Carter and Commonwealth Bank of Australia (Compensation)

Carter and Commonwealth Bank of Australia (Compensation) [2017] AATA 1730 (13 October 2017)
Division:GENERAL DIVISION
File Number(s): 2014/3402
Re:Leesa Carter
APPLICANT

AndCommonwealth Bank of Australia
RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Date:13 October 2017
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
Egon Fice, Senior Member
WORKERS COMPENSATION – back and leg injury – soft tissue injury – fall in lunch room at place of work – whether compensable under Safety, Rehabilitation and Compensation Act 1988 – whether aggravation of an existing degenerative condition of Applicant’s lumbar spine – cessation of liability to pay compensation benefits including medical expenses – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988; ss 4, 5A, 5B, 16, 19, 61
Secondary Materials
Dorland’s Illustrated Medical Dictionary, 27th edition
Taber’s Cyclopedic Medical Dictionary
REASONS FOR DECISION
Egon Fice, Senior Member
13 October 2017

Ms Leesa Carter was an employee of the Commonwealth Bank of Australia (CBA). The CBA is a corporation licensed under Part VIII of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). It is authorised to accept liability for and to manage compensation claims in respect of injury, loss or damage suffered by, or the death of, some or all of its employees.
On 7 March 2013 Ms Carter suffered a back and leg injury caused by a fall in the lunch room at her place of work. An Incident and Investigation Report was submitted. Ms Carter lodged a Claim for Workers’ Compensation with the CBA 2 April 2013. She described her injury as: Multiple Soft Tissue Injuries. When describing the part of the body most affected by her injury, Ms Carter wrote: Multiple Soft Tissue Injuries/+ Acute Lower Back Strain.
In a letter dated 2 April 2013 a Case Manager, Workers’ Compensation, wrote to Dr Geoffrey Campbell, a General Practitioner, who examined Ms Carter on 15 March 2013 and issued her with a certificate of capacity. The Case Manager was seeking further information about the nature of Ms Carter’s claimed work injury. Dr Campbell responded in a letter dated 2 April 2013 stating that treating physiotherapists had issued capacity certificates covering the period 16 March 2013 to 9 April 2013. Dr Campbell also said that Ms Carter’s injuries could be described as soft tissue injuries to both lower legs, right palm and lumbar region. He also said that her lumbar back injury may be classified as an Acute Lower back strain.
In a letter dated 3 April 2013, the CBA notified Ms Carter that liability had been accepted for her claim. The Case Manager also enclosed a notice pursuant to

