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Accident Compensation Cases

Innes v Accident Rehabilitation and Compensation Insurance Corporation (DC, 13/02/97)

Judgment Text

Judge A W Middleton
The issue in this appeal is whether the appellant has suffered personal injury by accident which entitles him to cover under section 7 of the Accident Rehabilitation and Compensation Insurance Act 1992. 
The appellant who is now aged 43 and is employed by Allied Press Limited lodged a claim with the respondent on 30 June 1994 that he was suffering mid/lower thoracic back pain as a result of bending, lifting and twisting at his work. The appellant complained stomach and pack problems to his General Practitioner, Dr R Stephen. As a result, Dr Stephen had arranged for him to be examined by Dr M Schlup whose first report of 7 July 1993 noted: 
“Thank you for referring Mr Innes to the Gastroenterology Clinic where I saw him, together with the Trainee Intern, on 24th June with a history of abdominal pain. This is a longstanding history and form some 10 - 12 years he has suffered from intermittent pains, mainly in the left hypochondrial area. Previous investigations include barium meal which was normal. This problem resurfaced again in February with a nagging pain most of the time in the left iliac fossa varying in severity. Occasionally the pain radiates round to the back and the patient feels bloated. Mr Innes has also noted some change in bowel habit with now having to open his bowls half an hour after meals with considerable urgency, passing a watery, loose motion. Occasionally there is some bright rectal bleeding. Overall he keeps reasonably well, his appetite is good and his weight is quite steady. 
Review of systems is non-contributory and the in the past medical history I note an appendicectomy some 20 years ago and hepatitis. He is living with his parents at present, works as a night printer at O.D.T. and has a moderate alcohol intake. He is on no medication. 
On examination he appeared quite anxious, was overweight with a weight of 101.5kilos. Blood pressure 130/90 and the remainder of the physical examination was basically normal other than some tenderness over the left side of his abdomen without any palpable mass. 
This patient's abdominal pain and change in bowel habit is likely to be a functional problem, possibly compounded by considerable anxiety. However it would be appropriate to exclude any large bowel pathology before accepting the diagnosis of a functional disorder and I will arrange for colonoscopy. ”
This report was followed by a report of 5 October 1993 states: 
“Mr Innes returned to the Gastro clinic on 4 October still complaining of feeling bloated, discomfort in the left upper quadrant and frequent bowel motions. 
Recent colonoscopy was entirely normal and serial biopsies did not show any microscopic colitis or any other abnormality. 
Given the extensive investigations performed by yourself, the normal colonoscopy with serial biopsies and the kidney x-ray which I understand was performed after the colonoscopy, I am fairly confident that there is no organic cause for this patient's complaint. I believe that this is a functional problem in a fairly anxious patient. I would not feel that any further investigations are required and in fact doing any further tests may reinforce the patient's notion that he has got ‘something there that shouldn't be’. ”
Dr Stephen reported to the respondent that the appellant suffered “mid/lower thoracic back strain from repetitive strain at work. Prognosis is favourable providing that his duties at work can be rearranged.” Dr Stephen also noted that the appellant's complaints about stomach pain were the result of a spinal problem. 
In a gradual process questionnaire form completed by the appellant's employer on 23 March 1994, it was stated that the injury was solely work related. 
The respondent referred the appellant to Mr B S McMillan, an Orthopaedic Surgeon whose report of 12 May 1994 states: 
“Examined on 12 May 1994 at the request of the Accident Compensation Corporation. I had available Dunedin Hospital notes and x-rays, x-rays taken by Drs Morrison, Craw and Morris and a copy of a letter from his physiotherapist. 
Mr Innes states that he first noticed a feeling of tightness and aching in the lower thoracic and upper lumbar regions radiating to the back of the left side of his left trunk towards the end of last year. Since February of last year, he had been attending his general practitioner, Dr Stephen of Port Chalmers, because of epigastric pain for which he had been extensively investigated by Dr Martin Schlup. In notes of 24 June 1993 Dr Schlup noted that the symptoms had been present for 10 or 12 years and sometimes radiated round to his back and tenderness over the front of the left side of the abdomen and round to over the left kidney was noted. He underwent colonoscopy and also had intravenous urogram. 
Mr Innes states that in February of this year he mentioned to his general practitioner that he had to bend over to pick up papers and states that Dr Stephen said this must be the cause of his troubles and referred him off to physiotherapy. Mr Innes states that the epigastric pain has gone but that physiotherapy has made little difference to his back ache. It is Mr Innes' belief that he had stress fractures in the ribs or spine and that these caused the epigastric and back pain. 
