appeared to cause him some concern although he tended to minimise the frequency of what appears to be alcohol related blackouts by claiming these occurred 'a few times, I wouldn't say all the time.' With further reference to the depressive episode he said he was absent from work for some eight weeks and received psychiatric treatment. He mentioned taking prescribed medication, he thinks Prozac, although ceased doing so after he woke up one morning and considered that he had been relieved of all depressive symptoms. Later in interview he mentioned that the psychiatrist had diagnosed obsessive compulsive thought disorder which would be consistent with the prescription of Prozac. He said during this episode he did not shower for five day and virtually lost all appetite. From SC Learmont's description it would seem that this was a severe depressive episode possibly triggered by multiple stressors, sufficient for his brother, who is a general practitioner and his sister in law a nurse, to take responsibility to arrange psychiatric care for him. He stated he was concerned about the possibility of 'slipping into depression again' although he seemed somewhat reluctant to receive medication and could offer only a passive acceptance of the offer of further psychological treatment." The history is lengthy, and time to deliver reasons is short. The important thing to bear in mind is that nowhere does Mr Flockton record any suggestion of ongoing chronic low back pain contributing to the plaintiff's psychiatric distress. 1. The circumstances leading to the plaintiff's voluntary resignation are contained in a report of Inspector Goodyer of 25 January 2001. In that report Inspector Goodyer says this: "In July 1999 I was the acting local area commander when Andrew's situation was being examined holistically, ie health, performance, attitude and commitment. I had already conducted one managerial counselling session with Andrew in the presence of the Region Human Resource manager and when this failed to produce positive results I arranged with his immediate supervisor, Sergeant Keith, to attend my office with Andrew to discuss a remedial performance agreement. I was advised by Sergeant Keith that when confronted with this Andrew became extremely tense and agitated and paced up and down in a room adjacent to the foyer of the station. He apparently answered that he just wanted to be left alone. When he eventually attended the local area commander's office with Sergeant Keith I observed that he was tense, wouldn't look at me whilst I was talking to him and noticed his hands trembling. I explained at length the procedures involved in employee management and how the process applied to him. He was informed that the time had come for him to be placed on a remedial performance agreement, however he appeared totally bored with the conversation and continually asked what would happen if he refused to take part in the agreement. The options were clearly explained to him including s 173/181D process. It was around this time that rumours were circulating about Andrew's business interest in a local hotel and the possibility that he was to become a licensee. At no stage did Andrew approach or discuss this issue with either myself or the substantive commander, Superintendent Bradshaw. After our meeting Andrew reported off sick and a short time later submitted his resignation and was unable to be contacted despite efforts by several duty officers." That, in essence, is the second page of Inspector Goodyer's report. The first page comments upon the plaintiff's poor work performance and attitude and the plaintiff appearing to be withdrawn, disinterested and unmotivated. There is also reference to the plaintiff's being resistant to change in the police force and of his shirking work. There is also reference to his having difficulty relating to senior officers. The report also refers to the plaintiff having a prolonged period of sick leave for stress related matters and of his return to work on restricted duties and then complaining that he was performing restricted duties. 1. It is clear that the plaintiff was having problems of a personal nature with his employer, perhaps mediated by his psychiatric condition, and that was the immediate precipitating cause for his submitting his resignation. There is no contemporaneous evidence whatsoever that the plaintiff's ceasing work on 12 August 1999 had anything at all to do with the alleged low back condition. The plaintiff's protestations to the contrary cannot be accepted at all. 2. It appears that the police grapevine works a little more effectively than the legal grapevine because, as thought by Inspector Goodyer, the plaintiff commenced working at the Duke of Kent Hotel in August 1999 according to exhibit 15, although according to exhibit 13 he was the licensee and owner of the Duke of Kent Hotel between 3 October 1999 and 14 July 2003. The simple fact is the plaintiff may well have worked as an employee of the outgoing owner/licensee before becoming the owner/licensee himself. There is reference in the documentation before me that the plaintiff was in partnership with another gentleman, who is merely identified in one place as "Wayne." 3. It appears that the plaintiff regretted his resignation from the NSW Police and perhaps found working as the owner/licensee of the Duke of Kent Hotel not to his taste because the plaintiff sough to re-join the NSW Police in the year 2000, that is just over a year after he left the Police Force. On 3 November 2000 the plaintiff completed a medical history declaration form for the NSW Police. It is exhibit 7. He was asked if he had any disease, impairment or disability and answered in the negative. He was asked whether he was currently taking any medication or other drugs prescribed or unprescribed. He answered in the negative. He was asked whether he applied for, or intended to apply for, any pension or compensation for injury, illness, impairment or disability and replied in the negative. He was asked whether he had ever been absent from work or applied to perform alternative duties because of work related injury or illness. He answered in the negative. He was asked if he had ever been unable to hold a job because of medical reasons and he answered in the negative. He was asked whether he had been admitted or treated at a hospital, clinic, including a psychiatric clinic, and replied in the negative. He was asked whether he exercised and he stated on this occasion that he spent approximately six hours per week doing gym work and running. According to what was written by the plaintiff over the years his exercising after the event of 3 March 1990 increased from four hours to five hours and by 2000 was six hours a week. The plaintiff was asked whether he had ever had or presently had a back pain or back injury and the plaintiff replied in the negative. He did admit that he had suffered from depression four years previously for approximately two months. I am now asked to believe that the plaintiff had a chronic ongoing back pain resulting from the event of 3 March 1990 and that it was one of the reasons that caused him to give up work in the Police Service on 12 August 1999. 4. The plaintiff then wrote a report as if he were still a member of the NSW Police, dated 23 November 2000, which I infer he sent in with exhibit 7. That document is exhibit 6. It refers to his psychiatric difficulties following the death of his father from cancer and the end of a long term relationship with his former de facto wife. The plaintiff then asserted that after his psychiatric illness he returned to work and continued to work on normal duties at Wagga Wagga without any further incident for "a further four years." He then stated he had recovered from the depression caused by the death of his father and the departure of his de facto and then stated "I am both physically and mentally prepared to accept the further challenges that I may encounter" in the NSW Police – a clear protestation that he was physically fit to do full police work. 5. It would appear that it was not long before it was drawn to the plaintiff's attention that his re-joining the NSW Police was not supported by Inspector Goodyer. On 14 February 2001 the plaintiff met with Inspector Goodyer at Wagga Wagga. According to a report of Inspector Goodyer of 24 February 2001 the plaintiff "admitted that his exit from the service was not as he would have liked and that he was having difficulty coping with organisational change and personal issues at the time." Inspector Goodyer's second report continues thus: "Andrew expressed regret at the way he left the service and explained to me his desire to make a fresh start. I believe that to make contact with me and discuss the issues surrounding his application being rejected is a strong indication that Andrew is willing to confront, rather than avoid, difficult situations. This is in stark contrast to the way in which he would handle such situations prior to his resignation. The changes in Andrew's personal life and his outlook on his future and career direction have caused me to reconsider my opinion as to his suitability for re-employment as a police officer." 1. On 12 March 2001 the plaintiff wrote to the Recruitment Branch of the NSW Police advising that he had received notice of rejection of his earlier application because of adverse reports. He then referred to his having been again interviewed by Inspector Goodyer and asked for the Service to reconsider his application and referred to seven supervisors who had submitted reports that supported the plaintiff's re-joining the NSW Police. On 27 March 2001 the acting manager of the Recruitment Branch wrote back saying that he did not find the plaintiff's application "competitive" and said that there remained doubt as to his "honesty, reliability and some aspects of integrity." 