Bevilacqua and Comcare (Compensation) - [2023] AATA 4878

Bevilacqua and Comcare (Compensation) [2023] AATA 4878 (3 July 2023)
Division:GENERAL DIVISION
File Number(s): 2018/4766, 2020/4566
Re:Aaron Bevilacqua
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:3 July 2023
Place:Melbourne

In respect of matters number 2018/4766 and 2020/4566 the decisions under review are set aside and substituted for a decision as follows:
(a)The respondent continues to be liable in respect of the applicant’s previously accepted back injury and depressive disorder condition for the purpose of sections 16 and 19 of the SRC Act.
(b)The respondent is liable in respect of the applicant’s chronic pain syndrome condition for the purpose of sections 14 of the SRC Act.
(c)On and from 2 May 2018 to the present date the respondent is to pay to the applicant:
(i)all reasonable medical and related treatment expenses incurred in respect of the applicant’s accepted conditions pursuant to section 16 of the SRC Act;
(ii)weekly payments of compensation in respect of incapacity for work pursuant to section 19 of the SRC Act on the basis that the applicant’s ability to earn is no more than the actual earnings.

(d)The respondent is to pay the applicant’s reasonable costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act.

...[sgn].....................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
Workers Compensation (Cth) – Back injury – Psychological injury – Chronic pain – Whether injury arose out of or during the course of employment – Previously accepted injury – Whether previously accepted back injury was fully resolved – Workplace bullying – Decisions under review are set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Re Prica and Comcare (1996) 44 ALD 46
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157
Smith and Comcare [2002] AATA 249
Woodhouse v Comcare [2021] FCAFC 95
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
3 July 2023
INTRODUCTION

This matter involves two concurrent applications.
Relevant to both applications the respondent has previously accepted liability to pay compensation to the applicant in respect of:
(a)an aggravation of lumbar sprain sustained on 16 February 2004 (2004 back injury); and
(b)a depressive disorder secondary to the accepted back injury (depressive disorder).
In the first application (2018/4766) the applicant seeks review of a reviewable decision dated 28 June 2018 which affirmed an earlier decision made by a delegate of the respondent dated 2 May 2018 which determined that from 3 May 2018 the respondent was not presently liable to pay compensation to the applicant for medical treatment and incapacity for work in respect of the previously accepted back injury and the previously accepted psychological injury under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
In the second application (2020/4566) the applicant seeks review of a reviewable decision dated 15 June 2020 that affirmed an earlier decision made by a delegate of the respondent dated 2 April 2020 which denied an initial liability to pay compensation to the applicant in respect of a chronic pain condition claimed to result from the previously accepted back injury under section 14 of the SRC Act.
BACKGROUND
The applicant is 45 years of age. He completed a Bachelor’s degree in Business Marketing at Victoria University in 2001. Prior to taking up full-time work the applicant had worked part-time in various jobs including at McDonald’s and also at a call centre for Telstra.
The applicant previously worked with the Australian Customs Service commencing in around October 2001.
It is accepted by both parties that the applicant was at all material times an employee of the Australian Customs Service for the purposes of the SRC Act.
At the time the applicant suffered his accepted back injury on 16 February 2004 he was employed as a customs officer, level I, undertaking shift work with duties of “cold targeting” in the arrivals hall at Melbourne Airport’s international terminal.
The applicant described the circumstances giving rise to his injuries as follows:
On the night of February 16 2004, while working in the International Baggage Hall as a Cold Targeting Officer, a lady who appeared to be in her 60's, presented with one large black suitcase which sat on a trolley. Her Incoming Passenger Card (IPC) had been 'marked' by the Primary Passport Control Officer, indicating that a 100% baggage exam must be completed.
I then directed her to bring the bag to the baggage bench. I noticed that the handle of the
bag, (which weighed approximately 30kg), was loose/unstitched on one side, so I had to lift the bag by placing my left hand underneath and grip the top with my right hand. As I drove up through my legs and placed the bag on the waist height bench, I felt a pull in my lower back which immediately caused a mild dull pain. After finishing the bag exam, I told my Supervisor, who had witnessed the entire exam, that I had hurt my lower back when lifting the bag onto the bench. An incident report was completed. He told me sit out the last flight of the shift, and to wait in the Customs Amenities room until the shift ended. It was during this time when my pain increased to the point where I had to lay on the floor on my back, as siting and standing intensified the pain. An appointment was made to see GP Dr Jason Chan. To reduce pain, he prescribed an anti-Inflammatory and the mild painkiller Digesic. This did not reduce my pain, so I was soon prescribed Tramadol SR, which is a synthetic opioid, which I have taken ever since.
The applicant made a claim for compensation in respect of his injury on 18 February 2004.
On 19 March 2004 the respondent accepted liability pursuant to section 14 of the SRC Act in respect of “aggravation of lumbar sprain” with the date of injury of 16 February 2004.
The applicant returned to work after a period of two to three weeks but on reduced duties. He was then subsequently moved to a different position in what was referred to as “Tourist Refund Scheme” but also on a shift work basis at Melbourne Airport. It was during this period that the applicant claimed to be suffering depressive symptoms which he attributed to workplace bullying in connection with his work reallocation. He described the surrounding circumstances as follows:
I was taken off operational duties and put on “TRS”, referring to the ‘Tourist Refund Scheme’ that is a job that merely reimburses GST to tourists. It’s a desk job which is not particularly busy, fairly menial. Other workers started calling me ‘TRS boy’ and I found it demeaning. I started to feel worthless and useless and ashamed that I couldn’t do my full duties. I started feeling depressed and it just continued.
In December 2005 the applicant was transferred to a non-shift work position in the Client Services-Lodgement Team in Latrobe Street, Melbourne on a full-time basis, undertaking cashier duties, documentation lodgements and general enquiries. The applicant describes the circumstances of this move as follows:
After nearly two years following the low back injury I was transferred to a non-shift work position at Customs House in La Trobe Street Melbourne doing standard full-time hours (37.5 per week, Monday to Friday) and no more shift work. I no longer could do heavy lifting or operational work at the Airport due to my injury. My duties were to include cashier duties, documentation lodgements and registrations as well as general enquiries. The job was with the Client Services – Lodgement Team. I started in December 2005.
In May 2006 I was advised that Comcare accepted that it would recognised my depression as part of my injury.
I continued to do active therapy for the back. I had been shown exercise to perform by the physiotherapist and continued with hydrotherapy and strengthening work at a gym.
However, I also needed more direct treatment of pain. I had an epidural injections in February 2005 and November 2006 from Dr Peter Courtney which led to some good relief but the low back and leg pain returned. In late 2007 Dr Courtney advised me about using Lyrica medication and suggested a further epidural injection.
The following year, 2008, my relationship with my girlfriend broke up and that made me feel worse for a while. I did have a further relationship that lasted about two years from 2012 to late 2013.
In 2012 I won a promotion to the next level and now I was APS 5, one level higher, in the Tariff section at work. This was a more responsible job but I had difficulties with concentration. I was referred by my doctor to see Dr Graeme Wood, a psychiatrist, who diagnosed Attention Deficit Disorder for which I started treatment with put me on medication. I believe that treatment started in early 2013. I started on Ritalin but that caused me some nausea and sleeping difficulties so I was changed to Dexamphetamine.
Sometime in 2013 I had stomach surgery for a gastric problem that I had. I found that after the surgery. I lost a good deal of weight because I was not eating solids much.
However, my depression got worse in late 2013. I found it difficult to cope with the symptoms of depression. I couldn’t cope very well. I think that I started gambling, as a coping method, playing poker machines at Crown Casino and sometimes losing several hundred dollars at one time. By November 2014 I had gambled all my savings away. I had never gambled before in my life.
I was put on Mirtazapine by Dr John He, at the IPC Health Clinic, and despite having lost a lot of weight from the stomach operation in 2013, I started putting on a lot of weight. I felt that my diet was okay but I didn’t get much exercise by then because I felt unmotivated and didn’t want to deal with the physical pain. I think that at some stage, my medication changed to Lexapro medication.
In 2015 I had a ketamine infusion as an inpatient in hospital over five days but the pain relief did not last beyond a very short time after the infusion.
I continued to receive weekly compensation payments for the difference between my normal pay and my pre-injury pay which was about $735.00 gross per fortnight up to the time when those payments altered in early 2016. These payments were then reduced to about $285.00 gross per fortnight and I was told that I had to pay back more than $20,000 to Comcare. I tried to appeal but I was not thinking very well at the time. I was depressed and lacked any motivation to deal with it.
I ceased work in June of 2016 because of my depression and was away from work until I returned on reduced hours in August of 2016. By December 2016 I was working four days a week. My doctors put an extra medication for Clonazepam.
In that month, December 2016, Dr Courtney put me on a trial of spinal cord stimulation to see if that gave me any control over the pain. It didn’t and so I didn’t go ahead with a permanent implant.
