Boggs and Comcare (Compensation)

[2019] AATA 221

Boggs and Comcare (Compensation) [2019] AATA 221 (22 February 2019)

Division:GENERAL DIVISION

File Numbers:         2017/3320; 2017/6826 and 2018/2858

Re:Wayne Boggs

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:22 February 2019

Place:Brisbane

The decisions under review (Applications 2017/3320, 2017/6826 and 2018/2858) are affirmed.

......................[Sgd]..................................................

Deputy President J Sosso

CATCHWORDS

WORKERS’ COMPENSATION – Compensation – Commonwealth employees – injury and impairment – disease – ailment – contributed to, “to a significant degree” – liability accepted for initial physical injury – whether initial physical injury has resolved – whether subsequent claim for related physical injury is open to applicant - liability denied for subsequent claimed mental injury – whether a separate injury – decisions under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988

CASES

Aunela and Telstra Corporation Ltd  [2008] AATA 153
Bainbridge and Repatriation Commission [2008] AATA 167
Canute v Comcare (2006) 226 CLR 535
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Havnen and Comcare [2010] AATA 535
Howes v Comcare [2016] FCA 1521
Lees v Comcare [1999] FCA 753
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Renouf and Comcare [2004] AATA 525
Telstra Corporation Ltd  v Hannaford (2006) 151 FCR 253
Tippett v Australian Postal Corporation (1998)  27 AAR 40
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110

REASONS FOR DECISION

Deputy President J Sosso

22 February 2019

INTRODUCTION

1. This matter involves the review of three decisions of Comcare.

2. The first decision, of 12 April 2017 (2017/3320), affirmed an earlier determination that Mr Wayne John Boggs (the Applicant) was no longer suffering a lumbar sprain sustained on 16 October 2015, and, consequently, was no longer entitled to receive compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

3. The second decision, of 8 November 2017 (2017/6826), affirmed an earlier Determination denying liability under s 14 of the Act for a thoracic spine injury claimed to have been sustained on 16 October 2015 and for generalised thoracic and lumbar spine injuries sustained due to the nature and conditions of the Applicant’s employment.

4. The third decision, of 27 April 2018 (2018/2858), affirmed an earlier Determination denying liability to pay compensation under s 14 for a psychological condition sustained consequent upon the back injury.

5. The Applicant was employed as a gardening/maintenance worker with the Department of Veterans’ Affairs in the Commemorations  and War Graves Branch – Exhibit 1 T4 pp. 8, 

6. On 16 October 2015, while spraying concrete war memorial graves at the Babinda Cemetery he injured his back.  On 19 October 2015 the Applicant lodged an WHS Incident and Hazard Reporting Form, and described the incident as follows – Exhibit 1 T3 p. 4:

   “while spraying gardiquet onto the concrete graves at the Babinda Cemetery WB went to move the 20 Ltr spray unit from one location to the next.  One of the wheels of the spray unit rolled into some uneven ground and started to roll over.  In the effort required to hold steady the unit by the handle WB then felt a stabbing pain in the lower center [sic] of his back. WB stopped moving the unit and stood still for a while supporting himself by the spray unit handle.  WB could feel a vice-like pressure on his lower center [sic] back.  The intensity of the pain lasted one minute and then changed to a burning sensation.  WB was also feeling nauseous at the time.  WB then sat down for 10 minutes and then reported the incident to his Supervisor by phone.”

7. The Applicant was unable to continue his work and he subsequently took some paracetamol and drove himself  from Babinda to Townsville where he consulted his GP (Dr Dhananjay Pawar) who prescribed analgesic medications (Panadeine Forte) – Exhibit 1 T6 p. 14;  Exhibit 2 ST23 p. 330.

8. The Applicant reported that the part of his body affected by the accident was “mid-lower back in the center [sic]” – Exhibit 1 T3 p. 4.

9. Also on 19 October 2015, the Applicant submitted a claim for workers’ compensation. The claimed condition was “injury to lower back” and the tasks that the Applicant was doing when injured were said to be “spraying cleaning chemical onto concrete graves” – Exhibit 1 T4 p. 8.

10. On 20 December 2004, prior to being engaged by the Department of Veterans’ Affairs, the Applicant underwent a Health Status Assessment, and denied he ever had back or neck pain injury._-- Exhibit 2 ST1 p. 236.

11. The Applicant was born in 1963 and at the date of the Hearing was 55 years of age – Exhibit 1 T4 p. 8. After leaving school at 15 years of age, the Applicant engaged in a variety of jobs including as a parks and gardens attendant with Townsville City Council from 1997 to 2000 and twelve months as a herbicide sprayer with Cityscape in Canberra (circa 2000). In the three years prior to obtaining employment with the Department of Veterans’ Affairs, the Applicant was self-employed as a driving instructor – Exhibit 2 ST23 p. 330.

12. On 20 October 2015 the Applicant underwent an MRI of his lumbar spine.  Dr John Fenwick, who performed the MRI, made the following comments – Exhibit 1 T5 p. 12:

    “Findings: There is mild facet joint osteoarthritis at L4/5 and L5/S1. No disc herniation is detected in the mid or lower lumbar regions.  No fractures are detected.

    There is moderate spondylosis at the T 12/L1 level but no accompanying posterior disc herniation or spinal stenosis.  The neural foramen are widely patent throughout.

    Conclusion:  No recent bony injury. Degenerative facet joint disease and possible low grade degenerative disc disease in the lower lumbar region but no evidence of compression of neural structures.”

13. Dr Pawar also referred the Applicant to a Physiotherapist for ongoing treatment – Exhibit 1 T6 pp. 13 – 14.

14. On 5 November 2015 Comcare accepted the Applicant’s claim for “lumbar sprain (muscular in nature)” and determined that he was entitled to compensation under s 14 of the Act – Exhibit 1 T7 pp. 15 - 18. It was determined that the Applicant was entitled to:

    ·Reasonable medical treatment from 16 October 2015 up to and including 2 November 2015 in the form of:

    oGeneral Practitioner consultations;

    oCT scan of the lumbar spine; and

    oPharmaceuticals (analgesics).

    ·Time off work from 16 October 2015 until 2 November 2015.

15. The Applicant recommenced work on 23 November 2015 but on a graduated return to work schedule for the period up to 29 January 2016. For the period 23 November until 11 December 2015, the Applicant was scheduled to work three days per week and four hours per day. This increased to four days per week and five hours per day for the period 14 December 2015 until 24 December 2015. The Applicant was scheduled to work four days per week and six hours per day for the period 4 January 2016 until 15 January 2016.  Finally, for the period 18 January until 29 January 2016 the Applicant was scheduled to work five days per week and six hours per day – Exhibit 1 T10 pp.  24 – 26.

16. Due to persistent back pain, the Applicant underwent CT scans of his cervical and thoracic spine. Dr Geoffrey Haussmann, who performed the CT on 30 November 2015, made the following comments – Exhibit 1 T11 p. 28:

    “Findings: There is mid thoracic scoliosis convex to the right.  Alignment is otherwise normal. Early disc degenerative change Is noted throughout the thoracic spine with no particular level more severely affected.

    There is no disc protrusion seen throughout the cervical and thoracic spine.  Canal and exit foramina are adequate at all levels.  Facet joints are unremarkable.

    There is no paravertebral soft tissue lesion at any level.

    Comments: Early degenerative changes as discussed. No acute lesion or destructive bone lesion. No neural compression.”

    (Bold in the original)

17. As part of the Applicant’s rehabilitation, he was initially provided with weekly physiotherapy sessions with Mr Dominic Rogers, Physiotherapist– Exhibit 1 T12 pp. 29 – 30. Mr Rogers opined in February 2016 that with ongoing treatment, including fortnightly massages during March 2016, he anticipated that the Applicant would be able to return to normal duties, including lifting etc, for up to four hours per day by 4 April 2016 – Exhibit 1 T17 pp. 41 – 42.

18. The Applicant’s Vocational Rehabilitation Progress Report for January 2016 was positive, and the Rehabilitation Provider, Ms Philippa Lawrence, stated – Exhibit 1 T16 p. 38-39:

    “Mr Boggs is now in his second week of the Monday through Friday roster and is managing his recovery well using the advice and assistance of his treating parties…

    Mr Boggs continues to be temporarily restricted from returning to the duties he previously performed with his employer.  He requires light duties where he can regularly change from sitting to standing and with limited lifting…

    Mr Boggs reported that his back pain does increase somewhat after physiotherapy however he is managing with strategies such as rest, pacing and stretches.”

19. By March 2016 the Applicant had returned to work five days per week and eight hours each day. In accordance with his Return to Work Plan, most of the allocated duties were office based with occasional outdoor tasks (weeding, sweeping and watering) which required no lifting. However, the Vocational Rehabilitation Progress Report for March 2016 recorded some deterioration in the Applicant’s condition – Exhibit 1 T20 p. 55:

    “… it can be noted that upon increasing hours above 6 hours per day, Mr Bogg’s has had a number of exacerbations and has required increased time off work.  A comprehensive review of Mr Bogg’s RTWP and duties is urgently required.”

20. On 22 April 2016 the Applicant was examined by Dr Jason McDarra, Orthopaedic Surgeon.  Dr McDarra opined in his report of 3 May 2016 (Exhibit 1 T21 p. 63) that the Applicant “suffers multilevel degenerative disc disease with minor disc disease of the thoracic spine and minor fact joint arthropathy of the lumbar spine.”  Dr McDarra excluded the suggestion that the Applicant was exaggerating his symptoms and was also of the view that, on the balance of probabilities, his condition was related to his employment and that his condition had not been superseded by a subsequent condition – Exhibit 1 T21 pp. 63 – 64. The following observations were made by Dr McDarra – Exhibit 1 T21 p. 64:

    “In my opinion, his employment does continue to contribute to his condition based on his 12 year employment in a physical role.  Given that the incident happened on 16 October 2015, I think the progress made to date is reasonable.  It is my opinion, that the return to work programmes undertaken so far meet reasonable expectations.  Mr Boggs is slowly improving and is keen to return to full duties in time.”

21. Dr McDarra opined that the physiotherapy treatment provided to the Applicant was reasonable and should continue for a further six months, but if the Applicant struggled to perform heavy labouring work, treatment by a chronic pain specialist may be required as well as undergoing facet joint hydrocortisone injections and thoracic spine injections – Exhibit 1 T21 p. 65.

22. The Applicant’s long-term prognosis was assessed by Dr McDarra as being “fair” and that the Applicant potentially “will have ongoing back issues throughout his working life”.  Finally, Dr McDarra opined that the Applicant was medically fit to perform light duties four days per week “with a view to upgrading this in the near future.” – Exhibit 1 T21 pp. 65 - 66.