2. The plaintiff was not prepared to abandon his application to re-join. He again wrote to the Recruitment Branch on 20 July 2001. In that letter he accepted that the cause of his resignation from the Police Service on 12 August 1999 was because of the progressive deterioration in the relationship between him and his then senior officer, Superintendent Bradshaw. The plaintiff again asked to be re-engaged pointing out that he was prepared to work outside the Wagga Wagga LAC and requesting a personal interview. However, the documentation before me does not show what happened as a result of this request. 3. The next relevant event is a recorded complaint of low back pain. On 16 January 2003 the plaintiff attended upon Dr Peter Keith. He gave a history of a recurrence of low back pain and some radiation to his buttocks. This is the first occasion on which radiation of pain was mentioned. The plaintiff told the doctor of the severe episode at home eight years previously, 1995. We do know that was when Dr Keith attended on the plaintiff at his home. There is no reference to any work related back injury. Straight leg raising was limited to 70 degrees on each side, however the reflexes were normal and there was no vertebral tenderness. The plaintiff was prescribed Voltaren and sent for an X-ray. X-ray was performed on 17 January. The clinical notes recorded by the radiologist, Dr Scott, are of recurrent low back pain with some radiation into the buttocks. The full description of the radiological appearance is this: "Narrowing of the L2/3 intervertebral disc space is present with peri articular lipping. Elsewhere the heights of the vertebral bodies and disc spaces are maintained with minor lipping about the intervertebral discs. The pedicles are intact and no other focus osseous lesion is seen, apart from sclerosis especially on the right side at the sacro iliac joint which is in keeping with altered stress lines and degenerative change." The radiologist then raised the possibility of a discal protrusion at the L2/3 level but thought that further investigations were required if it was thought to be clinically relevant. The plaintiff re-attended upon Dr Keith for a review with the X-ray report on 23 March 2003. The plaintiff told him of still having low back pain. It was hindering the plaintiff performing his full work, which was his work at the Duke of Kent Hotel. The doctor's notes refer to him ordering a CT scan of the low back on 5 February 2003. It appears that the doctor overrode that decision later because a stamp shown on the radiological report of 17 January 2003 is marked "forget CT referral." The inference to be drawn from the clinical notes is that the plaintiff did not return to see Dr Keith about this episode of back pain after 23 January 2003. 1. On 14 July 2003 the plaintiff settled the sale of the Duke of Kent Hotel and ceased working as the owner/licensee. The plaintiff's subsequent employments need to be noted. They are recorded on exhibit 15. Between 28 October 2003 and 12 November 2003 the plaintiff was employed as a factory hand at Riverina Wool Combing Pty Ltd at Wagga Wagga. Between 20 November 2003 and 20 December 2003 the plaintiff worked fulltime for Teasco Pty Ltd installing aluminium windows. Between 5 January 2004 and 25 February 2004 the plaintiff worked fulltime installing air conditioning for Martin & Wheeler Pty Ltd of Wagga Wagga. Commencing in March 2004 the plaintiff started working as a telecommunication cable installer for Joney's Pipe and Cable, which appears to have a corporate name of Earthmoon Pty Ltd, of Albury North. The plaintiff was still so employed when he wrote exhibit 15 which was 17 June 2004. The plaintiff clearly did manual work and during cross-examination he did his best to down play the significance of that manual work and to downplay the extent of the stresses which it threw on his back. I have grave difficulty in accepting much of what the plaintiff said in that regard. 2. On 15 October 2003 the plaintiff saw Dr Peter Keith. The note recorded in the records of the general practice is this: "Seen earlier today for about 45 minutes doing major part of police application medical. Issue of declaring to previous significant episodes of depression 1997 and 2000!" On the same day Dr Keith wrote a referral letter to Dr Ian Smee, a cardiologist at Wagga Wagga. The reason for the referral was that the plaintiff needed a cardiac stress test as required by a police application protocol. Dr Smee saw the plaintiff on 3 October 2003. According to Dr Smee he "maximally stress tested him" and found no evidence of coronary disease, arrhythmia or abnormal resting blood pressure at that time. Dr Smee's report of 5 November 2003 was received at the Kooringal Street Surgery on 17 November 2003. On 15 December 2003 Dr Keith wrote a referral letter referring the plaintiff to Dr Robert Lewin, a psychiatrist. The referral letter is exhibit 29. The reason for the referral was that the NSW Police required an up to date psychiatric report as per its guidelines which Dr Keith attached to the letter of referral. According to Dr Keith, the relevant past history was 4 April 2000 when the plaintiff was depressed and on 16 January 2003 for right back pain radiating into the plaintiff's buttocks. At some stage the plaintiff did see Dr Lewin, however his report has not been put before me by either party. 1. What I do know, however, is that the plaintiff's further application for re-employment was not supported by anything from Dr Keith or Dr Smee or Dr Lewin, but by documents prepared by Dr Gerber, who had previously only seen the plaintiff once on 14 May 1996 in connection with a police medical, when the plaintiff was thought to have a Mitral valve murmur only when lying down. On 30 December 2003 the plaintiff went to Dr Gerber at the Peter Street Medical Centre and told the doctor that he needed referrals for a police medical application and for testing. He told the doctor he needed a stress ECG and a psychiatric review. The plaintiff told Dr Gerber he didn't have the forms with him but he would return with them. There was also a history of a nephew having a problem but the notes are quite indecipherable. In any event Dr Gerber sent the plaintiff to Dr Peter French, a cardiologist in the ACT, who again administered a cardio stress test and wrote a report, the last sentence of which is this: "However, there is certainly nothing on this test to suggest that he is other than fit and healthy and hence should be able to re-join the police force without any problems." Certainly no complaint could have been made to Dr French of an inability to do police work because of a chronic low back pain. 1. Dr Gerber also sent the plaintiff to Dr Robert Tym, a psychiatrist in the ACT. The plaintiff told Dr Tym of a severe reaction after the death of his father and of his subsequent breakdown of his relationship with his then partner because of his own emotional difficulties following the death of his father. The doctor then took a history of the plaintiff's being off work for two months on sick leave and of attending Dr Morice, who is merely referred to as a psychiatrist in Albury, and taking 20 milligrams of Fluoxetine for two months but receiving no help from that medication. Dr Tym diagnosed a probable diagnosis of a severe grief reaction with no evidence of any mental disorder or mental illness of any kind. Dr Tym under "current treatment" said this: "He is on no current treatment and has none for the past seven years and needs none. The probability is, in hindsight, that he never did need any antidepressants they were given as a precaution against the possibility that he might have developed a mental illness, which he obviously did not." Under the heading "Impaction [sic] on fitness" Dr Tym said this: "There is no evidence to suggest that the condition, long past, impacted or will impact on the applicant's fitness to carry out full operational policing duties and, in particular, there will be no impact on the ability or safety in handling firearms with live ammunition." As an aside let me point this out. The word "impact" is a noun. The verb is "to impinge". People started using the noun as a verb because it sounded "beaut". This unfortunate, and completely unmeritorious, grammatical error has now led to people thinking that impact is a verb and, therefore, one must make a new noun and invent "impaction." This is the way in which a language deteriorates and loses it intelligibility. The report of Dr Tym does not give an adequate psychiatric history at all and is quite misleading. One might think as the evidence does suggest that the plaintiff was advised by Dr Keith, perhaps Dr Lewin, that they could not support his application to re-join the NSW police and that the plaintiff then saw Dr Gerber and got two doctors from the ACT who would support his application. 1. Just to show how mendacious Dr Tym's history was I should return to the other psychiatric medical evidence. The plaintiff saw Dr Murray Wright, a consultant psychiatrist, on or about 3 April 2000. He diagnosed a recurrent major depression with prominent anxiety features. Dr Wright noted the plaintiff had several episodes of that condition in the past, usually precipitated by a breakdown in a relationship. The recent significant life events that affected this episode of current major depression were again the breakdown of the plaintiff's former de facto relationship, his departure from the Police Service and the buying of a hotel. On 3 April 2000 Dr Wright was told by the plaintiff that he had pervasive loss of happiness and pleasure, significant anxiety symptoms, was often ruminating about his former girlfriend and had an inability to turn off those ruminations. He had broken sleep, depressed appetite and weight loss and thought that life was not worth living, and that he also had impaired concentration. 