s. 61(1) of the SRC Act setting out the determination, reasons and rights.
On 13 November 2013 Ms Carter was examined by Dr John Silver, an Occupational Physician. In his report of the same date, Dr Silver determined that Ms Carter was capable of returning to full-time hours work. Dr Silver also noticed that there was objective evidence on examination of her lower limbs that she may have some sciatic nerve irritation and that it was worth seeking advice from an orthopaedic surgeon or neurosurgeon. Following an MRI conducted on 20 January 2014 Ms Carter was found to have a number of disc bulges and, significantly, a mild broad-based disc bulge at L4/5 with a small disc protrusion, possibly contacting the exiting left L4 nerve root.
Dr Silver’s report led to the CBA writing to Ms Carter on 9 January 2014 stating:
After considering all the available evidence, I have determined that as from 09/01/2014 the Bank does not have any present liability to pay weekly benefits or medical expenses compensation in respect of your injury.
That notice was given pursuant to s. 61(1) of the SRC Act.
By email dated 17 February 2014 Ms Carter sought reconsideration of the CBA’s determination to cease liability for her injury. That determination included liability pursuant to ss. 16 and 19 of the SRC Act in respect of the injury identified as: acute lower back strain, soft tissue injuries to lower legs, soft tissue injury to her right palm. She was granted an extension of time within which to lodge further material supporting her reconsideration claim.
In a letter dated 2 May 2014 the CBA notified Ms Carter that it had decided to affirm the determination on the ground it considered the determination was correct.
On 30 June 2014 Ms Carter lodged an application with the Tribunal seeking review of CBA’s reviewable decision made on 2 May 2014.
The only issue before me is whether Ms Carter is presently entitled to compensation in respect of her injuries as described above pursuant to s. 16 (medical expenses) and s. 19 (incapacity) of the SRC Act.
THE CLAIMED INJURY
Ms Carter described the mechanism of her injury sustained on 7 March 2013 in the following way:
As I got up out of my chair, the chair was too close to the wall behind me and stopped short, my right foot was caught between the leg of the table and the leg of the chair and I fell to the right. As I did so, my left leg caught on the seat of the chair which in turn forced me to fall over to the right towards the sink. I put out my right hand to try and stop myself from falling any further but was unable to stop the momentum. I fell to the floor on my right side outside buttock. I believe I stayed laying on the floor for about 5 minutes. It was difficult to stand straight away so I carefully rolled forward and got up on all fours and stayed there a while is so as to allow the soreness to settle. I was in shock. My right palm was quite sore from where it collided with the edge of the sink. My right armpit/shoulder blade area was sore and felt like I had torn a muscle and one of my ribs was also painful. The back of my leg had a huge red mark where it had collided against the seat of the chair. I slowly walked out of the lunch room and straight to my boss’s office to report the incident. I went back out to the lunch room and sat for a while until I felt okay to return to my duties. Despite my pain, I continued the rest of my shift until 5 PM.
By way of comparison, I should also record what the Case Manager, Mr James Wheelahan, recorded following a telephone conversation with Ms Carter on 14 March 2013. That is because it has some significant differences. Ms Carter is recorded as having said:
… Worker reports that she brought her incident to her manager’s attention as soon as it happened. She advised that he acknowledged it. She also reports that they were busy on the Friday with the long weekend coming up the following Monday, they did not have any opportunity to attend to it.
– Worker described their lunch room as having the table and chair close to the wall that anyone who sits there has very minimal room to move around. She explained that as she got up to go to the sink, her left foot got caught on the leg of the chair, the chair hit the wall in the process causing her to topple over with her left leg smashing into the wall. She confirmed she had immediate bruising to her knee and leg. She advised that she fell sideways on a 45° angle with her body flopped on the floor. She described using her right hand to prevent herself from falling. She reports experiencing immediate pain on her back and could hardly walk when she got up.
Ms Carter said that it was the Labour Day long weekend (7 March 2013 being the Thursday) and she continued to notice severe soreness in her left leg, arm, palm and lower back. She returned to work on 12 March 2013 but was unable to complete her duties part way through the day. On the following day, she saw Mr Douglas Gross, a physiotherapist, at Peninsula Sports Medicine Group (PSMG).
Ms Carter also apparently told Mr Wheelahan the following regarding her visit to the physiotherapist:
-Worker reports that the physio suspects that she may have sustained a small muscle tear onher [sic] shoulder blades and possibly the last rib on her right side. She also has jarring in muscles in her inner thigh and buttocks. Heat pack was applied and was provided with stretching exercises.
Dr Geoffrey Campbell, who provided to Ms Carter a certificate of capacity before she lodged her claim for Workers’ Compensation, described her injuries on 15 March 2013 as:
fall involving chair
Multiple Soft Tissue Injuries
On that certificate, when asked to provide details of any aggravation or recurrence of a previous injury or a degenerative component, Dr Campbell wrote the word: Nil.
The next certificate of capacity provided by Mr Douglas Gross, a physiotherapist, which is also dated 15 March 2013, described the injury as follows:
Acute lower back strain, multiple soft tissue injuries
In answer to the question seeking details of any aggravation or recurrence of a previous injury or degenerative component, Mr Gross wrote:
Aggravation of previous Lower back strain
Then, on 22 March 2013, Mr Haldane Blank, a physiotherapist, described the injury as:
Lower back injury
and, in answer to the question seeking a diagnosis, Mr Blank said:
Aggravation of previous injury, multiple soft tissue injuries
On her Claim for Workers’ Compensation, Ms Carter described her diagnosed condition as:
multiple soft tissue injuries
and, in describing the part or parts of the body most affected by the injury or illness she wrote:
multiple soft tissue injuries/+ acute lower back strain.
Significantly, on her claim form, in response to the question whether she had ever had a similar symptom, injury or illness, work-related or otherwise, Ms Carter ticked the No box.
In a report dated 2 April 2013, Mr Wheelahan noted that Ms Carter’s general practitioner had diagnosed multiple soft tissue injuries but had not mentioned the part of the body to which those injuries related. He also observed that the physiotherapist who had diagnosed multiple soft tissue injuries and lower back strain may have been referring to an aggravation of a pre-existing condition. Mr Wheelahan also noted that Ms Carter confirmed she had suffered an injury to her lower back which he believed aggravated a pre-existing condition which she originally suffered as the result of a car accident approximately two years prior. Dr Campbell responded to Mr Wheelahan’s report of 2 April 2013 in a letter dated 2 April 2013 confirming that the multiple soft tissue injuries included soft tissue injuries to both lower legs, right palm and lumbar region. He said the lumbar back injury may be classified as an acute lower back strain.
Professor Peter Teddy, a Neurosurgeon, provided a report dated 30 June 2016 which he compiled from examination of Ms Carter’s relevant medical records. He had examined Ms Carter on 28 March 2014 when he made the following note regarding the mechanism of her injury. Professor Teddy said:
She is a 46-year-old bank teller with soreness in her lumbar region radiating to the left hip and thigh, tingling in the same distribution as pain in her calf and more recently, pins and needles in her left foot. Most of these symptoms have been present since March 2013.
She was well until she had a fall at work when she fell getting out of the chair and catching her foot. She landed on her right buttock in a bent position having grabbed a sink with her hand. She had instant back pain of a severe nature. She sat on the floor for a while and then crawled to the door and reported the incident.