I had ceased all work in February 2017.1 continued to suffer from back pain and I was being overwhelmed by my depression and anxiety.
After ceasing work in February 2017 I have not returned to any work at all.
I suffered a seizure in about July 2017 because of the interaction between my Tramadol and Fluoxetine medications. I also suffered a right shoulder injury in the fit. My driving license was suspended and I stopped driving at that time. I was told that the seizure was due to serotonin syndrome. I have continued with Ritalin for the ADD and Clonazepam for severe anxiety.
In about February 2018 I had a different injury to my left elbow. I was crossing a road and had to move quickly out of the way in order to avoid being hit by a car that was approaching. I tripped on the edge of the curb and fell onto my left elbow which fractured and dislocated. I underwent surgery the Western Hospital at Footscray for the elbow and I was released soon after with the elbow immobilised and in a hinged brace for a period.
I have also suffered groin pain for some years which led me to undergo surgery in October 2018 to the right hip. I developed an infection after the operation for which I needed to take a lot of anti-biotics. I did get a minor improvement to right groin pain but it is still there,
During this whole period, I remained with pain in the low back which spreads to the right buttock and the right leg and ankle. I cannot sit or stand continuously for long periods. I continue to suffer from depression and anxiety.
I continued to receive the reduced Comcare payments until May 2018, when decision were made to cease all liability to pay for incapacity for work and medical treatment costs.
The applicant was subsequently promoted from an “APS3” to an “APS5” level employee.
In around March 2006 the applicant complained of further pain in his right side, right leg and associated hamstring and calf pain.
On 17 May 2006 the respondent accepted liability pursuant to section 14 of the SRC Act in respect of “depressive disorder” as the “secondary diagnosis” resulting from the applicant’s accepted compensable back injury sustained on 16 February 2004.
On and from February 2017 the applicant ceased all work with the Australian Customs Service and has not worked since that time.
On 3 January 2020 the applicant submitted a claim for chronic pain condition which the applicant attributed to his accepted back condition sustained on 16 February 2004.
On 2 April 2020 the respondent declined the applicant’s claim on the basis that his chronic pain syndrome was not contributed, to a significant degree, by his employment.
The applicant subsequently sought internal review of the 2 April 2020 decision.
On 15 June 2020 the respondent affirmed the decision declining the applicant’s chronic pain condition claim.
RELEVANT LEGISLATION
The relevant legislative provisions are set out in the SRC Act including those set out below:
Section 14 provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Section 16 provides:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4) An amount of compensation payable by Comcare under subsection (1) is payable:
(a) if the employee has paid the cost of the medical treatment--to, or in accordance with the directions of, the employee; or
(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost--to that other person; or
(c) in any other case--to the person to whom the cost is payable.
(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.
(6) Subject to subsection (7), if:
(a) compensation in respect of the cost of medical treatment is payable; and
(b) the employee reasonably incurs expenditure in doing either or both of the following:
(i) making a necessary journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
in respect of the journey--of an amount worked out using the formula:
Specified rate per kilometre times Numbers of kilometres travelled
where:
specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.
numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).
(d) in respect of the employee remaining for the purpose of obtaining the treatment--of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
(7) Comcare is not liable to pay compensation under subsection (6) unless:
(a) the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b) if the journey made by the employee involved the use of public transport or ambulance services--the employee's injury reasonably required the use of such transport or services regardless of the distance involved.
(8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a) the place or places where appropriate medical treatment was available to the employee;
(b) the means of transport available to the employee for the journey;
(c) the route or routes by which the employee could have travelled; and (d) the accommodation available to the employee.
(9) Where:(a) an employee suffers an injury;
(b) a person has reasonably incurred expenditure in connection with the transportation of the employee, or, if the employee has died, of his or her body, from the place where the injury was sustained to a hospital or similar place, or to a mortuary; and
(c) the employee, or the legal personal representative of the employee, does not make a claim for compensation in respect of that expenditure;
Comcare is liable to pay compensation to the person who incurred the expenditure of an amount equal to the amount of that expenditure.
Section 19 provides for injuries resulting in incapacity and provides that:
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula
NWE minus AE
Where:
"AE" applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
"NWE" is the amount of the employee's normal weekly earnings.
"NWH" means the number of normal weekly hours worked by the employee before his or her injury.
"X" is the total of the hours in that particular week:
(a) that would have counted towards the employee's normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee's normal weekly hours.
(2D) For the purposes of paragraph (2B)(b), the compensation payable in respect of the part of the week to which that paragraph refers is worked out using the formula:
where
NWH minus X over NWH times Reduced rate compensation entitlement
where:
"NWH" means the number of normal weekly hours worked by the employee before his or her incapacity.
"reduced rate compensation entitlement" is the rate of compensation that would have been applicable for the whole week had subsection (3) applied throughout the whole week.
"X" is the total of the hours in that particular week:
(a) that would have counted towards the employee's normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee's normal weekly hours.
(3) Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
Adjustment percentage times NWE minus AE
where:
"adjustment percentage" is a percentage equal to:
(a) if the employee is not employed during that week--75%; or
(b) if the employee is employed for 25% or less of his or her normal weekly hours during that week--80%; or
(c) if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week--85%; or
(d) if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week--90%; or
(e) if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week--95%; or
(f) if the employee is employed for 100% of his or her normal weekly hours during that week--100%.
"AE" applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
"NWE" is the amount of the employee's normal weekly earnings.
(3A) If, as a result of the incapacity:
(a) the amount per week payable to the employee in respect of his or her continued employment is reduced; and
(b) a pension under a superannuation scheme is payable to the employee;
subsection (3) applies in relation to the employee in relation to a week during which the employee is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the employee in respect of that week.
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self-employment)--the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition--the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment--the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee--whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
(5) Where an amount of compensation calculated under subsection (3) exceeds 150% of the amount called the Average Weekly Ordinary Time Earnings of Full-time Adults , as published from time to time by the Australian Statistician, the amount so calculated shall be reduced by an amount equal to the excess.
(6) Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings.
(7) For the purposes of subsection (6), the minimum earnings of an employee shall be taken to be:
(a) $202, or, if subsection (8) or (9) applies in relation to the employee, the sum of $202 and the amount or amounts required to be added under whichever of those subsections applies; or
(b) an amount equal to 90% of the employee's normal weekly earnings;
whichever is less.
(8) If there are prescribed persons wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $50.
(9) If there are prescribed children in relation to whom this Act applies (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $25 for each of those children, but an amount shall not be so added for a child in relation to any period before the date of birth of that child.
(10) If a prescribed child is:
(a) a prescribed person in relation to the employee; and
(b) the only prescribed person who is wholly or mainly dependent on the employee;
subsection (9) does not apply in relation to that child.
(11) If 2 or more prescribed children are each:
(a) a prescribed person in relation to the employee; and
(b) wholly or mainly dependent on the employee;
subsection (8) applies in relation to one of those children and subsection (9) applies in relation to the remainder of those children.
(12) In this section, prescribed person , in relation to an employee, means:
(a) the spouse of the employee; or
(b) any of the following persons, being a person who is 16 or more
(i) the parent, step-parent, father-in-law, mother-in-law, grandparent, child, stepchild, grandchild, sibling or half-sibling of the employee;
(ii) a person in relation to whom the employee stands in the position of a parent or who stands in the position of a parent to the employee;
(iii) a person (other than the spouse of the employee or a person referred to in subparagraph (i) or (ii)) who is wholly or mainly maintained by the employee and has the care of a prescribed child, being a child who is wholly or mainly dependent on the employee.
Note: In relation to subparagraph (12)(b)(i), see also subsection 4(2).
(14) For the purposes of the definition of prescribed person in subsection (12), a person who has the care of a child referred to in subparagraph (12)(b)(iii) shall not be taken not to be wholly or mainly maintained by an employee merely because the employee pays remuneration to the person for caring for that child.