2. What caused the plaintiff to go to Dr Wright was his attendance upon the Community Mental Health Team at Wagga Wagga some time prior to 27 March 2000. On the occasion the plaintiff first presented there he was told to come back in ten days and the second attendance was on 27 March 2000. One might say, therefore, that the plaintiff attended upon the community mental health team on or about St Patrick's Day 2000. The plaintiff gave a history that he left his trade because he disliked it and gave a history of joining the Police Force at the age of 23 and that he left the Police Force "as he would say what he thought and this resulted in some conflict." There was a past family psychiatric history, and a past medical history but no mention of any ongoing, recurrent, chronic low back problem. At the time the plaintiff said he was working as a manager of the Duke of Kent Hotel, which was correct, and he told the maker of the mental health team notes that he was working 100 hours per week as that manager. The recent stressor recorded was that the plaintiff had broken up with is girlfriend of 12 months causing his previous symptoms of depression and obsessive compulsive disorder to re-appear. The plaintiff gave an alcohol history which indicated that when he was in the police force he used to binge drink every weekend and consume between 15 and 20 beers. 3. The plaintiff remained under the management of the community mental health team until he was admitted to hospital on 21 June 2000 at 6.50am with the diagnosis of depression. The discharge summary has this: "Andrew Learmont was brought in by his sister to accident and emergency. He was depressed and had suicidal ideation. He was admitted to the ward on a voluntary basis, however he became more unhappy on the ward and decided to discharge himself, which he was able to do since he was a voluntary patient. He was assessed by Dr Paton on 22 June 2000, the next day as an out-patient. Dr Paton noted he had a severe recurrent depressive episode with a poor response to Prozac and suggested he change to Effexor. There has been a recent job switch and a new business and he was working hard. There was a deteriorating relationship with his girlfriend. Dr Paton suggested that he return to his sister's home, increase his Effexor gradually, perhaps take Melleril, be reviewed by Lee Smith and be reviewed by the psychiatrist at community mental health." The discharge summary noted the plaintiff was on 75 milligrams of Effexor in the morning and 75 milligrams of Melleril at night time. The last note from the community mental health service bears date 21 June 2000 and it is clearly prior to the plaintiff's being seen by Dr Paton. The medical evidence, therefore, suggests the plaintiff had severe psychiatric problems in 2000 including suicidal ideation which was never mentioned to Dr Tym at all. Furthermore it is clear the plaintiff required significant psychiatric medication. 1. I return now to what happened after the plaintiff saw Dr Gerber, and Dr French and Dr Tym in Canberra. The plaintiff submitted a medical history assessment which is dated 5 January 2004 by the plaintiff and 9 January 2004 by Dr Gerber. The advice section of the application gave advice as to operational policing duties. It was pointed out that an applicant was physically required to restrain individuals and utilise self-defence techniques where necessary, was required to walk long distances while performing beat duty or stand for lengthy periods when on traffic duty and was required to perform shifts of up to 12 hours duration, or longer if required, day and night any day of the year. The first section of the report required the plaintiff to disclose all previous illnesses, injuries, medical conditions and investigations he had undergone, no matter how minor. Under the heading "sporting/recreational" history the plaintiff said he had been a member of a local gym from 1999 to 2003. When asked if he ever ceased any sports or recreation activities for medical reasons he responded "No" but nevertheless I am asked to believe that he gave up road running and restricted his gym work because of chronic back pain. The plaintiff was asked if he had any pain or injury to his back or neck and answered negatively. The plaintiff was asked if he suffered depression and he answered positively. The plaintiff was asked whether he had ever been diagnosed with obsessive compulsive disorder and answered in the negative, which was untrue. The plaintiff was asked whether he had any visits to any psychologists or counsellor or psychiatrist for any reason to which he answered positively. The plaintiff was asked whether he had any admissions to hospital for psychiatric or psychological problems which he answered in the negative, and that clearly is untrue. When asked about his depressive illness the plaintiff wrote that in 1998 he was diagnosed with depression and was on Prozac for three months only, that is also untrue. The final question to be answered by the plaintiff was this "Are there any other medical conditions, injuries, operations, hospitalisations or operations including day surgeries (for example, arthroscopy) that have not been declared above?" to which the plaintiff answered in the negative. I am now asked to believe that this form was incorrectly answered. 2. Of more importance this form includes a second section which is a medical examination conducted by Dr Gerber. The doctor was asked questions about the back and hips. The symmetry of the spine was said to be normal, rotation with feet fixed was said to be normal, on forward flexion the plaintiff could touch the ground and on backward extension the plaintiff had a normal range. When asked the degrees of extension, tone, power, reflexes and sensation in the lower limbs the doctor said that they were all normal. The doctor then formally certified the plaintiff as capable of performing all the activities of a year one and year two diploma of policing practice. The plaintiff was medically capable of performing all the duties of operational policing and he was fit to use a firearm. In other words, as far as Dr Gerber was concerned, there was nothing wrong with the plaintiff's back. 3. The plaintiff supported this application by submitting to the NSW Police on this occasion reports from others with whom he had worked. There was a report made by Inspector Anthony Day on 31 October 2003, with whom the plaintiff had worked closely for three years at Wagga Wagga. There was also a report from Inspector J H Barr dated 3 December 2003 who had worked with the plaintiff at Wagga Wagga. There was also a report from Inspector Keith of 12 November 2003, which is in fact the second report by Inspector Keith. He had written an earlier one on 13 January 2001 which did not support the plaintiff's re-joining the police force. That of 12 November 2003 did, but it was clearly after the plaintiff met with Inspector Keith at Albury on 29 September 2003. The plaintiff also supported his application with a report from Detective Sergeant Smith of Wagga Wagga, again a man with whom the plaintiff had previously served. Not one of those gentlemen refers to any chronic low back condition or any complaint by the plaintiff that he is unable to perform his work as a serving senior constable of police. The plaintiff now would have me accept that all these certifications of fitness were wrong because the plaintiff was suffering from chronic low back pain and had been since 3 March 1990. ADJOURNMENT 1. When I adjourned shortly after 5 last evening, I had been discussing the material provided by the plaintiff to the NSW Police seeking to support his readmission to the Police Force and commented on what that material did not show. However, before the plaintiff actually re-joined the Police Force, he had a further experience of low back pain. On Monday 26 April 2004 the plaintiff's wife called the WGPAHS by telephone. I infer that the initials stand for the Wagga General Practice After Hours Service. The plaintiff's wife spoke to a triage nurse, Gillian Burmeister. 2. The plaintiff's wife advised Ms Burmeister that the plaintiff had hurt his back moving furniture more than a week before. She went on to say that over the last two days the plaintiff was having difficulty walking. She advised Ms Burmeister that the plaintiff was in severe pain. That call was made at 8.57am. At 10.49am the plaintiff saw Dr Adel Solomon, presumably at the WGPAHS, and told him that he had back pain. Dr Solomon prescribed Panadeine Forte and Valium and advised the plaintiff to see his normal general practitioner, Dr Keith, for a CT scan of his back. The progress notes made by the WGPAHS were forwarded to the Kooringal Road Surgery on Wednesday 28 April 2004 but the plaintiff did not attend Dr Keith in April 2004 at all. In fact, his next attendance upon Dr Keith was on 30 November 2004 when he complained of diarrhoea for three to four days and having abdominal pain as well as the diarrhoea. However, there was no history of vomiting. Dr Keith organised some pathology tests on that day and prescribed Imodium, presumably to stop the diarrhoea. It would appear, therefore, that the back pain which caused the plaintiff to consult the WGPAHS on Monday 26 April 2004 was transient but had been precipitated by moving furniture more than a week before 26 April 2004. 