23. In line with Dr McDarra’s view that treatment by a chronic pain specialist may be required, Dr Pawar sought advice from Dr Jason Scott in a letter dated 28 May 2016. In that letter, Dr Pawar opined that whilst the Applicant had undergone multiple physiotherapy sessions they “had not helped him significantly” – Exhibit 1 T23 p. 75.

24. The Applicant was seen by Dr Scott but declined receiving injections to mitigate his levels of pain – Exhibit 1 T33 p. 133.

25. The Applicant was assessed on 25 May 2016 by Ms Jenna Hinds, Consultant Occupational Therapist. At the time of the assessment, the Applicant reported experiencing the following symptoms – Exhibit 1 T27 p.  92:

    ·a constant burning pain in the thoracic region;

    ·a pain in his lower back that comes and goes which he described as ache and pressure; and

    ·pain between the shoulder blades that was described as pins and needles and golf balls.

26. Ms Hinds opined that the Applicant would return to his pre-injury duties through a gradual increase of his then current hours and duties, with a long-term goal of pre-injury hours and duties – Exhibit 1 T27 pp. 97 – 98.

27. The Applicant was next assessed by two occupational therapists (Ms Natalie Zanco and Ms Sarah Hanrahan) on 13 September 2016 – Exhibit 1 T32 pp. 113 – 131. The purpose of the assessment was to determine the Applicant’s then current physical/functional abilities and limitations as they impacted on his work capacity.

28. The Applicant informed the occupational therapists that – Exhibit 1 T32 P. 114:

    “he is currently recovering from a recent exacerbation of his condition. Mr Boggs reported that a “few” weeks prior to the assessment he was attempting to get off his lounge, when he heard a “crack” in his back, and experienced an increase in pain sensation throughout the middle of his back.  Mr Boggs reported that he is still in significant discomfort and pain from the “crack’ he experienced, and he was required to take time off work on the 8^th and 9^th September as a result.  Mr Boggs reported that since the time of injury he has only been required to take a ‘few’ block periods of time off work, typically for approximately a week at a time”

29. The occupational therapists performed numerous tests on the Applicant, but observed at “the conclusion of the assessment it was determined that Mr Boggs had demonstrated self-limiting behaviours which negatively impacted on the data collected on 15/09/2016. For this reason, Rehab Management we were only able to assess that Mr Boggs is fit to undertake work of a sedentary nature…It is considered that Mr Boggs may be able to undertake work of a heavier physical load had he not frustrated the objectives of this assessment” – Exhibit 1 T32 p. 129.

30. The Applicant was next examined by Dr Marcus Navin, Occupational Physician, on 3 November 2016.

31. Dr Navin noted (Exhibit 1 T33 p. 133) that two weeks prior to being examined the Applicant suffered from severe epigastric pain and required emergency hospital treatment. He was diagnosed as being affected by a dyspeptic type disorder.  Dr Navin concluded as follows – Exhibit 1 T33 p. 136:

    “Mr Boggs…was noted to be physically unfit.  He may also, given his manifestation, be affected by a condition such as hypothyroidism or polymyalgia rheumatica to give rise to the stiffness he reports and seemingly experiences.

    That said, his abdominal tenderness and his history of epigastric discomfort requires further elucidation.  I have, as an ethical medical practitioner urged Mr Boggs to attend his general practitioner for review of his epigastrium and his epigastric tenderness.  This is to exclude the possibility of any underlying condition associated with his undefined gastric lesion (or a pancreatic lesion).

    It is to be noted that Mr Boggs presents with abnormal pain and abnormal illness patterns.  His spinal pain cannot be induced by the handgrip test on the right hand alone. In my opinion, psychological conditions need exclusion.”

32. Subsequently, Dr Navin opined that the Applicant suffered from spinal discomfort, but that his symptoms were “much more related to a lack of physical fitness.” Further, Dr Navin was of the opinion that the Applicant “lacks psychological and emotional support to enable him to continue his work.”  It was also observed that the Applicant’s presentation was “confounded by his abnormal illness and abnormal pain behaviours.”  This reactivity and sensitivity to pain was not, in Dr Navin’s opinion, “congruent with his reported incident of October 2015.” It was also observed that while the Applicant may have conditions that were negatively impacting on him “they are not compensable.” – Exhibit 1 T33 pp. 136 – 137.

33. Accordingly, Dr Navin opined that the Applicant was not suffering from his compensable condition of lumbar sprain, and that a sprain exacerbation of his underlying spinal condition had resolved. The Applicant’s ongoing symptoms “reflect more likely a psychosocial orientation rather than a physical disorder.” – Exhibit 1 T33 p. 137.

34. The Applicant next underwent a MRI which was performed by Dr Cornel Spies on 1 December 2016. In his report of the same date, Dr Spies opined (Exhibit 1 T34 p. 147) that the Applicant suffered from “loss of signal intensity in multiple discs in the upper, mid and lower dorsal spine consistent with chronic disc degeneration.” The overall impression was:

    “Multiple haemangiomata in mid and lower dorsal vertebrae. Slight increased dorsal kyphosis with anterior flattening of several mid dorsal vertebrae, ?related to old Scheuermann’s disease, ?mild old compression injury.  Multiple level chronic disc degeneration and facet joint degeneration. No spinal or foraminal stenosis or cord pathology.”

35. On 17 February 2017, Ms Laura Plumb, the Comcare Delegate, having reviewed the Applicant’s claim file, determined that Comcare had no present liability for medical expenses under s 16 of the Act or incapacity payments under s 19 of the Act – Exhibit 1 T40 pp. 166 – 168. In reaching this conclusion, Ms Plumb referred to Dr Navin’s report of 11 November 2016 and quoted a number of extracts from that report. She concluded by referring to Dr Navin’s opinion that the Applicant’s lumbar sprain should have resolved by that time and that other factors were contributing to the Applicant’s back pain. Those other factors as previously stated included lack of physical robustness and possible polymyalgia rheumatic – Exhibit 1 T40 p. 167.

36. On 16 March 2017 the Applicant sought a reconsideration of this decision (Exhibit 1 T42 pp. 170 – 172), and supplied a letter of support by Dr Pawar dated 14 March 2017 – Exhibit 1 T41 p. 169.

37. Ms Barbara Ploy, Review Officer, affirmed the original determination in a decision dated 12 April 2017 – Exhibit 1 T43 pp. 173 - 177. In reaching this conclusion, Ms Ploy referred to the Functional Capacity Assessment Report of 19 September 2016, and Dr Navin’s report and the assessment of Dr McDarra. The following findings were made – Exhibit 1 T43 p. 176:

    “In order to accept that you are entitled to compensation, I must be satisfied, on the balance of probabilities that your current requirement for medical treatment and incapacity are as a result of the injury you sustained in October 2015.

    By your own reporting, you believed that your upper thoracic area was the primary area of your pain. I note that this injury was not reported at the time you submitted your claim for compensation in October 2015 and consequently, there is no liability in relation to this condition.

    In May 2016, Dr McDarra diagnosed you with multilevel degenerative disc disease with minor disc disease of the thoracic spine and minor facet joint arthropathy of the lumbar spine.  It was Dr McDarra’s opinion that you displayed symptoms which were completely consistent with your reported injuries.”

38. On 5 June 2017 the Applicant lodged an application for review of the decision – Exhibit 1 T1 pp. 1 – 2. The reasons advanced for the application were as follows – Exhibit 1 T1 p. 2:

    “The information I provided was not taken into account. Lower/Centre back pain was written clearly on the accident report form. I also told my GP on the day when he had written in numerous reports. I continue to have chronic back pain…”

1. On 18 September the Applicant’s then legal representatives lodged two further claims for compensation – Exhibit 2 ST12 pp. 283 – 284.

2. The first claim sought compensation for injury to the Applicant’s thoracic spine area arising from the 16 October 2015 incident – Exhibit 2 T12.3 pp. 288 – 292.

3. The second claim sought compensation for injuries to the thoracic and lumbar spine area which were said to be “due to the nature of” the Applicant’s “employment activities over the past 13 years” – Exhibit 2 ST12.4 p. 295.

4. The Comcare delegate (Ms Jennifer Sciberras) rejected both claims on 9 October 2017 – Exhibit 2 ST13 pp. 299 – 300. The reasons advanced were as follows – Exhibit 2 ST13 p. 300:

   “Having carefully considered the available evidence and information I am not satisfied that a new incident has occurred to give rise to a new claim.

   I am also not satisfied that an injury has been sustained as there is no clear diagnosis for your claimed condition, noting Dr Pawar refers to chronic pain in the thoracic and lumbar spine region.”

5. The Applicant was assessed by Dr HJP Khursandi, Consultant Orthopaedic Surgeon on 11 October 2017. Dr Khursandi reached the following conclusions about the Applicant’s condition – Exhibit 1 ST23 p. 333:

   “Mr Boggs has developed chronic thoracolumbar backache due to multilevel disc degeneration of the thoracic and lumbar spine and spondylosis of the lumbosacral spine.  The condition of the thoracic and lumbar spine are constitutional and pre-existing, aggravated and accelerated by the work-related incident of 16 October 2015…

   Notwithstanding the passage of time and treatment, he continues to experience significant thoracic and lumbar backache with partial loss of movement of the thoracolumbar spine as demonstrated in the examination of 11 October 2017, which is consistent with his multilevel degeneration of both segments of the spine.  He has no associated radiculopathy of his lower extremities and continues to treat the back symptoms with analgesics and anti-inflammatory medication.”

6. Dr Khursandi gave a pessimistic prognosis of the Applicant’s medical condition – Exhibit 2 ST23 p. 334:

   “…there is a likelihood that Mr Boggs’ degeneration of the thoracic and lumbar spine will progress in the foreseeable future with increased back pain and stiffness.”

7. On 13 October 2017 the Applicant’s then legal representatives requested a reconsideration of the Determination of 9 October 2017 denying liability for payment of compensation – Exhibit 2 ST14 pp. 302 – 303.  The reconsideration was effected by Ms Emily Reich, Review Officer, who on 8 November 2017 affirmed the original Determination – Exhibit 2 ST15 pp. 304 – 306. Ms Reich provided the following reasons – Exhibit 2 ST15 p. 305:

   “In conclusion I have been unable to establish that a new set of circumstances has arisen to give rise to a new claim in respect of your thoracic spine pain.”