Section 4(1) of the SRC Act defines ”suitable employment” as follows:
suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee’s age, experience, training, language and other skills;
(ii) the employee’s suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case—any employment (including self‑employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
Section 4(8) of the SRC Act provides as follows:
A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.
Section 4(9) of the SRC Act defines ”incapacity for work” as follows:
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
Section 5A(1) of the SRC defines “Injury” as follows:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
ISSUES
The issues for determination by the Tribunal are:
(a)whether or not the respondent continues to be liable to pay compensation to the applicant for medical treatment and incapacity for work in respect of the previously accepted 2004 back injury and previously accepted depressive disorder under sections 16 and 19 of the SRC Act during the period from 3 May 2018 to the present; and
(b)whether or not the respondent also has a liability to pay compensation to the applicant in respect of a chronic pain condition under section 14 of the SRC Act.
CONSIDERATION
The evidence before the Tribunal includes the following materials:
i.Report of Mr John O'Brien dated 7 May 2019 (A1)
ii.Report of Mr Nigel Strauss dated 6 June 2019 (A2)
iii.Supplementary Report of Mr Nigel Strauss dated 6 August 2019 (A3)
iv.Report of Dr Antonella Ventura dated 4 May 2020 (A4)
v.Report of Dr Melissa Barrett dated 22 December 2020 (A5)
vi.Statement of Applicant dated 1 October 2019 (A6)
vii.Clinical notes from Western hospital dated 20 November 2020 (A7)
viii.T-Documents 2018/4766 (R1)
ix.T-Documents 2020/4566 (R2)
x.Report of A/Prof Mendelson (consultant psychiatrist) and letter of instruction dated 30 April 2019 (R3)
xi.Report of A/Prof Mendelson (consultant psychiatrist) and letter of instruction dated 17 November 2020 (R4)
xii.Report of Dr Brazenor (neurosurgeon) (and letter of instruction) dated 17 April 2019 (R5)
xiii.Report of A/Prof Romas (consultant rheumatologist) (and letter of instruction) dated 31 August 2020 (R6)
xiv.Supplementary report of Dr Brazenor dated 23 August 2021 (R7)
xv.Respondent’s tender bundles, pages 188, 189, 192 (R8)
xvi.Respondents tender bundles page 193, CT lumbar spine report dated 4 October 2001 (R9)
xvii.The applicant gave oral evidence at the hearing and called Dr John O’Brien and Dr Nigel Strauss.
xviii.The respondent called Associate Professor Mendelson, Dr Brazenor and Associate professor Romas.
The respondent contends that the applicant’s previously accepted back injury was completely resolved as at 2 May 2018 and that any ongoing symptoms the applicant continues to suffer are unrelated to the incident that occurred on 16 February 2004, or otherwise to the applicant’s employment. The respondent also contends that on the basis that the applicant’s previously accepted 2004 back injury has completely resolved, as at 2 May 2018 it is no longer liable for compensation including medical treatment and incapacity payments in connection with that injury or the secondary condition of depressive disorder, pursuant to sections 16 and 19 of the SRC Act.
The applicant contends that his previously accepted 2004 back injury has not resolved and that the applicant’s depressive disorder continues to be materially contributed to by the applicant’s previous employment. The applicant contends that he also suffers from a chronic pain condition that emerged following his 2004 back injury as well as his treatment in the workplace. The applicant contends that from 2 May 2018 he has continued to be incapacitated for work as a result of his conditions and is entitled to compensation payments in respect of that incapacity.
There is no dispute that on 16 February 2004 the applicant suffered a work-related injury in the form of an “aggravation of lumbar sprain” giving rise to liability for compensation to the applicant under the SRC Act. The respondent has continued to accept liability in respect of that injury up until its decision on 2 May 2018.
There is also no dispute that as of at least 17 March 2006 the applicant was suffering a depressive disorder which was materially attributable to the applicant’s employment. Again, the respondent has continued to accept liability in respect of that condition up until its decision on 2 May 2018.
The Tribunal does not understand the respondent to be resiling from its initial acceptance of liability in respect of either of those conditions but rather that, on the basis of its contention that the applicant’s 2004 back injury has since fully resolved, it is no longer liable to pay compensation in respect of those injuries under the SRC Act.
The applicant’s evidence to the Tribunal included the following:
(a)the applicant commenced his job with the Australian Customs Service in around October 2001 as a 23-year-old. The applicant’s evidence was that he undertook training and courses to get into the “cold targeting team” which involved targeting random individuals for detailed inspection of the contents of their luggage. It was regarded as an “operational job” and in order to perform that work the applicant had to maintain a level of fitness in order to be able work on his feet and lift and move heavy bags for inspection.
(b)while working on night shift on 16 February 2004, towards the end of the shift around midnight or early in the morning, a flight came in from Syria and the applicant approached a female passenger who was approximately 60-years-old for a bag inspection. The applicant lifted up a very heavy bag, weighing approximately 30 kg, onto the baggage bench in order to examine the contents and as he did so he felt a pull in his lower back which immediately caused “a mild dull pain”. After this occurred the applicant told his supervisor, ceased duties for the balance of the shift and subsequently completed an incident report. The applicant stated that while waiting in the Customs amenities room his pain increased to the point where he had to lay on the floor as sitting and standing intensified his pain. He told the Tribunal “it was very severe”.
(c)prior to February 2004 the applicant had experienced incidents of back pain but “nothing like the sort of problem that developed after the work injury”. The applicant described experiencing a back strain from kicking a soccer ball in July 1997 which was still sore after about a month and that he had a further incident which caused back pain for about 24-hours in December 1997. The applicant’s evidence was that back pain following these incidents ceased completely by the end of 1997. The applicant described experiencing back pain in connection with various sporting activities or working out in the gym through the course of 2000 and that he was undertaking physiotherapy during that period. The applicant described being sent for a CT scan in October 2001 but being told that there was “no serious problem”. The applicant’s evidence was that after that he experienced no further pain until an incident while lifting weights at the Melbourne Airport arrivals hall gym on 9 January 2004. The applicant told the Tribunal that the gym was only for staff use and it was intended to encourage “us to stay fit, being an operational job”. The applicant stated that “it was a short-term back strain, nothing like the injury I had the following month which was much more serious and continuous. The applicant stated that he was not in any pain in his lower back in February 2004 until he suffered his 16 February injury. The applicant also described having experienced physical issues associated with his right shoulder and elbow as a consequence of playing sport including tennis, basketball and volleyball when he was younger. The applicant also described suffering an injury in 2003 while working out at the gym but that the problem was with his right forearm and not his back.
(d)following his February 2004 back injury an appointment was made for the applicant to see his GP, Dr Jason Chan. Dr Chan prescribed the applicant anti-inflammatory medication and a mild painkiller, Di-Gesic. The painkiller failed to reduce the applicant’s pain and he was subsequently prescribed Tramadol which is an synthetic opioid medication. The applicant told the Tribunal that he commenced physiotherapy and continued taking Tramadol for the management of his pain. The applicant told the Tribunal that he still takes pain medication and is currently using Targin at 10 mg a day. The applicant told Tribunal that he was continuously taking Tramadol up until July 2017.
(e)as a consequence of ongoing pain the applicant was referred to a pain management program in June 2004 and subsequently sent for MRI scan in August 2004 which identified a small annular tear.
(f)the applicant was taken off operational duties and assigned to a desk job with the “Tourist Refund scheme” which involved reimbursing GST to tourists. The applicant told the Tribunal that he wasn’t able to do operational roles any more as there was “too much pain”. The applicant described the new role as not particularly busy and fairly menial. The applicant told the Tribunal that he performed that role for about 18 months. His evidence was that during this period colleagues started calling him “TRS boy” and a “deadbeat” which he found demeaning. The applicant told Tribunal that initially it was just flippant comments that after a while a built-up and they hurt. He told the Tribunal that he was made to feel like he couldn’t do the primary duties being passport control, baggage examinations and marshalling. He described feeling isolated and lonely in his new role. He told the Tribunal that “no one wanted to work in TRS”. His evidence was that around this time he started feeling depressed and that those feelings continued from that point. He told the Tribunal that he started feeling worthless and useless and ashamed. The applicant told the Tribunal that eventually he got to the stage where they took him off his team and made him start at a different time so that he wouldn’t be eligible for the shift penalties.
(g)the applicant was referred to Mr Kavar, a neurosurgeon, in late October 2004 and around the same time was referred to Dr Peter Courtney, a pain specialist. The applicant described doing hydrotherapy in an attempt to manage his pain as well as using prescription medication. The applicant described having difficulty maintaining even his light duties consistently and that he was on reduced hours of five per day in early 2005. He described not being able to do gym work as a consequence of his back pain and that any form of prolonged sitting or standing exacerbated his pain. The applicant’s evidence was that he tried epidural injections in February 2005 and November 2006 which led to some relief but the pain returned.