3. In April 2004 the plaintiff was working as a telecommunications cable installer and it is unclear whether the injury happened at home or at work. I assume that it happened when the plaintiff was at home. On 17 June 2004 the plaintiff sent a further letter to the recruitment branch of the NSW Police outlining his employment history after he left the Police Force in August 1999. That communication is exhibit 15. This application to re-join the Police Force was successful and the plaintiff re-joined the NSW Police on 3 April 2005. He took up a position as either the lock-up keeper at Adelong, or as a lock-up keeper at that town. 4. On 15 July 2006 the plaintiff submitted an expression of interest to undertake training as a weapons trainer. In that application the plaintiff pointed out that he had been stationed at Adelong for 14 months after completing his "re-joinee class in April of 2005." In that application he said this of his earlier service: "I have received specialist training in Specialist Weapons and Tactics (SWAT) at Wagga Wagga in my duties as a SPSU operator. I have been [an] SPSU operator from 1991 to 1998. During this time I have been involved in a number of high risk incidents where I was able to handle my duties competently and professionally. I have above average level of fitness and believe that I have the abilities and aptitude for undertaking this type of training." The important thing to note is the plaintiff suggested that he had an "above average level of fitness" and does not state that he was in any way incapacitated or incommoded by intermittent chronic low back pain. That application was supported by the duty officer as Tumut, the supervisor at the Tumut Police Station and the EDO, who noted on the application that the plaintiff was awaiting a position on the course as at 18 September 2006. The evidence does not disclose whether the plaintiff took up that role, as far as I can recollect. 1. On 31 August 2008, when he was still serving at Adelong, the plaintiff injured his lower back. The incident was reported to the plaintiff's supervisor on that day. The report, which is exhibit 17, tells me that whilst restraining a violent offender the officer twisted his back in "the wrestle," causing immediate pain and some discomfort to the lower back. However, this was a no time lost event according to the person making the report. 2. There was a further report of an incident when the plaintiff was at Adelong on 5 November 2008. Again, the injuries stated were an injury to the lower back and to the neck. The narrative supplied by the plaintiff is this: "Police were in the process of arresting an offender for a domestic violence assault. The accused person ran from police and concealed himself in long grass in nearby bushland. Whilst patrolling through bushland in the police vehicle searching for the accused, the police vehicle dropped heavily into a deep ditch in the long grass. The injured officer felt an immediate sharp pain in his lower back area, whiplash to his neck. The officer suffered a similar [injury] to his back recently in arresting a violent offender." This was a notification of the incident only and no time loss was envisaged. However, that did not remain the situation. Exhibit 19 is a claim form completed by the plaintiff on 14 January 2009. It is addressed to the Treasury Managed Fund and to Allianz. It appears that Allianz was acting as the agent or manager of the Treasury Managed Fund. It concerns the event of 5 November 2008. When asked if the plaintiff had suffered any similar injuries he referred to the event of 31 August 2009 but to no other event. One of the questions asked in the form is, "Was this part/s of your body normal before the injury? Give details." The answer given by the plaintiff is, "Yes," a representation that his low back was normal prior to the event of 5 November 2008. 1. On that exhibit "employer details" have been provided by a person other than the plaintiff on behalf of the employer. They recite that the plaintiff was transferring to the Wagga Wagga LAC on 25 January 2009 and that the claim would be managed by "Wagga Wagga", presumably meaning Wagga Wagga LAC. There was also a report made by the plaintiff on 22 March 2010 indicating that on completion of a three year term at Adelong the plaintiff transferred to the Junee Police Station on 11 January 2009 as a lock-up keeper, but then on 13 December 2009 transferred to the Wagga Wagga LAC "due to an injury as I wasn't able to continue my full duties". The inference to be drawn from the document is that the plaintiff was put on restricted duties as a result of a lower back injury that occurred on 5 November 2008. 2. As I stated yesterday, the plaintiff submitted his application under s 12D of the Act on 27 October 2010. In that application the plaintiff refers to the injuries of 31 August 2008 and 5 November 2008 aggravating his earlier back condition. By 30 October 2010 the plaintiff was on permanent restricted duties and eventually was discharged on 15 April 2012 and received the payout for PTSD that I mentioned earlier. On 21 July 2012 the plaintiff made an application for a Medical Discharge Benefit pursuant to s 10B(2) of the Act. I have been told from the Bar table that that application is still being considered. That application was made almost three years ago and probably consideration of it has been delayed by the current proceedings. 3. In support of this application the plaintiff relies upon the report of Dr W G D Patrick which I mentioned yesterday and has also placed before me reports from doctors who have treated him since 5 November 2008 and also reports from two other practitioners who have been qualified by the plaintiff's solicitors, Dr Peter Giblin and Dr James Bodel. 4. In the first paragraph under the heading "Opinion", Dr Patrick said this: "Mr Andrew Learmont presents as genuine. He has, I believe, sustained a significant back injury when hurt on duty on 3 March 1990 when he was punched, knocked to the ground and kicked in the back multiple times when assaulted by the offender in Wagga Wagga as described. I believe this incident has resulted in significant back injury with effect on both lumbar and lower thoracic spinal regions, with the likely lumbar facet injury with subsequent development of retrolisthesis at L2-3 level and also disc bulges at T12-L1 at the thoracolumbar region and possibly some disc injuries at L1-2 level below and also at L3-4 and L5-S1 discs. He was thought by Dr Haider in January 2009 to be suffering from some right sided radiculopathy at L2-3. A lumbar discography in about July 2009 there was positive discogram at L5-S1 level." Shortly thereafter Dr Patrick said this: "With the history and sequence of events as given, supported by findings on clinical examination, it appears that there is little doubt that he was generally unfit and unable to carry out his police duties at the time when he resigned in 1999, this unfitness being consequent ultimately upon his significant back injury sustained in March 1990. There were significant mental/psychological issues also at the time when he resigned in August 1999, but I believe the evidence is that he would have been unable to carry out his police duties on the basis of his physical injuries in isolation (back injury). I do believe that at the time when he has rejoined the police force in 2005 it is, I believe, highly unlikely he would have been capable of passing the physical involved in re-joining without the assistance of considerable medication, including analgesic and muscle relaxant medication, due to the degree of his continuing back injury." 1. The latter opinion is completely insupportable. The only reasons given and available on the evidence before me for the plaintiff's resignation in August of 1999 were the plaintiff's personal differences with his superiors at the Wagga Wagga Police Station and there was no mention contemporaneously of any back problem. The plaintiff was accepted back into the Force, having been certified fit for work, and worked between 3 April 2005 and, I infer, early 2009, as a general duties senior constable of police. The only suggestion of why the plaintiff stopped work is the event of 5 November 2008. 2. Further in his opinion Dr Patrick said this: "The specified infirmity of body or mind which so disables him consists of the thoracic and lumbar facet injury and thoracolumbar and lumbar disc injuries, with evidence of resultant radiculopathy." Dr Patrick goes on to certify a 31% permanent impairment of the back, an 8% permanent loss of efficient use of the left leg at or above the knee and a 5% permanent loss of efficient use of the right leg at or above the knee. 1. Dr Giblin saw the plaintiff on 11 October 2011. The diagnosis which he provided is this: "Based on his history and examination, this gentleman has the provisional diagnosis of a significant soft tissue injury to his low back, initially occurring in the course of his work in March 1990 and subsequently, being re-aggravated in a material fashions in the injuries as noted from 2008 and 2009." The latter two dates I infer are reference to the events of 31 August 2008 and 5 November 2008. Later in his opinion Dr Giblin expressed the view that there was a degree of permanent incapacity as at August 1999, as the plaintiff would not have been fully fit for unrestricted, normal full duties. The fact is he subsequently returned to unrestricted, normal full duties and was representing himself in that fashion from the time that he sought to re-join the Police Service at the end of the year 2000. Dr Giblin diagnosed an 18% permanent impairment of the back as a result of the event of 3 March 1990 and then he gives assessments of permanent impairment flowing from the event of 5 November 2008. 1. Yesterday I referred to the fact that the plaintiff was sent by Dr Keith to Dr Lewin, a psychiatrist, in December of 2003. I note that a report of Dr Lewin dated 15 December 2003 was provided by the plaintiff's then solicitors to Dr Selwyn Smith, a psychiatrist, who was qualified by the plaintiff's then solicitors. Dr Selwyn Smith saw the plaintiff initially at the request of Dr Haider on 2 February 2012, and further examined by him on 9 February 2012 and 19 April 2012. On 2 May 2012 Dr Smith provided a report to the plaintiff's then solicitor and in it the doctor refers to Dr Lewin's report of 15 December 2003. It is not necessary for me to consider the contents of Dr Selwyn Smith's report. 