Demirbas and Comcare (Compensation)

[2018] AATA 1827

Demirbas and Comcare (Compensation) [2018] AATA 1827 (15 June 2018)

Division:GENERAL DIVISION

File Number(s):      2016/4037

2017/4241

Re:HALIL DEMIRBAS

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:15 June 2018

Place:Melbourne

The Tribunal sets aside the reviewable decisions under review.

........................[sgd]................................................

R Cameron, Senior Member

Catchwords

COMPENSATION – left leg sciatica –

bilateral rhizolysis procedure – whether surgery compensable – whether pain migratory from left to right – acceleration of existing condition – aggravation of existing condition

Legislation

Safety, Rehabilitation and Compensation Act 1988

Cases

Australian Postal Corporation v Sellick [2008] FCA 236

Casarotto v Australian Postal Commission (1989) 17 ALD 321

Salisbury v Australian Iron and Steel Ltd (1943) 44 SR NSW 157

REASONS FOR DECISION

R Cameron Senior Member

15 June 2018

INTRODUCTION

1. There are two applications before the Tribunal. The first application is in proceeding number 2016/4037 (“the First Proceeding”). The second application is in proceeding number 2017/4241 (“the Second Proceeding”).

2. In the First Proceeding a Review Officer of the Respondent on 18 July 2016 affirmed a decision made by the Respondent on 19 April 2016 denying the Applicant medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) (“the First Reviewable decision”).

3. In the Second Proceeding a Review Officer of the Respondent on 21 June 2017 affirmed a decision made by the Respondent on 22 February 2016 which denied liability to the Applicant under section 16 of the SRC Act for a laminectomy of L4/5 and bilateral rhizolysis procedure (“the Second Reviewable decision”).

   THE EVIDENCE AND OTHER MATERIALS BEFORE THE TRIBUNAL

4. There was documentary evidence together with viva voce evidence from several witnesses.

5. The documentary evidence consisted of the following:

   (a)Statement of evidence of the Applicant dated 27 February 2018;

   (b)Report by Mr Thomas Kossman dated 21 January 2017;

   (c)The T documents for the First Proceeding;

   (d)The T documents for the Second Proceeding;

   (e)Radiology report dated 7 May 2002; and

   (f)CT Scan report dated 21 October 2005; and

6. Viva voce evidence was given by;

   (a)The Applicant;

   (b)Mr Thomas Kossman; and

   (c)Dr Gautam Khurana.

7. Additionally, Statements of Facts, Issues and Contentions were filed by both parties.[1]

   [1] The Applicant's Statement of Facts, Issues and Contentions was filed on 22 February 2018 and the Respondent's Statement of Facts, Issues and Contentions was filed on 20 March 2018.

   THE EVIDENCE OF THE APPLICANT

8. The Applicant adopted his witness statement made on 27 February 2018 during the course of his evidence and then supplemented it with further evidence in chief. He stated that he is currently 54 years of age. His current employment is with the Department of Human Services as a Customer Service Officer (CSO). Such duties having commenced in approximately September 2002. In his role as a CSO he carried out a variety of administrative functions. In the course of such employment he had regular use of what was described as a multifunction photocopier or printer. Usually, he would walk from his desk to the printer whenever he needed to copy or print documents.

9. The accident was on 17 September 2003 in the course of such duties with Centrelink at its Frankston office. The Applicant was using the printer when a paper tray attached to the printer fell off and he attempted to catch it to stop it from falling to the ground. In doing so he turned to his left side rather suddenly, aiming to catch the tray when he felt what he described as a “twinge” in his lower back.[2] He was leaning forward trying to catch the photocopier paper tray but ultimately he was unsuccessful in such endeavours.