(h)the applicant’s evidence was that he first started to develop depressive symptoms in 2004 as a consequence of the continual pain and feeling ostracised at work. He noted that he mentioned this to his GP in early 2005 that he was referred to Mr Lee Wilkinson, a psychologist, in August 2005. He was then referred to Mr Rod Jordan in late 2005. The applicant had approximately 26 counselling sessions with Mr Jordan between December 2005 and June 2007. The applicant told the Tribunal that he experienced depression symptoms described in Mr Jordan’s report and that they continued after 2007. He told the Tribunal that he didn’t take breaks in his mental health treatment and after he finished seeing Mr Jordan the next time he saw a psychiatrist was Dr Graeme Wood in 2013.
(i)the applicant told the Tribunal that following his 2004 back injury he continued to see a physiotherapist for exercises and core strength as well as hydrotherapy as part of his rehabilitation. From time to time the applicant also saw Dr Peter Courtney who was his pain specialist and he had five or six epidural injections in 2005 and 2006.
(j)the applicant told the Tribunal that in late 2007 Dr Courtney suggested that he start using Lyrica medication together with Tramadol for his pain.
(k)the applicant’s evidence was that around November 2005 he was transferred to a non-shift work position in the city doing standard full-time hours. He told the Tribunal that he took leave after being transferred and didn’t actually commence in the city until late December 2005. He described his duties as including cashier duties, documentation enlargements and registrations as well as general enquiries. The applicant told the Tribunal that he also felt bullied and harassed by his supervisor in his new role. He told the Tribunal that his supervisor was very harsh on him, impose inflexible work arrangements on him and would ignore him and not give him opportunities for higher duties.
(l)the applicant’s relationship with his former girlfriend ended in 2008 and the applicant described that made him feel “worse for a while”. He described having a further relationship which lasted for about two years between 2012 to late 2013.
(m)the applicant described receiving a work promotion in 2012 to the “Tariff Section” at what was referred to as “APS 5” level which was one level higher than his previous work. He told the Tribunal that his primary function was to process people’s tariff applications. The applicant described this promotion as involving more responsibility but that he had difficulty with concentration. He told the Tribunal that some of the applications could involve hundreds of thousands and into the millions of dollars’ worth of goods and it required detailed research in the preparation of written, legally binding decisions. The applicant told Tribunal that despite the role not involving any physical duties he continued to experience pain and take pain medication.
(n)it was around this time that the applicant was referred to see psychiatrist Dr Graeme Wood who then diagnosed the applicant with Attention Deficit Disorder. The applicant began taking Ritalin in the management of this condition, but he described experiencing some nausea and sleeping difficulties and so was changed to Dexamphetamine. The applicant told the Tribunal that he continues to take that medication.
(o)in 2013 the applicant also had stomach surgery in response to a gastric reflux issue and that after surgery he lost significant amount of weight and was not eating properly. The applicant told the Tribunal that he started to experience gastric reflux issues in around 2005 which he believed may have been impacted by the medication that he had commenced around that time. The applicant denied that a reference to is gastric reflux being explained by “hiatus hernia” in a referral letter to a gastroenterologist’s information he would have provided. The applicant also acknowledged that is gastric reflux issues were further exacerbated at around the time he commenced using Ritalin.
(p)the applicant told the Tribunal that when he first saw Dr Wood it was in the context of his concentration difficulties and memory issues and that Dr Wood didn’t undertake an assessment of his border psychological problems.
(q)when asked about references to the applicant’s stressors that emerged in 2013 as reported by occupational physician Dr Trifiletti in her written dated 19 October 2016 in the context of the development of a rehabilitation return to work plan and the suggestion that the applicant was coping better in 2015, the applicant told the Tribunal that he did not agree and that he has continued to experience depression although “there are periods that can sometimes last month we do feel better-it’s like a rollercoaster. So I don’t dispute that there were periods when my depression wasn’t as severe but that was not always the case. It didn’t last long”. The applicant conceded that there were times when his depression was exact exacerbated by factors unrelated to his back injury.
(r)the applicant’s evidence was that his depression got worse in late 2013 and that he was not coping very well. His evidence was that around that time he commenced gambling as a coping method by playing poker machines at the Crown Casino and would sometimes lose hundreds of dollars at a time. His evidence was that by the end of 2014 he gambled all of his savings away, roughly $50-$60,000. The applicant gave evidence that he had never previously gambled other than on something like the Melbourne Cup.
(s)in late 2013 the applicant was put on an antidepressant medication called Mirtazapine in the management of his depression however this caused the applicant to put on a lot of weight and he consequently was changed over to Lexapro as a substitute.
(t)in 2014 the applicant had a Ketamine infusion which he described as providing some pain relief but that it did not last beyond a very short time.
(u)the applicant told the Tribunal when the pain got “really bad it will emerge into his lower back and then shoot down the back of both legs but always favoured one side more so, the right side would get a lot of numbness and tingling but the pain in the back would be really, really bad and it wouldn’t take much at all”.
(v)the applicant’s evidence was that he ceased working in June 2016 because of his depression and was away from work until he returned on reduced hours in August 2016. He told the Tribunal that in addition to his depression he was also continuing to experience pain at this time. His evidence was that by December 2016 he was working four days a week. At around this time he was prescribed Clonazepam, a mood stabilising medication and was put on a trial of spinal cord stimulation to help manage his pain but the applicant found it ineffective. The applicant told the Tribunal that on his return he was taken of his normal APS 5 duties and was given administrative tasks more commercial APS3 administrative role. The applicant told Tribunal that he believed he was being micromanaged June during his graduated return to work program and unfairly treated in relation to his access to flex time and on one occasion for being late when returning from the chemist.
(w)the applicant’s evidence was that he had ceased all work in February 2017 due to his back pain and being overwhelmed by his depression and anxiety. The applicant denied that he ceased work at this time as a consequence of performance issues but acknowledged it was in part a consequence of his dissatisfaction with the return to work program as well as many other stressors that he was experiencing at that time. The applicant has not worked since.
(x)in around July 2017 the applicant experienced a seizure as a consequence of the interaction between his Tramadol medication and Fluoxetine medications. The applicant also suffered a further right shoulder injury. His evidence was that he then began taking Endone for a period of about two months before transitioning to Targin for the management of his pain symptoms. His evidence was that he has also continued to take Ritalin for his ADHD and Clonazepam for severe anxiety.
(y)in approximately February 2018 the applicant suffered a further injury to his left elbow while attempting to cross the road and tripping on the edge of the curb. As a consequence of the injury the applicant underwent surgery on his elbow which continued to be immobilised for a period.
(z)the applicant also gave evidence that he had suffered groin pain for a number of years which also led to him having surgery in October 2018 in relation to his right hip. His evidence was that he developed an infection after the operation but that he did get minor improvement in his right groin pain although it is “still there”.
(aa)the applicant told the Tribunal that toward the end of 2020 he was admitted to the emergency Department of the Western Hospital in Footscray where he was diagnosed with suicide attempt ideation. The applicant accepted that the hospital record indicated that he had been diagnosed with ADHD, adjustment disorder and “multiple DSH” which the applicant agreed was a reference deliberate self harm. The applicant agreed that the overdose occurred in 2014 or 2015. The applicant agreed that the record noted deliberate self harm “in the context of stressors with family argument with father at home. Guilt. In context of three premixed drinks, nil drugs”. The applicant agreed that the record references “slashed wrist multiple times with initially razor blade, then steak knife” and “deep laceration to right wrist” and “also took knife to neck and sliced neck” and “was looking for sharper knife but couldn’t find one”.
(bb)the applicant’s evidence is that during the whole period from his February 2004 back injury he has continually experienced pain in his lower back which spreads to the right buttock and the right leg and ankle. He continues to not be able to sit or stand for long periods. His evidence was that he also continues to suffer from depression and anxiety. The applicant acknowledged in cross examination that there were fewer attendances with his GP between July 2007 and February 2017 where he made specific reference to his back pain and that he also ceased seeing his psychiatrist Mr Jordan in 2007 “he had done all he could to assist me”.
(cc)the applicant told the Tribunal that he has continued to take antidepressant medication, continued to take medication for his ADHD and that he ceased taking Tramadol because of the issue he had in July 2017 but he now takes Targin in the management of his ongoing pain.
(dd)the applicant told Tribunal that in respect of his pain when the injury first happened in 2004 it was very severe for a number of years. He indicated that if you had to give it a scale from 1 to 10, with 10 being the worst, he would describe it as 7 to 8 up until around 2012. He stated that in 2012 is when he believes it stabilised and since then he would probably rate it 3 or 4 provided that he is not pushing himself. He told the Tribunal that he definitely can’t lift heavy objects anything over about 10 kg and finds it very difficult standing and sitting for any reasonable length of time.
(ee)the applicant told the Tribunal that following his move back into the city he reached a return to full-time hours in February 2006 and from that time until the end of 2013 he worked on a full-time basis albeit alternative duties with only occasional periods of incapacity which were consequence of a combination of incapacity due to the applicant’s accepted injury, incapacity for obtaining treatment and incapacity for personal matters unrelated to the accepted injuries.