2. The plaintiff was seen by Dr James Bodel on 23 May 2014 at the request of the plaintiff's former solicitors. Under the heading "Examination" Dr Bodel said this: "Mr Learmont is a man of 52 years who is uncomfortable throughout the interview and he rises slowly. He is somewhat anxious in his manner. He does have tenderness on palpation at the lumbosacral junction and he reaches forward in flexion with his hands to the knees and there is back ache at this point and also on extension and there is a reduced range of lateral bending on the right. There is therefore some asymmetry of movement. Straight leg raising is 70 degrees on both sides and limited by hamstring tightness. There is no evidence of nerve root irritability and no clinical sign of radiculopathy. There is no wasting in either thigh or calf and no reflex abnormality or sensory impairment of the lower limbs." One might be forgiven for thinking, those clinical findings, that the plaintiff had a problem at the lumbosacral disc, L5-S1, without any nerve root compression, that is, any true radiculopathy. The doctor comments on the X-rays of 17 January 2003 and also on investigations made after 5 November 2008. Dr Bodel thought that the X-ray of the lumbosacral spine taken on 27 December 2008 showed disc pathology at L2-3 and bulging at the L5-S1 level. An MRI scan performed on 23 April 2009 was thought by Dr Bodel to confirm disc pathology at both L2-3 and L5-S1. The doctor also comments on the discogram of 10 June 2009 which confirmed pain reproduction on injection at the lumbosacral level but showed no abnormality at either L3-4 or L4-5. Dr Bodel provided this diagnosis: "The diagnosis here is a disc injury at the lumbosacral junction, caused by the initial injury on 3 March 1990 and further aggravated by subsequent events on 31 August 2008 and in a motor vehicle accident on 5 November 2008, as well as the further episode lifting the transformer in the year 2011." That latter event appears to have occurred at the Wagga Wagga Police Station when the plaintiff was in charge of exhibits. 1. In a supplementary report Dr Bodel said this: "In the terms of the Table of Disabilities he has a 10% overall impairment of function of the back, a 5% permanent loss of efficient use of the right leg at or above the knee and a 5% permanent loss of efficient use of his left leg at or above the knee, and this has arisen as a consequence of the original injury in 1990." The doctor does not state what is actually causing the loss of efficient use of each leg at or above the knee. His primary report rules out radiculopathy. It can only therefore be referred pain or merely, because of the impairment at the lumbosacral junction, an inability to fully use his right leg and his left leg in the normal fashion. 1. The defendant has qualified Dr Seamus Dalton, a consultant in rehabilitation medicine at the North Sydney Orthopaedic and Sports Medicine Centre. Dr Dalton has not examined the plaintiff. He has merely read such documentation as has been provided to him by the defendant. Much of that documentation is in evidence but it does not include the outpatient notes made on 3 March 1990 at the Wagga Wagga Base Hospital which became exhibit M, they only being made available to the plaintiff on 26 March 2015 and tendered in evidence on 14 April 2015. 2. In his report of 12 August 2014 Dr Dalton expressed this opinion: "Having carefully reviewed the contemporaneous medical records, I can find no evidence to support a causal connection between Mr Learmont's subsequent history of chronic recurrent lower back problems and the incident which occurred on 3 March 1990. It would appear that on 3 March 1990 Constable Learmont suffered soft tissue injuries to his back and rib region as a result of being kicked and punched. I can find no evidence that he was reporting any ongoing symptoms or restrictions subsequent to that injury. The contemporaneous medical records do not refer to any subsequent complaints of back pain, with the first significant episode of acute back pain being recorded as occurring in 1995. The next significant reference is on 16 January 2003 when he was seen by Dr Keith and reported a history of recurrent lower back pain and there was reference to the severe episode at home in 1995. X-rays at the time revealed evidence of degenerative disc disease and spondylosis at the L2-3 level. It is inconceivable that the soft tissue suffered by Mr Learmont in March 1990 could have resulted in the subsequent degenerative disc disease and lumbar spondylosis at the L2-3 level, which was noted on X-rays some 13 years later. If Constable Learmont had suffered a significant lumbar disc injury at the time of the alleged assault then his symptoms would have persisted and he would have undoubtedly had significant pain on an ongoing basis, which is not recorded in the contemporaneous medical records. Regardless of that, the mechanism of injury described by Constable Learmont would not, in my opinion, have resulted in an acute lumbar disc injury and certainly the contemporaneous medical records do not support any relationship between the soft tissue injury that he likely sustained at that time and the delayed onset of acute back pain some five years later. In my opinion the medical reports demonstrate the typical history of recurrent back pain attributable to degenerative disc disease and lumbar spondylosis. Typically this manifests as intermittent acute episodes of back pain and spasm, often short lived, with long pain free periods between episodes. It is also evident that the subsequent CT scan of the lumbosacral spine revealed widespread multi-level spondylotic change and degenerative disc disease, notably at the L2-3 level, but also with evidence of degenerative change in the sacroiliac joints and the lower lumbar facet joints. There is no conceivable way that such widespread changes could be attributable to a single traumatic incident, notwithstanding that punching and kicking to the lower back region would not result in such pathologies. It is evident from the various reports that Mr Learmont was not reporting chronic recurrent back pain as has been claimed, up until the time of his resignation from the police force in 1999. It is also relevant to note the report of Mr John Flockton in 1999 which confirms at the time that Mr Learmont was exercising regularly, including running and attending the gym, as a way of managing his stress. The contents of that report are not consistent with the assertions by Dr Patrick that at the time of his resignation in 1990 he was suffering from worsening back pain requiring analgesia and the claim that he was very limited in what he was able to do physically at that time. Such a claim is not consistent with the contemporaneous medical records. I also refer to the Medical Assessment Report and Questionnaire filled in by Dr Gerber which does not refer to any history of back pain or any requirement for regular analgesia. In my opinion Mr Learmont appears to have suffered soft tissue bruising to his back and rib region as a result of the alleged incident. The effects of that injury resolved rapidly, probably within a matter of days, with no indication that he was experiencing any ongoing lower back problems from that time on. The mechanism of his injury and injuries suffered at that time could not conceivably have resulted in the degenerative changes subsequently noted at L2-3 and later at multiple levels. There is no causal connection between the soft tissue injury sustained in 1990 and the later history of recurrent back pain which was attributable to degenerative lumbar disc disease at the L2-3 and other levels." The opinion of Dr Dalton continues for a further page and a further paragraph after that further page. It can be summed-up with the first sentence of the ante-penultimate paragraph: "It is my opinion that the acute episode which occurred in 1995 was consistent with a spontaneous episode of back pain and spasm related to degenerative disc disease." 1. The doctor also expresses surprise at the conclusions of Dr Patrick and Dr Giblin. That opinion is supported by Dr Dalton's further report of 4 December 2014, which comments on the report of Dr Bodel of 23 May 2014. In it he points out that one cannot determine whether the plaintiff had evidence of degenerative lumbar disc disease at the time of the incident in 1990 as there was no radiological investigation at the time. The opinions of Dr Dalton were provided to Dr James Bodel, together with the transcript of evidence given on 29 and 30 October 2014, essentially a transcript of the plaintiff's evidence. The diagnosis offered in Dr Bodel's supplementary opinion of 8 December 2014 is mechanical back ache associated with disc pathology at the lumbosacral junction. The doctor was asked to provide his opinion as to whether the plaintiff suffered an injury on 3 March 1990 to his lower back whilst working as a constable of police. The doctor succinctly stated that that had become "a very difficult question". The final paragraph of that section of Dr Bodel's report of 8 December 2014 is this: "There is, therefore, no medical documentation that I have been provided with or that I am aware of, which could confirm that there was a disc injury at the time, although based on the history given by Mr Learmont there certainly may well have been such an event." The doctor was then asked this question: "Please identify what pathological changes, if any, occurred in the incident, from bruising and abrasions up to more significant pathological changes?" The