8. The legal representatives for Comcare requested a supplementary report from Dr Navin who was provided with materials obtained under summons. Dr Navin did not re-examine the Applicant. (Exhibit 2 ST32 pp. 372 – 377). In his supplementary report of 29 January 2018 Dr Navin did not resile from his assessment of the Applicant as contained in his earlier report of 11 November 2016.  Dr Navin opined as follows – Exhibit 2 ST32 p. 374:

   “In direct response, Mr Boggs at the date that he was seen, had recovered from the specific incidents of October 2015 and that he suffered no on-going specific injury.  I note, the reports provided by the physiotherapists indicating from a clinical perspective that his situation had recovered by December 2015.

   Subsequent changes would reflect other factors and aspects.  In my opinion, however, an aggravation or irritation of the spinal structures would have resolved in the normal process of healing assisted by the physiotherapist.  This would appear to have been the case given the reports provided by the physiotherapist and are included in the clinical notes of December 2015. The observations are restated in January 2016, as to a recovery….

   In my opinion Mr Boggs is affected by the consequences of his anatomical changes, the passage of time and the consequence of a lifetime of employment rather than any specific duration of employment.  He has, from the radiological studies, a diffuse widespread degeneration of discs throughout his spinal column with secondary bony changes particularly in the posterior (facet) joints.  These would have given rise to pain in any circumstance.

   I posit, in recognition that I am not an orthopaedic surgeon, that the widespread nature of his multiple disc degeneration may reflect a constitutional change.  It is recognised, likely as not, that Mr Boggs (as a young person) was affected by Scheuermann’s disease.  This information is included in the opinion provided by the radiologist.  It is to be appreciated that the widespread degeneration would not be specifically related to his more recent employment with the Department of Veterans’ Affairs and not specifically in relationship to the last 13 years of work alone.

   The degeneration would have been a consequence of his spinal condition and his life experience rather than a specific relationship to his employment.  It was noted that he had manually demanding roles throughout his working life; and this is more consistent with the changes present rather than in relationship to his work within the Department of Veterans’ Affairs.”

9. Dr Navin opined that the Applicant may well have suffered  a sprain to his lower spine, but it was in the nature of a temporary aggravation which would have ceased within approximately three months of the incident – Exhibit 2 ST 32 p. 375.

10. On 12 March 2018 the Applicant’s then legal representatives provided to Comcare a medical report of Dr Christopher Slack, Consultant Psychiatrist – Exhibit 2 ST37 pp. 392 – 393.  On the basis of that report, the legal representatives contended that Comcare accept liability for the Applicant’s major depressive disorder which was claimed to be secondary to his thoracic spine condition suffered on 16 October 2015.

11. The material before the Tribunal is somewhat confusing in this regard.  The report of Dr Slack, dated 31 January 2018, is addressed to the Department of Veterans’ Affairs, and Dr Slack states that the Department referred the Applicant to him for a psychiatric assessment. In fact, the material suggests that the report was prepared at the request of the Applicant’s legal representatives and the only material provided to Dr Slack was the report of Dr Khursandi of 11 October 2017 and the reports of Dr Pawar of 6 and 12 November 2017 – Exhibit 2 ST33 pp. 378 – 379.

12. Dr Slack diagnosed the Applicant as suffering from a major depressive order of moderate to severe intensity which was in partial remission – Exhibit 2 ST33 p. 381.

13. On 27 March 2018, the Comcare delegate, Mr Laurence Levy, declined to accept liability for this condition – Exhibit 2 ST38 pp. 394 – 395.  The following reasons were given for this decision – Exhibit 1 ST38 p. 395:

    “When considering the claimed secondary condition, Comcare would need to be satisfied that the condition arose out of, or was significantly contributed to by, your primary condition.

    As liability for your primary condition, namely ‘severe chronic back pain, thoracic spine area’ claimed under claim number 1241562/2 was never accepted by Comcare, it flows that Comcare would also be unable to accept liability for any secondary condition that resulted from this original claim.

    As such, your claimed secondary psychological condition of ‘major depressive disorder’ has been declined under Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).”

14. On 4 April 2018 the Applicant’s then legal representatives sought reconsideration of this decision – Exhibit 2 ST39 pp. 397 – 398.  In affirming the decision of Mr Levy, the Review Officer, Ms Barbara Ploy, also referred to the fact that Dr Slack had not been provided with a copy of Dr Navin’s report of 11 November 2016 in which he opined that the Applicant’s back injury would have been resolved by that time – Exhibit 2 ST40 pp. 399 – 402.

15. Subsequently, review was sought by the Tribunal and this became Application 2018/2858.

    HEARING

16. A Hearing was convened in Brisbane on 31 October and 1 November 2018.  The Applicant was self-represented and appeared via video-conference from Townsville.  Comcare was represented by Mr Michael Snell of Counsel, instructed by Mr Lehmann of Lehmann Snell Lawyers.  Evidence was given by Dr Bruce Low, Orthopaedic Surgeon and Dr Navin.

17. As the Applicant was self-represented and had a number of difficulties in presenting his case due to technological issues, I gave him and the legal representatives of Comcare the opportunity to provide written Closing Submissions. This course of action was agreed by consent.

18. The Applicant, on 15 November 2018, provided to the Tribunal and the legal representatives of Comcare written Closing Submissions (28 pages).

19. Unfortunately, Comcare’s legal representatives informed the Tribunal on 5 December 2018 that they would not be responding to the Applicant’s Closing Submissions.  This was some time after the time provided for the provision of such submissions.

20. The Applicant, although unrepresented, provided lengthy submissions that proved to be very helpful to the Tribunal and raised some issues of concern.  Having regard to the content of those submissions it would have been appropriate for legal representatives for Comcare to respond. The fact that no response was forthcoming was perplexing and unhelpful.

21. The Tribunal expects parties who seek to have admitted into evidence extracts from voluminous summonsed material to ensure that the material is submitted in a way which would not lead the Tribunal into error. A Tribunal member does not read the summonsed material in advance of a Hearing. To do so could be prejudicial if that material is not subsequently admitted into evidence. The Tribunal relies on the parties to put to the presiding Member that material which is sought to be admitted into evidence and to explain its relevance. In this matter the summonsed material was voluminous and was provided to the Tribunal partly in CD format.

22. This is not the first time that issues such as this have arisen. Reference can be made to Bainbridge and Repatriation Commission [2008] AATA 167, and, in particular, to the observations of Senior Member McDermott (as he then was) at [17] in relation to the duty imposed on a respondent decision-maker in providing to the Tribunal every document of relevance to the review of the decision.

23. It may be that consideration will need to be given to requiring parties to advise the Tribunal in advance of an Hearing what summonsed material will be sought to be admitted into evidence so that a presiding Member can view that material before the Hearing and ensure that the problems that have arisen in this matter are avoided in the future.

    APPLICANT’S EVIDENCE

24. The Applicant gave evidence on 31 October 2018 and was cross-examined by Mr Snell.

25. The Applicant noted in the Applicant’s Response to: Respondent’s statement of Issues, Facts and Contentions (Exhibit 6) that when he completed his pre-employment questionnaire he forgot to disclose that he suffered from a lower back muscle sprain which he received in 1990 whilst working as a delivery driver and which required physiotherapy and rest (Exhibit 6 para 9).  It was also noted that the injury healed and the Applicant did not suffer from any further back problems until 2007, when he received a lower back muscle sprain whilst shovelling mulch whilst working for the Department of Veterans’ Affairs.

26. When giving evidence on 31 October 2018, the Applicant referred to the 2007 incident and said that he required two days off work. The Applicant stated that the first time he injured his back was in the 1990s when he was working as a truck driver.  The pain he experienced at that time was in the lower back, about eight inches above the belt line coming into the centre of the back.

27. The Applicant informed the Tribunal that he was required to each year to go on a ten week maintenance circuit in North Queensland.  Babinda was a one day “job” and the hours of work were 7:20 am until 4:00 pm.

28. After repeating the details of the incident, the Applicant referred to the physiotherapy treatment he received from Mr Dominic Rogers of SportsMed NQ.  The Tribunal was also provided with copies of various letters written by Mr Rogers to Dr Pawar in the period November 2015 until June 2016- Exhibit 7.

29. The Applicant was cross-examined at some length by Mr Snell.

30. During cross-examination the Applicant testified that:

    (a)he was examined by Dr Pawar on the afternoon of the incident;

    (b)he drove to Dr Pawar’s surgery;

    (c)Dr Pawar only undertook a “quick” examination of his back;

    (d)Dr Pawar did not examine -his back with his hands;

    (e)he did not point out to Dr Pawar where he was feeling pain in his back;

    (f)Dr Pawar didn’t ask him where exactly in his back he was experiencing pain;

    (g)despite the cursory nature of the examination, Dr Pawar ordered a CT of the lumbar spine;

    (h)Dr Pawar “assumed” that the pain was in his lumbar spine;

    (i)six months later Dr Pawar “apologised” for his “mistaken” assumption after the results of the CT scan explained that the pain was emanating from higher in his back;

    (j)he had pain all down his spine, and his muscles felt they were on fire;

    (k)he complained of pains in his neck;

    (l)since the incident he has been taking Panadeine Forte tablets, Cymbalta (an anti-depressant medication), Nexium and Celebrex (for his gastrointestinal system), Voltaren and he also uses heat packs; and

    (m)he used anti-depressant medication once before the incident, for three months in the 2008/2009 period to deal with the after effects of a marriage breakup and the death of his father.

31. The Applicant was particularly critical of the way he was said to have been treated by Dr Navin. During his testimony the Applicant said Dr Navin:

    (a)yelled at him;

    (b)was physically rough when he examined him;

    (c)pushed him so much on his left side that he felt pain;

    (d)either injured his back during the examination, or at least inflamed it.

32. Mr Snell asked the Applicant if he recalled being referred for neurological testing in 2016.  The Applicant said that he was referred by Dr Pawar to be assessed by Dr Eric Gauzzo, Neurosurgeon.  Mr Snell produced a report of Dr Gauzzo dated 3 January 2016 which was admitted into evidence as Exhibit 3.

33. Dr Gauzzo made the following diagnoses:

    (a)mechanical thoracic spinal pain relating to work activity 18 months previous to January 2016;

    (b)incidental thoracic spinal haemangiomata;

    (c)thoracic kyphosis.

34. Dr Gauzzo stated in his report that the Applicant had been referred to him because of the Applicant’s thoracic spinal pain and made the following observations:

    “He told me that he had experienced some intermittent lower mild back pain in the past and can recall in 2010 undergoing an x-ray of his back for mechanical back pain that had occurred after he was assaulted.  He related his pain to a posture he required to use to sleep because of injuries to his shoulder…

    In October 2015, he told me he was in Dublin, roughly a week’s trip up north.  This was the last summer retreat before returning home.  He describes how he pulls a spray pack on wheels with 20 litres of fluid.  In doing so, he developed pain in the thoracic region.