There are at least two aspects of Professor Teddy’s description of the incident which will require further investigation. The first is Ms Carter’s statement that she was well until she had the fall at work in 2013. Her medical records indicate that was not the case and that she had suffered from back pain at least since 2007. The second statement which requires investigation is her claim that, immediately following the fall, she had instant back pain of a severe nature. In her witness statement dated 7 July 2015, on recounting the incident which occurred in the CBA lunchroom, Ms Carter made no mention of pain in her back. In a telephone conversation on 14 March 2013 with Mr Wheelahan, Ms Carter reported that she experienced severe pain but that she may have sustained a small muscle tear on her shoulder blades and possibly last rib on her right side. She also complained of jarring in muscles in her inner thigh and buttocks. Ms Carter reported experiencing immediate pain in her back and could hardly walk when she got up. In the first certificate of capacity issued by Dr Campbell on 15 March 2013, although he described the injury as multiple soft tissue injuries which involved a fall and a chair, there is no mention of back pain. Somewhat curiously, on the same day, Mr Gross who also examined Ms Carter on that day, noted acute lower back strain. He also noted an aggravation of previous lower back strain. There was no explanation from Ms Carter for the discrepancy.
I also had in evidence a report from Konekt Australia Pty Ltd, a rehabilitation provider for the CBA. The report states that the Konekt consultant met with Ms Carter and Dr Campbell on 15 April 2013. Ms Carter provided an account of the accident claiming she fell to the ground landing on her right side heavily, on her right buttock, side and right wrist. Ms Carter reported on the day of assessment that she constantly experienced a dull aching feeling across the lower back and a feeling of fatigue and discomfort in the lower back region. There was no mention of an instant severe back pain as a result of the fall.
PRIOR BACK INJURIES
As I have already mentioned, on her claim form for Workers’ Compensation, Ms Carter indicated she had never had a similar symptom, injury or illness, work-related or otherwise. On that form she indicated that as a result of the fall, she suffered acute lower back strain. Subsequent evidence disclosed this statement to be incorrect.
I had in evidence the clinical notes from Dr Campbell’s medical practice. The notes of a consultation on 31 March 2008 state:
History: Saturday morning: sudden onset of right back pain radiating down to thigh. Occurred when kneeled after a shower after walking.
…
Reason for contact: Right Back and leg pain
Ms Carter again consulted the clinic (Dr David Manton) on 13 January 2010 the reason being she had been involved in a motor car accident on the previous day. The report states:
Yesterday hit from behind.
Had both feet on pedals, now sore lower back.
No HI.
No sciatica
Minor occasional tingles in right foot.
…
Normal ROM of back and neck, but extension of back a bit painful, and neck is always a bit sore-no worse than usual today.
Reason for contact:
Motor car accident
The next entry by Dr Tanya Friebel is dated 28 January 2010 and it states:
Involved in a MCA 2 weeks ago. Lower back saw since then. Taking Neurofen, using hot packs, not getting better, needing to change positions during the day, keeping her up at night. Feet to both sides tingling at times when sitting and when lying in bed.
Examination:
flexion OK, decreased extension
SLR (straight leg raising) neg
reflexes intact
normal foot strength
Reason for contact:
back pain – Lumbo-sacral
Management:
discussed-sounds as though likely from jarring and should resolve with time. Stronger NSAIDs , gentle stretches, massage.
…
Diagnostic Imaging requested: CT – Spine – Lumbar – lower back pain post MCA.
Ms Carter was examined by Dr Campbell on 7 February 2011. He reported:
Increasing back pain: bulging disc? Attending masseur long term.
Related to car accident from last year.
Pain radiates down back of left leg.
On 2 June 2011 Dr Campbell reported the following:
History:
car accident in January 2010
has seen myotherapist
now wants to see physiotherapist
needs a script for Mobic
…
On 10 May 2011 Ms Carter lodged a claim for compensation with the Transport Accident Commission (TAC) under the Transport Accident Act 1986 (Vic). On that application form, Ms Carter described her injuries as: (Lumbar sprain), (Injury of lower leg) (Left), (Whiplash injury to neck). In answer to a question which asked whether, before the accident, she had ever suffered from any of the following conditions or problems, including lower back condition or pain, Ms Carter placed a cross in the No box. She agreed she had suffered a neck condition or pain previously. In answer to a question which required her to set out the details of her injury/condition, Ms Carter wrote: neck/shoulder condition. She described the treatment received as myotherapy as and when required. Although there was a provision which specifically refers to bad back as another possible injury/condition, Ms Carter left that box vacant.
I also had in evidence numerous reports from the PSMG regarding physiotherapy treatment Ms Carter had received since 2007. The earliest report I have is dated 3 December 2007 which describes Ms Carter as having: stiffness thru her neck and lower back, she has had back problems before. Ms Carter also sought physiotherapy following her consultation with Dr Campbell on 31 March 2008.
On 19 January 2010 Ms Carter had a physiotherapy appointment as a consequence of her car accident. The report described the base of her spine as being very tight/contracted. She had a further appointment on 2 February 2010 where the report states that her lower back was stiff, hurting from car crash. She had further treatment for back pain on 31 January 2012 which was covered by her TAC claim.
After her fall in the lunch room at CBA on 12 March 2013, Ms Carter attended Mr Gross for physio treatment on 13 March 2013. Mr Gross reported:
MVA last week fall at work fell to right side caught on kitchen bench with right arm fell on right buttock and bruise on the left leg from seat of chair, tender in back over long week end AM neurofen back pain no help sat 10 min at work then stand rest of day. Keep moving did not fully recover from MVA, L1/2 2/3 s1, bulging discs.
It should be apparent from the above evidence that Ms Carter’s claim not to have had any lower back injuries or problems prior to her fall in the lunch room at CBA is incorrect. I did not have an explanation from Ms Carter which might explain the discrepancy. In fact, in her witness statement of 7 July 2015, Ms Carter said:
Prior to my injury, the subject of this claim, I was involved in a motor vehicle accident after picking up my son from Langwarrin Community Centre. I exited the driveway of the Community Centre and was stationary at a roundabout intending to turn left. While waiting for an ambulance to pass through the roundabout, another parent’s vehicle was also exiting the driveway and struck my car from behind. I suffered injuries to my lumbar spine such as whiplash and minor discomfort to my lower back. A CT scan revealed that my formina [sic – foramina] was patent [wide-open]. After a few months, these symptoms resolved.
It is also clear from the physio reports that Ms Carter was not of the view that she had fully recovered from her motor vehicle accident despite testifying to the opposite. In fact, when these issues were raised with her in the course of her cross-examination, her response was that she did not recall having told the physiotherapist about her claimed continuing lower back pain due to the motor vehicle accident. I recorded 6 answers to questions put to her where she offered that response. Frankly, I have found it difficult to accept her answers given the contradictory statements she has made regarding her lower back problems. It also appears from her answers that Ms Carter was not aware that her lumbar spine is her lower back.
Before proceeding to examine whether Ms Carter has suffered an aggravation of an existing physical injury, I should point out the obvious problems with much of the medical evidence presented to me on the hearing of this matter.
CONTRADICTORY MEDICAL EVIDENCE
In his clinical notes recorded on 15 March 2013 Dr Campbell, following examination of Ms Carter, recorded her fall in the tea room at CBA and described injury to both lower legs and right palm. He also noted back pain. However, in the certificate of capacity issued on that day, Dr Campbell simply referred to multiple soft tissue injuries, making no mention of back pain. However, when Dr Campbell was made aware that certificates of capacity had been issued by a physiotherapist which were not valid, he wrote a letter to Mr Wheelahan dated 2 April 2013 indicating he had issued a certificate on that day covering the dates covered by the physiotherapist. He said:
Multiple soft tissue injuries include soft tissue injuries to both lower legs, right palm and lumbar region.
I agree that the lumbar back injury may be classified as an “Acute lower back strain”.
In my opinion this is a new injury as documented on both of my certificates. I note that Lisa [sic] was coping with normal “Activities of Daily Living” prior to this incident at work.