doctor answered that question in this way: "As I have indicated above, there is scant documentation in regards to the medical findings at the time. The history as given in answer under oath was that there were abrasions to the back and bruising but there was no mention as to whether an X-ray was taken at the time of that first presentation to the hospital on the evening of the event or at any subsequent stage to confirm any structural pathology identified at the time. Mr Learmont gave quite a plausible explanation as to why there is scant medical record, that being that he did not want to jeopardise his employment in the police force or his involvement in the SPSU from 1993 onwards. It is therefore very difficult to be absolutely certain as to whether other "significant pathological changes" occurred at that time in the absence of any documentation. Based on the history it appeared likely that a disc injury had occurred, although it is very difficult to confirm that now in light of the medical management of this injury which has occurred over the years, as indicated above." Two further questions were asked of Dr Bodel. He answered those two questions in this way: "Would you consider there is to be a causal connection [between] our client's current symptoms and the incident that occurred on 3 March 1990? With the extensive exposé of the recorded history presented in the transcript that you have provided it is difficult to connect the events of 3 March 1990 to his current complaints only. I accept this gentleman's history that he has been symptomatic since that time and there are plausible reasons as to why he did not seek much in the way of medical advice. The documentation, including various scans that have been done after the incidences in 2008 do show fairly well established disc pathology and it is probable in my view that this could have occurred as far back as 1990, but there appears to be no other medical evidence to confirm that. Any further comments in respect of the opinions and conclusions of Dr Dalton in his medical report dated 12 August 2014? Dr Dalton has made a straight forward assessment of the medical documentation in relation to this gentleman's medical injuries and he has based his conclusions on the documented history provided. I accept that that literal interpretation is quite correct, although Mr Learmont quite adamantly confirms that he has been in pain of varying degrees since the date of the episode of 3 March 1990 and it is possible that that event could have caused a disc injury which is the precursor of the abnormalities seen in the latest scan." Of course, saying that something is possible does not prove something on the balance of probabilities. 1. Were the matter res integra I would readily accept the opinion of Dr Dalton. As I mentioned yesterday, there was a significant challenge to the plaintiff's credibility. As I said yesterday, it appears to me that I cannot accept the plaintiff as an accurate, reliable, or indeed, honest witness. The most common matter agitated in litigation under the present Act is the question of causation of various medical conditions. To use shorthand, a common question is the causal nexus between an alleged injury and subsequently diagnosed pathology. This Court constantly deals with such issues when considering applications under s 10B(3) of the Act. That provision is this: "Where a member or former member of the police force is duly certified under subsections (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision." A person aggrieved by a decision of the Commissioner of Police under s 10B(3) has a right to make an application to this Court under s 21 of the Act. Section 10B relates to an annual superannuation allowance or a gratuity under s 10. The right there involved is a much more valuable right than a right that might arise under s 12B. However, the matter is not res integra. There is a decision of Truss DCJ, Kennedy v COP (RJ462 of 2005, 27 October 2006, unreported). Kennedy's case was a very different case to the present one. At [24] her Honour pointed out that there was no evidence to suggest any prior injury or any pre-existing problem in that plaintiff's back or neck. 1. There was uncontested evidence that before the event relied upon by that plaintiff, which occurred on 31 March 1997, the plaintiff was physically fit and played competitive hockey, touch football, rode a bicycle, jogged and swam. Like Mr Learmont, Mr Kennedy had applied for the SPSU and on 21 March 1997, ten days before the event relied upon, a motor vehicle accident, the plaintiff successfully completed the induction module of the SPSU course, which involved "intensive fitness training". After the motor vehicle accident of 31 March 1997 the plaintiff had pain in his neck and muscle soreness and he took some painkillers and went to bed. He then had two days rostered leave. Three days after the incident the plaintiff consulted his general practitioner, Dr Smith, who issued a certificate, and the plaintiff was off work until 30 June 1997, returning to work on restricted duties and not returning to full duties until 3 October 1997. From that time on, until payment of sick pay stopped in May 2002, Mr Kennedy had a lot of time off for neck problems. He made a number of successful applications for sick pay to be treated as "hurt on duty" and those determinations were exhibited before her Honour. In 1998, the year after the event, the plaintiff was referred to a neurologist and an MRI scan was performed on 1 March 1998. 2. On 7 July 1998 the plaintiff saw a new general practitioner whom the plaintiff consulted "on a number of occasions". On 10 October 2000 the plaintiff in that case felt a tearing sensation in his neck and suffered pain and tingling when he was in the process of attempting to start a power generator at the Ballina Police Station when there had been a blackout. After that incident the plaintiff went off work and had never returned to work. It would appear that the defendant argued that whatever was wrong with the plaintiff as a result of the initial injury, and perhaps the injury of 10 October 2000, had passed and that the plaintiff had completely recovered and was fully fit and not suffering any permanent impairment or loss. 3. The judgment leads me to infer that one of the arguments raised in that case was that any aggravation due to an underlying condition caused by the events relied upon by Mr Kennedy had ceased. Her Honour was called upon to construe s 12D. It has been submitted by the defendant in that case (the current defendant) that the Court could determine whether or not the plaintiff had sustained a permanent impairment or loss as a consequence of the injuries relied upon; in other words, whether he would have an entitlement to lump sum compensation under s 66 of the Workers Compensation Act 1987. At [15] her Honour said this: "In my view what s 12D contemplates is the following process: (a) a claim for a member to STC for a gratuity; (b) a referral by STC to the Commissioner for a decision as to whether or not the injury to which the claim relates was caused by the member being hurt on duty; (c) s 21(1)(b) gives a member the right of appeal from such decision; (d) if the Commissioner decides in the member's favour, STC is then required to make a determination under s 12D(1); (e) s 21(1)(a) gives a member a right of appeal from such determination. Her Honour then referred to subs (5) and (6) of s 21 and continued thus: "[17] This is an appeal from a decision of the Commissioner, not STC. What the Commissioner, and therefore this Court, are authorised by s 12D to determine is whether the injury to which the application relates was caused by the plaintiff being hurt on duty (subs 4(a)). [18] In my view injury in s 12D(4) and the reference to s 1, to the member being "injured" are to be given the same meaning as "injury" as defined in s 4 of the Workers Compensation Act 1987 [...] [19] In other words, what those sections refer to is trauma due to one or more events, such as would found an entitlement to compensation but which does not include matters such as permanent impairments and losses or incapacity as a consequence of such trauma. [20] For these reasons I reject the assertion by the defendant that on this application the Court is required to determine whether the plaintiff has sustained any permanent impairment or losses, or to put it another way, a finding of "hurt on duty" in this case is not dependent upon a finding of permanent impairment." That case was argued by Mr Ower, who has been appearing for the plaintiff since the recommencement of these proceedings on Tuesday. 