   [2] Whilst not much turns on it, it appears that he has used several terms to describe this initial reaction upon turning to try and catch the photocopy paper tray. In his statement of 27 February 2018 as noted above and in a history given to Dr Kossman he described it as a "twinge". In his evidence in chief he stated "I felt pain". Mr Khurana recorded it as feeling a "tinch". In the "Report of Injury or Disease” dated 18 November 2003 (document T 4 of the T documents) it is described as "a ping in my lower back"; the same wording is used in the "Claim for Compensation (Employee) and Rehabilitation Report’ that he lodged on 7 November 2003 (document T 5 of the T documents) at page 15. When probed in the course of his evidence in chief as to the meaning of the term "ping in my lower back" he described it as being "a sudden discomfort". No point was taken by the Respondent concerning this variation in terminology and it is considered that overall it is consistent with his description of what he felt during the incident concerned.

10. It appears that after the incident with the photocopier paper tray the Applicant did not take any time off work that day.[3]

    [3] This was conceded by the Applicant during the course of his cross-examination by counsel for the Respondent. It was also raised in cross-examination, with which the Applicant agreed, that in his report of the injury which is found at document T 4 of the T documents (page 10) it recorded that he did not take any time off work.

11. The pain that he experienced as a result of the photocopier paper tray incident on 17 September 2003 continued. Initially, following such incident he endeavoured to treat the continuing symptoms manifested by pain in his back by the use of proprietary medications “Dencorub” (well-known to a generation of footballers) and Voltaren.

12. A Claim for Compensation for what was described as a “Low Back Injury” was apparently signed by the Applicant and dated 11 November 2003[4]. However, such Claim for Compensation was only received by the Respondent’s National Mail Centre on 26 November 2003. A formal report of the photocopier paper tray incident was not made by the Applicant until 18 November 2003.[5]

    [4] This is found on the last page of the Claim for Compensation (document T 5 of the T documents at page 18) which was also countersigned by a Deputy Manager on that date. The Claim for Compensation contains 39 questions.

    [5] As noted previously the report of the incident is document T 4 of the T documents.

13. Critically, (and it will assume considerable importance later in these reasons not to mention that it was canvassed at some depth during the course of evidence and submissions to the Tribunal) the Claim for Compensation at question 13 in response to the question: “What is the precise diagnosis as stated on your medical certificate?”, it records: “Sacro lumbar dysfunction” and “L-sciatica”. This description of the injury is also to be found in a “Physiotherapy Treatment Notification Form” under the heading “diagnosis”.[6] Question 17(a) of the Claim for Compensation asks:

    [6] See document T 7 of the T documents page 25.

    In your own words, describe the injury or illness as fully as you can (there is no need to use medical terminology)

    I have pinched a nerve in my lower back/buttocks

    Question 17(b) of the Claim for Compensation asks:

    What body part is affected (eg lower back)

    Lower back/ buttock

    Question 17(c) of the Claim for Compensation asks:

    In your own words describe how this injury now affects you (eg: ‘I’m unable to drive  a motor vehicle’, ‘I cannot sit for longer than 15 mins’)

    Unable to sit for prolonged periods (2 hours) and stand for 45 mins or longer. Severe pain on low and upper back after walking even short distances (500 metres)

14. In an undated document from Sue Foran, OHS Coordinator People Support Team, that refers to a worksite assessment undertaken on 27 October 2003[7], the Applicant is recorded as reporting a “pinched nerve in his lower back/buttock”. The “Workplace Assessment Report” records him “suffering pain in his left buttock/hip region” as a result of the incident with the photocopier paper tray. Further, in that document the Applicant is recorded as having advised that “the symptoms originally began in his left hip and overtime a gradually worsened and now refer pain into his lower back region.”

    [7] Document T 9 of the T documents at page 27.

15. There was evidence that the Applicant had been involved in a car accident (when a vehicle that he was driving was struck from behind) in approximately 1985 or 1986. In this accident he sustained a soft tissue injury to his back, causing him to suffer some pain in his lower back. This condition was treated conservatively via his general practitioner, with measures including physiotherapy and apparently such pain and discomfort was resolved.[8] He states that he did not miss any work as a result of these injuries.