It is difficult to understand why Dr Campbell had formed the view that her back injury, described in the certificate of capacity issued by Mr Gross, the physiotherapist, as: Aggravation of previous Lower back strain, and in his clinical notes as: Keep moving did not fully recover from MVA,1/2 2/3/5 s1, bulging discs, was a new injury. In the second certificate of capacity provided by Mr Haldane Blank on 22 March 2013, the injury is described simply as low back injury and the diagnosis as aggravation of previous injury, multiple soft tissue injuries.
In his second report dated 30 July 2015 Dr Silver referred to a number of anomalies which required explanation. In particular he referred to a consultation with Dr Campbell on 8 February 2011 where it is noted:
Diagnostic Imaging requested: CT-Spine-Lumbar-Left sciatica. L4/5 or L5/S1 disc prolapse?
The CT scan of the lumbar spine was performed on 8 February 2011. That report stated:
No abnormality seen at the levels of L1-2 or L2-3.
At L3-4 there is a slight posterior bulging of the disc across a broad base causing minimal indentation of the ventral aspect of the thecal sac.
There was no focal disc herniation. The exit foramina are patent.
At L 4-5 there is a slight posterior bulging of the disc, but no focal herniation. The foramina are patent.
At L 5/ s1 there is bulging of the disc in the midline slightly indenting the thecal sac. At this level the central canal is of adequate proportions. There is no entrapment of the nerve roots in the lateral recesses or exit foramina.
Dr Campbell’s clinical notes state that on 15 February 2011 the result was notified to TAC for the purposes of a TAC Certificate. It appears TAC approved Ms Carter having treatment by a physiotherapist. Dr Miezis recorded in a clinical note made on 6 July 2011 that an email had been sent to Mr Lachlan Goodison, a physiotherapist. The email stated:
Thank you for seeing Leesa Carter, age 43 yrs, for an opinion and management of her lower back pain related to disc prolapse is [sic] which she has as a result of a car accident in January 2010. TAC has approved physiotherapy. Thank you for assessing and managing her..
The progress notes made by various physiotherapists at PSMG indicate treatment for lower back pain including what is described as sciatic pain from April 2008 on a regular basis up to at least April 2012. That is despite Dr Campbell stating in his cross-examination that he was not aware that she continued to receive physiotherapy for back pain from December 2011 until the time she had the claimed injury at the CBA. According to Dr Campbell, that was the reason why, when recording Ms Carter’s past history in a letter dated 9 December 2016 to solicitors acting for Ms Carter, he omitted to mention the problems Ms Carter had with her back certainly since 2008 which appears to have continued through to the time of the claimed injury at the CBA.
Dr Silver also pointed out in his report of 30 July 2015 that the MRI conducted on 20 January 2014 described the disc bulging revealed on the CT scan in 2011. The report also expressly stated that there was no central canal or neuroforaminal stenosis at any level. The only possible contact of a neurological nature was what was described as a small left foraminal protrusion at L4/5 which possibly contacted the existing L4 nerve root. On receiving the MRI result, Dr Campbell referred Ms Carter to Professor Teddy.
Professor Teddy’s first report, which is dated 28 March 2014, records a consultation with Ms Carter on that day. Professor Teddy recorded Ms Carter telling him that she had soreness in her lumbar region radiating to the left hip and thigh, tingling in the same distribution as pain in her calf and more recently, pins and needles in her left foot. Those symptoms were present since March 2013. Professor Teddy then recorded:
She was well until she had a fall at work when she fell getting out of a chair and catching her foot. She landed on her right buttock in a bent position having grabbed a sink with her hand. She had instant back pain of a severe nature. She sat on the floor for a while and then crawled to the door and reported the incident.
Quite clearly, as Dr Silver pointed out, Professor Teddy was never provided with the CT report or an accurate history of Ms Carter’s back problems going back to at least 2008. There is no mention of the motor vehicle accident in January 2013 or the claim that the accident either exacerbated or caused her back pain.
In her description of the accident at the CBA given to Dr Silver, Ms Carter did not refer to instant back pain of a severe nature. She told Dr Silver she reported to her supervisor, Mr Greg Lymer, that not only had she fallen but also that she had injured her right hand, her left lower leg and she was a bit sore on her backside (on the right). She was apparently stunned emotionally by the incident and stayed on the floor momentarily before rolling onto her hands and knees and getting herself up into a chair.
Ms Carter’s propensity to exaggerate or misstate her true medical condition is evident from the physiotherapy notes. On 31 January 2012 the physiotherapist recorded Ms Carter was recently diagnosed with cervical cancer. The entry on 26 April 2012 records Ms Carter having cervical cancer surgery the following week. However, the history given to Dr Silver on consultation on 13 November 2013 records Ms Carter had an abnormal pap smear in late 2011 and that follow-up investigations had not revealed any evidence of a malignancy. It is plain I need to exercise caution when dealing with Ms Carter’s evidence.
Professor Teddy’s second report which is dated 30 June 2016 records Ms Carter having a further MRI on 23 September 2015. He described the appearances of her spine as being very similar to those recorded in the MRI of 20 January 2014. In fact the conclusion states:
Multilevel disc and facet degenerative changes relatively mild in nature without neural compromise evident. Appearances very similar compared to prior study of 20/1/14.
I had in evidence a statement made by Dr James Rowe, a specialist occupational physician, dated 9 April 2015. He examined Ms Carter on 9 April 2015. Under the heading current complaints/symptoms, Dr Rowe recorded:
She said she continues to suffer with back pain low in the back, it is mostly on the right, and it always has been.
It radiates to the right leg and sometimes she has pins and needles about the right calf and/or about the left lateral thigh.
She also has a burning feeling sometimes about the left lateral thigh and for that she has been prescribed Lyrica in the past; she currently does not ingest that.
In cross-examination, when it was put to Dr Rowe that Dr Campbell had recorded treating Ms Carter for some time with symptoms including radiating pain down the left leg with low back injury including sciatica, Dr Rowe simply agreed. In his report Dr Rowe said Ms Carter had signs and symptoms of a disc protrusion and of radiculopathy in the left leg, not the right. That appears to be recognition by Dr Rowe of the inconsistent statement made by Ms Carter, although nothing further was mentioned.
Ms Carter’s reference to low back pain on the right radiating to the right leg contradicts almost every other statement I had in evidence regarding Ms Carter’s symptoms. Statements made by Ms Carter include:
I cannot even sleep for too long as my back starts to wake and my left leg sometimes becomes painful.
Sometimes I’m unable to put the clutch all the way in due to weakness in my left leg from the pain.
Typing: I sat at my desk to type my statement and I notice that even only after 5 to 10 minutes, I have numbness and pins and needles down my left leg, my back aches across my lower back (particularly on my left side).
I hardly ever attend the movies as after a while my left leg will suffer from pins and needles and numbness. My back will also ache.
After Ms Carter had a transforaminal epidural steroid injection at the L4/5 facet joint, she completed a self-assessment of pain at various time intervals following the injection. All of the references to pain in that document refer to nerve pain on the outside of the left leg down through the left buttock and experiencing nerve pain down the outside of the left leg in the hip/thigh area. Ms Carter also referred to soreness through groin left side out to hip left down left thigh on outside and running down under left buttock.
Mr Peter Kudelka (now deceased) an orthopaedic surgeon, provided a report dated