The Tribunal found the applicant to be an extremely credible witness. The applicant did not present to the Tribunal as inclined to exaggeration or embellishment in any way. The Tribunal accepts the applicant’s evidence as truthful and reliable.
The documented medical history of this matter is extensive including a significant number of medical assessments of the applicant since 2004.
A number of the medical assessments of the applicant are helpfully summarised in the respondent review officer’s decision letter dated 28 June 2018. That summary is as follows:
•          Prior to this injury, you experienced episodes of lower back pain in 1997, 2000. 2001 and January 2004. It was reported in October 2001 that imaging at that time showed you had mild lumbar spine scoliosis.
•          The imaging undertaken in March and August 2004 showed you had a degenerative disc desiccation at L5/S1 with a small annular tear. Despite the imaging results. your treating general practitioners have consistently referred to your injury as being an L4/5 disc prolapse, which is not supported by imaging or specialist's opinions.
•          In May 2005, consultant orthopaedic surgeon. Dr lain Kelman stated that the incident of 16 February 2004 led to the L5/S1 disc rupture. He considered that your condition should resolve within 12 to 18 months.
•          The evidence supports that your lower back pain levels continued to fluctuate after this injury, but never resolved. For some of the fluctuations. there were clear triggers. Examples include two flare-ups when shopping for over an hour in January and April 2005 and then in June 2012, it was reported that you had an exacerbation of lower back pain while moving a large number of boxes at work.
•          In relation to your psychological status. there is evidence to support that you sustained a depressive disorder secondary to the ongoing chronic lower back pain. However. the evidence also details that you have adult attention-deficit disorder (ADD) and a gambling addiction. The ADD was diagnosed in 2012 and the gambling addiction developed in 2014.
•          The medical evidence identifies other stressors that have impacted on your psychological wellbeing subsequent to your workplace injury. These include your perception of bullying within the workplace. being overlooked for higher duties opportunities and promotions, the end of your long-term relationship in 2008. gastric surgery in 2013, financial stressors due to an overpayment raised against you in 2016, worsening groin pain. being overlooked for a more senior role in early 2016. a grand rnal seizure in mid-2017. a fracture in the right shoulder in mid-2017 and concerns regarding your sister's ongoing health issues.
•          In January 2015, consultant psychiatrist, Dr Michael Duke stated there was no requirement for further psychological treatment in relation to your depressive disorder. secondary to your chronic lower back pain
•          In December 2016, it was reported by Dr Peter Courtney, anaesthesia and pain medicine specialist, that an MRI scan showed some resolution of the L5/S 1 disc prolapse, with no obvious neural compromise
•          In June 2017, Dr Kelman diagnosed your condition as lumbar spondylosis at L5/S1 and an annulus fibrosis tear. He considered that as your initial injury occurred in February 2004, some 13 years prior, the effects of the initial injury had been overridden by other factors around your general health and the onset of degenerative changes in the lumbar spine
•          In November 2017, consultant orthopaedic surgeon, Dr Graeme Powell noted you continue to experience chronic lower back pain following the injury of February 2004, diagnosed as a chronic pain disorder. He stated that as your condition had been stable for over a decade, you did not require any further treatment. Dr Powell also noted that your current incapacity was the result of your psychological condition, not the chronic lower back pain. with the psychological condition being severely exacerbated in January 2016 when you were overlooked for a more senior role
•          In December 2017, psychiatrist, Dr Michael Duke stated your diagnosis was ADD and an adjustment disorder with anxiety and depressed mood. He considered the adjustment disorder was secondary to your ongoing lower back pain. While Dr Duke noted the significant exacerbations you had sustained of your psychological condition as a result of various factors, he considered that you had not recovered from the depressive disorder secondary to the lower back pain
The Tribunal materials also include a report by psychologist Ms Lee Wilkinson dated 17 August 2005, Ms Wilkinson notes that the applicant had been referred to her on 20 April 2005 for the purpose of pain management arising from the applicant’s 2004 back injury. At that time Ms Wilkinson noted the applicant reporting low mood, frustration and concerns regarding his employment and future. She described the applicant as being very “pain focused” and “distressed by his symptoms and the loss of the previously active lifestyle”. Ms Wilkinson noted that:
[The applicant’s] injuries and level of pain has had a significant impact on both his working and private life and subsequently he was required psychological support to assist him to cope with this. [The applicant] presented with low mood and reports that his mood tends to worsen depending on his pain. He was experiencing frustration at the impact and effect injury was having on his personal life including his relationships and friendships and that he could no longer participate in his recreational interests. [The applicant’s] mood varied throughout our sessions. He also reported concerns in relation to his employment situation.
In addition, a report from the applicant’s former GP Dr Jason Chan dated 1 May 2006 notes the applicant reporting depressive symptoms to him in January 2005.
By letter dated 21 November 2005, Dr Chan referred the applicant to psychologist Mr Rod Jordan in connection with being depressed following a protracted work-related back injury. The applicant subsequently began seeing Mr Jordan on a weekly/fortnightly basis in connection with his depression. A medical report dated 24 February 2006 noted that the applicant was seen by Mr Jordan on a fortnightly basis and that the applicant had described becoming depressed at his injury status. In a subsequent report dated 15 June 2007 Mr Jordan diagnosed the applicant with adjustment disorder with depressed mood attributable to stress associated with a workplace injury to his lower back and the associated pain and impairment. The applicant symptoms following his workplace injury were described by Mr Jordan as follows:
·feelings of depression and sadness (marked improvement)
·feelings of self-doubt, anxiety, guilt, helplessness, confusion and frustration (marked improvement)
·feelings of being detached from others. Wanting to isolate itself from (marked improvement)
·feelings of losing control (marked improvement)
·concentration difficulties. Mr Bevilacqua now finds it difficult to focus and concentrate on tasks and activities that he used to be able to complete without problem. It is also forgetful and absent-minded (moderate improvement)
·loss and grief (moderate improvement)
·a low level and ongoing feeling of generalised anger at having to endure the pain, suffering and inconvenience of the physical and psychological injuries (moderate improvement)
·feelings of antipathy and anger towards his employer (moderate improvement)
·tension in personal relationships (moderate improvement)
·easily irritated by others. Mr Bevilacqua now becomes easily frustrated. Things and situations that normally would not unsettle him now cause him to become irritated and frustrated (marginal improvement)
·loss of interest in usual activities and hobbies. Poor motivation (marginal improvement)
·an ongoing feeling of lethargy and tightness (marginal improvement)
Mr Jordan went on to explain that in his opinion the applicant had feelings of “depression and related grief issues springing from the loss experienced by [the applicant] of no longer be able to do the things he used to. Injury appears to have damaged [the applicant’s] sense of identity and direction in life.”
With respect to prognosis Mr Jordan concluded:
With appropriate treatment, the overall prognosis for [the applicant] is favourable. It is likely that he will eventually return to his previous level of psychological and emotional functioning. Psychotherapy/counselling remains the treatment of choice for adjustment disorders. However, in [the applicant’s] case, this prognosis of course depends on how well he recovers from his lower back injury.
The Tribunal materials includes a written report from neurosurgeon Mr Graeme Brazenor dated 17 April 2019. Mr Brazenor assessed the applicant for the purpose of the written report. In his written report Mr Brazenor stated:
(a)At this late stage [the applicant] is having few, if any low back symptoms. … he avoids bending and lifting and has never tried to return to tennis or gymnasium. He lives with his father, by virtue of having lost his girlfriend and all of his other social contacts when he became depressed and withdrawn. He said that he feels inadequate even living with his father. An instance he gave was recently when they had to remove an air conditioner from its position in one wall, and he felt that he could not help his 77-year-old father lift the unit.
(b)When sitting the taskera of his hip and low back and in fact described watching television whilst sitting on the sofa with his feet raised.
(c)Very occasionally he takes a Targin for back pain, but I told him to take Panadol Osteo instead. He said that he takes analgesic infrequently.
(d)I did seek during the physical examination to question where he says he has pain apart from low back, and he said that it radiates down both legs at times. Right leg worse than left.
(e)I have formed the view that on the balance of probabilities [the applicant] sustained a mild soft tissue injury to lumbar spine, possibly the posterior annular tear to the L5/S1 disc annulus, and that probably his injury was biphasic: beginning with the lifting of the barbell in the staff gymnasium on 9 January 2004 with the tear being completed when [the applicant] lifted the traveller suitcase in an awkward lift on 6 September 2004