    [8] Evidence to this effect is to be found in paragraph 20 of his witness statement, his viva voce evidence and in Mr. Kossman’s report. It was not referred to in Dr Khurana’s report. It is not apparent whether this history was furnished by the Applicant to Dr Khurana. However, the matter was not explored during the course of the Applicant's evidence nor was the point taken and any submissions made to the Tribunal. There is no reason to doubt and the Tribunal accepts the Applicant's evidence concerning the motor vehicle accident, the injuries that he suffered, their treatment and subsequent resolution.

16. The Respondent in a determination made on 2 December 2003 accepted liability for lumbar sprain and left sciatica[9]. It was recorded in the determination that the Respondent in reaching its decision considered the available evidence including relevant statements and medical evidence.

    [9] Document T 14 of the T documents at page 35.

17. A further determination was made by the Respondent on 20 February 2004 which accepted liability for General Practitioner consultations and physiotherapy for one session per week[10]. In a Physiotherapy Treatment Notification Form dated 1 March 2004, recorded under the heading “Diagnosis” is “Sacro-Lumbar dysfunction and associated muscle tightness” and “L sciatica”[11], in the same document underneath the heading “Current symptoms” is “Lower back pain” and “L Buttock pain”. Similar observations as to the Diagnosis and Current symptoms were also found in a further Physiotherapy Treatment Notification Form of 29 April 2004.[12]

    [10] The determination is document T 15 of the T documents at page 37.

    [11] Document T 16 of the T documents at page 38.

    [12] Document T 17 of the T documents.

18. A Medical Review Certificate signed by the Applicant’s treating General Practitioner Dr Yilmaz describes the “Compensable condition” as “Lumbar sprain – Sciatica (Left)”. The Applicant stated that Dr Yilmaz had been his treating General Practitioner for a few years prior to the incident with the photocopier paper tray.

19. The Applicant was tackled in the course of cross-examination as to the fact that initially when he reported the incident he stated that the sciatica was on the left side. In response to a question from counsel for the respondent he condescended to some more detail by stating that the buttock area was the area initially affected and he experienced a radiation of pain. He described it in terms as being basically the numbness of pain going down the left side and how it impacted him. He stated that when filling out the forms he largely transcribed on to such forms what was written on the relevant medical certificate provided by his general practitioner.

20. Following the claim that the Applicant made with the Respondent which was subsequently accepted he gave evidence that he had some treatment together with undertaking courses in Pilates, gym and guided meditation. On top of this approach he was prescribed medication for pain relief and to relieve inflammation as well as what he described as basic physiotherapy. Throughout this period he remained at work.

21. The Applicant then stated that after approximately 2004 following the period of treatment in the way described previously the symptoms appeared to be resolved. However, in 2005 the pain did return, and in his words continued “on and off” thereafter, which prompted the further claims on the Respondent. From a period to approximately August 2014 he experienced a worsening of sciatica manifesting itself in pain and numbness which proceeded to occur more frequently and when so occurring last over a longer time span. These experiences were treated overall in a comparatively conservative fashion involving physiotherapy treatment programs of exercises end hydrotherapy attendances.

22. Over time he gave evidence that sciatic pain did continue and ultimately progressed to a point where it became in his words a “bit unbearable and the impact was greater than it used to be”. This progression in the pain as described above, and the failure of it to improve led him to consult his treating general practitioner[13] who referred him to medical specialists for appropriate expert opinions. It should be recorded that by this time he stated that he had sciatica affecting both legs, that it was getting unbearable however the pain in his right leg was worse.

    [13] By this time he was no longer treated by Dr Yilmaz but Dr Woo.

23. He then saw Mr Drnda, a consultant neurosurgeon, who provided an initial report on 6 July 2015[14], and Mr Johnson, an orthopaedic surgeon, who provided a report dated 12 September 2015[15]. Mr Drnda provided a further report dated 6 November 2015.[16]

    [14] Document T 122 of the T documents.

    [15] Document T 126  of the T documents.

    [16] Document T 130 of the T documents.

24. Mr Drnda’s first report of 6 July 2015 records that the Applicant suffers from chronic pain in his back and symptoms down his right leg. He recommended decompressive laminectomy and rhizolysis.