1. There was an appeal by the Commissioner of Police from her Honour's decision: Commissioner of Police v Kennedy [2007] NSWCA 328; (2007) 5 DDCR 380. The primary judgment was given by Hodgson JA, with whom Hislop JA concurred. Further reasons were given by Basten JA, with whom Hislop JA also agreed. In essence, their Honours agreed with the reasoning of her Honour. The appellant was represented by Mr S Campbell SC [as his Honour then was]. At [24] Hodgson JA said this: "Mr Campbell submitted that the matter could not be resolved by reference to the assumed respective functions of the Commissioner and STC, with the former being concerned with matters requiring operational knowledge and expertise and the latter being concerned with matters requiring medical knowledge and expertise. The question of whether a s 4 injury has been suffered may require medical expertise, for example, where the alleged injury is a disease or aggravation of a disease. Further, in cases under s 10B of the Superannuation Act, when STC has identified a 'specified infirmity' under s 10B(1), medical expertise will be required to determine whether that infirmity was caused by a s 4 injury under s 10B(3)(a)." Commencing at [26], Hodgson JA said this: "[26] In my opinion the Superannuation Act does disclose an intention that, in a broad sense, medical issues be addressed by STC and operational issues by the Commissioner. However, for reasons given by Mr Campbell, there can be no clear demarcation: the Commissioner must have to determine medical issues at least in the areas identified by Mr Campbell. [27] In my opinion the expression 'the injury to which the claim relates' in s 12D(4)(a) must have the same meaning in relation to claims for Div 4 payments as it has in relation to claims for Div 3 and Div 5 payments. [28] In relation to claims for Div 3 payments, the Workers Compensation Act refers to no injury apart from the s 4 injury; and in my opinion, 'injury' in s 12D(4)(a) cannot reasonably be understood as referring either to the medical expenses themselves or to some condition, apart from a s 4 injury, that was the immediate occasion for the relevant medical treatment. Although 'injury' is used in s 26 of the Workers Compensation Act to refer to financial loss, in my opinion it would be a strained and artificial understanding of the word 'injury' in s 12D(4)(a) to take it as referring either to medical expenses or to some condition apart from a s 4 injury. Also, it would mean that every time that there was a claim for further medical expenses, the claim would require both a determination by the Commissioner under s 12D(4)(a) and a determination under s 12D(1) by the STC; and in my opinion it is unlikely in the extreme that this was intended. [29] In relation to claims for Div 5 payments, the Workers Compensation Act does not require that there be any s 4 injury. However, the definition of 'hurt on duty' in the Superannuation Act does require that the member be injured, so it would seem that Div 5 claims can be made by members only if there has been a s 4 injury. In my opinion, in relation to Div 5 claims, 'injury' in s 12D(4)(a) cannot reasonably be understood as referring to the physical damage to an item of the kind referred to in s 74 of the Workers Compensation Act and must be taken as referring to the s 4 injury. [30] In relation to claims for Div 4 payments, in my opinion the same applies: 'injury' in s 12D(4)(a) refers to the s 4 injury. I accept that there is some grammatical awkwardness in this, in that the definition of 'hurt on duty' applies only if there has been a s 4 injury; so that, on this construction, what is determined is whether there is an injury caused by the member being injured, where the injury is not something separate from that already suggested by the expression 'being injured'. However, in my opinion, this consideration is insufficient to outweigh the other considerations I have discussed. [31] On the question of what has to be determined by the Commissioner under s 12D(4)(a), I accept that does include issues under s 9A and s 14 of the Workers Compensation Act, and where applicable, s 10 and 11. I would not, however, have understood what was said in Calman [Calman v COP [1999] HCA 60] at [38] as requiring that the Commissioner also determine whether some total or partial incapacity has resulted: s 9 of the Workers Compensation Act asserts entitlement to compensation without reference to incapacity, and medical expenses are payable under the section without proof of incapacity." Basten JA dealt more extensively with the grammatical awkwardness referred to by Hodgson JA. At [42] his Honour said this: "Broadly speaking, claims for compensation turn upon two issues. The first is whether a worker has suffered an injury and, if so, the nature and extent of the injury. The second question is whether the injury arose out of or in the course of employment or otherwise satisfied the conditions identified in s 4, 9A (employment, a substantial contributing factor), 10 (journey claims), and 11 (recess claims) of the Workers Compensation Act, subject to s 14 (exclusion of injuries solely attributable to serious and wilful misconduct and self-inflicted injuries). In a crude dichotomy, the relevant questions can thus be identified as those involving quantification of compensation payable and those involving causal connection with the employment. Because s 12D(3) and (4) refer to causation, the apparent intention is that the Commissioner should determine questions involving causal connection with employment and the STC questions relating to the nature and extent of the compensation payable. On that basis, her Honour was correct in concluding that questions of permanent impairment were for the STC, thus the Commissioner was required to determine whether Mr Kennedy had received an injury arising out of his work as a member of the police force, whereas the STC would determine, whether the injury had resulted in permanent impairment for the purpose of s 66(1) of the Workers Compensation Act." The penultimate paragraph of the reasons of Basten JA needs also to be borne in mind. It is this: "[55] It is thus apparent that a gratuity under s 12D may be granted either where paragraph (a) is satisfied and an allowance is payable to the member under s 10 or, where paragraph (b) of sub-s 12D(3) is satisfied. It is clear that, for the purposes of the first alternative in paragraph (a), any question of incapacity, resulting in discharge, is to be determined by the STC whereas the relationship of the infirmity to the member's work is to be determined by the Commissioner. It would be curious if the function to be performed by the Commissioner were of a materially different kind, where the second alternative under paragraph (b) is invoked. As already noted, the language is consistent with the function being the same in each case. The interrelationship of ss 10, 10B and 12D thus support the conclusion that the function of the Commissioner is the same in each case and is limited to determining the causal connection between the infirmity or injury and the officer's employment." 1. This latter dictum can lead to some opacity. What his Honour is not discussing is the relationship between the injury and the certified infirmity or the pathology resulting from the injury. However, reading the judgment as a whole, it appears to me clear that their Honours were of the view that the relationship of causation between the event relied upon and the pathology giving rise to the claim is a question not for the Commissioner of Police but for the STC. This, in essence, is what has been submitted by Mr Ower on behalf of the current plaintiff. 2. In substance, the plaintiff submits that all I am concerned with is whether the plaintiff injured his back on 3 March 1990 and it is then up to the STC, or to give it its full title, the SASTC, to determine the relationship, if any, between the impairment claimed and that injury, and if the plaintiff is aggrieved by that determination of the STC the plaintiff can bring an application from the decision of the STC. This was alluded to by Truss DCJ in [34] of her reasons, in which her Honour said this: "A considerable amount of medical evidence was tendered and the defendant showed film taken in March 2002 and December 2005. However, the main thrust of the defendant's case was that whatever was the nature of the plaintiff's injury, in particular in March 1997, he had recovered and was now fully fit and not suffering any permanent impairments or losses. However, for reasons already expressed, that is not an issue I am required to determine at the present time and I do not therefore consider it necessary to refer to the medical evidence." [My emphasis.] 1. In the current case it is to be borne in mind that the plaintiff in his application under s 12D referred to an event on 3 March 1990 leading to permanent impairment of the back and loss of efficient use of each leg at or above the knee. There is no suggestion that the plaintiff injured either of his legs in the event of 3 March 1990. However, it is common for a low back injury involving damage to a disc to ultimately lead to some permanent loss of efficient use of each leg at or above the knee because of either radiculopathy or referred pain or a mere mechanical problem which inhibits the use of each leg. 2. The injury therefore that the plaintiff relies upon must be one which had the potential to lead to the loss of efficient use of each leg. Equally, it has to be borne in mind that the word "back" can mean a number of different things. De Gracia v New South Wales (1993) 13 NSWCCR 23 was a decision of Grayson C. In that case the plaintiff was claiming a lump sum for permanent impairment of his back. Commencing at 25F, the Commissioner said this: "The respondent argues that the coccyx is not part of the back within the meaning of the Table to Div 4 of Pt 3 of the Act. Counsel are unable to refer the Court to any judicial pronouncements on this particular question and I am therefore left to decide the point unaided in that regard. I am aware of a case recently decided on appeal from Burke J where certain organs were held not to be part of the pelvis, but that does not seem to be the point here. See Concrete Constructions Group Pty Ltd v Nelson (1993) 9 NSWCCR 213. Ordinarily, it would not be questioned that the sacrum and the coccyx form part of the back in the everyday manner of usage of the term. The Table to Div 4 of Pt 3 of the Act, however, distinguishes between the back and the pelvis and it is therefore necessary to consider more closely what might be intended by that statutory distinction. I have been taken by way of extrinsic aides to various dictionary definitions of the word 'back' and 'pelvis', including those found in the Shorter Oxford Dictionary and the Attorney's Dictionary of Medicine. The back is thereby found to be the posterior part of the trunk from the neck to the pelvis but not including either the neck or the pelvis. The pelvis is found to be the bony ring at the lower end of the trunk, made up of the hip bones, the sacrum and the coccyx. Dr Conrad's assessment of back impairment, although urged upon me with some vigour, does not assist in answering the question of whether the coccyx is part of the pelvis or the back, nor can it, the respondent contends, because that question is one of statutory interpretation. It is what the statute should be taken to mean, and medical evidence, in this case at least, cannot be used to determine that. I am of the view that the respondent's argument is correct and that the Act clearly intends injuries to the sacrum and the coccyx, or rather, permanent impairment resulting therefrom, as referable to the pelvis and not the back. I am not asked to decide whether there is permanent impairment of the pelvis. I must hold that the applicant's claim for permanent impairment of the back fails." 