Back pain: He complains of almost constant back ache around the thoracolumbar region radiating to the back of the left side of the trunk. He states that this pain is aggravated if he sites for over an hour and then eased by standing up. He states that if he bends of twists the wrong way it aggravates the pain and so he takes care. He states that his work have taken him off bending picking up newspapers and his symptoms have improved as a result. He states that he can take up to three Panadol a day if the pain is bad and last took these pills two or three weeks ago. He has not lost any time from work. 
He no longer experiences the epigastric pain which he stated was there most of the time but that was aggravated half to an hour after he had eaten, at which time he got some heartburn. He had noticed no water brash or dysphagia and there had been no vomiting. Today, contrary to the information contained in Dr Schlup's note, Mr Grant stated that the pain did not radiate to the back. He has had tests to see if he has lead poisoning. With the epigastric pain he states that he would get the urge to have a bowel motion. 
He has noticed no symptoms of numbness, tingling, pins and needles or weakness in his legs. 
Mr Innes is a tradesman printer, has worked for the Otago Daily Times for 17 years and his present job for four years. He is a night printer, walking up and down the machines all his shift turning switches and handles and for one minute every 20 minutes for nine or ten times he was bending over to lift up armfuls of paper, turn and hand them to a workmate. 
He lives with his parents and in his spare time works at Carisbrook mowing grass and driving a tractor. He manages a rugby team and in summer crews on a yacht. 
He had x-rays of his lumbar spine taken in 1975 following a fall on his back. He was admitted to the Orthopaedic Services complaining of pain in his cervial, thoracic and lumbar spines. Changes due to adolescent disc disease were noted in the spine and he was in hospital for only one day. A diagnosis of bruising was made. 
He was seen by the Gastroenterology Services in 1978, the notes recording that he had a dull ache in the right side of his back and in his right upper quadrant. No definite abnormality was found. 
He had his lumbar spine x-rayed in 1989 but today cannot recall why this was done. 
A heavily-built man who sat in a twisted and relaxed position in a low chair. He got undressed and dressed, on and off the examination couch and turned from his front to his back quickly and easily with no apparent difficulty or discomfort. 
Neck: Normal. 
Erect jugular venous compression test caused him to complain of pain about the thoracolumbar junction. 
Thoracic spine: No obvious deformity. Movements were normal in range and apparently painfree. There was no tenderness. 
Lumbar spine: Normal lordosis. Movements were normal in range and unassociated with involuntary paravertebral muscle spasm. He complained of no pain on lumbar spine movement. There was equal tenderness over each lumbar vertebral spinous process and over the rectus spinae muscle to the left of the spine at the level of the first and second lumbar vertebrae. 
Abdomen: He has divarication of the rectus muscles with tenderness here in the epigastrium. I could find no other abnormality in his abdomen. 
Pelvis and hips: Normal. 
Legs: The ½″ greater circumference of the right thigh measured 10″ proximal to the tibial tubercle and ¼″ greater circumference of the right calf measured 4″ distal to the tibial tubercle was consistent with his right-handedness. 
Straight leg raising on the right was limited to 80° on both sides and accompanied by complaints of pain in his back but the sciatic nerve stretch test appeared negative. Femoral nerve stretch tests were negative. 
There was no muscle weakness in the legs where the tendon reflexes were symmetrical and normal and plantar responses downgoing. 
Vibration was normally appreciated at both ankles as was pinprick throughout the legs, perianal region and lower trunk. 
X-ray of his chest taken on 23 February 1994 shows no abnormality in the ribs. 
Thoracic and lumbar spines: X-rays taken on 18 October 1975 and 23 February 1994 show identical appearances with a slight lateral curvature of the thoracic and lumbar spines. 
There is a mild degree of Schmorl's node present at the level of the 12th thoracic disc, otherwise no abnormality is seen. The x-ray of his lumbar spine taken on 9 February 1989 shows identical appearances. 
It is my opinion that Mr Innes' epigastric symptoms are unrelated to his back and may well be related to the separation between the two rectus muscles in the epigastrium with a possible small fatty hernia here. In my opinion this is a naturally-occurring condition and unrelated to personal injury by accident. 