25. Mr Johnson’s report is referred to in its entirety. After recounting the fact situation concerning the incident with the photocopier paper tray he observed that the Applicant rapidly developed discomfort in the back and right buttock and such discomfort has persisted over the years. He noted that over the previous 12 months symptoms had worsened and had become troublesome. Mr Johnson’s conclusions were that the Applicant’s symptoms were most likely related to a lower lumbar nerve root compression. He recommended decompressive surgery.

26. Mr Drnda’s report of 6 November 2015 is comparatively short. He records that the Applicant whilst trying to catch the photocopier paper tray “stretched, bent and twisted his back and developed back pain”. He also observed that “The pain is predominantly in the right leg”. The observation was made that the Applicant’s condition was deteriorating and again as in his first report, that with respect to his leg pain it could be helped by undergoing a laminectomy L4/5 and bilateral rhizolysis. Apparently, the Respondent paid for the costs of both of these consultations with the medical specialists.

27. Subsequently, on 11 May 2016 decompressive surgery was undertaken by Mr Drnda. The surgery was undertaken at the Monash Medical Centre on the Applicant as a public patient.

28. Following the surgery the Applicant gave evidence that his sciatica was fine at the moment and that he does not have a pain in the leg. He experiences some numbness or stiffness in the buttock area and occasional back pain if he does something or bends down, but otherwise it is manageable. Occasionally he takes medication only when the back pain becomes very severe.

29. Much time in the course of the Applicant’s evidence in chief and cross-examination was devoted to the fact that in the documentation created by the Applicant or recorded his observations concerning where he suffered the pain at the time of the incident and thereafter, reference was made to left side sciatica; whereas in the later medical reports of Mr Johnson and Mr Drnda (not to mention his treating general practitioner Dr Woo)[17] reference is made to pain on the right side whether it be sciatica or to the back and buttock region.

    [17] See for instance the “Medical Certificate for Compensation" in the T documents, T 148 at page 289 where under the heading "Current clinical symptoms/diagnosis" it is described as lower back pain and right sciatica. The Document is signed by Dr Woo and the date of examination was 11 July 2015.

30. The Applicant at various stages in the course of his evidence stated that the symptoms or pain that he felt which was observed by his treating doctors was more severe on the left side than the right. He stated that after the initial incident with the photocopier paper tray it was the left side that was of major concern to him. When pressed he observed that how far the right side was affected was hard to say. However, by 2014 the right-hand side became the issue, it was the right that needed management and the left side was otherwise manageable in the circumstances. When pressed he was unable to recall when he first noticed the right-side symptoms and when they became more problematic than the left.

31. The Tribunal has had the opportunity to observe the Applicant in the witness box. Something should be said about those observations with respect to the evidence he gave. The Applicant presented as a truthful witness and his credibility in the witness box remained intact. He answered the questions to the best of his ability and did not appear to the Tribunal to be reconstructing, exaggerating or overemphasising the matters upon which he was questioned. He made appropriate concessions when concessions were called for which is the hallmark of a good witness. Overall, there was a plausible consistency to his evidence at all times. In this setting the Tribunal accepts his evidence.

32. With respect to the incident concerning the photocopier paper tray his evidence was not seriously challenged in cross-examination.[18] It is accepted by the Tribunal.

    [18] Indeed the Respondent in its Statement of Facts, Issues and Contentions accepted the description of the injury contained in the Report of Injury or Disease contained in document T 4 of the T documents which was consistent with the Applicant's evidence both in his witness statement and in the witness box.

33. For the reasons articulated above the Tribunal accepts the Applicant’s evidence concerning the pain he has experienced from time to time, both in his left side and his right side, and the progression of that pain more to the right side over the years since the incident with the photocopier paper tray in September 2003.

34. Further, in so far as it needs to be addressed the Tribunal accepts the Applicant’s evidence that any pain or injuries that he suffered as a result of the car accident in approximately 1985 or 1986 was resolved following the treatment he referred to as outlined above.

