Chalhoub and Comcare (Compensation) - [2019] AATA 811

Chalhoub and Comcare (Compensation) [2019] AATA 811 (29 April 2019)
Division:GENERAL DIVISION
File Number(s): 2017/7719
Re:Ghassan Chalhoub
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:29 April 2019
Place:Sydney

The decision under review is affirmed.
.........................[sgd]...............................................
Chris Puplick AM, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employee — claim for compensation for work related injury denied – whether applicant sustained injury in the course of employment – pre-existing condition – whether applicant entitled to compensation for neck and lower back injury and head tension and migraines — decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Fox v Percy [2003] HCA 22
Gestmin SGPS S.A. and Credit Suisse (UK) Limited [2013] EWHC 3560
K&S Freighters Pty Ltd v McQueen-Thomas (sic) [2018] FCA 1518
McAuliffe v Secretary, Department of Social Security [1991] 23 ALD 284
McQueen-Thomson and K&S Freighters Pty Ltd [2016] AATA 510
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Re Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63
Re the Commonwealth of Australia and Kathleen Beattie [1981] FCA 88
Roncevich v Repatriation Commission [2005] 218 ALR 733
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
The Nominal Defendant v Cordin [2017] NSWCA 6
Wilson and Comcare [1996] AATA 862
REASONS FOR DECISION
Chris Puplick AM, Senior Member
29 April 2019
Background

Mr Ghassan “Gus” Chalhoub (the Applicant) seeks a review by this Tribunal of a decision made initially by Comcare on 15 November 2017 and affirmed by it on 14 December 2017 (the reviewable decision) to deny his claim for compensation for a claimed work-related injury under the Safety, Rehabilitation and Compensation Act 1988 (the Act).
The Applicant lodged his claim on 12 September 2017 referencing incidents at work which he recorded as either being first noticed on 22 May 2017 or being manifest on 21 July 2017.[1]
[1] Section 37 Tribunal Documents at [13]; [10] and [9] in respect of each of the dates.
It should be noted that Comcare’s opening paragraph of their Statement of Facts, Issues and Contentions reads as follows:
“On 27 June 2017, the Applicant submitted a claim for workers compensation …. For ‘neck and lower back injury’ and ‘tension headaches and migraines’ …. which he claims were sustained on 22 May 2017 and 21 July 2017 respectively.”
This is not accurate. The Application was submitted on 12 September 2017 at 9.04 pm.[2] In any respect, a claim “submitted” on 27 June 2017 can hardly have referenced an incident on 21 July 2017.
[2] Ibid at [13].
Furthermore, the Applicant did not claim that an injury “was sustained” on 22 May 2017, he gave that date in answer to a question on the claim form in the following terms: “When did you first notice your symptoms/injury?”[3] A more accurate outline of this claim is contained later in the same document at paragraphs (3.3) to (3.5).[4]
[3] Ibid at [10].
[4] Respondent’s Statement of Facts, Issues and Contentions.
APPROACH
The Tribunal proposes to address this determination in the following fashion:
1.outline the Applicant’s compensation claim;
2.review the Applicant’s employment history and conditions;
3.consider the Applicant’s medical history;
4.offer conclusions in relation to the medical evidence;
5.outline the relevant judicial authority;
6.address the claim of wilful and false representation;
7.consideration of the Tribunal’s reasons; and
8.Decision.
THE COMPENSATION CLAIM
The Applicant works for Centrelink in the Department of Human Services.
His claim was submitted on 12 September 2017[5] and relates to a claim for:
“Neck and Lower Back injury caused by working from another Workstation at my usual workplace that doesn’t support my Medical requirements. Also head tension and migraines have been intermittent since May this year.”
[5] Ibid at [8]-[15].
No claim is made for psychological injury and the “Neck, lower back and tension headaches” are identified as the “parts of the body (which) are affected.”
The claim states that the injuries were sustained during the “usual task of taking calls” and there is no suggestion that the Applicant was doing anything other than his routine job when the injuries occurred.
In response to the question on the form seeking information on “what happened and how were you injured?” the Applicant wrote:
“Work have been unable to accommodate my needs for a workstation up on Level 5 where I have one WIDE Computer screen, a special headset like the one I have on my usual workstation that has been ergonomically assessed on L4.
Constant use of two screens have caused my Neck muscles to become very stiff and painful. Having Physio at the moment. Also one day 21.07 to be exact I reached down to pick up my shoes and my Lower Back gave in and I have had constant pain ever since – Physio treatment for that condition as well.
Constant migraines have been caused by work not being able to permanently provide me with a Permanent Desk on L5 of our building where Glare issues as well as Neck and Back issues can be catered for.”
The Applicant further stated that he first noticed these symptoms on “22/05/17 10.00 AM”, that he has not been absent from work and that, at the time he was “not taking prescribed medication or under the influence of alcohol or other drugs at the time I was injured or became ill.”
Finally he indicated that he was “not sure at this stage whether I will take action (other than making this claim) to recover personal injury damages.”