He has a long history of upper abdominal discomfort associated with a radiation of this discomfort and/or pain to the back about the site of which he presently complains. However, the present back complaints are of a character more consistent with a mild mechanical derangement in the upper lumbar spine where he has an abnormality on x-ray in the form of a Schmorl's node affecting the 12th thoracic disc. This is an adolescent disc protrusion and is the only abnormality I can find which could explain his present complaints. This condition arose during his teenage years. It is my opinion that this is a potential site of weakness and the mot likely cause of his present complaints. Given the previous abnormality, even if asymptomatic, bending over could aggravate it but given the history as told to me today, the type of bending that he was doing and for such short duration, it is my opinion that it is unlikely that this activity played in any significant part in aggravating the symptoms from his pre-existing abnormality. It is therefore my opinion that his complaints are not work-related in their cause and his work was unlikely to produce any significant aggravation. 
Given the findings on examination today, it is my opinion that he is present experiencing no significant back complaints although he complained of a constant ache here. 
In summary, it is my opinion that his present complaints are not covered under the Accident Compensation Act and are of minor degree. ”
On 29 June 1994 the respondent notified the appellant that on the basis of Dr McMillan's report it declined his application for cover. The appellant applied for a review of that decision. 
The appellant's General Practitioner arranged for him to be examined by Mr A J Matheson, an Orthopaedic Surgeon whose report of 15 September 1994 states: 
“Thank you for asking me to see this 41 year old night printer at Allied Press whom I assessed on 5 August mainly for the purposes of an opinion as to whether his back problem is ACC related. 
Grant has sustained a neck injury at the age of 26 but has had no major sequelae from this. He has worked as a night printer at Allied Press since 1976. In the last three years he has had a significant amount of lifting in his job. He has had a long history of about 10 years of intermittent abdominal pain for which he was previously investigated. 
In February 1993 he developed further abdominal pain and as a result of this was again referred to and fully investigated by Dr Schlup. 
Apart from probable bleeding from an internal haemorroid, no definite cause of abdominal pain has been made. Mr Innes reports that his abdominal pain has actually improved with physiotherapy which he has been having from Gail Hyland, Physiotherapist at Port Chalmers Health Centre. 
Grant's back pain has been of gradual onset. He firmly believes that the back pain has developed as a consequence of lifting in his job as a night printer. His work involves repetitive action lifting papers from a low conveyor belt, rotating and standing with the papers. When he has a holiday or is away from work the back pain settles considerably. He continues to have back pain which is over the lower left side of his back and does not radiate. He is thought to have had stress fractures of his ribs by his physiotherapist and has had acupuncture and ultrasound as well as some manipulation. He believes that the physiotherapy has helped his pain. He has no leg pain. 
Grant is moderately overweight. He stands with a straight spine but has a full range of flexion and extension. He has a full range of lateral flexion of the lumbar spine but there is decreased rotation of the thoracic spine to both sides. He is tender from T9 to L1 especially on the left side. There is no limitation of straight leg raising, and no neurological abnormalities in either leg. 
Radiographs of the thoraco lumbar spine show some minor degenerative changes at the lower thoracic spine but no other significant abnormality. 
Because of the rather vague nature of the abdominal and back pain and the possible inter-relationship it is difficult to get a clear appreciation as to the precise etiology of Grant's back problem. However, I agree that he has a thoraco lumbar back problem which is due to a mechanical derangement and probably related to the early degenerative changes seen in the lower thoracic spine as well as some dysfunction of the paravertebral thoraco lumbar muscles. The problem appears to be helped with various physiotherapy modalities. There is no suggestion that there is a stress fracture of the spine and I do not believe the problem is due to any disc injury. There is no doubt that Mr Innes' back problem is exacerbated by his work, and in particular the act of bending forward to lift papers and then rotating and standing. I think it is most likely that this type of work has exacerbated a previously asymptomatic problem, especially considering the past history and minor radiological changes. 
In my opinion I believe that Mr Innes' work has not been the underlying cause of his back problem but has been an important exacerbating factor in making his condition symptomatic. 
I am not sure whether this condition would be acceptable to the ACC as a claim being successfully considered under Section 7 where physical injury must be caused by certain characteristics found in the employment activities of the injured person. ”
Mr Alcock arranged for Mr McMillan's report to be presented at the review hearing after which it was agreed by counsel and the Review Officer that a further report should be obtained from Mr J D Dunbar, an Orthopaedic Surgeon. The Review Officer put specific questions to Mr Dunbar and his report of 23 January 1996 states: 
“This report has been prepared at the request of the Accident Compensation Corporation for a further review of Mr Inne's claim for cover with the Corporation for mid/lower thoracic back strain. It is based on interview and examination of the above on 18.1.96. I had available previous reports from Mr McMillan and Mr Matheson, various other related correspondence supplied by the Corporation, Dunedin Hospital notes and Morrison and Craw x-rays. 