    THE MEDICAL EVIDENCE

35. As noted above Mr Kossman, an Orthopaedic Surgeon, and Dr Khurana, a Consultant Neurosurgeon – Brain and Spine Surgeon, both produced medical reports and gave viva voce evidence. It should be recorded that both of these surgeons were impressive witnesses and were of considerable assistance to the Tribunal.

    MR KOSSMAN

36. Mr Kossman was retained on behalf of the Applicant’s lawyers on 1 December 2016 and supplied with an extensive array of material including the T documents in their entirety, together with a series of X-rays which were referred to by him[19]. As noted previously the report that he prepared was dated 21 January 2017 after Mr Kossman had conducted a physical examination on the same date.

    [19] Indeed Mr Kossman’s report had annexed to it a copy of the letter of instruction to him dated 1 December 2016 from the Applicant’s solicitors together with the relevant attachments including the "Schedule of Questions – Spine". Unfortunately, the report from Dr Khurana included in the T documents did not include a copy of a letter of instruction or any other materials that may have been furnished to him at the time he was instructed to prepare the relevant report. This does assume some significance as will be addressed later in these reasons.

1. In his report, after recounting the history of the matter, Mr Kossman observes that the first X-rays of the Applicant’s lumbosacral spine performed on 7 May 2002 reveal that he had some very minor degenerative changes at the L 4 and L 5 levels. He recounted the Applicant’s instructions concerning the incident with the photocopier paper tray and observed that since that time he has suffered from pain in his lumbar spine. Then he records that the Applicant underwent numerous investigations which revealed over a 15 year period a deterioration of his spinal condition and degenerative changes in his cervical spine.

2. When asked to identify all factors and events that contributed to or aggravated the relevant condition, Mr Kossman concluded that the Applicant’s employment aggravated, accelerated and exacerbated  degenerative changes of the lumbar spine, causing severe lateral recess stenosis at the L 4/5 level with compression of both L5 nerve roots, for which the Applicant underwent a decompression.

3. Mr Kossman was asked when the Applicant first suffered the incapacity for work that resulted from one or more of the conditions identified, he opined that the Applicant first suffered incapacity on 17 September 2003.

4. In the witness box, he adopted his report and stated that he examined the Applicant and formed the views expressed in such report which he still stood by. He stated that he had not seen the actual X-rays but had seen the X-ray report being Exhibit R2. The evidence then moved to the question of low back pain, backache and sciatica. Mr Kossman gave evidence that the Applicant said that he had no experience of sciatica prior to 2003 (presumably, meaning prior to the incident with the photocopier paper tray referred to previously). At that time Mr Kossman observed that the Applicant already had degenerative changes in some way or another and has then injured his disc. He stated it can be a small little split, a protrusion or bulging. Coupled with these developments there will be significant inflammation around those conditions and that is what a patient feels as sciatica. That is what we experience as pain. He described it as something that is compromising the nerve either mechanically, or as a result of inflammation. Mr Kossman described this as a change in the pathology of the disc and that most back pain is usually confined to the disc.

5. Then in his evidence in chief Mr Kossman canvassed what might have caused a change of symptoms experienced by the Applicant over time from the left side to the right side. He opined that many factors can affect people’s perception of pain. He explained that the pain experienced by a patient can go from left to right. It depends on one nerve being more compromised than the other. Mr Kossman expressed no surprise that there was the fluctuation in pain complained of by the Applicant because a difference in mechanical pressure can affect the nerves. He explained to the Tribunal that it is not a static state but a fluid state. It can in some instances suddenly happen on one and then go to both legs or from one to the other leg. This is not an uncommon occurrence.

6. The contents of Dr Khurana’s report under the heading of “Current Status” were considered by Mr Kossman in his evidence. He was asked specifically whether there was any significance to the pain switching between the left and the right side, he replied that it varies so he didn’t put any particular significance on that question. He repeated that he formed the opinion that the Applicant had degenerative changes, as most men of his age at that time would have, and then injured his disc from which he simply never recovered. He considered the 2003 incident with the photocopier paper tray the turning point where the Applicant developed sciatica and largely had it all the time from then on. It was the point where the Applicant injured the disc and the changes he subsequently experienced were made.