In oral evidence to the Tribunal, the Applicant stated that what he was seeking in terms of compensation was reimbursement or ongoing payment for physiotherapy treatments and (unspecified) time off to manage his injuries and treatment.
The other relevant aspects of the Applicant’s formal claim are these:
·He states that he first sought medical treatment on 1 June 2017 and names Dr Sharif and Michael Lewis, a physiotherapist, as his medical practitioners.
·He writes that “I have not experienced a similar symptom, injury of illness” either work-related or otherwise.
·He indicates that he has not made any other or previous compensation claim for a similar injury or condition.[6]
[6] Ibid at [9]-[11].
EMPLOYMENT HISTORY AND CONDITIONS
Issues relating to the Applicant’s employment history and his medical history are inextricably intertwined but they will initially be set out separately for consideration before being brought together for a more integrated assessment and consideration.
The Applicant has been an employee of the Department of Human Services (Centrelink) since April 2001. His work entails taking calls from and providing advice to “customers” of Centrelink. His work is confined to telephone activities and he does not have any direct “front counter” interaction with Centrelink customers. More recently he has worked in the multilingual team where he uses his proficiency in Arabic to assist customers. He is also fluent in French.
He describes himself as “a proud public servant” and talks enthusiastically of the way in which he interacts with and helps Centrelink customers. He has won a State Award for “Customer Service Excellence” and placed second in the National Awards of that year. He is (rightly) very proud of these achievements. He told the Tribunal that an indication of his dedication to his work was his record of rarely taking sick leave and that he had accumulated close to 7.5 months of such leave.
When asked by Comcare’s counsel to indicate his workload on an average day he stated that he expected to handle between 50 to 60 calls during an eight hour shift. His work is sedentary and desk-bound. He has worked with either one or two computer screens on his desk in recent years.
It was the Applicant’s usual practice, for many years, to take his annual leave during Australia’s winter months to travel to Lebanon where he has family members. In 2002 he suffered injuries in a motor vehicle accident while there. The nature of that accident and the resulting injuries, together with their long-term impact on his health are matters of contention to be discussed below.
The Applicant nevertheless first started to report symptoms of back pain and migraines in 2006 and 2009. These appear to have persisted and were attributed by the Applicant to his conditions at work. In 2012 he additionally reported having problems with his neck muscles.
He claimed that the back and neck conditions were the result of his unsatisfactory workstations – they were not ergonomically suitable to support his back and the fact that he had to use two screens and turn his head between them all the time caused his neck conditions. He believed that the migraines were directly related to both the nature of the telephone headset he had to wear and the glare from the sun through the windows on Level 4 of the building.
On 31 November 2010 WorkFocus Australia carried out an ergonomic evaluation of the Applicant’s physical working environment and conditions.[7] Following the evaluation, adjustments were made to the Applicant’s work space and his employer agreed to pay for six physiotherapy sessions (as recommended by the Applicant’s doctor) as part of an Early Intervention programme designed to respond to actual or potential workplace injuries.[8] In March 2017 the Applicant’s chair was replaced after the Applicant reported that it was broken and was affecting his neck and shoulder.[9]
[7] Ibid at [175]-[184].
[8] Idem.
[9] Ibid at [65].
On 26 May 2017 the Applicant made a compliant that he was having problems with migraines and with dry eyes as a result of the glare, especially of the winter sun, and that in some conditions the fluorescent lights also caused him discomfort. He suggested to his employer that these issues might be resolved were he to be able to be moved from his current location on Level 4 to a different location on the other side of the building on Level 5.
This suggestion was accommodated when in June 2017 his employer agreed that he would work on both levels, generally on Level 4 in the morning and on Level 5 in the afternoon. At the same time, as part of the move to Level 5 he was further accommodated by being provided with a choice of sit/stand desks, although he was not able to secure a permanent location as the available desks in question were also being used by other employees.[10]
[10] Section 37 Tribunal Documents at [94]-[97].
On 4 August 2017 a permanent sit/stand desk and workstation on Level 5 was assigned to the Applicant, however, three days later he advised that it was not suitable because of the glare issues. Temporary arrangements proved unsatisfactory to the Applicant who claimed that his employer was failing to provide him with a desk on Level 5 suitable to meet his medical requirements.
He was again accommodated with a different temporary workstation pending an assessment of his work environment by an occupational therapist, which took place on 25 September 2017. In the meantime the Applicant (and his support person from the Union) met with his Acting Team Leader on 12 September 2017 to discuss his request for a permanent move to Level 5 and access to an ergonomically appropriate workstation.
On that same day (12 September 2017) the Applicant lodged his worker’s compensation claim stating that he first sought medical treatment for his claimed conditions (related to lower back pain. Neck condition and migraines) on 1 June 2017.
The Respondent provided the Tribunal with a copy of a detailed report by the Applicant’s Team Leader dated 12 September 2017 which summarises the history of discussions between the Applicant and his employer in relation to his working conditions and environment and this is summarised in the Respondent’s Statement of Facts, Issues and Contentions as follows:
4.47On 12 September 2017, the Applicant and his support person met with Ms Krkovski, and the Applicant’s acting team leader to discuss his request for immediate and permanent relocation to level 5. In support of his request, the Applicant provided a copy of a letter from his optometrist dated 24 March 2015. In the ‘Record of Discussion’ prepared by Ms Krkovski, the following is noted:
4.47.1 Ms Krkowski pointed out that the Applicant’s workstation on level 4 seemed to meet his requested needs including that he have enough natural light.