2 September 2014. He examined Ms Carter 1 September 2014. Mr Kudelka reported:
Previously she describes a motor accident in 2010 when she was stationary in a car which was struck from behind. She had some back ache and stiffness. She was treated with physiotherapy and gym and simple analgesics. She had a CT scan in 2011 and this was reported as showing no abnormality in the lumbar spine. She gradually recovered and had resumed normal full-time employment until she fell
7. 03. 2013.
However, the clinical records from Dr Campbell’s practice and the physiotherapist notes from PSMG do not indicate Ms Carter had fully recovered from the motor vehicle accident if that in fact was the cause of her lower back problems. Furthermore, the CT scan in 2011 did not show no abnormality in the lumbar spine as I have stated above at [43]. Mr Kudelka’s report makes no mention of him having reviewed the CT scan report. It appears he was not provided with that document, although he was provided with the MRI report dated 20 January 2014. Mr Kudelka reported that the multilevel broad-based disc bulge and small left foraminal protrusion component at L4/5, which possibly contacts the exiting left L4 nerve root, accounted for her back pain and left sciatic nerve irritation. However, essentially, that condition was present in 2011 as shown in the CT scan. Mr Kudelka expressly stated he noted Ms Carter’s history of injury that being a previously mechanical strain to her back in a motor accident in 2010 which subsided with physiotherapy.
In his concluding remarks, Mr Kudelka said:
The injuries are mechanical strain to the lower back which has substantially resolved. I note that Dr. P. Teddy, Consultant Neurosurgeon 28. 03.2014, agrees that her back and left leg symptoms relate to the incident in March 2013.
I have noted that the IME report of Dr John Silver 13.11.2013, Occupational Physician, the diagnosis a minor soft tissue injury that has long since resolved, although he states there is clinical evidence of a left sided sciatic nerve root irritation. He thinks it possible, but unlikely, that this is associated with a work- related injury.
I would suggest that the opinion of Dr. Teddy, Neurosurgeon, who has access to an MRI investigation, should be taken as more accurate than that of Dr. Silver.
Unfortunately, as Dr Silver pointed out in his second report, Dr Teddy was given incorrect information by Ms Carter about her minor soft tissue injuries which she said had resolved and the fact that Ms Carter had not disclosed the CT scan of 2011 to either Mr Kudelka or Dr Teddy. As Dr Silver said, Ms Carter was an unreliable historian.
Dr Silver also pointed out that it was of some interest that in his report, which is dated 2 September 2014, Mr Kudelka said that Ms Carter’s straight leg raising was free. Her reflexes were brisk and equal and there was no clinical motor or sensory loss in the lower limbs. According to Dr Silver, this indicated no evidence of radiculopathy.
Dr Silver also referred to Mr Kudelka’s statement that Ms Carter had returned to part-time duties in April 2013; full-time duties in December 2013; and has continued in full-time normal duties since that date. Dr Silver also mentioned that Mr Kudelka said Ms Carter did not suffer any residual incapacity for work as a bank teller but it would be wise for her to avoid lifting weights in excess of 10 kg in the future. Dr Silver pointed out that Ms Carter acknowledged that she returned to full-time duties not long after her earlier visit with him, but she has never returned to unrestricted duties, always continuing to have a weight limit applied. In his earlier report, Dr Silver referred to the fact that Ms Carter had not returned to pre-injury hours nor was she back to full-time duties, being restricted to lifting 2 kg rather than up to 6 kg or 6.5 kg with the heavier bags of coins. She had been on a gradually increasing rate of attendance at work since March 2013 but was still 10 hours short of her nominated times.
Dr Silver also referred to the report of Dr Robert Gassin dated 2 April 2014, whose specialty is musculoskeletal and interventional pain management. Dr Gassin said this about the MRI scan:
… [It] does not reveal any significant impingement the level [sic] but there are changes of facet joint and disc degeneration at all levels from L3-4 to L5-S1.
According to Dr Silver, it was on that advice that Dr Gassin proceeded to perform the facet joint injections and radiofrequency denervation procedures.
The clinical notes of a consultation conducted by Dr Campbell on 8 February 2011 referred to Ms Carter experiencing increasing back pain and a query regarding bulging discs. Dr Campbell noted that it was related to Ms Carter’s car accident in the previous year and that pain radiates down the back of her left leg. Dr Campbell requested a CT of Ms Carter’s lumbar spine and queried the possibility of a disc prolapse.
On 15 February 2011 Dr Campbell recorded a review of Ms Carter’s back pain indicating she had only had low back and sciatica since the car accident on 12 January 2010. Dr Campbell recorded the results of the CT scan as L3, L4 and L5 disc prolapse. With respect to Dr Campbell, the CT scan done on 8 February 2011 did not disclose any disc prolapse. It recorded slight posterior bulging of the disc but no focal herniation. A prolapsed or herniated disk is, as I understand it, where the outer fibres of the disc are injured and the centre cushioning gelatinous mass lying within the intervertebral disc, the nucleus pulpous, ruptures out of the enclosed space. The ruptured material may enter the spinal canal, squashing structures such as the spinal cord but more often the nerve root emerging from the spinal cord. A bulging disc does not have those features. It sometimes precedes a prolapsed or herniated disc. Clearly, a prolapsed disk is a far more serious problem. Dr Campbell has overstated Ms Carter’s lumbar spine condition.
In subsequent consultations, Dr Campbell continued to refer to Ms Carter having a disc prolapse. Non-steroidal anti-inflammatory medication (Mobic) was prescribed on 6 July 2011. Ms Carter was also prescribed Voltaren Rapid 50 Tablets on 15 November 2012, although that appears to have been for pain in her right hand.
The MRI conducted on 20 January 2014 is almost identical to the CT scan save for the disclosure of the small disc protrusion which possibly contacted the exiting left L4 nerve root and mild bilateral facet joint arthropathy. There was no neuroforaminal stenosis at any level.
When asked in cross-examination whether the MRI provided better resolution, Dr Campbell said that it showed a different view of the same event. When asked if there was any evidence of a musculoskeletal injury, Dr Campbell said that Ms Carter had a restriction in her movement and therefore that equated to a musculoskeletal injury. From that answer, I understood Dr Campbell to be saying that irrespective of objective evidence, it was possible to determine injury simply by obtaining the subjective view of the patient. The problem with the answer is that, as Ms Carter’s treating general practitioner, his role is not to question the symptoms described by his patients, but rather, to accept what he is told and attempt to treat the condition described. In this case, objective evidence of musculoskeletal injury appears to be important.
COMPENSABLE INJURY/ INCAPACITY
Relevantly, s. 14 of the SRC Act provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) …
Compensation for medical expenses is dealt with under s. 16. Relevantly, it provides:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) …
Section 19 of the SRC Act deals with compensation for injuries resulting in incapacity. Relevantly, it provides:
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, and amount of compensation worked out using the formula:
…
The definition of injury is set out in s. 5A of the SRC Act as follows:
(1) In this Act:
“injury” means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
…
The definition of disease is set out in s. 5B of the SRC Act as follows:
(1) In this Act:
“disease” means:
(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.
The expression incapacity for work is explained in s. 4(9) of the SRC Act in the following way:
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
According to the Applicant’s Statement of Facts and Contentions, the only issues I am required to determine are whether:
(a)Ms Carter has continued to suffer from the claimed injury since 9 January 2014;
(b)Ms Carter has, since 9 January 2014, been incapacitated for work as a result of the claimed injury; and
(c)if the answer to (a) is in the affirmative, Ms Carter is entitled to medical treatment expenses and compensation for time she has had to take off work.
In addition to the above, at the conclusion of hearing the evidence in this matter and brief oral submissions made by counsel for both parties, Mr M Carey, who appeared on behalf of Ms Carter, submitted that the evidence admitted in the course of the hearing may establish the foundation for claims for aggravation of an existing physical condition as well as an injury in the primary sense. The evidence before me was that Ms Carter suffered from lumbar spine pain from at least 2007 and again after the motor vehicle accident on 12 January 2010. Although she claimed that the presence of back pain as a result of that accident had largely resolved without disability or limitation on her work activity or activities of daily living, indicating that injury she suffered from the fall while working for the CBA on 7 March 2013 had not resolved, I should examine the evidence in support of both of contentions.
BACK CONDITION PRIOR TO AND AFTER 7 MARCH 2013