7. In cross-examination he conceded that sciatica can possibly be part of the human degenerative process. However, he repeated that the starting point was the incident with the photocopier paper tray in 2003. When challenged he repeated that the condition is not a static process and that is why the pain can go from the right to left as a result of the inflammatory process. That can be coupled with the degeneration which is part of a natural progression experienced by all adults as they age.

8. Interestingly, the matters raised by Dr Khurana in his report under the various headings in the section “SUMMARY AND ASSESSMENT” were not specifically put to Mr Kossman. Mr Kossman concluded that it was more likely than not that the injury suffered in the incident with the photocopier paper tray was a temporary aggravation of a pre-existing lumbar spondylosis and in the subsequent 12 years, the progression has been related to a combination of factors. 

9. Dr Khurana reached the conclusion that the cause or precipitating factor of the condition from which the Applicant suffered was progression of constitutional, underlying and pre-existing multi-level lumbar spondylosis as opposed to the photocopier incident. Dr Khurana identified other factors unrelated to work that could have been a cause of the condition including chronic smoking, morbid obesity and natural ageing. Other than the issue of natural ageing these matters were not put to Mr Kossman.

10. There did not seem to be a particularly robust puttage to Mr Kossman of Dr Khurana’s conclusion that he did not believe there was any bona fide relationship between what he described as the relatively innocuous event of 2003 (being the incident with the photocopier paper tray) and the current condition experienced by the Applicant. It has to be observed that this is a fairly serious point of disagreement between the two experts and a comparatively boldly expressed professional opinion. It is surprising that this wasn’t put to Mr Kossman fairly and squarely.

    DR KHURANA

11. Dr Khurana prepared a report dated 2 February 2016 after having conducted an assessment of the Applicant on 21 January 2016. It is not altogether clear what evidence and material Dr Khurana was provided with prior to seeing the Applicant and preparing his report[20]. He stated on the first page of such report that he had “reviewed the available records and file data, interviewed and examined” the Applicant.

    [20] The letter of instruction to Dr Khurana was not included in the T documents or other materials that were tendered in evidence. In fairness to him he did reproduce the specific questions that he was asked to respond to, and did, provide such answers as requested. Apart from what he states in the report we do not know for instance which if any of the T documents were furnished to him.

12. In the report referred to above Dr Khurana reached a different conclusion from Dr Kossman as to the causes of the conditions from which the Applicant currently suffered as noted above. In his evidence in chief Dr Khurana consistently maintained that he remained of the same opinion as expressed in such report.

13. He robustly stated that in the history he was provided there was a clear emphasis on right side sciatica. However, he contended this could have been as a result of what he described as an evolution of the pathology. He recounted how he had looked at the relevant scans and had noticed a deterioration, which was consistent with nerve compression and thought that it was a reasonable professional rationale to decompress the compressed nerves. Such decompression, he anticipated, should have relieved the leg symptoms complained of. Such surgery, in addition to alleviating back pain, would have protected the functions of the bowel and bladder.

14. He reiterated that the Applicant, in the course of the examination and explaining to him the symptoms that he suffered from, referred to the symptom of sciatica on his right side[21]. He conceded he took a history from the Applicant which included a history of sciatica on the left side. He then considered the causes of sciatica which he explained is the nerve root being impinged whether by a disc, or from overgrowth of local tissue leading to compression of the nerve root as it comes from the spinal column. Further, an MRI or CT spec scan can help differentiate between mechanical, inflammatory, neoplastic, infective or traumatic causes.  In this context, when it was suggested that sciatica was likely to progress, he stated that it depends; it can be a chronic ongoing process which won’t correct itself, but the majority of sciatic conditions will heal in two years. When Mr Kossman’s contention that sciatica can move from left to right was put to Dr Khurana, he conceded that it could happen if there was a broad based disc bulge. However, contrary to Mr Kossman, Dr Khurana stated it tends to be unilateral or bilateral but not migratory as such, which is what Mr Kossman contended had occurred in the case of the Applicant.