4.47.2 The Applicant responded that in the winter months due to the positioning of the sun, his monitor was exposed to glare in the afternoon but he did not consider an antiglare screen would be suitable to combat this.
4.47.3 Ms Krkowski said that management had accommodated his request to work on level 5 in the afternoons during the winter months and had asked him to select what desks would suit him.
4.47.4 The Applicant indicated that the four desks he selected as suitable on level 5 had not met his needs because they did not have the single large monitor he needed and he wasn’t able to use his cordless headset there. He said that he believed his back and neck problems were also caused by the sit/stand desks on level 5 not being set up according to his ergonomic requirements.
4.47.5 Ms Krkovski advised the Applicant that every request the Applicant had made had been accommodated. She said that he had specifically selected the four desks on level 5 as suitable and, except for a few hours on one day, these desks had been available. She said that the Applicant had reported on multiple occasions to management that he was happy with the arrangements on level 5 and would like to move there permanently. She said that, had he indicated any discomfort, immediate action would have been taken to rectify problems.
4.47.6 Ms Krkovski said that the Applicant had advised that his problems with glare on level 4 were seasonal only and confined to the winter months when the Applicant was usually overseas in Lebanon. After the Applicant agreed with this and confirmed that he would be travelling to Lebanon in July and August in 2018, Ms Krkovski queried why, after 12 years, the Applicant wanted a permanent move given that he said glare was only a problem on level 4 during winter. The Applicant said that the glare had been particularly bad in 2017 due to a lack of rain during the year.
4.47.7 Ms Krkovski said that someone from level 5 would have to move from his or her team to level 4 to accommodate the Applicant’s move. She said that, if the Applicant insisted on a permanent move to level 5, the Applicant would have to provide a letter from his treating GP in support of the move, explaining the need for the move and making recommendations for the Applicant’s workstation set-up. She told the Applicant that the letter he had provided from his optometrist would not suffice as it was over two years old. It also did not mention the migraines the Applicant had complained of.
4.47.8 The Applicant said that his physiotherapist had queried why the Applicant’s Employer had paid for his physiotherapy but had not approved a permanent move to level 5. The Applicant said he felt as though he had been forced to make a compensation claim which he preferred not to do because of his personal integrity. He referred to his ‘large positive balance of personal leave which he was proud of’.
MEDICAL HISTORY AND CONDITIONS
Major events
The Applicant joined the Department in April 2001 and in February 2002 he completed a standard medical assessment form supervised by Dr Gow. In that form he answered a number of questions about his medical conditions/fitness in which he declared that he did not have/had not had any:
·(Question 3) Back or neck pain or injury
·(Question 9) Eyesight problems (including wearing glasses or contact lenses)
·(Question 13) Migraine or frequent headaches.
In relation to Question 30 asking whether he had had any “accident or operation” he replied to the effect that he had had an operation to correct a hernia about “5 years ago” and that there had been no reoccurrence of that problem.[11]
[11] Section 37 Supplementary Tribunal Documents at [9-12].
The Applicant elsewhere reported that was “an avid tennis player and jogger/walker” and that he also played “football” (soccer).
On examination Dr Gow found no issues with the Applicant’s musculoskeletal system.[12]
[12] Section 37 Supplementary Tribunal Documents at [14].
As noted above, in July 2002, while in Lebanon the Applicant was involved in a motor vehicle accident. Notes from Dr Priyank Gupta dated 6 December 2015 records (exactly):
“pt has had a evry (sic) severe MV RTA in the year 2002
he went to lebenon (sic) from australia during that time
he was in the front seat of the car and was smashed by the windscreen of the car
car was at high speed
he was wearing a seat belt
it was a very severe injury and pt injured the front of his face and neck area
also back of neck, both wrists and lower legs to some extent as well
he had a major operation after the accident
but later on developed a lot of stiffness in his neck muscles and it seems to come and go
makes him v crippled at times”[13]
[13] Summons documents produced to the Tribunal at hearing from Unanderra Family Medical Practice at [3].
There is some corroboration of part of this record to be found in a letter to the Applicant’s general practitioner (Dr Rao) from plastic surgeon Dr Jeremy Hunt (dated 5 July 2012) in which he writes:
“Thank you for referring this pleasant 34-year old (the Applicant) who suffers a nasal deformity following a motor vehicle accident 10 years ago.
Ghassan had a motor vehicle accident while holidaying in Lebanon and since has had a nose that is grossly deviated to the left side with a significant dorsal hump.
He also has a Lebanese background which contributes to his hanging columella bulbosity of his tip and an overall nose that is disproportionately large for the middle third of his face.
……
A reconstructive rhinoplasty with a component of reduction to his nasal structures would correct his post traumatic deformity as well as address his concerns about the size of his nose.”[14]
[14] Summons documents produced to the Tribunal at hearing from Dr Jeremy Hunt.