I have set out above [27] – [39] the evidence relevant to Ms Carter’s back condition before the claimed CBA accident. Ms Carter’s claim that she had essentially recovered from the motor vehicle accident was supported by her written statement of evidence dated 14 April 2016 and a statement from her husband, Mr Peter Gascoyne, dated 8 May 2017. While I do not reject that evidence in its entirety, I am conscious of the fact that the statements are self-serving and, inevitably, subjective. Accordingly, I cannot give that evidence much weight. Furthermore, some of the claims made in those written statements of evidence are contradicted by other objective material which was taken into evidence.
The objective evidence suggesting that Ms Carter had not recovered completely from any prior injury or disease involving her lower spine is stated in consultation notes made by Mr Gross on 13 March 2013 which state that to be the case and included the fact that she had bulging discs in her lumbar spine. The clinical notes from the practice which Ms Carter attended record that she was prescribed Mobic (a non-steroidal anti-inflammatory) in March 2011 and again in July 2011. That suggests ongoing back pain. Her last physio appointment prior to the CBA injury is recorded as occurring on 26 April 2012. However that appointment notes that she: was starting at Jetts soon, emailed andy Keilly to progress [her] slowly. As I understood Ms Carter’s evidence, Jetts is a gymnasium and she had obtained membership at that gymnasium which was to be funded by TAC. In fact on 21 February 2012, Mr Goodison recorded: 1m left sciatic pain> right when sleep hydro was helping but cant [sic] get in pool wants to get back to gym (jetts)… write to TAC to request gy [gym] membership and fill out PMR. The necessary inference to be drawn from this material is that Ms Carter had convinced TAC that her back problems, claimed to have been caused by the motor vehicle accident, continued to need some form of treatment.
Dr Silver, in his second report of 30 July 2015, recorded that Ms Carter told him that soon after her previous consultation with him on 13 November 2013, although she resumed full-time work, she remained on a lifting restriction of 2 kg and was not allowed to lift heavy coins . Dr Silver also reported:
Ms Carter said her back remains sore and there has been no change at all in the situation. She is no better, nor is she any worse, complaining of the same intensity and frequency of pain was experienced some 21 months ago [that is, since February 2012].
The radiological evidence which was before me also points to Ms Carter’s back condition remaining relatively constant, subject only to expected degenerative changes between 2011 and 2016. The CT scan done on 8 February 2011, prior to the CBA accident but after the motor vehicle accident, disclosed slight posterior disc bulging at L4/5 and midline in the L5/S1 disc indenting the thecal sac (the sheath surrounding the annulus or outer section of the spinal disc). There was no evidence of herniation or prolapse. Nor was there any entrapment of the nerve roots. The MRI conducted on 20 January 2014 (after the CBA accident) was identical save for one point. The disc bulges were described as mild and broad-based and the only distinction noted was a small disc protrusion (measuring 8 mm) possibly contacting the exiting left L4 nerve root. At that level, there was also mild bilateral facet joint arthropathy (joint disease). There was no central canal or neuroforaminal stenosis (that is, entrapment of the nerves). Ms Carter had a further MRI done on 23 September 2015 which was provided to Professor Teddy. It was not seen by Dr Silver. At the L4/5 level it disclosed minimal disc osteophyte bulging mild facet hypertrophy non-euro compressive. At L5/S1, there was very mild facet and disc degenerative changes non-neurocompressive. The conclusion was stated as:
Multilevel disc and facet degenerative changes relatively mild in nature without neural compromise evident. Appearances very similar compared to prior study of 20/1/14.
Although Professor Teddy was provided with a copy of the 23 September 2015 MRI, he simply repeated the conclusion which I have quoted above. He made no comment about the fact that, for the first time, we see reference to disc osteophyte bulge. My research indicates that an osteophyte is a bony excrescence or osseous outgrowth (Dorland’s Illustrated Medical Dictionary, 27^th edition). Osseous of course refers to the nature or quality of bone. Hypertrophy is defined in Taber’s Cyclopedic Medical Dictionary as: Increase in size of an organ or structure that does not involve tumour formation. Term is generally restricted to an increase in size or bulk not resulting from an increase in number of cells or tissue elements, as in hypertrophy of a muscle.
Osteoarthritis, which is a degenerative joint disease, is described in Dorland’s Medical Dictionary in the following way:
noninflammatory degenerative joint disease occurring chiefly in older persons, characterised by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes in the synovial membrane. It is accompanied by pain and stiffness, particularly after prolonged activity.
In my opinion, the above evidence appears to indicate a degenerative process in Ms Carter’s spine which seems to have progressed between the CT scan done on 8 February 2011 and the MRI done on 20 January 2014. The radiology does not disclose any evidence of trauma injury.
In his report dated 30 June 2016 Professor Teddy made the following diagnosis:
Ms Carter has suffered from low back pain and lower limb pains as described in the history above. The only evidence of neural compromise was that of some blunting of sensation in the L4 and L5 dermatomes. Her subsequent progress in response to treatment undertaken by Dr Gassin would suggest that the problems were predominantly related to non-compressive irritation of the L4 and L5 nerve roots. In effect, her nerve root radiofrequency lesioning and blockade represented both therapeutic and diagnostic procedures. On the basis of the outcome of these investigations/therapies, it would seem that her diagnosis would be one of an exacerbation of a pre-existing (mild) facet arthropathy and lumbar spondylosis. She has no neurological deficit.
As for causation, Professor Teddy said:
It is likely that Ms Carter suffered an exacerbation of a pre-existing lumbar spondylosis with some nerve root irritation as a result of her workplace-related incident.
Professor Teddy appears to have relied on the effect of treatment administered by Dr Gassin (transforaminal epidural steroid injections and dorsal root ganglion pulsed radiofrequency + left L4 and L5 nerve sheath injection under sedation) as being diagnostic of Ms Carter’s condition. According to Ms Carter’s oral evidence, this treatment took place between April 2014 and December 2015. When Professor Teddy examined Ms Carter on 30 May 2014, he recorded she had four or five days of complete pain relief then some recurrence of low back pain, left groin and knee pains and dysaesthesia in the foot. He said those were assisted by anti-inflammatory agents. Apparently Ms Carter then indicated she wished to proceed with the L4 nerve root block to see if the symptoms could be further reduced.
In his report of 30 June 2016 Professor Teddy referred to Dr Gassin having carried out the L4 and L5 (left-sided) dorsal root ganglion pulsed radiofrequency lesioning on 19 February 2015. He then reported that Dr Campbell again referred Ms Carter to him on 14 September 2015 noting that the nerve blocks had worn off and that Ms Carter’s medication intake had increased dramatically. Professor Teddy wrote to Dr Campbell on 18 September 2015 recording:
As you say, her radiofrequency lesioning (dorsal root ganglion and nerve root blocks in L4 and L5) helped her a great deal. The effects began to wear off about a month ago. Nevertheless, she was able to have her wedding and honeymoon without too much difficulty but her medications have since increased considerably. She describes a tightness in her back and left lower limb with severe pain in the leg such that she “wants to rip it off”. The back pain is worse than the leg pain and she also describes some pins and needles and tingling and numbness in the middle of two toes of the left foot.
Further doubt upon the effectiveness of the treatment performed by Dr Gassin was cast by Ms Carter who kept a record of her perceptions of pain following treatment. She was asked to record between 1 and 10 the degree of pain she was experiencing before the procedure and at various intervals following the procedure. In addition, she was asked to record those figures discretely for her back and left leg. It appears she underwent the transforaminal epidural steroid injection + L4/L5 facet joint injection on 20 September 2016. Before the procedure, Ms Carter recorded pain levels of 6 for both her back and leg. Up to 60 minutes following the procedure, her pain level remained at 0. It then increased to 1 for both back and leg on the first day and that continued until day 6. It then increased to between 1 and 2 and in the following week appeared to vary occasionally but remaining at between 2 and 3. When asked whether the procedure was helpful she circled the Yes answer. When asked how helpful it was, she circled 60% and 70%. Ms Carter also noted that on day eight she experienced soreness through the groin left side out to the left hip and down the left thigh on the outside running down under her left buttock.
Ms Carter underwent the left L4 & L5 dorsal root ganglion pulsed radiofrequency + left L4 & L5 nerve sheath injection on 25 October 2016. Again, she was asked to record the level of pain between 0 and 10 for her left back and left leg. At the commencement of the procedure, Ms Carter recorded 3 for her back and 5 for her leg. Following the procedure, she recorded zero for both leg and back until day three when she recorded zero for her back and five for her leg. In the following week, those figures remained relatively steady, predominantly both recording 2. On day 10, the level of pain had increased to 3 for both back and leg. When asked whether the procedure was helpful, Ms Carter circled the No answer. In answer to how helpful the procedure was, she again circled 60% and 70%. She also wrote the following:
Left Leg/Groin
Still getting nerve pain down outside of left leg + down through buttock. Just not as severe. Experiencing some occasional pain through left groin + soreness across lower back.
14–12–16 Still experiencing nerve pain down outside left leg in the hip – thigh area. Pain is lower back left side facet joint and like before. Comes on as a sharp pain quite severe. Then slowly goes away as if a certain movement has aggravated it.
Following those procedures, Dr Campbell again referred Ms Carter to Dr Gassin for further management of deterioration of her back pain and sciatica. That evidence does not seem to indicate anything other than temporary pain relief from the procedures conducted by Dr Gassin.
Professor Teddy saw Ms Carter again on 18 December 2014 when she apparently told him that the L5 nerve root block helped a great deal taking away 80% of her pain such that she could function well and the condition was manageable. The L4 nerve root block carried out in June or July helped even more but her pains gradually increased again since that time. With respect to Professor Teddy, it seems to be something of a stretch to describe those outcomes as diagnostic.
Nevertheless, Professor Teddy concluded that Ms Carter suffered an exacerbation of pre-existing lumbar spondylosis with some nerve root irritation as result of her workplace related incident. He did not describe the mechanism of that injury.
Dr Rowe gave this opinion about causation:
Her condition has been contributed to mostly by the incident that happened on 07. 03.2013 at work. She has had prior back pain but it was only after that incident that she was unable to continue with her normal fulltime employment.
Mr Kudelka made the following diagnosis:
The patient had an episode of mechanical injury to her lower lumbar spine when she fell 7.03.2013. This has been an injury to the area of the spine mainly at L4/5, where an MRI shows a small disc protrusion affecting the left sciatic nerve branch.
As to causation, Mr Kudelka said:
The patient has a mechanical injury to her lower lumbar spine 7.03.2013.
Mr Kudelka is the only doctor who came to the conclusion that Ms Carter’s back injury was due solely to a mechanical injury to her lumbar spine suffered from the fall she described at work with the CBA. However, as I have already indicated above, it appears Ms Carter told Dr Kudelka that she had a CT scan in 2011 which reported no abnormality in the lumbar spine. As is evidenced by what is said in the CT report, that statement is incorrect. I must therefore place little weight on Mr Kudelka’s report. He did not have accurate information upon which to base causation.
Dr Silver in his report of 30 July 2015 referred to a report by Dr Gassin dated 2 April 2014 where he commented on the 2014 MRI scan and said:
… [It] does not reveal any significant impingement at any level but there are changes of facet joint and disc degeneration at all levels from L3-4 to L5-S1.
That finding resulted in Dr Gassin proceeding with facet joint injections and radiofrequency denervation procedures.
Dr Silver’s report describes his diagnosis in the following way:
The diagnosis is of resolved soft tissue injuries as a result of the subject fall.
In answer to a question asking him whether Ms Carter suffered a disease/ailment, or the aggravation of a disease/ailment, Dr Silver responded:
The fall was not a disease/ailment or the aggravation of a disease/ailment. Ms Carter has had back pain and episodic left sciatic pain over a period of some years, as is confirmed by the contemporaneous notes of her clinicians – as described above. She has minor degenerative change in her lumbar spine that is responsible for her ongoing symptoms and is the basis of the treatment that she has received from Dr Teddy and Dr Gassin.
When asked about the extent of any employment contribution to Ms Carter’s disease/ailment or its aggravation, Dr Silver said:
Ms Carter’s employment with the Bank has not contributed to a significant degree to her underlying back problem and associated minor degenerative changes. These are constitutional issues. Also, it is unlikely that a rear-end collision, such as she experienced in 2010, would have been responsible for such changes as, although the neck may be exposed to whiplash-type injuries in rear-end collisions, the bio-mechanics of such incidents suggest the thoracic and lumbar spines are well supported by the car seat in such circumstances.
If I understand Dr Silver correctly, he formed the opinion that Ms Carter did not suffer a lumbar spine injury in the motor vehicle accident in 2010. That opinion is, to some extent, supported by the account extracted from Ms Carter of that motor vehicle accident. The collision involved the car she was driving being struck from behind by another driver. It was not at particularly high speed. Nobody was hospitalised and the police did not attend. Ms Carter did not lodge her claim for compensation with TAC until May 2011, some 16 months after the accident. The medical notes from Dr Campbell’s practice indicate there were only two consultations immediately following the motor vehicle accident. They were on 13 January 2010 and then again on 28 January 2010, when Ms Carter complained of back pain and Dr Friebel said she thought it was likely from jarring and should resolve with time. She prescribed a stronger non-steroidal anti-inflammatory, Voltaren Rapid 50 Tablet.
In his oral evidence Dr Silver was asked about the mechanism of Ms Carter’s claimed injury following the fall at the CBA. Dr Silver said that from the explanation given by Ms Carter of her fall, landing on her right outside buttock and right arm, that fall must have been at about 45° to the vertical. In that case, Dr Silver was of the opinion that no damage could have been caused to her lumbar spine in those circumstances.
The next consultation dealing with her back pain occurred on 7 February 2011, a year later when she was seen by Dr Campbell. Dr Campbell noted increasing back pain, attending masseur for a long term and that it was related to a car accident from the previous year. That was the reason for obtaining the CT scan. That CT scan did not expose any musculoskeletal injury. It did disclose bulging discs. It appears Dr Campbell has related the bulging discs to the motor vehicle accident but has failed to explain the mechanism of how that occurred in the circumstances described by Ms Carter. It is for that reason that I prefer the explanation given by Dr Silver regarding the bio-mechanics of a rear end motor vehicle collision on the lumbar spine. Dr Silver offered a reasonable explanation for Ms Carter’s bulging discs. That is, they were the product of mild degenerative changes and not related to the motor vehicle accident. Dr Silver’s opinion is also consistent with Ms Carter’s reported lumbar spine problems prior to the motor vehicle accident.
My finding that Ms Carter’s spinal condition prior to her accident at CBA was degenerative in nature rather than the result of an injury is significant because of the operation of the SRC Act. Ms Carter’s degenerative spinal disc condition must be regarded as a disease or an ailment and not an injury in the primary sense.
Given the medical evidence which I have examined in some detail regarding the problems experienced by Ms Carter with her lumbar spine, I find that prior to her claimed accident at the CBA, she had an existing spinal condition, most probably due to degenerative changes. For that reason I find that the injuries Ms Carter claimed to have suffered in the CBA accident will only satisfy the definition of injury for the purposes of the SRC Act if she suffered an aggravation of an ailment which was contributed to, to a significant degree, by her employment by the CBA (s. 5B(1)(b)).
AGGRAVATION OF EXISTING BACK CONDITION
The medical evidence in this case points strongly to Ms Carter having a pre-existing degenerative disease of her lumbar spine. That condition preceded her fall while working with the CBA and before she experienced her motor vehicle accident in 2010. She had reported lower back problems in 2007 and even earlier. Although Mr Carey submitted that the presentation of evidence was far from mere advancing of age related degenerative change for a person of Ms Carter’s age and body type, I cannot accept his submission that the evidence points to a significant injury sustained on 7 March 2013 when she fell at the Bank’s premises.
As Dr Silver stated in his report of 13 November 2013, there was no objective evidence of any ongoing musculoskeletal injury. Neither MRI reports which were in evidence disclose any such injury. Dr Silver accepted there was clinical evidence suggesting a left-sided sciatic nerve irritation which could be investigated and that it was possible, but unlikely, that this was associated with her work-related injury. Dr Silver was the only medical practitioner who dealt with the mechanism of injury based on Ms Carter’s evidence of the nature and particulars of her fall. He concluded that Ms Carter most likely incurred a soft tissue injury including bruising in that fall.
Although Professor Teddy agreed that her MRI scan (presumably the one conducted on 20 January 2014) disclosed modest degenerative changes in her lumbar spine and a very small disc bulge at the L4/5 level, he was nevertheless of the opinion that it was likely Ms Carter suffered an exacerbation of her pre-existing lumbar spondylosis with some nerve root irritation as a result of her workplace related incident. He described her prognosis in the following way:
Given the very distinct improvement recorded as a result of her various minor interventional procedures, together with the relatively mild pathologies noted on her MRI scan, her prognosis should be excellent with no clear indication for any form of surgical intervention at present.