(f)I conclude that he has now completely healed this injury and has no symptoms due to the injury. However, as a result of the injury it can never go back to a job where he has to lift suitcases or comparator weights. Neither can he return to a job where he has to lift to or from levels less and 600 mm above the surface on which it stands.
(g)I believe that [the applicant] could return to work full-time immediately, as a security patrolman or in security screening at the airport, all he could return to work in Customs, so long as he was not stationed where he would have to lift luggage.
(h)[The applicant] said that he liked his original job in Customs and that he would be very willing to return to that sort of employment, but just not the people who he believes bullies him over a sustained period.
(i)[The applicant’s] account of bullying was plausible but would need to be sustained by witnesses. Nevertheless, there was no attempt by [the applicant] to over-embroider or exaggerate his symptoms, his degree of disability, or the findings during physical examination.
(j)It is of note that in the last c. 6.5 months of the record of IPC Health, ending 13 June 2008, there was no mention of back pain or sciatica.
(k)He will continue to be pain free so long as he does not return to heavy lifting or recurrent bending at the waist, and so long as he maintains his walking and takes care of his lumbar spine.
(l)He spoke as a man who has been through psychological trauma and associated depression but is now at a stage of summing up his courage to resume normal social contact and social life. This was plausible.
Mr Brazenor also provided a supplementary report dated 23 August 2021 as well as giving evidence at the hearing. In the Tribunal’s view Mr Brazenor’s further evidence doesn’t materially alter his conclusions. The Tribunal has a number of difficulties with Mr Brazenor’s conclusions. First, in the Tribunal’s view, there is a degree of inconsistency within Mr Brazenor’s report in relation to the applicant’s underlying back injury having fully resolved and his descriptions of the applicant’s ongoing back pain symptoms. While Mr Brazenor describes those symptoms as being “few” or “occasional” even by his own assessment they are not non-existent. Mr Brazenor appears to infer from his reference to there being no reported symptoms in the IPC health Records over approximately 6.5 months in 2008 as suggesting that the condition may have resolved at or before that time. However, this stands in contrast to the applicant’s own evidence that he was still experiencing pain symptoms in connection with his back injury during that period and had continued to take pain medication in the management of that pain. The Tribunal accepts the applicant’s evidence in this respect. In addition, in his oral evidence Mr Brazenor presented to the Tribunal as being more circumspect about the underlying condition having fully resolved. When asked about apparent inconsistency in his opinion that the annular tear had completely healed and then recommending that the applicant not undertake certain activities Mr Brazenor told the Tribunal that “the disc is now no longer an elastic, weight-bearing shock absorber. Its dark which means its relatively dehydrated. It isn’t bulging significantly anymore, but it has deflated a little bit”. When pressed further by the Tribunal Mr Brazenor responded “I wouldn’t say the injury has disappeared”.
In the Tribunal’s view, to the extent the respondent relies on Mr Brazenor’s evidence to support its contention that the applicant’s underlying back injury has fully resolved and the applicant’s current pain symptoms are due to factors completely independent of his 2004 back injury the Tribunal does not accept that evidence.
The Tribunal materials included a written report Associate Prof Romas’ dated 31 August 2020. Associate Prof Romas examined the applicant for the purpose of his report. In his written report Associate Prof Romas stated:
(a)[The applicant] reported constant low back pain…He indicated this back pain radiates to the right iliac crest and hamstrings.
(b)[The applicant] informed me that by 2007 he was severely depressed and commenced on an anti-depressant medication. However, on questioning him this depression was caused by office “bullying” and taunts, rather than severe physical pain. He had pain. He kept working.
(c)[The applicant] received his promotion in 2012 and then went to the tariffs department where he kept working in his clerical role, on a full time basis. He was taking analgesics and having physiotherapy.
(d)Taking [the applicant’s] continuing low back pain as factual (he seemed genuine), and having regard to the normal examination findings, it is probable he is suffering chronic pain syndrome which is driven purely by psychogenic (non-organic) factors.
(e)[The applicant] impressed me as an open, honest historian and there were no clinical signs of conscious exaggeration, or inconsistency.
(f)I conclude it is probable suffered a small annular disc tear with dural irritation on February 2004 causing acute low back pain, however the injury was mild, did not progress or deteriorate or cause radiculopathy or spinal complications. Clinical studies and common experience indicate that 99% of lumbar disc injuries will fully resolved within months (certainly within a year), without specific intervention. [The applicant’s] injury however was complicated by a dysfunctional work environment and depression.
(g)[The applicant’s] history of pain and the current examination findings do not indicate there are any signs of persisting physical injury, neuropathic pain.. ”central sensitisation” .. or any other organic disease process. I believe the best descriptor is chronic pain disorder or alternatively, a somatic symptom disorder, but these actually are psychiatric classifications. As a non-psychiatrist, I am entitled to diagnose a “chronic pain syndrome”, implying the presence of a DSM classifiable chronic pain disorder.
(h)The expected pathway for recovery [of a condition such as the applicant’s lower back injury] is that 99% of patients will recover from low back pain within a year, without specific intervention. Recovery is less likely with large tears for disc disruption. The L 5/S 1 disc injury in this case was small. There was possibly a small extrusion causing the “excruciating” pain in the early period after the incident (pain as a result of dural irritation). However no significant disc protrusion, disc extrusion or sequestration was identified. The reason for [the applicant’s] ongoing pain has to do with his psychological reaction and possibly, a reported dysfunctional workplace following a physical injury on 16 February 2004.
(i)I conclude he has no clinical evidence of persisting (physical) lumbar injury…. The disc annular tear may still exist, however his psychological reaction to the physical injury is completely overtaken the situation, now resulting in a purely psychogenic chronic pain disorder.
(j)The physical examination indicates that there are no objective abnormalities of the lumbar spine. Therefore, the work-related disc injury was most likely fully resolved. There is also no evidence of physical sequela of the now resolved lumbar disc injury. Therefore, I conclude [the applicant] no longer suffers the physical effects of the work-related lower back condition. His employment no longer materially contributes to any claim to physical low back injury. Taking his history as factual, [the applicant’s] employment does probably contribute to a chronic pain disorder or a pain syndrome which was caused by the now resolved physical injury.
(k)[The applicant’s] self-reported disability, incapacity and distress, which I have documented, still persists as a consequence of his chronic pain state. His incapacity and need for treatment are still causally connected to the now resolved physical injury. His incapacity and his need for treatment relate entirely to a psychogenic chronic pain disorder or pain syndrome. His need for opioid medication relates to a consequential chronic pain syndrome. His depression and chronic pain syndrome are still materially contributed to by the (now fully resolved) physical injury to the lower back.
(l)[The applicant] has had an incapacity for work since February 2004 to the present time, but his incapacity for work relates to different factors at different times. In the early period, is incapacity resulting from a physical injury to the lumbosacral disc, however over time, is incapacity related increasingly and now, relates entirely to his psychological reaction and chronic pain condition which should be regarded as a consequential psychological/psychiatric injury.
(m)His incapacity for work appears to relate to a consequential psychiatric chronic pain disorder.
(n)It is unlikely he will ever return to full-time work.
In his oral evidence Associate Prof Romas’ stated that from his physical examination of the applicant he was not able to identify an ongoing physical abnormality that would help explain the applicant’s ongoing pain. He told the Tribunal that he agreed with Mr Brazenor’s opinion that the injury has not completely disappeared and that the disc is reduced and less spongey. He also agreed with Mr Brazenor’s opinion that if the applicant were to return to undertake similar work again he would be at risk of reinjury although the Tribunal understood Associate Prof Romas’s evidence to be that this was more a consequence of a constitutional susceptibility to injury than an ongoing vulnerability from the 2004 injury itself. Associate Prof Romas acknowledged that the applicant continues to suffer ongoing pain and accepted the applicant’s report that he has done so since the time of his 2004 injury. Associate Prof Romas reaffirmed his view that in his opinion the best explanation for the applicant’s ongoing pain symptoms is that, at some point after the 2004 back injury, the applicant has developed a chronic pain syndrome (or disorder) and that condition now involves entirely psychological factors. In his oral evidence Associate Prof Romas was more circumspect than in his written report about the extent to which those psychological factors are connected to the 2004 back injury. He told the Tribunal that a combination of other factors including depression that emerged following his injury, his work-place issues and other issues that post-date the physical injury may have become the predominate factors although he conceded that the circumstances that followed appear to have all cascaded from the applicant’s initial work-place injury but that it is for others to determine to extent of the causal link.