The history has been well covered by Mr McMillan and Mr Matheson in the past but is worth repeating as Mr Innes recalled a further injury to his back in 1990 which he thought may have been of relevance. 
Mr Innes is a 42 year old man who is a printer at Allied Press. 
At the age of 26 in about 1980 he injured his back while playing as lock in a scrum which collapsed back on top of him. At the time he experienced pain along the length of his spine and was treated for a period of about 12 weeks with physiotherapy. His back recovered completely following this injury and he took the opportunity to retire from rugby. 
The second event relating to Mr Innes's back occurred in 1990 when he fell over while on the dance floor. He stated to me that he thought the pain at that time had been experienced mainly in the left loin area but on review of notes provided by the Corporation there is an entry dated 30.4.90. which states ‘Left lower back, buttock and thigh pain follow fall. Greatly improved. Still tentative movements with some discomfort in left buttock and upper thigh’. This indicates that most of his pain was in fact lower in the back than Mr Innes recalls. This pain settled fairly quickly over the course of a few days but he remembered having intermittent trouble in his back now and again with some tightness and a necessity to stretch his back periodically. 
This injury and discomfort had largely gone out of his mind until the next event in about February 1993 when he developed fairly extensive pain throughout the left loin area, the low back and the abdomen. At that time he was extensively investigated by Dr Schlup. 
In February 1994 Mr Innes was discussing his back and loin pain with his general practitioner and the possibility of this being related to the lifting and twisting he does at work was raised. He was sent for physiotherapy and found that this helped his pain. 
He has however continued to experience fairly constant discomfort in the left loin area and thoraco-lumbar junction. The pain is aggravated by his lifting activities at work and by sitting for more than about 30 minutes. He found driving troublesome but that has been helped with the use of a lumbar roll. The discomfort is eased by rest such that if he takes a holiday, his pain largely settles. Similarly the pain is improved on the weekend when he has time off. When he returns to work his pain recurs after the first or second lift. He currently has a Neoprene lumbar corset which is of some benefit symptomatically. He takes 2-3 Panadol each morning and has done so for the last 2-3 years. 
Mr Innes reported that he experiences intermittent pins and needles throughout the whole of his left leg and foot mainly at night but sometimes with sitting. He has not had any significant numbness or weakness in either leg. 
His abdominal symptoms previously investigated by Dr Schlup have now disappeared. 
Occupational History 
Mr Innes has been a printer all his life. Upon leaving school he worked for a small printer producing small items such as wedding invitations. He had no problems with his back during this time. He joined Allied Press in 1977 and has been employed as a night printer since that time. He starts at midnight and finished no later than 8.00 am and works 5 or 6 nights per week. His main job involves walking up and down beside a printing machine applying ink to it. This involves turning some knobs and is not particularly physically onerous. The other component of his job is lifting ‘spoils’ off a conveyor belt. Each reel of newsprint lasts approximately 20 minutes and the next reel is glued to the preceding one. At the join the newspapers produced have to be discarded ie. form the spoils. Approximately every 20 minutes Mr Innes is required to bend down to a conveyor belt which is approximately 30cm off the floor, pick up the right and hand them to another person. This is done three times in quick succession at the end of each reel. Most nights 7-8 reels are used and on a Saturday morning usually 9. Thus at a maximum Mr Innes would be required to perform this manoeuvre 27 times in a night. 
This system using the conveyor belt and involving the bending, picking up papers and turning to the right was introduced in about 1990. Until Mr Innes developed his back pain he did most of the lifting of spoils but in recent years he has been sharing this job with other workers. 
Non-Occupational Activities 
Mr Innes does not partake in many other non-occupational physical activities. During the summer months he acts as a crew member on a trailer sailor periodically but has not found that this has troubled his back. He indulges in no other sporting activities. He lives with his parents and his father does the gardening and mows the lawns 
Past History 
From Mr Innes's old hospital notes it is stated that he had hepatitis at the age of 8 and has had an appendicectomy. He was also investigated for abdominal pains in 1978. 