1. I quoted that decision with approval in Clymer v Roads and Traffic Authority (1996) 13 NSWCCR 187. At 189A I pointed out that I had referred counsel to the decision of Commissioner Grayson, which I remembered quite well, as I was counsel for the respondent in that matter. I then quote what the Commissioner said and then continue thus at 189D: "Mr Saul was unable to cite to me any other authority. It should be noted that what the Commissioner referred to as 'the hip bone' was in fact the ilium. In the current matter, there is no dispute that the applicant's coccyx forms part of his pelvis and that it was injured. Mr Saul maintains that the sacroiliac joint is part of the back and not of the pelvis, although if the decision of De Gracia v NSW be correct (as I think it is) then as both the sacrum and the ilium are part of the pelvis, the sacroiliac joint must be part of the pelvis. Mr Saul submitted that what the word 'back' means in the Act must be determined not by me as a matter of law, but by what the doctors say it is. I reject that submission, it is contrary to law in my view and well established authorities. The word 'back' in the Act must be given its ordinary meaning subject to the confines of the Act. As the Commissioner pointed out, the Act distinguishes between the back, neck and pelvis. Therefore, a part of the body cannot be both in the pelvis and in the back. Medical practitioners often use the word 'back' synonymously with the spine, but of course the back includes many other structures than the spine. For example, the back includes the thoracic spine and must necessarily include the rib cage, that is, the thorax in so far as it is part of the back, and must also include the musculature of the whole of the back, that is, from each flank. Therefore the significance given to words by doctors is not determinative of the issue. It appears to me that all the injuries that the applicant sustained to his torso were injuries to the pelvis, that is, to the damage to the pubic ramus, the coccyx and the sacroiliac joint were all injuries to the pelvis." 1. Popularly, "the back" can refer to the whole of the posterior segment of the thorax, that is, the thoracic spine, the posterior of the thorax, the adjacent or overlying musculature, the nerve structures within that area of the body, to the lumbar spine and the overlying musculature to each flank and the nerves involved in the back, and popularly, although not within the terms of the Workers Compensation Act 1987 as it formerly was, would it include the pelvis and the coccyx, although in popular parlance "back" would include the pelvis and the coccyx and probably also the buttocks. 2. When the plaintiff refers to a "back" injury one must be careful to know to what he is actually referring. Of course, the plaintiff now says that he injured his low back. There is some corroborative evidence in that regard called from the plaintiff's former de facto wife, René Anne McDonald, who would appear to be the lady with whom the plaintiff ceased to have a relationship in late 1996 or early 1997, and from the now retired Senior Constable Lunnon, who was a person present at the time of the assault suffered by the plaintiff on 3 March 1990. However, neither Ms McDonald nor Mr Lunnon distinguished which part of the body was meant by "the back". 3. I cannot accept the plaintiff's current assertion that he injured his low back as such. I have to rely upon the contemporaneous medical evidence. The only contemporaneous medical evidence is, of course, the outpatient notes of the Wagga Wagga Base Hospital contained in exhibit M. I quoted them yesterday but it is necessary to revisit them. There is a recorded complaint of a "painful back" but it does not tell me what part of the back was involved. There is reference to "soft tissue injuries" but which soft tissues were involved is not specified. There is reference to tenderness over the rhomboid on the left-hand side. There was found to be full movement but with it was associated "mild pain". Not stated is where the mild pain was. 4. The only thing which can guide me is the tenderness found over the rhomboid on the left. There are two rhomboid muscles. They are the rhomboideus major and the rhomboideus minor. The Attorney's Dictionary of Medicine provides these definitions: "Rhomboideus major. A muscle of the upper part of the back. One end, the origin, is attached to the first, second, third and fourth thoracic vertebrae (thoracic vertebrae are the vertebrae to which the ribs are attached). The other end, the insertion, is attached to the margin of the shoulder blade (scapula) which is closest to the spine (the vertebral margin). It is supplied by the dorsal scapula nerve. Contraction of the muscle draws the shoulder blade toward the spine... Rhomboideus minor. A muscle of the upper part of the back, just above the rhomboideus major. One end, the origin, is attached to the seventh neck vertebra and the first thoracic (chest) vertebra. The other end, the insertion, is attached to the upper part of the margin of the shoulder blade (scapula) which is nearest to the spine. It is supplied by the dorsal scapula nerve. The action of the muscle is the same as that of the rhomboideus major, which see." There are illustrations on p R153 of the work, which clearly indicate the position of both the rhomboid muscles. Unfortunately the same work does not tell me what is the dorsal scapula nerve, but by referring to the Concise Gray's Anatomy I know that each muscle is innervated by the fifth cervical nerve root. I can therefore readily accept that, in the event of 3 March 1990, the plaintiff injured his upper thoracic back. The lowest part of the rhomboideus major is no lower than midway between the eighth and ninth thoracic vertebrae, that is, it terminates in the T8-T9 disc space but a long way away from the spine itself, its terminal being, in essence, part of the musculature relating to the articulation of the arm. That can be seen in the diagram of muscles at the back in the Concise Gray's Anatomy on p 75. 1. The plaintiff's case is postulated on an injury to the low back because only an injury to the low back could cause a problem in either of the plaintiff's legs. A reference to any dermatomal chart shows that the legs are innervated by the nerve roots numbered L1 to S5, although S3 and S4 are confined to the peri-anal region in the natal cleft. For there to be some affectation of either leg there must be injury to a nerve root between L1 and S2, that is, to either the thoracolumbar disc down to the second sciatic nerve root, which passes out of the sacrum, the level above the S1 level coming from the L5-S1 disc level. 2. As I said, I can only infer from exhibit M an injury to the upper thoracic spine no lower than T8-T9. The injuries postulated by the plaintiff require a finding that he has injured some discal structure from T12-L1 to the S2 level and on the evidence before me I am unable to so find. 3. In argument I postulated to learned counsel for the plaintiff the suggestion that if the plaintiff alleged merely an injury to his body resulting, for example, in an impairment of the neck, back and pelvis and a loss of efficient use of each arm and a loss of efficient use of each leg, what could the Commissioner do if the only injury reported were, for example, some soft tissue muscle strain to some muscle of the back such as the quadratus lumborum. In such circumstances the Court would be entitled to find an injury to the low back but not an injury to any other part of the body. The question posed by a claimant under s 12D cannot fix the inquiry which must be made as to whether the body part in question was injured in a compensable event. Merely by saying that the plaintiff injured his back in the event of 3 March 1990 does not answer the question of what part of the body was injured. The question that has to be determined on this plaintiff's application under s 12D is what part of the body was injured such that it could lead to impairment of the back and the loss of efficient use of each leg. The only answer to that question is some type of damage to the back at a level of T12-L1 or lower. I am not persuaded the plaintiff sustained any such injury in the event of 3 March 1990. 4. In discussing the voluminous medical evidence before me I have not referred to the many attendances by the plaintiff upon Dr Keith or the Kooringal Road Surgery, nor his various attendances at the Wagga Wagga Base Hospital, in which no complaint was ever made about some chronic ongoing back complaint. However, the reader of the documents will observe that there is no mention of that, other than when I stated that he did so in these reasons for judgment. 5. For those reasons, I confirm the decision that the Commissioner of Police made on or about 27 February 2013, as pleaded in par 17 of the statement of claim. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2015