Orthopaedic surgeon Mr John O’Brien’s evidence included a written report dated 7 May 2019. Mr O’Brien examined the applicant for the purpose of his report. In that written report Mr O’Brien stated:
(a)The patient now describes a work-related lifting incident occurring some 15 years ago, which precipitated the onset of acute low back pain, which the patient stated was accompanied by bilateral leg pain.
(b)This necessitated two weeks off work, following which the patient reported returning to light duties. Since that time, patient reports constant back and bilateral leg pain which appears to have remained unchanged in relationship to the nature, distribution and severity of pain.
(c)The patient reports that the severity of the pain is not caused him to lose any time off work, with cessation of employment in February 2017 relate to psychiatric issues which the patient stated has remained the reason for his continuing incapacity, and thus his inability to return to his employment which did involve light physical work of a clinical nature.
(d)On current examination, the patient in fact does demonstrate painful restriction of movement indicating the presence of dysmetria, however, this was not accompanied by any signs which indicate the presence of any form of nerve root compromise. Thus, surely from a clinical perspective there is no specific defined pathology underlying pain generation. I would therefore conclude that this patient now presents with chronic non-specific low back and bilateral leg pain.
(e)Historically this patient presents with chronic low back pain and leg pain as a consequence of a work-related lifting incident. I would therefore conclude that employment is a significant contributing factor to this patient’s ongoing chronic pain, there being no clinical evidence that the effects of the original trauma have ceased, the patient certainly reporting chronic pain unchanged in the nature, distribution and severity.
(f)After 15 years of reported unchanged chronic back and bilateral leg pain, I would regard the clinical condition is stable. The chronic pain has required extensive conservative treatment no doubt that the conservative treatment basically directed towards pain management with medication will be an ongoing requirement. Indeed, I would suggest the ongoing management of the chronic pain is complemented by treatment directed toward the patient psychological issues.
(g)I will regard the prognosis is poor, considering this patient reports 15 years of chronic changing pain, which undoubtedly will continue.
(h)This patient does in fact have back pain being aggravated by physical factors. This has obviously been further affected psychological issues which are described as having a significant effect on the patient’s lifestyle. I would however consider that from the purely physical perspective the patient, I would conclude, is not totally incapacitated given that the patient has been capable of pursuing full-time employment on modified duties.
(i)Clearly the patient was not capable of a return to his preinjury duties, which involved unrestricted manual duties. Indeed, I have little doubt the patient now remains incapable of undertaking unrestricted manual duties. It does remain physically capable of appropriate modified clerical duties. Indeed, the current total incapacity, thus remains related to psychological issues which I have no doubt will be addressed by the appropriate specialists. The patient does however have mild physical restriction of his general, social, domestic and recreational activities, and this, I believe, is likely to be permanent. [he does also note that psych factors may also impact in some way but is vague – probably because there has not been a proper functional assessment of it]
Mr O’Brien’s oral evidence did not contradict or otherwise alter the findings of his May 2019 written report in any material sense.
The Tribunal materials included a written report by psychiatrist Dr Nigel Strauss’ dated 6 June 2019. Dr Strauss examined the applicant for the purpose of his report. In his written report Dr Strauss stated:
(a)in relation to his back condition [the applicant] complains of ongoing back pain and on the basis that initially this man’s back condition was work-related, I believe that remains work-related and it is contributing to his current psychiatric problems.
(b)[The applicant] claims that he was bullied at work over a long period of time. It is not for me to decide whether in fact he was bullied at work but if he was then this has also contributed to his psychiatric problems.
(c)I note too that this man has been diagnosed with attention deficit disorder and has been treated for many years with Ritalin medication. I am greatly concerned on the basis of what he told me, that he has not received comprehensive psychiatric and psychological follow-up in relation to this condition.
(d)I note that he has been on strong psychotropic medication Chlonazepine, since about 2017 for anxiety symptoms, and this also concerns me in relation to side-effects which may be affecting his mental state.
(e)As well this man complains of cognitive problems since his seizure and he does need to be assessed neuropsychologically.
(f)I note too that he broke his left arm a year or two ago and this is still having an adverse effect upon him and probably contributing to his psychiatric stress.
(g)Despite this complex history [the applicant] told me that he wants to work and I believe that he should be encouraged to work and I believe that his employer should find some simple sedentary employment for him. He is not capable of demanding or stressful work but from a psychiatric perspective he is fit to do some sedentary work and a graduated return to work program is envisaged. He is certainly not totally incapacitated and I believe that he leads a life that is too inactive and he should be encouraged to find suitable sedentary clerical work.
(h)This man suffers from a chronic adjustment disorder with mixed anxiety and depressed mood and possibly other psychiatric problems but at this stage because of the complexity of his circumstances I’m not prepared to give any other diagnosis.
(i)You have asked me to carry out an assessment of this permanent impairment and I’m not prepared to do that at this stage on the basis that there are many unresolved factors in this case.
Dr Strauss also provided a supplementary report dated 6 August 2019. The Tribunal is satisfied that Dr Strauss’ supplementary report does not later his conclusions in any material way other than to note that he does not agree with Dr Mendelson’s opinion that the applicant is not suffering from a psychological condition. Dr Strauss also gave oral evidence. In his oral evidence Dr Strauss told the Tribunal that in his opinion the applicant continues to suffer from ADHD in respect of which the applicant has been receiving treatment from Dr Graeme Wood as well as a chronic adjustment disorder with mixed anxiety and depressed mood. Dr Strauss accepted that this second disorder would generally be described as a mood disorder. Dr Strauss accepted that the applicant’s chronic adjustment disorder is associated with the applicant’s work injury that occurred in 2004. Dr Strauss told the Tribunal that in his opinion, the applicant’s ongoing back pain over many years has significantly contributed to his depression.
Dr Strauss confirmed that the applicant had been taking Tramadol in the management of his pain from 2004 to early 2017 and then ceased Tramadol due to a complication with the interaction of that drug with Fluoxetine which the applicant had also been taking. Dr Strauss confirmed that he understood that that interaction had caused the applicant to suffer a seizure. Dr Strauss agreed that the applicant then commenced further pain medication being Endone. Dr Strauss accepted that the applicant then continued to take Endone for approximately two months before being transferred onto Targin in late 2017 which he continues to take to the present day. Dr Strauss noted that he also understood the applicant was taking Lyrica which is a medication often used for neuropathic pain.
When questioned regarding Dr Mendelson’s conclusion that the applicant was not suffering any psychiatric condition outside the bounds of normal mental functioning, Dr Strauss told the Tribunal that such a conclusion was at odds with his opinion. Having considered Dr Mendelson’s evidence including both his written reports as well as his oral evidence at the hearing, the Tribunal found Dr Mendelson’s opinion that the applicant is not suffering any kind of mood disorder not consistent with the weight of the medical evidence and, in the Tribunal’s view, simply not credible. For these reasons, the Tribunal has given very little weight to Dr Mendelson’s opinions more broadly. To the extent of inconsistency between the opinion of Dr Mendelson and Dr Strauss in this respect, the Tribunal prefers the opinion of Dr Strauss.
Dr Strauss accepted that Dr Melissa Barrett had diagnosed the applicant with major depressive disorder which is also a mood disorder although “a lot more serious”.
Dr Strauss was asked to express an opinion in relation to the circumstances of the applicant’s attempted suicide in November 2020 in the applicant’s evidence that this occurred against a backdrop of an argument he had with his father in relation to him being off work and not being able to withstand his back pain. In response Dr Strauss told the Tribunal:
One of the significant things that I noted when I saw him a couple of years ago was the fact that he wasn’t working. I think that really plays on his mind. He wants to work-that’s what he told me and I discussed that in my report and I think, this is a hypothetical obviously, but the fact that his father may have given him a hard time because he is not working, would have really distressed this man.
In cross examination Dr Strauss acknowledged that, in addition to potential workplace related issues, some personal and other factors have also contributed to the applicant’s psychiatric distress including issues with family and personal relationships, financial stress and the circumstances surrounding his seizures in 2017. Dr Strauss accepted that when he referenced in his written report the potential for the applicant to have been bullied he was doing so on the basis of what the applicant had reported to him about being micromanaged in respect of a return to work program and on the basis of his own independent information. On re-examination Dr Strauss was provided a brief overview of the applicant’s evidence regarding his treatment at work in the immediate aftermath of his injury and agreed that such behaviour could provide a reasonable basis for a perception of bullying but it was clear from his evidence that Dr Strauss was not intending to suggest any kind of factual conclusion.
On the basis of the evidence, the Tribunal is satisfied that on 16 February 2004 the applicant suffered an injury to his back while lifting heavy luggage in the course of his employment. That injury is likely to have been a further aggravation following an incident that occurred in the Melbourne Airport gym on 9 January 2004, but the Tribunal is satisfied that nothing of significance turns on that. The applicant was not suffering significant back pain at the time of his February 2004 injury, nor was he suffering from any substantive ongoing back issue in connection with the incidents involving back pain that occurred prior to 2004.
The Tribunal is satisfied that as a result of his 2004 back injury the applicant suffered significant pain and has continued to suffer significant pain. While the level of pain has varied to some degree over time, and is now generally perceived to be less intense that in the period immediately following the 2004 back injury, it has nonetheless persisted and is still significant. In the words of the applicant “it never goes away”. The Tribunal is satisfied that the applicant’s experience of ongoing pain as a result of his 2004 back injury is clearly supported by the weight of the independent medical evidence including the reports of Dr O’Brien, Associate Prof Romas and Dr Strauss. It is consistent with the applicant’s evidence and it is also consistent with the applicant’s ongoing use of pain medication in the management of his pain since 2004. In this respect, the Tribunal accepts the applicant’s evidence that he has taken pain medication in the management of his back pain consistently since 2004, although acknowledging that in 2017 there was a brief gap in response to the complications with his Fluoxetine medication.
The Tribunal is also satisfied that the applicant has suffered an incapacity for work as a result of his 2004 back injury for the purpose of section 19 of the SRC Act and that incapacity is ongoing. The respondent of course previously accepted that incapacity but now contends that the incapacity has ceased as at 2 May 2018. The Tribunal does not accept that contention.
The Tribunal accepts the applicant’s contention that applying the definition of “incapacity for work” in section 4(9) of the SRC Act the appropriate test is whether the applicant has suffered an incapacity to work at the same level at which he was engaged in that work or any other work immediately prior to the injury. The Tribunal notes that the respondent does not dispute that the applicant satisfies that test prior to 2 May 2018. The Tribunal accepts the applicant’s counsel’s contention that in assessing whether the applicant has the capacity to work “at the same level” regard must be had to the nature of the applicant’s work, its characteristics and degree of difficulty consistent with the decision in Re Prica and Comcare (1996) 44 ALD 46 where the Full Tribunal said:
The reference to “level” could be construed as a reference to a grade or salary level or could be a reference to the nature of the work in the sense of its characteristics, which will include its degree of difficulty. If the former construction were adopted it would produce the apparently anomalous result that a person with severe (or moderate) disabilities found to lack any incapacity for work as long as they continued to occupy the same grading or earn the same salary as at the date of the injury. The anomaly would not arise under the latter construction.[1]
[1] See also Smith and Comcare [2002] AATA 249 at [85].
The Tribunal is satisfied that as a result of the 2004 back injury the applicant is no longer able to undertake duties of the nature and characteristics and level of difficulty he was engaged in immediately prior to the injury. The fact that the applicant was subsequently promoted does not alter this conclusion. It is clear that prior to the injury the applicant was involved in an operational job necessitating a degree of physical fitness and strength with a high level of responsibility given the significance of the work and independent nature of the work. The Tribunal is satisfied that the weight of the independent medical evidence supports a conclusion that the applicant is no longer able to undertake work of that nature and character and level of difficulty as a result of his 2004 back injury. That incapacity had not ceased by 2 May 2018 and continues. This is supported by the weight of the independent medical evidence and, in particular, the reports of Associate Prof Romas, Dr O’Brien and also Mr Brazenor who made clear that the applicant cannot perform his previous duties. If anything, the applicant’s incapacity has worsened consistent with the opinion of Dr Barrett which the Tribunal will address later in these reasons.
The Tribunal also does not accept the respondent’s contention that the applicant’s 2004 back injury has resolved and any ongoing incapacity is now a consequence of other factors. The Tribunal accepts , on the basis of the independent medical evidence, that there is now no readily identifiable physical pathology to explain the applicant’s ongoing back pain symptoms. But those pain symptoms continue. They have not ceased. The Tribunal is also satisfied on the basis of Mr Brazenor’s evidence supported by Associate Professor Romas and Dr O’Brien that there continues to be a physiological impact from the injury. The applicant’s back is not as it was before. The injury has not “disappeared”.
The Tribunal is satisfied that the applicant’s 2004 back injury has not resolved and his incapacity from not injury has not resolved. The Tribunal is satisfied that the respondent continues to be liable for compensation in respect of the injury under sections 14, 16 and 19 of the SRC Act. In this sense, the Tribunal accepts the applicant’s contention that “the stage had not been reached where it could be said that ‘the employment injury ceases to produce effects and could therefore no longer be a contributing cause to any incapacity which may then exist, the right to compensation ceases’.[2]
[2] Per Jordan CJ in Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157 at 162.
The Tribunal is satisfied that in the immediate aftermath of the applicant’s 2004 back injury the applicant was frustrated and stressed by the impact of his physical injury in terms of ongoing pain, impact on his work circumstances, such as his need to transfer to alternative duties, and impact on his broader capacity for social and recreational activities. The applicant found the impact on his work circumstances particularly difficult to process. During this time the applicant was subjected to ongoing taunts in respect of his condition and changed work circumstances.
Having heard directly from the applicant regarding his experience at work in the immediate aftermath of his 2004 back injury, the Tribunal is satisfied that his description of those experiences is credible and the impact he suffered as a consequence of the treatment he received was significant. This is especially so given the broader difficulties he was experiencing in his adjustment to the ongoing pain and physical constraints he was forced to manage through at that time. The applicant’s oral evidence was consistent with his written statement and other descriptions of this experience included in a number of medical reports before the Tribunal. The Tribunal is satisfied that the treatment the applicant received during this period amounted to harassment and bullying in the work-place. The Tribunal is satisfied that the applicant’s treatment in the workplace together with the impact of his 2004 back injury caused the applicant to have feelings of sadness and depression and develop a sense of worthlessness and hopelessness. The Tribunal is satisfied that these circumstances contributed materially to the applicant’s subsequent development of a depressive disorder which the applicant has been forced to live with since and has now become chronic.
There were broader claims of mistreatment in the workplace referred to in the applicant’s evidence including the adjustment of his work hours to minimise penalty rates, the pressure he was under when he transferred to the Tariff Section, claims of unfair performance management, micromanagement during the implementation of his return to work program in 2016 and the applicant being denied higher duties and the expiration of the merits list. The Tribunal is not satisfied that these broader claims of the applicant amount to any form of mistreatment of the applicant by his employer. The Tribunal is satisfied that in each instance they amounted to reasonable administrative action. This is not to say that the applicant did not genuinely perceive the experiences as being impactful or unfair on him. The Tribunal accepts the applicant’s evidence as being truthful. However, in this respect the Tribunal accepts the opinion of Dr Barrett, that the applicant’s subsequent experience of his treatment in the workplace was significantly impacted by the symptoms of his depressive disorder and in that sense he had lost some perspective in what was reasonable in all of the circumstances. This is not a criticism of the applicant but rather a recognition of the impact of his condition.