Mr Innes is moderately overweight. He walks well without any obvious discomfort but moves to and from the examination bed with some apparent stiffness in his back. 
Leg lengths were equal. There was tenderness over L4 and L5 lumbar vertebrae in the midline and the thoraco-lumbar junction some very mild tenderness in the midline. There was more tenderness to the left of the midline in the soft tissues at the thoraco-lumbar junction and extending downwards into the left loin. There was no tenderness anywhere to the right of the midline. Flexion of the lumbar spine was full with the fingertips able to reach the ankles. This was not associated with any paravertebral muscle spasm. Extension was full and lateral flexion to both sides allowed the fingertips to reach the knees. There was some discomfort at the extremes of flexion extension and bending to the right but not bending to the left. 
Straight leg raising was 70° on each side with some discomfort produced on raising the left leg in the area of tenderness previously elicited in the back. Sensation, power and reflexes in both lower limbs were normal. 
Morrison and Craw x-rays taken on 27.6.95. AP and lateral of the lumbar spine. These showed normal lumbar spine alignment. There were minor traction spurs at the L2/3 and 3/4 levels indicating minor degenerative changes. The disc spaces were well preserved throughout the lumbar spine. My interpretation of appearances at the thoraco-lumbar junction on these x-rays is such that there is no significant Schmorl's node and the appearances are within normal limits. 
A film dated 18.10.75. of the thoracic spine shows a Schmorl's node at what is probably the T8/9 level. 
The questions put to my in the referral letter of 30.11.95. will be addressed. 
Did Mr Innes's work at Allied Press have a particular property or characteristic which caused or contributed to his mid-lower thoracic back strain? If so what was the particular property or characteristic of the task and what was the task? 
It seems clear from the history that the particular task entailed of Mr Innes involving stooping down to pick up the newspaper spoils from the conveyor belt, standing back up and turning to the right exacerbates Mr Innes's back pain. In addition on examination twisting his trunk to the right accentuates his pain while twisting to the left is not uncomfortable. Thus it is this bending, straightening and twisting movement which contributes to Mr Innes's pain. 
The original cause of this pain remains unclear to me. From the history Mr Innes had been performing this bending, straightening and twisting manoeuvre picking up spoils for approximately 2-3 years prior to the onset of his current back pain and it is surprising if this activity were the causal factor that his pain did not begin earlier. Furthermore the manoeuvre performed by Mr Innes, although awkward, does not involve particularly heavy lifting and I would not have expected it to cause back pain in most people. 
The possibility of the 1990 back injury being a cause of the current problem has been raised. From review of the notes the former injury appeared to effect the lower lumbar spine and buttock area and not the lower thoracic area which is the site in question at the moment and was therefore probably not a contributing factor. 
The 1980 injury in my opinion was sufficiently changes on Mr Innes's lumbar spine x-rays which can with any certainty be said to either cause or contribute to his back pain. 
Is the same property or characteristic found to any material extent in Mr Innes's non-employment activities or environment? 
Mr Innes does not indulge in many activities outside of his work environment and the only significant sporting activity of note ie. sailing does not involve the same twisting movements experienced in his work and does not cause him significant back discomfort. 
Is the risk of suffering mid/lower thoracic back strain significantly greater for persons who perform the employment tasks performed by Mr Innes at Allied Press than for other people who do to perform those same work task? 
In my opinion the risk of suffering a strain of the back at around the thoraco-lumbar junction in persons involved in the type of bending, straightening and twisting activities engaged in by Mr Innes is greater than for people not sufficiently small that most people performing Mr Innes's tasks would not develop chronic back pain. However it has to be considered that in Mr Innes's case I can find no definite causative factor for his back pain and therefore his work activities may have been sufficient alone to not only exacerbate but to have precipitated his back pain. ”
In addition, the Review Officer arranged for Mr McMillan to reconsider the appellant's condition having regard to Mr Matheson's report. Mr McMillan's reply of 1 June 1995 states: 
“In reply to your letter of 30 May 1995, I have to advise you that I have re-read my report to the Corporation dated 12 May 1994, together with the handwritten notes that I made at this time. I also had available a copy of a letter from Mr J Matheson to Dr R Stephen dated 15 September 1994 and enclosures from the ACC, including what appear to be notes compiled by the claimant's general practitioner. I make the following comments and observations. 