As I have already indicated above, Professor Teddy did not describe the mechanism of injury. He simply referred to Dr Silver’s report where he described Ms Carter’s previous occupational and medical history, noting that the injury appears to have occurred as a result of tripping while getting up from the table in the tea room at work. It is clear from Professor Teddy’s prognosis that he did not consider Ms Carter had suffered a significant aggravation of an existing degenerative condition in her lumbar spine.
According to Dr Rowe, Ms Carter’s condition was contributed to mostly by her fall on

7 March 2013 at work. The basis for that opinion appears to have been that while Ms Carter had prior back pain, it was only after that incident she was unable to continue with her normal full-time employment. As was submitted by Mr Wallace, Dr Rowe was apparently under the mistaken impression that prior to her work injury, Ms Carter was a full-time employee when in fact she was a part-time employee. Furthermore, Dr Rowe appears to have assumed that it was only just prior to his examination of Ms Carter when she was able to resume work at pre-injury levels, when in fact that occurred about a year prior.
Unfortunately, Mr Kudelka based his report on incorrect information. He was told the CT scan done in 2011 reported showing no abnormality in Ms Carter’s lumbar spine. Unsurprisingly, Mr Kudelka simply described the cause of Ms Carter’s spinal problems as being due to mechanical injury to her lower lumbar spine on 7 March 2013. Nevertheless, Dr Kudelka was of the opinion that Ms Carter had suffered a mechanical strain to her lower back which had substantially resolved.
In my opinion, the weight of evidence points to Ms Carter having a pre-existing degenerative lumbar spine condition when she fell at work on 7 March 2013. The evidence also discloses it is possible that Ms Carter suffered an aggravation of that condition as a result of the fall. However, the best evidence is that Ms Carter did not suffer a musculoskeletal injury as a consequence of that fall. At best, it was a soft tissue injury which had resolved or substantially resolved, probably by late 2013.
That being the case, I find that although Ms Carter suffered an aggravation of an ailment, being the degenerative condition of her lumbar spine, in the fall at the CBA on 7 March 2013, the aggravation had resolved by 9 January 2014 when the CBA determined that it did not have any present liability to pay weekly benefits or medical expenses by way of compensation for her injury.
CONCLUSION
I find that the injury suffered by Ms Carter as a consequence of a fall she had while working with the CBA on 7 March 2013 was correctly diagnosed as a soft tissue injury. It is probable that it caused aggravation of an existing degenerative condition of her lumbar spine. However, I have found that the effects of that injury had resolved by 9 January 2014.
I find the decision made by the National Manager, Workers’ Compensation on 2 May 2014 to cease liability to pay compensation benefits including medical expenses from 9 January 2014 was the correct decision. I affirm that decision.

117. I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

[sgd]...................................................................
Associate
Dated 13 October 2017

Dates of hearing 6-8 June 2017

Advocate for the Applicant Mr Abraham Ghaleb, Slater & Gordon Lawyers

Counsel for the Respondent Mr Mark Carey

Advocate for the Respondent Ms Christine Tsekouras

[2017] AATA 1730

13 October 2017

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Remedies

Judicial Review

Procedural Fairness

Dates of hearing	6-8 June 2017
Advocate for the Applicant	Mr Abraham Ghaleb, Slater & Gordon Lawyers
Counsel for the Respondent	Mr Mark Carey
Advocate for the Respondent	Ms Christine Tsekouras