The Tribunal is satisfied that the applicant’s depressive disorder was materially contributed to by the applicant’s employment and has continued to be so.[3]This is supported by the independent medical evidence including the reports of Dr Strauss and Dr Barrett. The Tribunal accepts Dr Strauss’ and Dr Barrett’s opinion that the applicant’s depressive disorder has persisted for a considerable period of time and consequently can now be considered chronic.
[3] See Woodhouse v Comcare [2021] FCAFC 95.
The Tribunal is also satisfied that the applicant has suffered and continues to suffer an incapacity for work as a result of his depressive disorder for the purpose of section 19 of the SRC Act. This is consistent with the conclusion of Dr Barrett. The impact of the applicant’s depressive disorder certainly did not cease as at 2 May 2018. Again, if anything, it has worsened.
The Tribunal accepts that other psychological factors and personal circumstances have occurred following 2004 that have further exacerbated the applicant’s depressive disorder but they are not the principal cause of the disorder. This is also supported by the weight of the independent medical evidence including the reports of Dr Strauss and Dr Barrett. In reaching this conclusion the Tribunal does not wish to diminish the significance of those other factors and circumstances but rather to recognise that the point in time in which the applicant’s pain and depression first emerged was in the immediate aftermath of his 2004 back injury and not when later difficulties emerged. The Tribunal is satisfied that those other exacerbating factors and circumstances, while significant, have not since “crowded out” or “overwhelmed” the applicant’s pre-existing circumstances to now be the primary cause of the applicant’s incapacity as suggested by the respondent. The other exacerbating factors and circumstances include the difficulty the applicant has had in his relationships with his parents and former partners, his sister’s health issues, his ADHD, the impact of his ADHD medication, his gambling problem, his financial difficulties, his substance addiction, his impulse control issues, his gastro reflux, his surgeries and pain associated with those surgeries, his fall and subsequent injuries, his anxiety and insomnia, his attempted suicide and seizures as well as other stresses the applicant has suffered in a work place context that the Tribunal is satisfied do not amount to bullying or harassment and are otherwise justified as reasonable administrative action such as those that took place in relation to the applicant’s return to work program and in relation to his missed promotion. The Tribunal is also satisfied that the applicant’s depressive disorder and its impacts has most likely contributed significantly to some of the other difficulties the applicant has experienced in his personal life and work life since 2004 as described above.
The Tribunal is satisfied that since its first emergence in approximately 2005, the applicant’s depressive disorder has continued to result in the applicant being incapacitated for work. The Tribunal is satisfied that the applicant’s depressive disorder has not ceased nor has the applicant’s employment contribution to the disorder reduced to a level that is no longer material such that the respondent ceases to have liability for compensation in respect of the disorder under sections 16 and 19 of the SRC Act.
The Tribunal finds that in addition to his depressive disorder, the applicant has, at around the same time he developed his depressive disorder also developed a chronic pain syndrome condition. That condition has developed as a consequence of the pain the applicant experienced in the immediate proximity to his 2004 back injury together with the factors that have caused the applicant’s depressive disorder as well as the impact of the depressive disorder itself. This is supported by weight of the independent medical evidence including the opinion of Associate Prof Ramos and Dr Barrett. The applicant’s chronic pain syndrome condition is the principal ongoing cause of the applicant’s ongoing pain symptoms. The applicant’s chronic pain syndrome condition is substantially attributable to the applicant’s 2004 back injury and the treatment he received in the workplace following that injury as well as the impact of his depressive disorder. The Tribunal is satisfied that the applicant’s chronic pain syndrome condition was materially contributed to by the applicant’s employment for the purpose of the SRC Act and that that material contribution continues. The Tribunal is satisfied that the applicant has liability for compensation in respect of the condition for the purpose of section 14 of the SRC Act.
Again, the Tribunal accepts that other psychological factors and personal circumstances that have occurred since 2004 have further exacerbated the applicant’s chronic pain syndrome condition but they are not the principal cause of the condition nor do they “crowd out” the applicant’s employment as being a materially contributing factor. The applicant’s ongoing chronic pain syndrome condition did from the time of its first emergence, and has continued to, result in the applicant being incapacitated for work for the purpose of section 19 of the SRC Act.
Having considered the whole of the evidence the Tribunal is satisfied that the applicant ceased work in February 2017 substantially as a result of the ongoing impacts of his 2004 back injury, depressive disorder and chronic pain condition. The Tribunal acknowledges that there were other factors relevant to that decision including concerns the applicant had with his treatment in the return to work program and the expiration of the merits list but they are not the primary reason. The Tribunal accepts that Dr Strauss’ report suggests that the applicant put the cause of his cessation or work down to other factors but that does not alter the Tribunal’s conclusion on this point.
The applicant was subsequently assessed by consultant psychiatrist Dr Antonella Ventura and consultant psychiatrist, Dr Melissa Barrett for the purpose of determining the applicant’s fitness for duty and to give consideration to medical retirement on the grounds of total and permanent incapacity for work. The applicant has since been certified as totally and permanently incapacitated for work and given an invalidity retirement.
Dr Ventura’s report is dated 5 May 2020. Dr Ventura assessed the applicant via videoconference for the purpose of her report. Dr Ventura’s report does not reference the applicant’s 2004 back injury in any detail although it is mentioned in his past medical history. In her description of the applicant’s complaints, she references the applicant as reporting that in 2014 he became depressed and that “he did not know what caused this”. She also notes that the applicant told her that he had his first episode of depression in 2005 because of bullying after his back injury. Dr Ventura’s conclusions included the following:
(a)the applicant’s current diagnosis are: major depressive disorder, long-term; alcohol use disorder, long-term; impulse control disorder, long-term and ADHD, long-term.
(b)in my opinion the conditions are not being appropriately managed by his treating doctors. He is not receiving any treatment for depression, nor is he receiving treatment for his alcohol use disorder. He may benefit from an alcohol rehabilitation program. Additionally, he may benefit from antidepressant medications and psychological treatment focusing on his mood disorder.
(c)in my opinion [the applicant] is not currently fit to perform the inherent requirements of his last role as outlined in the manager’s statement and at the APS 5 work level.
(d)treatment of his psychiatric condition may aid his capacity to return to pre-injury duties and hours, however, he does not appear to be motivated to do so.
(e)In my opinion [the applicant] does not qualify to be totally and permanently incapacitated because he has not had adequate treatment for this condition.
Dr Barret’s report is dated 22 December 2020. Dr Barret interviewed the applicant for the purpose of her report via videoconference. Dr Barrett’s record of the applicant’s medical history is substantially more comprehensive to that included in Dr Ventura’s report. Dr Barret notes that the applicant’s “current difficulties began after a back injury in the workplace in 2004”. Dr Barret notes that the applicant reports persisting pain and persisting symptoms of depression, stating that his mood varies from sad to normal to rage. Dr Barret notes that the applicant reports his mood as being very easily changeable over the last three years and that he also describes numerous instances of poor impulse control. Dr Barret notes the applicant as reporting that he has become withdrawn from friends since the onset of his depressive symptoms and has not seen them at all in the last four years. Dr Barret notes the applicant as reporting that his concentration is “terrible”, becoming distracted after “30 seconds”. Dr Barret noted that the applicant acknowledged suffering chronic suicidal thoughts intermittently over the last 4 years and has increased in the last few months, stating that he is “tired of being tired”. Dr Barrett’s conclusions included the following:
(a)[The applicant] has been diagnosed with ADHD. He is treated with the stimulant medication methylphenidate but although treated is likely to have some ongoing symptoms. His condition is complicated by impulse-control disorder, with a history of excessive gambling, shopping and misuse of alcohol.
(b)[The applicant] also has chronic pain, apparently related to work-related injury in 2004 and he developed an opioid-use disorder from 2006 through to 2016.
(c)[The applicant] developed depressive symptoms, which have been persistent since about 2005, in the context of his experience of chronic pain and frustration regarding his reduced work capacity. He perceived he was bullied in the workplace, which further exacerbated his depressive symptoms. Given the chronicity of his depressive symptoms and noting he has previously been diagnosed with an adjustment disorder and major depressive disorder and that his symptoms have been persistent at this severity since leaving work in about 2017, he would meet the DSM 5 criteria for a persistent depressive disorder.
(d)The opioid-use disorder has being chronic since about 2006 and although he had a period of residential detoxification in August 2020 and has switched to a long-acting Norspan patch, he ceased this and has resumed the opioid analgesic, Panadeine Forte about three per day. He apparently intends to follow up with a pain specialist in January 2020.
(e)[The applicant’s persistent depressive disorder] arises from multiple factors and has been persistent and chronic and it is likely to continue.
(f)[The applicant] has a complex set of psychiatric problems which interact with each other. I do not consider his treatment optimal at this time.
(g)Poor motivation is a symptom of depressive conditions and it is likely that [the applicant’s] persisting depressive disorder, which causes a lack of motivation as part of its core symptoms, contributes to [the applicant’s] view that the only option is for invalidity retirement.
(h)[I do not consider the applicant is fit to perform the inherent requirements of his last role as outlined in the Manager’s statement (ATT: B) and the APS 5 work level standards outlined in (ATT: C).
(i)[The applicant] has had persisting symptoms of depression and has ongoing suicidal ideation, with the recent suicide attempt about three weeks prior to this assessment. He also has a comorbid opioid-use disorder and a history of alcohol-use disorder. He has comorbid impulse-control problems, leading to outbursts of irritability, including in public and an underlying diagnosis of ADHD, which would impact his work performance.
(j)[The applicant’s] psychiatric conditions have been chronic, despite treatment in the past as well as ongoing treatments.
(k)Further factors in his total and permanent incapacity from work at this time and the documented difficulties at work for a number of years prior, including frequent periods of absence and conduct and behavioural difficulties in 2017, as well as attempting self-harm in the workplace in 2016 and difficulty controlling his displays of frustration from late 2016.
(l)The manager report records that [the applicant] has poor insight into his performance and behavioural issues in the workplace. If so, it would be likely that the performance management process and refusal to offer higher duties would be interpreted by him as bullying. [The applicant’s] perception that he has been bullied at work would cause anticipatory anxiety when considering a return to the workplace, which would inevitably exacerbate his conditions and result in any attempt to return to work being unsuccessful or unsustainable.
(m)Taking all of these conditions into account, I consider he is totally and apparently incapacitated. This is in agreement with the long-term treating psychiatrist, Dr Woods.
The Tribunal found Dr Barrett’s report to be particularly comprehensive and credible and the Tribunal accepts her conclusions as well as her recommendations for further treatment.. To the extent of any inconsistency between Dr Barrett’s conclusions and other observations made by medical professionals who have examined the applicant, in particular Associate Prof Romas and Dr Strauss, in respect of the work capacity assessment the Tribunal prefers the opinion of Dr Barrett.
While Dr Barrett has identified in some detail the additional impact that the applicant’s ADHD, opioid addiction, alcohol use and impulse control issues have on her assessment of the applicant’s capacity for work, having regard to the broader evidence before the Tribunal, the Tribunal remains of the view that the applicant’s ongoing pain symptoms, chronic pain syndrome condition and chronic depressive disorder are the primary factors that have given rise to the applicant’s work incapacity and that the genesis of those conditions is the applicant’s back injury that occurred in 2004 and the workplace treatment the applicant was exposed to in the immediate aftermath of that incident.
The Tribunal accepts the contentions on behalf of the applicant that there is no evidence to support a finding that the applicant was offered suitable employment or aided into suitable employment following him ceasing work in February 2017 and prior to his invalidity retirement.
The Tribunal also accepts on the basis of Dr Barret’s opinion that the applicant is not presently capable and has not been capable since ceasing work in February 2017, to undertake any form of “suitable employment”. The Tribunal accepts the contention on behalf of the applicant that in these circumstances the applicant is entitled to receive compensation payments in respect of his incapacity for work on the basis that the applicant has, since ceasing work in February 2017, had no ability to earn from suitable employment for the purpose of section 19 of the SRC Act.
For these reasons, the Tribunal is satisfied that the correct or preferable decision in this matter is that the decision under review be set aside and substituted for a decision recognising the respondent’s ongoing liability to pay compensation pursuant to sections 16 and 19 of the SRC Act in respect of the applicant’s previously accepted 2004 back injury and depressive disorder and also in respect of the applicant’s chronic pain syndrome condition.
DECISION
In respect of matters number 2018/4766 and 2020/4566 the decisions under review are set aside and substituted for a decision as follows:
(a)The respondent continues to be liable in respect of the applicant’s previously accepted back injury and depressive disorder condition for the purpose of sections 16 and 19 of the SRC Act.
(b)The respondent is liable in respect of the applicant’s chronic pain syndrome condition for the purpose of sections 14 of the SRC Act.
(c)On and from 2 May 2018 to the present date the respondent is to pay to the applicant:
(i)all reasonable medical and related treatment expenses incurred in respect of the applicant’s accepted conditions pursuant to section 16 of the SRC Act;
(ii)weekly payments of compensation in respect of incapacity for work pursuant to section 19 of the SRC Act on the basis that the applicant’s ability to earn is no more than the actual earnings.
(d)The respondent is to pay the applicant’s reasonable costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act.

I certify that the preceding 85 (eighty five) paragraphs are a true copy of the reasons for the decision herein of

...[sgn].....................................................................
Associate
Dated: 3 July 2023

Dates of hearing: 30 – 31 August 2021 and 1 September 2021

Representative for the Applicant: Mr M Carey

Solicitors for the Applicant: Maurice Blackburn Lawyers

Representative for the Respondent: Ms C Dowsett

Solicitors for the Respondent: Australian Government Solicitor

Dates of hearing:	30 – 31 August 2021 and 1 September 2021
Representative for the Applicant:	Mr M Carey
Solicitors for the Applicant:	Maurice Blackburn Lawyers
Representative for the Respondent:	Ms C Dowsett
Solicitors for the Respondent:	Australian Government Solicitor