    The pain became severe and on return home he consulted yourself.  He had two weeks off work and then returned to work on light duties.  He did take medications for his symptoms. Over time he was able to return to full time but the symptoms worsened and he had to  then take another week off work around May and has been on part-time work since.  He currently works half days four days a week on light duty.”

35. In concluding, Dr Gauzzo opined that the Applicant had “a slightly kyphotic thoracic spine with no other abnormal findings.” Surgery was not required and Dr Gauzzo was of the view that “the haemangiomata are incidental and not related to the back pain. In my opinion, his back pain is mechanical and is exacerbated by his posture.”

36. Mr Snell asked the Applicant about the reference in Dr Gauzzo’s report to him being assaulted in 2010 and the Applicant agreed that he had been the victim of an assault.  When asked when this occurred, the Applicant agreed it was in December 2012.  Mr Snell produced a copy of report of Dr Carly Griffin of the Emergency Department of Townsville Hospital dated 22 December 2012 – Exhibit 9.

37. Dr Griffin made the following notes:

    “WAYNE JOHN BOGGS presented to the Emergency Department at TOWNSVILLE HOSPITAL on the 21 DEC 2012 at 21:51.  The presenting problem was HEAD INJURY, PUNCHED TO L) EYE, SIGNIFICANT HAEMATOMA, HARD COLLAR, PAIN TO R) SHOULDER WAS THROWN TO GROUND, HYPOTESNSIVE ON QAS ARRIVAL SBP 83 POST 500 ML FLLUID

    PHX ASTHMA

    NKDA

    The following investigations were undertaken in the department:

    FBE

    U/E/C

    The diagnosis was MINOR HEAD INJURY

    Thank you for the ongoing care of this patient.  Wayne presented to ED following an alleged assault by a man in a pub.  He was punched 1x in the face causing a significant haematoma to his left eye. He fell backwards but denied hitting his head or LOC. Wayne complained of pain over his left eye and right shoulder.

    On examination Wayne was alert, GCS 15/15.  There was a haematoma over the left eye and tenderness on palpation of his shoulder joint.  The arm was neurovascularly intact.  There was no spinal tenderness and neurological examination was normal.

    CT head/face: nasal #

    XR right shoulder: NAD

    Wayne was admitted to the ED short stay ward for analgesia overnight. Re-examined and no new injuried [sic] found.  Pt remained clinically stable.”

38. Mr Snell also produced a Medical Imaging Report produced by the Townsville Hospital of a thoracolumbar spine X-ray performed on the Applicant on 30 January 2013 – Exhibit 9. Under the heading “History” is the following notation:

    “Post alleged assault, ongoing back pain.”

39. In addition, the following findings were made:

    “Scoliosis of the spine noted.  No compression or fracture seen.  The disc spaces are maintained. No evidence of spondylolysis or spondylolisthesis.”

40. During cross-examination, the Applicant testified:

    (a)he recalled the events of December 2012;

    (b)he had specifically mentioned them to Dr Gauzzo;

    (c)he was punched outside a hotel;

    (d)the assailant jumped on top of him and injured his shoulder;

    (e)his shoulder was in a sling for three months;

    (f)he was given physiotherapy treatment starting in January 2013.

41. The Applicant denied he was suffering from psychological problems prior to the October 2015 incident, and that he was experiencing the ups and downs of most people.  The only time he was depressed was in circa 2000 and the Applicant testified that he was prescribed anti-depressant medication for approximately three months.

42. Mr Snell then referred to various summonsed medical records – Exhibit 8. The records disclosed that the Applicant was seen by Dr Pawar on 7 February 2013 and it was noted that the Applicant had been “suffering from anxiety caused by the incident (he was punched by somebody before Christmas) he is afraid the same person will come and bash him again” – Exhibit 8 p.25.  Dr Pawar prescribed Valium for the Applicant and requested an X-ray of the right shoulder and right rotator cuff.

43. On 18 February 2014 Dr Pawar carried out a mini mental state examination of the Applicant and he was prescribed Nexium and given a referral to Dr Gillian Mahy – Exhibit 8 pp. 23, 25.  On 20 February 2014 Dr Pawar referred the Applicant to Mrs Lorraine Heilbronn, Psychologist who examined him on 27 February 2014.

44. Mrs Heilbronn opined that the Applicant had a DASS 21 Score of 7 (moderate range), and that he was experiencing anxiety because of his forgetfulness. In addition, the Applicant reported binge drinking and memory loss – Exhibit 8 p. 23.

1. Mrs Heilbronn again examined and assessed the Applicant on 6 March 2014 – Exhibit 8 p. 22.

2. The Applicant denied under cross-examination that he was taking anti-depressants prior to 2015. Mr Snell then asked the Applicant if he recalled attending Townsville Hospital on 18 March 2015 suffering from anxiety and depression.  The Applicant said he did not recall attending at Townsville Hospital, and that he was not a “hospital person” and instead would seek medical assistance from his GP.

3. Mr Snell drew the Tribunal’s attention to an Adult Pre Procedure Assessment Record of the Townsville Hospital for the Applicant which was said to have been prepared on 18 March 2015. This document, and the time it was prepared, is discussed at length later.

4. Under the heading “Do you have or have you ever had any of the following?”  a number of illnesses are listed.  The “No” box was ticked for each of the named illnesses, with the exception of three. One of those was: “Do you suffer from anxiety or depression”, and in the details the word “medicated” is written – Exhibit 8 p. 102.

5. The Applicant was asked by Mr Snell if the document bore his handwriting, and he answered in the affirmative. Again, this is dealt with at greater length below.

6. Mr Snell also asked the Applicant if he recalled being treated by Mrs Heilbronn for depression and anxiety.  The Applicant replied that he had forgotten about Mrs Heilbronn.

7. Mr Snell then asked the Applicant if he recalled the Functional Capacity Assessment performed by Ms Zanco and Ms Hanrahan where he was required to lift various weights and climb stairs. The Applicant testified that he recalled the Assessment.  The Applicant also recalled that the Assessors concluded that he hadn’t given full effect to the tests and had engaged in self-limiting behaviours.  When asked if he recalled that the Assessors were of the view that his efforts during the tests were sub-optimal, the Applicant replied with words to the effect: “perhaps I should have screamed”.

8. Mr Snell then said that the Assessors were not the only persons who concluded that the Applicant had only given a sub-optimal performance.  The Applicant agreed, and said that Dr Navin was also of that view.  The Applicant said that he could have tried harder when undergoing the tests in Dr Navin’s surgery, however he was stood over by Dr Navin (who, the Applicant said was 6’ tall) and so he approached the tests in a half-hearted manner.

   EVIDENCE OF DR LOW

9. Dr Low gave evidence on 31 October 2018 and testified that he assessed the Applicant in circa May 2017 and said that he was suffering from disc degeneration but did not have a pinched nerve.  Although the Applicant’s disc degeneration is hereditary, nonetheless Dr Low said that his work had aggravated his condition.  Dr Low stated that there had been multiple aggravations over many years, but these had an accelerating effect on the Applicant’s underlying constitutional condition.  Dr Low said that there was no evidence of nerve damage or bone fractures but the Applicant was suffering from spinal arthritis.

10. Dr Low agreed with Mr Snell that his diagnosis was, in part, dependant on the history given to him by the Applicant.  Dr Low said words to the effect: “all I can do is go on the evidence given by the client”. 

11. Dr Low said that he was unaware of the Applicant’s previous psychiatric history. Further, he said that the Applicant would have had a 99% chance of his condition resolving within three months of the October 2015 incident.

    EVIDENCE OF DR NAVIN

12. Dr Navin gave evidence on 1 November 2018. Initially Mr Snell questioned Dr Navin whether the Applicant may have suffered in his earlier years with Scheuermann’s disease.  This scenario was initially raised by  Dr Spies in his report of 1 December 2016 – Exhibit 1 T34 p. 147. Dr Navin dealt at some length with the possible ramifications of Scheuermann’s disease in his supplementary report of 29 January 2018, the relevant parts of which are set out earlier  – Exhibit 2 ST32 p. 374.

13. Dr Navin explained that Scheuermann’s disease, is not actually a disease. It is, rather, a form of osteochondritis affecting the vertebrae. It develops in adolescents and causes spinal pain and outward curvature of the spine (kyphosis). Many persons suffering from this “disease” have large lung capacities with some males developing broad, barrel chests.  The “disease” causes lower and mid-level back pain, which can be severe and disabling. Usually Scheuermann’s disease runs it course once a person stops growing, however when a person is fully grown the affected bones will maintain the deformity inflicted by the “disease”.

14. Dr Navin testified that persons affected with this “disease” suffer great back pain, and that up to 15% of the Australian population may be affected by this condition, to greater or lesser extent. The MRI conducted by Dr Spies detected the “disease” which was not exposed on the X-rays undertaken by the Applicant.

15. Dr Navin referred to the Applicant being barrel chested and the other side effects of Scheurermann’s disease and opined that a unwell person will, naturally, be worried about their unwellness. He said that it was a primitive reflex going back to hunter gatherer times; in short, it was a normal consequence of life. Dr Navin said that an anxious person will usually have tense muscles with consequent pain and discomfort.

16. Dr Navin noted that in 2014 the Applicant’s treating GP (Dr Pawar) had observed that the Applicant was suffering from major depression and anxiety and had referred him to Mrs Heilbronn for advice on further management of these conditions – Exhibit 8 p. 123.

17. The Cymbalta (60 mg every morning) prescribed, is designed to address mood and sleep changes and helps reduce pain.

18. Dr Navin observed that immediately after the October 2015 incident the Applicant’s condition improved, but then regressed. He opined that this suggested that other factors were at play. Moreover, he was of the opinion that the Applicant’s increased levels of pain may be psychologically and not physically driven.

19. Under cross-examination, Dr Navin denied that he had ever shouted or been abusive to the Applicant.  He also denied that he had been abrupt during his examination of the Applicant.  Dr Navin observed that usually pressing on a patient’s stomach during an examination does not produce pain in the back.

20. In response to questions from the Tribunal, Dr Navin stated that he is 71 years old and his height  is 5’ 11”.

21. The Tribunal observed that Dr Navin presented as an elderly and lean gentleman who is not particularly tall and is softly spoken.  Dr Navin has regularly given evidence in Tribunal proceedings, and is polite and helpful when giving evidence.  In short he does not present as an aggressive and overbearing person.