In oral evidence the Applicant put a significantly different version of the accident to the Tribunal. In the first instance he claimed that the accident was not a “severe” one and that the car in which he was travelling was not being driven “fast”.
According to the Applicant there was some sort of a (unspecified) crash which caused the windscreen to shatter. The Applicant, who was wearing a seat belt, was showered with glass, some of which cut into his throat/neck below his chin leaving obvious scaring. This was pointed out to and was apparent to the Tribunal. The Applicant says that he put out his hands to avoid being thrown forward and that as a result he was cut, on the wrists, by the metal grill of the car’s air conditioning unit and this resulted in some permanent scaring to his left wrist (again, shown to the Tribunal). He says that his legs flew forward while his body was restrained by the seat belt and that there was some (unspecified) injury to his legs.
He agreed that he was hospitalised for two days as a result of the accident. He does not particularly recall any whiplash injury.
The Applicant was asked by the Respondent, pursuant to section 58 of the Act to provide further information about this car accident, in response he stated:
“The car accident that you mentioned happened overseas in 2002 and I have no medical records as it happened a long time ago.
The neck injury was from some shattered glass that went through the front side of my Neck – around the Adam’s Apple. That injury required stitches and I fully recovered from it.”[15]
[15] Respondent’s Statement of Facts, Issues and Contentions [4.68].

The nature, impact and ongoing effects of this accident are matters of contention between the parties and will be discussed below.
On 31 May and 1 June 2006 the Applicant underwent Lasik surgery[16] which resulted in some degree of complication requiring him to take a couple of days leave from work.[17]
[16] Lasik surgery is undertaken to correct relatively minor conditions of vision (short or long-sightedness) in order to allow the patient to avoid wearing glasses or contact lenses. It was initiated by the Applicant himself.
[17] Section 37 Supplementary Tribunal Documents at [53-54].
Occasional presentations
The departmental records provided to the Tribunal demonstrate that the Applicant had frequent days off work due to the nature of his medical conditions, including at least 14 incidents of headache/migraine and four involving back conditions.[18] He reported numerous incidents of feeling pain or discomfort due to issues of back pain, neck stress, eyesight problems, headaches and migraines.[19] The Applicant also noted “wrist issues from constant Mouse movements” in February 2015.[20]
[18] Idem and Respondent’s Statement of Facts, Issues and Contentions at [4.1 – 4.68].
[19] Idem.
[20] Applicant’s Statement dated 24 March 2018 at [1].
Three particular instances involving his back pain stand out: a sudden pain felt when getting into his car (13 November 2014);[21] sudden pain when taking his seat at work (28 September 2015)[22] and the pain referred to directly in his compensation form when he bent down to change his shoes (21 July 2017).[23]
[21] Section 37 Tribunal Documents at [34] and [45].
[22] Ibid at [59].
[23] Ibid at [9].
The Applicant has been a patient of a Medical Practice in Unanderra for many years and has seen different practitioners there. Their clinical notes from January 1993 to January 2017 were produced under summons to the Tribunal. The material shows that a number of scans[24] were undertaken of the Applicant’s spine and all of which returned readings that were “normal.” None of the scans performed led to a referral for further medical treatment. Indeed in at least one report (dated 15 November 2015) Dr Gupta records that the Applicant, “does not need physiotherapy at this moment of time.”[25]
[24] Summons documents produced to the Tribunal at [178].
[25] Summons documents produced to the Tribunal at [3].
There is a letter to Dr Rao from Dr Ray Blumgart dated 26 September 2014 resulting from his examination of the Applicant which reports that “the MRI of the brain appeared essentially normal” but also states:
“Given clinical history – Recurrent migraine headache for 13 years.”[26]
[26] Summons documents produced to the Tribunal at [175].
Allied health consultations
The Applicant has been seeing Mr Michael Lewis, a physiotherapist, on a regular basis from as far back as 2012 when his employer aided a number of physiotherapy sessions as part of the Early Intervention Programme. In all, 16 visits were provided for either under that programme (12 via Medicare) or direct by Comcare (4).
The Applicant also consulted Ms Phung Truong, a qualified Optometrist who has been in practice since 2003. She examined the Applicant in March 2015 and reported that she found his vision to be good and his eye teaming skills normal. Ms Truong diagnosed the Applicant as suffering from eye strain and supported his contention that this may have resulted from overuse of his computer screen and the nature of his work which involved looking at small font on his computer. Ms Truong offered a recommendation to the Applicant’s Team Leader that Mr Chalboub should be provided with a larger screen equipped with larger font and an adjustment made to the fluorescent lighting under which he worked.[27] She noted that there could be enhanced light sensitivity in patients who had undergone Lasik surgery.
[27] Section 37 Tribunal Documents at [54].
Ms Truong gave clear and direct evidence to the Tribunal, by telephone, in which she explained her findings in relation to the Applicant and made clear that she did not link eye strain or dry eyes directly to any propensity to precipitate migraine headaches. She did confirm that neck strain was often seen in patients who did not have access to proper ergonomic working conditions when using screens but also agreed that the problems as reported by the Applicant appeared to have been apparent for a long period of time.