Back injury in April 1990: The general practitioner's notes clearly indicate that it was the lower part of the back that was affected and in particular the lower part of the lumbar spine as the pain radiated to the buttock indicating a probable level of origin at the fifth lumbar vertebra and that straight leg raising was variably affected, again indicating involvement of the lowermost segments of the lumbar spine. Mr Innes' claim is in respect to pain about junction of the thoracic and upper lumbar spines, a site remote from this spot and which was not the site of complaint at this time. It therefore appears clear that this accident has no relation to his present complaints. 
Both Mr Matheson and I are in agreement that the back symptoms are consistent with a mechanical derangement related to early degenerative changes in this region (a Schmorl'e node referred to in my report). Where we differ is in the relationship of his work to causing this trouble or producing symptoms which would not otherwise have arise. The history that I obtained indicated that his symptoms had been present for 10 or 12 years and a detailed work history led me to the opinion that the type of bending that he was doing and its short duration would be most unlikely to play any significant part in aggravating the symptoms from his pre-existing abnormality. While I would not dispute the truth of paragraph 4 in your letter, the work history that I obtained from Mr Innes indicated, for the reasons above that, in my opinion his work would not be a significant contribution to back pain. 
Should the Corporation accept that Mr Innes back pain is work-related, I believe that it is relevant that both Mr Matheson and myself found little significant abnormality on examination and it was quite clear at the time that I saw him that he gave no objective evidence of experiencing discomfort although complaining of constant back pain. It is therefore my opinion that the complaints are out of all proportion with the findings on examination and it is my opinion that any physical disability he suffers in his back, from whatever origin, was at the time I examined of minimal, if any, severity. ”
The Review Officer considered that the appellant's employer Allied Press Limited should have been made aware of the review hearing and should receive all documentation which had been placed before her. As a result, Allied Press Limited wrote to the Review Officer on 10 may 1996 in which it stated: 
“Thank you for the opportunity to review the material relevant to the hearings regarding Mr Grant Innes. 
I apologise for the delay in responding to your request for information from Allied Press. 
The Management of Allied Press first became aware of Mr Innes' problem when we received a request from Dr Graham Hart on October 12, 1995 (on behalf of A.C.C.) to visit the plant and view Mr Innes' working conditions. 
Following Dr Hart's visit our Production Manager was surprised to learn from our pressroom supervisory that Mr Innes had been on light duties for the past five years. The original request to go on light duties made by Mr Innes as a result of an accident from dancing - this was accompanied by A.C.C medical certificate (copy attached). 
Allied Pressed Limited, does not believe that Mr Innes' injuries were worked [sic] related, and at the time in 1990, our wages department did not make the appropriate enquiries and did not ascertain correctly if the injury was work related or not. 
This, and subsequent medical certificates were processed by our wages department and sent to the department supervisory, which resulted in an internal communication breakdown with management. This has now been correct. 
Our Production Manager approached Mr Innes last year to discuss his medical problem and in particular his sustained length of time working on light duties. This had caused a prolonged imbalance in the department, and the Company requires a finite time for Mr Innes to resumed normal work practices. ”
The Review Officer considered all the medical evidence as a result of which she found that the appellant satisfied the requirements of section 7(1)(a) and (b) but she found that he did not satisfy the criteria of section 7(1)(c). The appellant has appealed against that decision. 
At the appeal hearing, Mr Alcock submitted an additional report from Mr Dunbar dated 28 November 1996 in which he stated: 
“I was unable to identify any non occupational cause for M Innes' back pain. Although I would not normally have expected him to develop back pain with the activities he performed at work, in his case his back pain can be reproduced by the movement required in his work place and it is therefore likely that his work activities were a significant factor in the development and maintenance of his back pain. ”
Mr Alcock submitted: 
That the Review Officer had correctly concluded that the appellant satisfied the criteria in respect of section 7(1)(a) and (b) but had failed to properly interpret Mr Dunbar's report in relation to the criteria for section 7(1)(c). 
That Mr Dunbar had said that the risk of suffering a back strain for persons engaged in activities, such as the appellant, was greater for people performing that task but that the increased risk was such that most people performing the appellant's task would not have developed chronic back pain. In addition, Mr Dunbar considered that he could not otherwise find a definitive causal factor for the appellant's back pain which resulted in his opinion that the appellant's work activities may have been sufficient alone to have precipitated the problem. 
He submitted that on that basis, while it may have been unlikely for a hypothetical normal person to sustain such an injury, that was not the case for the appellant while the Review Officer had favoured an objective approach to that decision. 

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