    LEGISLATIVE OVERVIEW

22. Section 14 “is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned.”  - Lees v Comcare [1999] FCA 753 (Lees) at [27]. It creates a liability for Comcare to pay compensation for injuries suffered by employees resulting in death, incapacity for work or impairment. As the Full Court in Lees highlighted, liability is qualified in two ways:

    (a)liability is subject to the other provisions in Part II of the Act; and

    (b)the liability is “in accordance with the Act”, namely “to pay compensation for which the statute provides, as required by the Act: see, for example, ss 17(3), (4), (5), 19, 20, 24 and 25” – Lees at [27].

23. In order for liability to accepted pursuant to s 14, the following findings are required:

    (a)appropriate notice of injury has been given;

    (b)a claim for compensation, in accordance with the Act, has been made;

    (c)the claimant was an employee at the relevant time;

    (d)the employee suffered an injury; and

    (e)the injury resulted in death, incapacity for work or impairment;

    see Lees at [35].

24. There is a distinction between a decision to revoke a s 14 determination and one terminating liability because the condition no longer attracts payments for medical expenses or for incapacity. The former would be relatively rare as it would involve revisiting one or more of the five matters highlighted in Lees – see Renouf and Comcare [2004] AATA 525 at [76]. It is much more likely that cessation of liability will involve reconsidering matters under ss 16 and 19 of the Act.

25. Before focusing on the nature of the compensable “injury” it is important to note that in those matters where Comcare has initially accepted liability to pay compensation under s 14, in order for compensation to continue to be paid, there must be continuing incapacity or impairment. This matter is one where Comcare is not contending that its initial acceptance of liability under s 14 was wrong and it has not been contended that the Tribunal revisit the substantive determination relying on the principles expounded in Telstra Corporation Ltd  v Hannaford (2006) 151 FCR 253. Rather, this matter involves, inter alia, the contention by Comcare that the compensation is no longer payable because the of “ceased effects” of the compensable “injury”.

26. The term “injury” is defined by s 5A to mean:

    “(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, an 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.”

27. At the outset, and having regard to certain submissions of Comcare, it is necessary to refer to the following observations of the High Court in Canute v Comcare (2006) 226 CLR 535 at 540 about the concept of an “injury”:

    “First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment: it is liable to pay compensation in respect of ‘the injury’. Secondly, the term ‘injury’ is not used in the Act in the sense of ‘workplace accident’. The definition of ‘injury’ is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term ‘injury’ is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to ‘disease’ or ‘physical or mental’ injuries and, at least to that extent, it assumes that an employee may sustain more than one ‘injury’.  The use in s 24(1) of the indefinite article in the expression ‘an injury’ reinforces that conclusion.”

28. It will be seen that the definition of “injury” comprises two main subsets, namely “disease” and “injury (other than a disease)” each of which comprises separate but related bases of liability. The third basis of liability is an aggravation of a physical or mental injury (other than a disease).

29. As the High Court explained in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at 482, the first task of the tribunal of fact is to determine if the employee is suffering a disease.

30. “Disease” is defined by s 5B of the Act to mean:

    “(a) an ailment suffered by an employee; or

    (b) an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s    employment by the Commonwealth or a licensee.”

31. The term “ailment” is defined by s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”

32. “Aggravation” includes acceleration or recurrence – s 4(1). Reference can also be made to the following observations of Windeyer J in  Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537 at 593:

    “’Aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that, running its ordinary course, increase in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli’ Federal Broom Co Pty Ltd v Semlitch…”

33. A “significant degree” means a degree that is substantially more than material – s 5B(3).

34. Reference can be made to the very helpful discussion of the history of the 2007 amendments to the Act which replaced the test of “material degree” with “significant degree” in Comcare v Power (2015) 238 FCR 187 at 201 – 205/[78] – [95] per Katzmann J. In particular, the following guidance was given (at 201/[78]):

    “A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial.”

    (emphasis in original)

35. In determining whether an ailment, or aggravation thereof, was contributed to, to a significant degree, by an employee’s employment, s5B(2)  provides that the following matters may be taken into account:

    (a)the duration of the employment;

    (b)the nature of, and particular tasks involved in, the employment;

    (c)any predisposition of the employee to the ailment or aggravation;

    (d)any activities of the employee not related to the employment;

    (e)any other matters affecting the employee’s health.

36. This list is non-exhaustive, and s 5B(2) specifically provides that the matters listed in the subsection do “not limit the matters that may be taken into account.”

37. Subsection 16(1) of the Act provides:

    “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.”

38. It will be seen that s 16(1) requires that the medical treatment obtained must be “in relation to the injury”.   Whilst the words “in relation to” have the widest possible meaning intended to convey some connection between the subject matter to which the words refer (Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 at 111 per Mann CJ), the relational connection between the medical treatment and the compensable injuries must be determined objectively and by reference to all relevant evidence. In order to determine if the relational connection exists or existed, it is necessary for the Tribunal to consider the nature of the compensable injuries in light of the evidence presented, including opinions by medical specialists, and make, on the balance, an evaluative conclusion – Howes v Comcare [2016] FCA 1521 at [53] – [54].

39. Section 19 provides that Comcare is liable to pay to an employee who is incapacitated for work as a result of an injury, the compensation is calculated in accordance with the prescribed formulae. Essentially, compensation for incapacity is paid on the basis of normal weekly earnings and is designed to reflect pre-injury earnings, including regular overtime and certain allowances.

    CONSIDERATION

    Introduction

40. It is not contested that the Applicant suffered a compensable injury whilst working on 16 October 2015.  It is also not contested that the Applicant is unwell and suffers from a number of ailments.

41. In his Closing Submissions, the Applicant noted that he still suffers pain in his thoracic and lumbar spine and that pain radiates up to the neck and shoulder regions. The Applicant also explained that sitting for long periods during the two-day Hearing aggravated his lumbar sprain causing his lumbar and thoracic spine to inflame with higher levels of pain – Closing Submissions pp. 3 – 4.

42. The medical evidence before the Tribunal suggests that the Applicant suffers from back pain and has, over time, been afflicted by bouts of depression and anxiety. The issues to be determined by the Tribunal, however, are not evaluating the nature and degree of the Applicant’s ill-health per se, but whether Comcare is liable to pay compensation under ss 16 or 19 of the Act.

43. It is necessary to place on the record that the Tribunal did not accept the Applicant’s claim that he had been mistreated by Dr Navin. 

44. Not surprisingly, the Applicant tried to construct his evidence in a way that would support his claims, however any person who was not supportive of his compensation claims, was subjected to criticism. For example, in the Applicant’s Statement of Truth which is dated 29 May 2018 (Exhibit 5) the Applicant described the Functional Capacity Assessment Report as a “sham” and said:

    “Who in their depressed state of mind would go and lift heavy weights and do things to a point that is going to aggravate more their already severe chronic back pain?”

45. In his Closing Submissions, the Applicant said of Dr Navin (pp. 4 – 5):

    “Dr Navin identified on the 01/11/2018 while giving evidence that if he was to verbally and physically abuse a patient before and during a examination that the examination would not be true and accurate.  I put it to Dr Navin that this is exactly what he had done. This would suggest Dr Navins’ IME report on that day was false and misleading and a complete misrepresentation of the medical profession.”

46. The Tribunal found Dr Navin to be a truthful witness and as he appeared in person the Tribunal was able to observe him.  He is an elderly and somewhat frail gentleman, softly spoken and the Tribunal does not accept the Applicant’s version of what transpired during his examination by Dr Navin.

47. The Applicant was also not forthcoming about the serious assault perpetrated on him on 21 December 2012, and his responses to questions posed by Mr Snell could best be described as evasive.

48. Overall, however, the Applicant presented as an unwell person who believed passionately in the justness of his claims. Furthermore, despite being unrepresented and required to give evidence via video-link (with technical issues arising), he presented his case in a competent manner.

49. The Applicant, when completing his pre-employment health questionnaire (Health Status Assessment) in  December 2004, denied that he had previously experienced back or neck pain or injury – Exhibit 2 ST1 p. 236. Yet, the MRI report of Dr Spies of 1 December 2016 indicates that the Applicant has slightly increased dorsal kyphosis with anterior flattening of several mid dorsal vertebrae which Dr Spies opined may be related to old Scheuermann’s disease – Exhibit 1 T34 p. 147.

50. Dr Navin opined, in his supplementary report, that radiology disclosed that the Applicant has widespread disc degeneration, and that, more likely than not, he was afflicted with Scheuermann’s disease during his youth.  In short, according to Dr Navin, the Applicant’s widespread disc degeneration would not have been related to more recent employment or events, but his life experience – Exhibit 2 ST32 p. 374.

51. Dr Low was of the same view. In his report of September 2017 he opined that the Applicant suffered from slightly “increased dorsal kyphosis consistent with Scheuermann’s disease and associated with some scoliosis” – Exhibit 4.

52. Consequently, the Applicant would have experienced back pain over a long period of time. This conclusion is at odds with the Applicant’s statement in the Health Status Assessment of December 2004 that he had no history of back pain.

53. The Tribunal was also presented with the Functional Capacity Assessment Report of September 2016 where the two Occupational Therapists who conducted the tests concluded that the Applicant’s self-limiting behaviours negatively impacted on the data collected.  In particular the following inconsistencies were noted – Exhibit 1 T32 p. 129:

    ·Grips strength to normative data and consistency between left and right. Mr Boggs advised that his Grade 3 AC Joint tear has no impact on function, however Mr Boggs shows significant loss of strength in his right hand, which may be as a result of the non-work injury.

    ·Mr Boggs was seen to show inconsistencies between his heart rate recording with reported pain (VAS) and perceived exertion (Borg Scale). At no time of the assessment was Mr Boggs observed to reach 60% of maximal heart rate for that of a 52 year old.

    ·At the time of assessment Mr Boggs’ reported moderate to high levels of pain and effort when performing tasks such as lifting, carrying, and cardiovascular fitness.  It was observed by both assessors that Mr Boggs did not exhibit signs of exertion or pain such as: facial reddening, increased pacing during lifting and carrying tasks, use of accessory muscle groups, shaking during listing tasks, or tightening grip (white knuckles).  It would be expected that Mr Boggs would have demonstrated a combination of the above signs when performing tasks which exceeded his capacity.  Mr Boggs did demonstrate heavy breathing and non-verbal vocalisations (on the right heel strike when carrying loads) throughout the assessment but this was attributed to poor cardiovascular fitness or pre-existing degenerative conditions.

    ·At the time of assessment Mr Boggs exhibited self-limiting behaviours as he would not attempt to lift any loads which exceed 5 kg.  Given that Mr Boggs did not attempt these lifts Rehab Management were unable to accurately assess his maximum safe lifting limit.

    ·Cessation of all tasks due to measurable data (heart rate or manual handling).”