Diagnoses and conclusions
Dr Muhammad Sharif has treated the Applicant for many years and issued a number of medical certificates (WorkCover NSW certificates of capacity) on his behalf.
·On 15 June 2017 Dr Sharif issued a certificate stating: “due to excess neck movement and glare in eyes, the tension headaches and neck stiffness have arisen, low back pain started at work after having had lifted (sic) something off the floor at work”[28]
·On 14 September 2017 Dr Sharif repeated this diagnosis and in his commentary on the management of the Applicant’s condition and working environment noted that “Since the above mentioned changes have not been given to the patient, his symptoms of neck stiffness, low back pain and tension headaches have worsened since May 2017.”[29]
[28] Ibid at [210].
[29] Ibid at [201].
It is clear that Dr Sharif was of the view that the nature of the Applicant’s working environment caused the symptoms the Applicant was experiencing. .
Mr Michael Lewis, a physiotherapist, has also been treating Mr Chalhoub for some time has been responsible for a number of treatment sessions with the Applicant, some of which were subsidised by the employer under the Early Intervention programme. His principal diagnosis was reported on 14 September 2017 when he wrote:
“As you may be aware Ghassan is currently undergoing physiotherapy management for left sided non-specific neck pain and right sided lower back pain.
I believe the cervical spine injury to be a form of postural overload associated with work station set up and I would recommend ergonomic assessment.”[30]
[30] Ibid at [16].
There is clear evidence, not contradicted by the Applicant, that the ergonomic changes recommended by both the Early Intervention Assessment Report (25 September 2017)[31] and following advice from Dr Sharif in the WorkCover certificate, were implemented and the Applicant was provided with a new workstation, a single monitor and a lumbar support cushion.[32]
[31] Ibid at [23].
[32] Ibid at [32].
Despite this, Mr Lewis reported on 23 October 2017, “These changes have not yet improved any symptoms. The lumbar spine pain started when picking up a bag at work and has been intermittent ever since.”[33]
[33] Ibid at [110].
Following this report, further ergonomic changes were made to the Applicant’s work environment.[34]
[34] Ibid at [112]-[115].
In his oral testimony to the Tribunal, Mr Lewis made a number of concessions in relation to matters put to him by the Respondent’s counsel, to the effect that:
1.It was hard for him to say “with 100% confidence” that all of the Applicant’s reported conditions were work-related;
2.A previous whiplash injury (such as that which may have arisen from the 2002 car crash, about which Mr Lewis had no previous knowledge) may well have been the initial cause of the neck pains suffered by the Applicant and his current pains may be an exacerbation of that original injury; and
3.He had started work as a physiotherapist in 2016 and had not previously seen a patient with the same suite of conditions and, in these circumstances, would defer to specialist opinion about their aetiology.
The written and oral evidence of Ms Truong, the optometrist has been discussed above.
DR FARHAN SHAHDAZ
Dr Shahzad is a highly qualified Consultant Occupational Physician who examined the Applicant on 27 October 2017. His report is the crucial evidence relied upon by the Respondent in this matter. As such, his report must be quoted extensively.[35]
[35] Ibid at [119]-[131].
[The Applicant] reported no significant past medical history. He denied any history of motor vehicle accident, surgery…
…
[The Applicant] has reported the causation factor to be the use of a non-ergonomic desktop on level 5. He was using a non-ergonomic desktop in level 5 in order to avoid sunlight glare at level 4 from the winter sun. He reported onset of his symptoms on 22 May 2017.
Previously he had travelled to Lebanon during the Australian winter, however, in 2017 he remained working in Australia and eye soreness escalated at this time…
[The Applicant] has outlined many subtle events contributing to the presentation of his significant conditions. He reported that he sustained a mechanical neck pain as a result of using two monitors. In my opinion, there is very limited movement and rotation required while looking between two monitor screens. On examination, his lateral rotation was significantly reduced.
I note from the documentation that [the Applicant] has a history of neck pain dating back to 2012 as reported in the workstation assessment completed on 20 November 2014. This was further supported by a letter written by Dr Gupta on 15 November 2015 stating that [the Applicant] has been experiencing ‘neck and back pain for quite some time, on and off’.
Furthermore, [the Applicant] launched a report of injury for neck and back pain on 13 November 2014 as a result of ‘getting into the car’. In my opinion, his presentation of neck and back pain is considered to be a pre-existing condition. There is minimal evidence to support that he has had a frank traumatic incident at work to result in a new injury. It seems to be an aggravation of a pre-existing condition. His symptoms have significantly improved after moving to level 5. He is still seeking treatment for neck strain. There is limited body of evidence identified in literature confirming and supporting causation for the reported mechanism of injury.
…
…I am unable to explain mechanism of injury suffering from a low back pain while lifting shoes from the floor…
…
[The Applicant] has not directly reported any pre-existing history. However from the supporting medical documentation provided there is evidence of pre-existing neck and back pain dating back to 2012 and also with a recurrence in 2014 and in 2015. In my opinion…his low back and neck pain is considered to be a recurrence of a pre-existing condition. Also, his eyestrain and tension headache is considered to be an aggravation of an underlying condition.
In my opinion, [the Applicant’s] employment has not contributed to a significant degree. However, there has been some level of contribution. I have been unable to identify a significant causation or contribution to his injury from his position description.
…
…he was working at level 5 in a non-ergonomic station for a few months in the afternoons only. There is insufficient duration, length of time and workload identified that would have resulted in a significant neck injury. Using two monitors would have required lateral rotation of his neck. However I understand he is able to turn one monitor off and is still able to utilise work on one monitor and focus on one monitor avoiding neck rotation.
Mechanical low back pain would require exertion with force, repetition of spinal movements involving spinal rotation or inactivity at work with a poor posture.
Medical literature reports that there is an increased risk of neck pain with increased age. Studies have identified that “no clear relationship was found between neck rotation and neck pain in the scientific literature”. Furthermore studies have found that “duration of computer work was not significantly associated with neck symptoms”. The relative risk of having neck pain is much higher if there is a pre-existing history of neck pain. This is the strongest predictor for new onset of neck pain.
On 18 May 2018, Dr Shahzad provided a supplementary report after he had been provided with further material summonsed from the Applicant’s various treating practitioners. In particular Dr Shahzad was asked to state his views about the causation of the Applicant’s various conditions.
His report noted that it had been almost six months since he had seen the Applicant and that his new report included reference to a considerable amount of material not previously available to him. He opined:
On his previous presentation…[The Applicant] reported that he has [sic] reported no significant past medical history. He reported no previous history of motor vehicle accident…
It seems from the elicited information that [the Applicant] is suffering from longstanding chronic back pain from possibly whiplash-associated trauma from the severe motor vehicle accident in 2002. It seems that he has had ongoing recurrent neck pains. I had commented earlier that he has recurring episodes of neck and low back pain. It is expected that these recurrences in the future will continue as well. However, on the background of his severe motor vehicle accident, it seems that the most obvious trauma he has had to his neck in his life has been related to the motor vehicle accident.
It seems that he has a consistent history of recurring neck pain since 2002. The consultation notes from his treating GP reports, recurrent neck pain with chronic stiffness as a result of the severe motor vehicle accident of 2002. It is highly likely that his ongoing current presentation [regarding his neck] is related to the motor vehicle accident of 2002. He has had recurrent presentations of neck pain with ongoing aggravations.
…
…[The Applicant] had identified subtle events contributing to the presentation of his significant conditions. There was a lack of a traumatic incident at work to result in an injury. I maintain my opinion that it seems to be an aggravation of a pre-existing condition. However, due to his pre-existing condition, he suffers from recurrent muscular pains. … I am still unable to explain the work related mechanism of injury, relating to use of two monitors in the light of evidence-based literature. In my opinion, his presentation was considered to be recurrent neck pain related to a pre-existing condition. In the light of new evidence, it is possibly related to the motor vehicle accident in 2002.[36]
[36] Report of Dr Shahzad dated 18 May 2018. The footnoted reference in the Respondent’s Statement of Facts, Issues and Contentions at [4.67] is entirely inaccurate and incorrect in suggesting that this report was included in the original Section 37 Tribunal documents. It was submitted with that Statement at a later date.
CONCLUSIONS AS TO THE MEDICAL EVIDENCE
The Tribunal is required to come to some conclusion about each of the Applicant’s claimed conditions and assess for itself (guided by expert evidence) the extent to which each is a compensable condition.
Section 5A of the Act (relevantly) provides that:
(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.
This, in effect, requires that to be compensable, the injury must be one whose origins and aetiology are related directly to something which arises out of or in the course of the Applicant’s employment. Further, “The connexion must, however, be a causal and not merely temporal one.”[37]
[37] Roncevich v Repatriation Commission [2005] 218 ALR 733 at [23] per McHugh, Gummow, Callinan and Heydon JJ.
Much turns upon how the effects of the 2002 car accident are perceived and, as the Tribunal has noted, there are differing versions of the seriousness of the accident, its impact and its long-term effects. There are no contemporary medical records to provide any assistance in this matter.
It will be useful to discuss each claimed injury in turn.
Migraine or headaches
The evidence establishes that the Applicant has suffered from migraines for a considerable period of time, going back at least 13 years.[38] Ms Troung, in her evidence did not support the proposition that the issues of the Applicant’s workplace environment or conditions would be a significant cause of such ailments, if anything there might have been some contribution as a result of the Lasik surgery which was undertaken entirely at the initiative of the Applicant. Changes in the Applicant’s headset were made when requested.[39] It cannot be established that there is a compensable condition arising in this instance.
[38] Summons documents produced to the Tribunal at hearing at [175].
[39] Complaint mentioned in Section 37 Tribunal Documents at [34] and in oral evidence the Applicant confirmed the change of headset when requested.