1. When Dr Navin examined the Applicant in November 2016 he opined that Mr Boggs presented with “abnormal pain and abnormal illness patterns.” Dr Navin also observed that the Applicant’s use of the right handgrip of a Jamar dynamometer was associated with claimed low back pain. As Dr Navin opined: “there was no link between the use of handgrip test and symptoms in the lower back spine.” In the view of Dr Navin “psychological conditions need exclusion”. – Exhibit 1 T33 pp. 135 – 136.

2. Dr Navin concluded by opining – Exhibit 1 T33 p. 138:

   “It is reasonable conjecture that he was consciously restricting his movement during the FCE conducted by Rehab Management.”

   2017/3320 – LUMBAR SPRAIN

3. The initial Determination of 17 February 2017 denying that Comcare had any present liability for medical expenses pursuant to s 16 or compensation payments pursuant to s 19 was heavily influenced by the first medical report of Dr Navin – Exhibit 1 T40 pp. 166 – 167. In particular the following assessment by Dr Navin was relied upon – Exhibit 1 T33 p. 137:

   “I do not consider that Mr Boggs continues to suffer from his compensable condition of lumbar sprain. Mr Boggs asserted at this assessment that his condition was a sprain of his upper thoracic spine.  This is also congruent with the symptoms as outlined by Dr McDarra. I would have considered that a sprain exacerbation of his underlying spinal would have resolved by this time. His ongoing symptoms reflect more likely a psychosocial orientation rather than a physical disorder.”

4. The review officer who made the reviewable Determination also quoted at some length from Dr Navin’s initial report, but also referred to the report of Dr McDarra of 3 May 2016.

5. Dr McDarra opined that the Applicant was suffering from multilevel degenerative disc disease with minor disc disease of the thoracic spine and minor facet joint arthropathy of the lumbar spine. Further, Dr McDarra was of the view that his employment continued to contribute to his condition based on his 12 year employment in a physical role. Finally, Dr McDarra opined that the Applicant would require ongoing treatment for a further six months, and that his long term prognosis was fair – Exhibit 1 T21 p. 63-65.

6. Dr Low opined that the Applicant has a chronic spinal condition, both thoracic and lumbar, but went to opine that it was mainly thoracic and that the “cervical lumbar spine isn’t too bad”. Dr Low concluded that the Applicant’s work did not cause his spinal condition, but had aggravated it – Exhibit 4.

7. Dr Low’s view, that the incident of October 2015 had aggravated the Applicant’s pre-existing chronic degenerative lumbar spinal condition, is consistent with the initial acceptance of liability by Comcare.  Such acceptance of liability is also consistent with long-standing judicial authority. Reference need only be made to Tippett v Australian Postal Corporation (1998) 27 AAR 40 where Finkelstein J made the following observations (43 – 44):

   “…there will be an exacerbation of an injury when the experience of the injury is increased or intensified without any alteration to the underlying physical or mental condition…an injury will be aggravated if the experience of the injury is increased or intensified…In addition, because ‘aggravation’ of an injury is defined to include ‘recurrence’ of that injury, it is not necessary to show that the experience of an injury is increased or intensified.  It will be sufficient if, as a result of activities undertaken in the course of employment, a previous injury occurs again whether or not the experience of it is at the same level of intensity…

   What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable…

   Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment then the employee will have suffered a compensable injury…The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee’s employment…

   However, as was pointed out by the Full Court in Commonwealth v Beattie, at 201 per Evatt and Sheppard JJ:

   ‘It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury.  A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability.  But that is not a case of aggravation.  In such a case any incapacity for work arises only by reason of the pre-existing injury.’

   This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the work has suffered an aggravation of his or her pre-existing injury.”

8. The evidence fairly discloses that the October 2015 incident resulted in the Applicant suffering an aggravation of his lumbar spine condition, in that he experienced pain more intensely. However, the evidence, on the balance, also supports the proposition that this increased level of pain in the lumbar spine was transitory and  dissipated over time.

9. The Applicant was referred to SportsMed NQ Physio for physiotherapy treatment after the October 2015 incident.  The treating physiotherapist, Mr Dominic Rogers, in a report dated 3 November 2015, stated – Exhibit 7:

   “I have seen Wayne twice already and his lumbar pain has settled well but the thoracic pain is not responding as well to treatment yet.”

10. The Applicant in his Closing Submissions, attempted to downplay this assessment by providing this version of what transpired (p. 4):

    “Although one physio therapist reports states my lumbar sprain had settled some within that month of Physiotherapy, I was also keen with a positive attitude in that month to get out of the office and return to my tropical garden the ‘NQ Garden of Remembrance’. As stated in my SOT, I was highly medicated and wearing a back brace and continue with my gradual return to work program, Thinking all would be good. I still had Not 100% completely recovered from my lumbar sprain.”

11. Other reports from Mr Rogers suggested that the primary cause of spinal pain was in the thoracic region, and although there had been “significant progress initially” (report of 17 February 2016), the pain condition failed to show further improvement.

12. Likewise in the Vocational Rehabilitation Progress Report for December 2015 the Applicant is reported to having said “that his back pain ‘flares’ after physiotherapy and work but that it is ‘less’ than when he first sustained the injury’- Exhibit 1 T13 p. 32.

13. In the Vocational Rehabilitation Progress Report for January 2016 the Applicant is reported to having said that his back pain increases somewhat after physiotherapy but he was managing with strategies such as rest, pacing and stretches – Exhibit 1 T16 p. 39.

14. By February 2016 the Applicant, in response to questions posed in an Oswestry Low Back Pain Disability Questionnaire reported that his lower back pain was “moderate” as distinct from it being “severe”, “very severe” or “the worst imaginable” – Exhibit 1 T17 p. 43.

15. Dr Navin reported that according to the physiotherapy reports he had been briefed with (and the Tribunal cannot locate same), that by December 2015 the Applicant had recovered 90% of the range of movement in thoracic spine and had completely recovered of his lumbar spine – Exhibit 2 ST32 p. 373.  Dr Navin made the following observations – Exhibit 2 ST32 p. 374:

    “In direct response, Mr Boggs at the date that he was seen, had recovered from the specific incidents of October 2015 and that he suffered no on-going specific injury.  I note, the reports provided by the physiotherapists indicating from a clinical perspective that his situation had recovered by December 2015.

    Subsequent changes would reflect other factors and aspects.  In my opinion, however, an aggravation or irritation of the spinal structures would have resolved in the normal process of healing assisted by the physiotherapist.  This would appear to have been the case given the reports provided by the physiotherapist and are included in the clinical notes of December 2015.  The observations are restated in January 2016 as to a recovery.”

16. On the balance, the evidence before the Tribunal, leads to the conclusion that the incident of October 2015 resulted in a short term aggravation of the Applicant’s longstanding and degenerative lumbar spine condition. It is not clear at the exact point of time that the medical treatment obtained was no longer in relation to the injury (s 16) or that the Applicant was no longer incapacitated for work as a result of the aggravation of his lumbar spine condition.

17. A generous view of the material would accord with the opinion of Dr McDarra that by May 2016 a further six months of medical treatment was required to deal with the impact of the October 2015 incident. Accordingly, the Tribunal agrees with the conclusion reached by Ms Plumb, the Comcare Delegate, that by, at the very least, 17 February 2017, compensation was no longer payable pursuant to ss 16 and 19.

    2017/6826 – THORATIC SPINE INJURY

18. It will be recalled that when the Applicant first claimed compensation in October 2015, the condition claimed was an injury to the lower back and that he was experiencing pain in his mid-lower back region – Exhibit 1 T4 p. 8.

19. In August 2017 the Applicant made two compensation claims.  In the first the areas of the body said to be affected were the centre back/thoracic spine area.  The stated cause of the injury were the events of 16 October 2015 at the Babinda Cemetery – Exhibit 2 ST12.3 p. 290. The second claim listed the compensable condition ass severe chronic back pain, burning, stabbing, sharp shooting pain and pressure pain. Both the lumbar and thoracic spine areas were reported as being affected and the cause of the injury was said to be as follows – Exhibit 2 ST12.4 p. 295:

    “Due to the nature of my employment activities over the past 13 years.”

20. As is clear from the evidence previously discussed, the Applicant does suffer from a longstanding degenerative condition affecting his thoracic spine.  Dr Low opined that the Applicant mainly had a thoracic spinal condition “which he has had for some time.” – Exhibit 4

21. The evidence also discloses that the medical treatment he received was not restricted to his lumbar spine.  Mr Dominic Rogers in his report of 3 November 2015 reported that the physiotherapy treatment provided consisted of (Exhibit 7):

    “Mobilisation and soft tissue work of lumbar and thoracic area”.

22. Mr Rogers reported on 10 December that the focus of the treatment related to the thoracic spine and on 19 January 2016 stated: “I have been treating Wayne for his bilateral thoracic pain since October”. Similar statements were made in the reports of 17 February 2016 and 29 March 2016.

23. When the Applicant made his original claim, he described the area of his body affected as his mid-lower back. He was provided with medical treatment and treated for the pain he was experiencing in his back.  Those tests and the treatment accorded were not limited to the area of his lumbar spine. The evidence discloses that the treating professionals did not ignore his thoracic spine pain; in fact it would appear that as time went on it became the major focus of the treatment provided.

24. The Applicant cannot make a new claim in respect of the same injury for which he has already been fully compensated.  In this matter, it is said in the second of the claims that the cause of the thoracic and lumbar spine condition was due not just to the October 2015 incident but, more generally, to the nature of employment activities since 2004.

25. The preponderance of medical evidence is that the Applicant has suffered a degenerative condition of his spine since his youth. Its progress has been inexorable, and, from time to time, its progress has been accelerated due to physical trauma .

26. The Applicant reported to Dr Khursandi that in the 1990s whilst working as a truck driver he developed work-related pain which settled after two weeks of physiotherapy – Exhibit 2 T23 p. 331.

27. The Applicant also informed Dr Khursandi that sometime during the 2007/2008 period whilst he was shovelling some mulch he notice back pain which settled after a few days – Exhibit 2 T23 p. 331.

28. The Applicant informed the Occupational Therapists who prepared the Functional Capacity Assessment Report that as at September 2016 – Exhibit 1 T32 p. 114:

    “he is currently recovering from a recent exacerbation of his condition.  Mr Boggs reported that a ‘few’ weeks prior to the assessment he was attempting to get off his lounge, when he heard a ‘crack’ in his back, and experienced an increase in pain sensation throughout the middle of his back.  Mr Boggs reported that he is still in significant discomfort and pain from the ‘crack’ he experienced, and was required to take time off work on the 8^th and 9^th September as a result.”