Neck and back pain
The two reports of Dr Shahzad suggest very clearly that the undoubted issues confronted by the Applicant in terms of his neck and back pains should be related back to the effects of the 2002 car accident and cannot be realistically attributed to any events occurring in the course of his normal employment. Dr Shahzad dismisses claims that neck rotation between two screens would be causative on the basis that there is no support for this in the medical literature. This absence should not, of course, be regarded as a definitive statement that no such link might arise, but in this instance it carries some weight, especially given the changes made in those working conditions when requested and following ergonomic assessments.
The same may be said in relation to the back injuries which, again, may have their origins in the effects of a car crash (especially at high speed) where the body is traumatised despite the restraint of a seat belt. The levels of “aggravation” reported in getting into a car or picking up shoes or playing soccer[40] are not of the level as to amount to an aggravation of an ailment as contemplated in the legislation.
[40] Section 37 Tribunal Documents at [47].
In relation to neither the neck or the back pains is there any evidence whatsoever in any of the x-rays or scans, all of which report “normal” presentations or conditions, to suggest that there has been a physiological change in the Applicant’s condition as a result of any work-related activities.[41]
[41] Summons documents produced to the Tribunal at hearing at [178] and [3].
RELEVANT JUDICIAL AUTHORITY
This lack of any demonstrable physiological change in condition from what the Tribunal accepts were conditions caused primarily by an accident, itself occurring outside work, despite the Applicant’s subjective feelings that his pain was “worse” as a result of his working environment, must be fatal to the Applicant’s claim.
This is made clear by the High Court in May where their Honours said[42]:
[42] Military Rehabilitation and Compensation Commission v May [2016] HCA 19 per Kiefel, Nettle and Gordon JJ, footnotes omitted.
“Not sufficient for an employee merely to feel unwell
[57]  The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind" (emphasis added). To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.
[58]  That is because, first, it overlooks that the Act provided that the appellant was liable to compensate in respect of “an injury” and that the focus of the Act is on “an injury”.
[59]  Second, it overlooks that the Act draws an important distinction between “disease” and “injury (other than a disease)” and that “disease” and “injury (other than a disease)” are part of different limbs of the definition of “injury” in s 4(1). Each limb deals with a separate basis for something being an “injury”. That is the reason for separate questions.
[60]  Third, as seen earlier, the word “injury” in “injury (other than a disease)” has a different meaning from the defined term “injury” in s 4(1) — it means “injury” in its primary sense. That necessarily requires consideration of the “precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change”.
[61]  Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the “injury (other than a disease)” limb of the definition of “injury”, unless that employee can satisfy the tribunal of fact that he or she has suffered an “injury” (in the primary sense of the word), s 14 of the Act will not be engaged.

Similarly, in Beattie the Federal Court stated:
“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.”[43]
[43] Re the Commonwealth of Australia and Kathleen Beattie [1981] FCA 88 at [page 9].
The High Court’s clear statement that mere subjective experience of symptoms, in the absence of evidence of physiological or psychiatric[44] change, cannot amount to demonstrating that an injury has occurred for the purposes of the Act, mean that the Applicant cannot succeed in this claim, because those are exactly the circumstances in this case.
[44] No evidence was led suggesting any issues of psychiatric ailment for the Tribunal’s consideration.
“WILFUL AND FALSE REPRESENTATION”
Section 7(7) of the Act is in the following terms:
“ A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.”
Although, for the reasons given above, the Tribunal has determined that the Applicant’s claim must fail, it believes that, in fairness to the Applicant, it should give consideration to the express charge laid against him by the Respondent that his claim is prima facie evidence of his intention to make “willful and false representation” to the Commonwealth. It is not strictly necessary for the Tribunal to do so, but it noted the obvious distress of the Applicant when this claim was put against him and does not believe that the matter should simply be left at that stage.
The gravamen of the Respondent’s position is that the Applicant reported details of his 2002 motor vehicle accident to various medical practitioners who he consulted for a variety of matters prior to lodging his compensation claim but that he deliberately withheld this information from Dr Shahzad because he knew that Dr Shahzad was being asked to make a diagnosis specifically related to that compensation claim. In other words there was, on the Applicant’s part, a deliberate attempt to mislead by withholding or concealing relevant information. The Respondent’s position is reinforced by the fact that the Applicant was asked specifically about the existence or otherwise of such incidents by Dr Shahzad when he was following his standard template of questions which he asks as on a routine basis in such examinations. The Applicant’s response to Dr Shahzad was such that Dr Shahzad’s report states categorically that: “He (the Applicant) denied any history of motor vehicle accident, surgery, workers’ compensation claim or sporting injuries.”[45]
[45] Section 37 Tribunal Documents at [124].
In response the Applicant states that he did not think that the accident, as he saw it, so far in the past was “relevant” in the current circumstances. He goes further and claims that since he knew that Dr Shahzad had been provided with a full copy of his existing medical records, any such relevant details would already be before him and he would only have to respond in relation to any matters not therein contained. He also makes the point that he had supplied Comcare with the details of his treating practitioners who “have always been aware of my Car accident since 2002.”[46]
[46] Email from Applicant to AAT Registry dated 1 December 2018, Applicant’s Submission at A1.