29. The Tribunal accepts that the October 2015 incident aggravated the Applicant’s spinal condition, and it is further accepted that it would not be sensible to narrowly and artificially approach the Applicant’s original claim for compensation.  The Applicant reported pain in his mid to lower back, and the medical evidence suggests that he has had chronic spinal problems in both his lumbar and thoracic spine for a number of years.

30. However, the evidence also discloses that the aggravation of the Applicant’s spinal condition was appropriately diagnosed and treated. Indeed, the aggravation was successfully treated, inasmuch as it is possible to successfully treat a chronic degenerative condition.  The October 2015 incident, or indeed the full period of the Applicant’s employment, may have aggravated his spinal condition, but that aggravation was resolved with medication and physiotherapy. It is not to the point to contend that the treatment was not successful because it did not resolve the Applicant’s spinal condition, as his condition is constitutional, permanent and degenerative.  The issue is whether the increased pain and discomfort brought about by the October 2015 incident, or indeed the Applicant’s longer-term employment, had resolved by January 2017. On the balance, the evidence evinces a positive response.

    2018/2858 – PSYCHOLOGICAL CONDITION

31. As previously noted, Dr Christopher Slack, Psychiatrist, made an assessment of the Applicant’s psychiatric condition in January 2018. Dr Slack interviewed the Applicant and was informed that he injured his back in October 2015 and, as a result of the severity and chronicity of his back pain, had developed a depressed mood.  Despite being treated with antidepressant medication (Cymbalta 60 mg per day initially, and then 30 mg per day), the Applicant’s depressed state has continued with his mood “all over the place”. Dr Slack observed – Exhibit 2 ST33 p. 379:

    “He said he does get quite down and there have been times when he has been suicidal but with the treatment he has had his suicidal thoughts are not as intense as they used to be.  Mr Boggs said that he has been extremely irritable and gets ‘aggro and the family does not want to be near me too much’. He was quite tearful as he said that.”

32. Also, as previously noted, Dr Slack diagnosed the Applicant with a major depressive disorder of moderate to severe intensity, in partial remission. Dr Slack opined that this condition was “long-term and chronic and intimately associated with his chronic pain” – Exhibit 2 ST33 p. 381.

33. In reaching this conclusion, Dr Slack set out what he assumed was the Applicant’s past psychiatric history, namely – Exhibit 2 ST33 p. 380:

    “Mr Boggs said that he became depressed briefly when his marriage broke up some ten years ago and he was on antidepressants for about two months.”

34. The Applicant’s then legal representatives wrote to Comcare on 12 March 2018 enclosing a copy of Dr Slack’s report and contending that Comcare accept liability for a secondary psychological condition – Exhibit 2 ST37 p. 392.

35. The letter is brief and contains at the top of the first page a reference to the Applicant and the Claim Reference is 1241562/2. 

36. It is necessary to note that there is, as the High Court held in Canute v Comcare (at 547), no foundation in the Act for “confining the meaning of ‘injury’ to exclude …a consequential or secondary injury”.

37. In Canute, as in this matter, the applicant was claiming compensation for a depressive illness said to have developed from a back injury.  The High Court unanimously held that both were injuries in their own right, and the claimed depressive condition was not less of an injury than the primary back injury.

38. It is not contested that the claimed physiatric condition needs to be assessed pursuant to s 5B of the Act as it meets the description of “ailment” in s 5B(1)(a). Further, the test of contribution to a significant degree by the employee’s employment also potentially comes in to play. However, before the claimed ailment can be assessed according to this test, some preliminary legal questions need to be answered.

39. Comcare initially refused to accept liability on the basis that the claimed primary condition, namely severe chronic back pain, thoracic spine area, was not accepted by Comcare. Consequently, the Comcare delegate decided that as the primary condition did not attract liability, the claim for the secondary condition must necessarily fail – Exhibit 2 ST38 pp. 394 – 395.

40. The Applicant’s then legal representative, in a letter dated 4 April 2018, sought reconsideration of this decision and contended that the Comcare delegate had not given sufficient weight to the evidence provided to Comcare and had failed to properly apply the relevant law – Exhibit 2 ST39 p. 397. The following substantive contentions were then made – Exhibit 2 ST39 p. 397:

    “3. The primary delegate has been overly technical in their approach.  Specifically, it was incorrect for the primary delegate to state that liability for a secondary psychological condition should not be accepted because Dr Slack considers my client’s Major Depressive Disorder is caused by his chronic pain and Comcare denied liability for ‘severe chronic back pain, thoracic spine area’. It is clear that Dr Slack has not had reference to the Determination issued by Comcare and is making a general comment that my client’s back pain caused by his employment (which is chronic) has caused his secondary condition. In this regard, I note Dr Slack’s opinion that:

    ‘As a result of the severity and chronicity of his back pain Mr Boggs has also developed a depressed mood.’

    4. Further to point 3, I ask the Reconsideration Officer to consider Appendix B to the Legal Services Direction 2017 which requires Comcare not to rely on technical defences unless the Commonwealth’s interests would be prejudiced by the failure to comply with such a requirement.  It is clear that this is not such a case noting that Comcare has previously determined that my client suffers from a back injury as a result of his employment and Dr Slack also confirms that this has resulted in a depressed mood.

    5. While the primary delegate has not been overt in this regard, if there is a suggestion that my client’s secondary psychological condition cannot be accepted because his primary condition (claim 1241562/1 – lumbar sprain) is no longer ongoing, such a view is incorrect. It is clear that Dr Slack considers my client’s psychological condition has been significantly contributed to by his back injury which is all that is required for the purposes of section 5B of the Safety, Rehabilitation and Compensation Act 1988.”

1. On reconsideration, the Review Officer affirmed the original Determination and reasoned that to be entitled to compensation for a secondary condition of major depressive disorder, it must be satisfied that this condition was significantly contributed to by a primary compensable condition.  The Review Officer went on to highlight that Dr Slack had not been provided with a copy of Dr Navin’s report. The Review Officer concluded that as liability was declined for the claimed severe chronic back pain, thoracic spine area, it followed that compensation was not payable for any secondary condition.

2. There are two key matters that now require ventilation. The first, is to ascertain the factual matrix underpinning the Applicant’s claim, and the second is the application of the relevant legal principles.

3. The starting point of the first is the report of Dr Slack, which is central to the Applicant’s claim. Dr Slack was led to believe that, with the exception of a small depressive interlude of a decade ago, the Applicant’s mental health was good, and that he did not have a history of depression.

4. As previously noted, there was a large amount of summonsed medical material, however the legal representatives of Comcare only sought to introduce into evidence a small proportion of that material.  This was primarily Exhibit 8 which consisted of extracts from the medical records of Health & Wellbeing, Wulguru and the Townsville Hospital and Exhibit 9 which consisted of further extracts from Townsville Hospital records

5. The summonsed Townsville Hospital medical records for the period 2013 – 2014 disclose that the Applicant (Exhibit 8) was suffering from depression and anxiety following the assault of 21 December 2012.

6. Dr Pawar opined as early as 7 February 2013 that the Applicant was suffering from anxiety and that the Applicant was afraid he would be assaulted again – Exhibit 8 p. 25.  On 18 February 2014 Dr Pawar conducted a mini mental state examination of the Applicant and on 20 February 2014 referred him to Mrs Lorraine Heilbronn, Psychologist. In the referral letter, Dr Pawar sought “an opinion and advice on the further management of major depression & anxiety” – Exhibit 8 p. 123. The Applicant was subsequently treated by Mrs Heilbronn.

7. Importantly, the legal representatives of Comcare relied on an Adult Pre Procedure Assessment Record of the Townsville Hospital.  At the bottom of each page it is stated that it is four pages in length, but the version that was admitted into evidence only contained the first two pages. The first page contains at the top the following notation: “DOS: 18-Mar-2015 00.01”. The submissions from Comcare proceeded on the basis that the document was created on 18 March 2015, and the Tribunal also assumed that was the case. This document records the Applicant taking anti-depressant medication and that the Applicant was suffering from anxiety or depression – Exhibit 8 p. 102.

8. The Applicant, in his Closing Submissions, made the following assertions (p. 16):

   “1. Produced by the respondent on the afternoon of the 1^st November 2018 during the hearing was a letter from Townsville General Hospital (TGH). An ‘Adult Pre-Procedure Assessment’ (APPA) Record, DOS; 18 March 2015. ‘Is that  your handwriting Mr Boggs’? Was the Question put to me.

   I would know like to correct my original answer of yes. When I first saw the document on my phone straight away I saw a spelling mistake in antidepressant so I naturally presumed it was mine as I scribble letters out all the time.  Next day I re-examined the document and found a lot of discrepancies in the hand writing, the D, N, u, m r and the writing slopes to the left as mine slopes right being right-handed. I noticed that there was only two of four pages from the document so I track the full four paged document in the Summons to Produce Documents from the TGH.

   Page 101 of 117 in the TGH summons documents is the (APPA).  On the bottom of page 4 of the (APPA) is the signature of a Denise Horan. (Refer to letter 03 following this document) I would like now to give my correct answer of NO that is not my handwriting and I have no idea why this person has wrote that. Medical records show that I was not on Antidpressants nor had any anxiety or depression at the time.

   Summons documents from Health and Wellbeing, (My Treating GP) states on page 19, Tuesday 17^th March 2015 (refer to letter 04 following this document) The day before the TGH letter I saw my GP Dr Pawar for Nexium prescription only. Page 22, Medical records show 20/02/2014 – 06/03/2014 I suffered some anxiety. Page 24, 07/02/2013 some anxiety. No anti-depressant medication was prescribed or taken by me, (refer letter 05 following this document) the first and last time that I can recall taking anti-depressants before now was when my marriage broke up in 2008 as I explained at the AAT hearing.

   The overwhelming feeling that afternoon of 01/11/2018 and the impact of this question triggered anxiety leaving me suffering deeper depression which I fought for days to overcome. I find it disturbing and very upsetting to know that mental health issues can be used in this way if any future incidents arise. Maybe to suffer in silence is a better option knowing now that ‘Are you OK day’ and to seek medical help for anxiety and or depression can do more harm than good in the future.”

   [Bold in the original]

9. Having regard to this submission, I examined this document in its totality. The last page (p. 104) states that the Applicant was to undergo a particular surgical procedure.  The date of that procedure was 5 July 2017.  At the bottom of page 4 is a section headed “Review and Triage” which outlines the Applicant’s post-operative state.  It was completed by Ms Denise Horan and is dated 29 July 2017.

10. In short, this document was, ostensibly, not created in 2015 but was created on or about July 2017, and the information about the Applicant’s ingestion of anti-depressant medication and suffering from anxiety or depression relates to his state of health eighteen months after his compensable injury and not five months before its occurrence.

11. There was a further piece of information which the Applicant extracted from the summonsed medical material which had not been admitted into evidence but which he included in his Closing Submissions; namely, pp. 76 and 77 of the summonsed medical records of Health & Wellbeing Wulguru (at pp. 25 – 26).  Those pages set out the medicines prescribed for the Applicant during the period 27 June 2012 until 30 August 2017.

12. Importantly this extract discloses that the Applicant was prescribed the antidepressant drug Cymbalta from 21 October 2015.  In short, the Applicant has only been prescribed antidepressant medicine from the time of the October 2015 accident.

13. The provision of these potentially important pieces of information by the Applicant after the Hearing was helpful but the non-response of Comcare was most unfortunate.

14. Certainly, taken together, this information suggests that the Applicant was suffering from depression after the compensable incident, and whilst he was suffering from depression and anxiety prior to the incident, the treating medical experts only started medicating him for this problem after that time.

15. Indeed, a perusal of the records of Health & Wellbeing Wulguru disclose that Mrs Heilbronn treated the Applicant on 8 December 2016.  The reason for the consultation was stated to be (p. 8):

    “Depression: Back Pain

    Suicidal Thoughts: Thoughts of ending his life 3 – 4 months ago.”

16. Accordingly, a fair reading of the material before the Tribunal discloses that the Applicant did suffer from anxiety, and possibly depression, prior to October 2015, but that following the Babinda accident his mental health deteriorated further. Unfortunately, the evidence is relatively scant about his mental state in more recent times, and, as noted, Dr Slack’s report was predicated on an incomplete history of the Applicant’s mental condition. Further, Dr Slack was not called to give evidence, and, accordingly, there was no opportunity to test his conclusions.

17. Turning to the second matter, namely the application of the relevant legal principles, the first point is that a “secondary” injury (or sequelae) is an independent injury in its own right.  In this case the claimed “secondary psychological condition” is to be assessed independently of the “primary” injury – Canute v Comcare (2006) 226 CLR 535.

18. Second, as a general rule, if it is determined that liability for compensation in respect of the “primary” injury, then it follows that there is no liability for compensation for the secondary injury.

19. Third, in determining both the nature of the secondary injury and its relationship with the primary or initial injury, a broad, generous and practical interpretation should be made – see, by analogy, Re Aunela and Telstra Corporation Ltd  [2008] AATA 153; 102 ALD 218.

20. In this matter the claim was in a short letter sent by the Applicant’s legal representatives. It referred to the report of Dr Slack as the basis for the claim. It is clear that the claimed psychological condition is secondary to the onset of back pain. In this matter liability under s 14 was accepted for lumbar sprain, and a practical and fair interpretation of the letter is that the intention was to link the claimed psychological condition to that back pain. A narrow approach would be to reject liability on the basis that the letter links the claim to the claim relating to the thoracic spine. However, as was pointed out in the letter of 4 April 2018 (Exhibit 2 ST 39 p. 397), Dr Slack “has not had reference to the Determinations issued by Comcare and is making a general comment that my client’s back pain caused by his employment (which is chronic) has caused his secondary condition.”

21. Fourth, it can be the case that if liability is accepted for the initial injury, that liability can be accepted for the secondary injury even if the first injury has resolved.

22. In this case if it can be established that the pain caused by the “lumbar sprain” (for which liability was accepted) resulted in the Applicant suffering a mental “injury”, then that injury has (potentially) a life of its own, and can continue in time beyond the resolution of the physical injury. In short, if the psychological damage caused by the pain experienced by the physical injury persists, and can be referenced back the Applicant’s employment, then liability can be established pursuant to s 14 and ongoing compensation can be payable pursuant (for example) to ss 16 and 19.

23. The Tribunal then proceeds on the basis that it is open for the Applicant to claim that his psychological injury was caused by the pain experienced as a result of the compensable lumbar sprain.

24. Fifth, the Tribunal must then determine if the Applicant’s ailment was contributed to, to a significant degree, by his employment.  This requires, as Katzmann J highlighted in Comcare v Power (2015) 238 FCR 187 at 204/[94], “an evaluative exercise to be undertaken.”

25. Such an exercise requires, inter alia, the Tribunal to determine the relevance and then               weigh the matters outlined in s 5B(2):

    (a)the Applicant was employed in the Commemorations and War Graves Branch of the Department of Veterans’ Affairs for more than a decade before the Babinda accident in October 2015. In short, his period of employment was a lengthy one;

    (b)his employment involved manual labour, sometimes carrying, lifting, holding or pushing machinery or substances that were of at least moderate weight, and sometimes over terrain that involved steep inclines, such as the Babinda Cemetery.  Further, from time to time, the Applicant was required to go on tours of remote cemeteries that would involve travel and work in remote and difficult environments. The Tribunal accepts, then, that the Applicant’s employment could, at times, be physically demanding;

    (c)as to predisposition, the evidence discloses that the Applicant was, during 2013 – 2014, being treated for anxiety, and in his past had a least one bout of depression at the time that his father died, and subsequently,  when his then wife dissolved the relationship. The Applicant was prescribed Valium on 7 February 2013 to help calm and deal with, his anxiety issues – Exhibit 8 p. 25. Accordingly, the Applicant does have a history of being pre-disposed to anxiety and possibly depressed mood;

    (d)the Applicant was the subject of an unprovoked criminal assault in December 2012 which resulted in hospitalisation and subsequently received medical treatment and psychological counselling. Further, it would appear from the evidence that the Applicant has had fairly tumultuous family relationships with a history of emotional and sometimes traumatic events that have required him to take time off work and seek medical assistance;

    (e)the Applicant has a long history of degenerative spinal problems impacting on both his lumbar and thoracic spine.  Further, the medical records disclose that he also has a long history of other health issues including asthma, Barrett’s oesophagus and prostatic hypertrophy.  Further, he has injured himself on a number of occasions and has also required surgical interventions. In short, the Applicant’s health has, at times, been less than ideal and he has experienced periods of anxiety and pain.

26. The Tribunal has found that the Applicant’s compensable injury of lumbar sprain had resolved by February 2017. A close reading of the times when the Applicant was prescribed Cymbalta indicates that he was prescribed a relatively heavy dosage between October 2015 and January 2016, and not prescribed any further dosage until February 2017, and then only a further three prescriptions until 30 August 2017.  The Tribunal has no material before it as to whether the Applicant has been prescribed Cymbalta in more recent times, and, if so, the level and frequency of the dosage.

27. The evidence before the Tribunal suggests that the Applicant has been a sick man for some time, and, in more recent years, seems to have been afflicted with a number of ailments and required multiple medical interventions. 

28. The evidence also clearly establishes that the Applicant is suffering from degenerative spinal disease and the pain emanating from this condition is, more likely than not, increasing with the passage of time.

29. Viewed from this prism, it is, perhaps not surprising that the Applicant’s mental health has begun suffer more with the ongoing bodily attrition he is suffering.

30. This is not a case where there is uncertainty as to whether the Applicant continues to suffer pain and is in a depressed mood.   It is not necessary for the Tribunal to place a label on this state of affairs, all that is reasonably required is to ascertain if the Applicant is “in a condition outside the boundaries of normal mental functioning and behaviour” – Comcare v Mooi (1996) 69 FCR 439 at 444. The Tribunal finds that the Applicant suffers from an ailment that is outside the boundaries of normal functioning.

31. Ultimately, the Tribunal has to determine if this state of affairs was and is contributed to, to a significant degree by his employment. Unfortunately, a positive response cannot be evinced from the evidence presented.

32. The Tribunal accepts that both employment and non-employment factors contributed to the Applicant’s depressed state. I also accept that in those situations where the evidence discloses that both employment and non-employment factors have contributed to a significant degree to this state of affairs, then the Tribunal should find that an applicant has satisfied the significant contribution test – Havnen and Comcare [2010] AATA 535.

33. In this matter the following circumstances pertain:

    (a)the Applicant has had a history of anxiety and depression brought on by non-employment and non-spinal pain factors: the breakup of his marriage and death of  his father, the assault in 2012 and general concerns about loss of memory;

    (b)the Applicant has a history of spinal problems and suffers from a long-standing degenerative disease which is causing him more pain as he grows older;

    (c)the only psychiatric report is one prepared by Dr Slack who was not provided with key information and was not called as a witness. Dr Slack’s report proceeds on certain incorrect assumptions that call into question some of the conclusions he reached;

    (d)the Applicant was only prescribed anti-depressant medication for relatively short periods of time and with intervals of time between the prescriptions;

    (e)the Applicant has, with the exception of Dr Slack, had no history of seeking psychiatric help, and has only seen psychologists on relatively few occasions;

    (f)the Tribunal has no evidence of whether the Applicant is continuing to be treated with anti-depressant medication or whether he is receiving any professional help.

34. The Tribunal does not have sufficient evidence before it to conclude that the significant contribution test is satisfied. In order for such a finding to be made, there would need to be stronger medical expert evidence as well as greater details of the medication being taken by the Applicant and a range of other matters. 

35. The Tribunal, then, is not satisfied that the significant contribution test is met because the evidentiary base is too scant and subject to a number of variable interpretations.  The Tribunal finds:

    (a)the Applicant suffered from a psychological condition;

    (b)that condition was already present before the October 2015 incident;

    (c)the incident aggravated the Applicant’s low mood;

    (d)the degree of aggravation and the period of aggravation is unclear;

    (e)the pre-existing pain brought about by the Applicant’s degenerative spinal condition and subsequent non-employment factors have  played a significant role in the Applicant’s low mood.

36. The evidence adduced is not such that the Tribunal can be satisfied, on the balance, that the significant contribution test can be met.  This has been a difficult matter, and the conclusion I have reached has not been without considerable reflection.

37. Whilst it is a matter for Comcare, it would be hoped that a practical resolution of this aspect of the Applicant’s claim could be reached.  As the Applicant was not legally represented there were deficiencies with both the evidence adduced and the submissions that were presented.  If the Applicant had been legally represented and those deficiencies had been remedied, a different result may have obtained.

    DECISION

38. The decisions under review (Applications 2017/3320, 2017/6826 and 2018/2858) are affirmed.

I certify that the preceding 213 (two hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.......................[Sgd].................................................

Associate

Dated: 22 February 2019

Dates of hearing:	31 October 2018 and 1 November 2018
Date final submissions received:	4 December 2018
Applicant:	by Video
Counsel for the Respondent:	Mr Michael Snell
Solicitors for the Respondent:	Lehmann Snell Lawyers