It is true that the Respondent urged the Tribunal to give preference to Dr Shahzad’s opinions over any others (especially that of Mr Lewis or Dr Sharif) on the basis that Dr Shahzad “had the advantage of being supplied the Applicant’s medical records back to 2000, it appears Dr Sharif and Mr Lewis did not have the benefit of these records.”[47]
[47] Respondent’s Statement of Facts, Issues and Contentions at [5.7].
It is certainly the case that some medical records of the Applicants were supplied to Dr Shahzad but it not entirely clear whether they were all the records or not. The list of “File Material Available”[48] which Dr Shahzad sets out at the commencement of his report does not necessarily indicate that this was the case. It is simply not possible for the Tribunal to come to a determination one way or the other.
[48] Section 37 Tribunal Documents at [120].
On the other hand, the Respondent cannot claim both that Dr Shahzad’s report is to be accorded greater weight than others on the basis that he had access to the Applicant’s full medical records and then complain that Dr Shahzad was denied information about the car accident which is referenced in those same medical records.[49]
[49] Section 37 Supplementary Tribunal Documents at [56].
The Applicant was in the witness box at the Tribunal for the best part of 1.5 days and was subject to vigorous cross-examination by the Respondent’s highly experienced counsel. There is some advantage for the Tribunal in being able to observe the demeanor and behaviour of an applicant under these circumstances.
Fisher J in Re Georges observed that:
“I have had the opportunity of observing the applicant …. during the taking of evidence and this is a crucially important advantage not available to the Minister and the Secretary.”[50]
[50] Re Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63.
On the other hand there is a clear warning from the High Court that:[51]
30. It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"):
"... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."
31. Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
[51] Fox v Percy [2003] HCA 22 per Gleeson CJ, Gummow and Kirby JJ., footnotes omitted. See also The Nominal Defendant v Cordin [2017] NSWCA 6 at [167] and Gestmin SGPS S.A. and Credit Suisse (UK) Limited [2013] EWHC 3560 at [15-22] per Leggatt J.
It would be a serious matter to find that the Applicant had made wilful and false representations[52] and, as such, the Respondent needs to provide compelling evidence to establish such a claim.[53]
[52] McQueen-Thomson and K&S Freighters Pty Ltd [2016] AATA 510 at [116].
[53] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93.
In McQueen-Thomson the Tribunal considered a compensation claim where the Applicant had provided a false answer about a relevant previous injury. In that matter the Tribunal was satisfied that the false answer was not wilfully given, but rather was the result of some confusion on the part of the applicant about the matter which was the subject of the question on the form.[54] Furthermore the Tribunal took into account the demeanour of the witness in giving evidence to the Tribunal and its perception of his truthfulness.[55] The Tribunal’s observations and conclusions in this matter were quoted by the Federal Court in upholding the Tribunal’s decision.[56]
[54] McQueen-Thomson and K&S Freighters Pty Ltd [2016] AATA 510 at [117].
[55] Ibid at [118].
[56] K&S Freighters Pty Ltd v McQueen-Thomas(sic) [2018] FCA 1518 at [59-60].
Similarly, in Wilson the Tribunal found that a response given by an applicant was false but not wilfully so.[57] In this instance the Tribunal relied on a statement by Barwick CJ who, in describing the meaning of “wilful” said:
“But in truth, in my opinion, the word contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something.”[58]
[57] Wilson and Comcare [1996] AATA 862 at [101].
[58] Iannella v French [1968] HCA 14 at [24].
Similarly, von Doussa J in McAuliffe said that the fact that something was false was “not dependent on proof that the statement or representation was deliberately or intentionally untrue”.[59]
[59] McAuliffe v Secretary, Department of Social Security [1991] 23 ALD 284 at [296].
Taking into account all of the circumstances, including the Applicant’s belief that the details of his car accident were already before Dr Shahzad, although his response to Dr Shahzad’s questions was misleading in its incompleteness and was, of itself, false, the Tribunal nevertheless does not believe there is enough evidence before it to conclude that it was also “wilful” in the terms of s 7(7) of the Act. Hence the conjunctive requirement in this section is not met.
CONSIDERATIONS
This application must fail for the reasons outlined above. There is no doubt that the Applicant has, subjectively, felt unwell and suffered problems and pain with his neck and back and has, from time to time, suffered migraines.
However the evidence is persuasive that the neck and back pains originate with the car accident (outside work) in 2002 and have persisted ever since. In this instance they are pre-existing conditions. The migraines are of long-standing duration and have not been shown to have their aetiology in anything related to the Applicant’s employment.
The absence of any physiological change in the Applicant’s condition arising from or related to his employment means that he has failed to establish the necessary causal connection between the two as is required by the Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 91 (ninety -one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.................................[sgd].......................................
Associate
Dated: 29 April 2019

Date(s) of hearing: 8 & 9 April 2019

Applicant: In person

Counsel for the Respondent: Mr M Gollan

Solicitors for the Respondent: Mr R Moss, Comcare

Date(s) of hearing:	8 & 9 April 2019
Applicant:	In person
Counsel for the Respondent:	Mr M Gollan
Solicitors for the Respondent:	Mr R Moss, Comcare