    [21] This observation is consistent with what he recorded in his report on several places such as under the heading "Onset of Symptoms/Sequence of Events" and "Subsequent Progress/Specialist Management". However, as was referred to by counsel for the Applicant in the course of cross-examination in the portion of the report headed "Current Status" there is reference to symptoms in the left.

15. When it was put to Dr Khurana that the Applicant stated his sciatica kept occurring and continued until such time as he had the surgery in 2016, he conceded quite fairly that it was a clear history but not a history given to him. Doing the best medical practitioners can, he also conceded they have to rely on patient histories. Additionally, Dr Khurana responded that Mr Kossman in his report did not mention that the Applicant was suffering from sciatica. Dr Khurana further stated that if that was the history of the Applicant then he accepted Mr Kossman’s contention. He repeated that history was not given to him. When questioned further along these lines that if he accepted the Applicant’s history it pointed to a pathological change in which there was a continual effect of the injury until relieved by surgery, he conceded that if that was what the Applicant was saying that the sciatic pain had continued and had been consistent and present, it pointed to a continual effect of the injury until relieved by surgery.

16. Dr Khurana expressed familiarity with the concepts of aggravation and acceleration particularly from a surgical point of view. When it was put to him that a man of 39 years of age has an injury which put him on a course of sciatica that could only be relieved by surgery and that this was an advance of the ageing process, Dr Khurana responded that he had been given a report by Mr Kossman which showed the Applicant in his history stating he had suffered previously from back pain, that he had been referred for X-rays in 2002 for such pain. Therefore, he formed the view that there was a pre-requisite for a degenerative process from the “get go there was something” (being the pre-existing condition referred to in his report). He emphasised that Mr Kossman’s report made no mention of sciatica but of low back pain.

17. However, when there was further probing by counsel for the Applicant, Dr Khurana also conceded that if it was correct that there was an injury in the terms described by the Applicant then there was a trajectory that was set off at the time of such injury. Dr Khurana conceded, after having been served with a copy of Mr Kossman’s report, that Mr Kossman had taken a detailed history and that the trajectory he had identified was based upon a more limited history than that provided to Mr Kossman. The trajectory that he had identified from the more limited history he had been provided with was probably not borne out. Once again this concession by Dr Khurana is very much to his credit.

18. Further probing by counsel for the Applicant of Dr Khurana was directed to the question of whether, if there had been no sciatica prior to the incident with the photocopier paper tray in 2003 and it started after such event, with such symptoms continuing until the surgery,  this was consistent with the injury causing some change. In a further response Dr Khurana stated that he agreed with that proposition. Tellingly he further responded: “It is a clear history but a history not given to me.”

19. Dr Khurana further conceded that in terms of progression and degenerative change he would expect to see sciatica progress with time and that it will progress.

    MR DRNDA

20. Reports from Mr Armin Drnda were in evidence[22]. The first report was dated 6 July 2015. In that report Mr Drnda notes that the Applicant was suffering from chronic pain in his back and had symptoms down his right leg. It was also observed that over the last 12 months the Applicant’s leg pain was getting worse. The report also recorded that the recent MRI scan, which was very similar to what it had been 8 ½ years previously, shows quite severe lateral recess stenosis at the L4/5 level with compression on both L5 nerve roots. Tellingly, he also concluded that other nerve roots could at least be irritated. It should be observed that in this report there was no reference to any left leg pain or sciatica as recorded by the Applicant at the time of making the claim or indeed even as recorded in the history provided to Dr Khurana in his report under the heading “Current Status.”

    [22] The contents of both reports are referred to in full for their full force and effect.

21. The second report provided by Mr Drnda on 6 November 2015 is comparatively short. In its brief record of the Applicant’s history the author notes that over time the pain came back and especially in the last 12 months is getting worse. Tellingly the Applicant states that he occasionally feels his legs are going to give up. There is a difference in the use of language in the second report compared to the first report of Mr Drnda. It refers to both legs rather than one leg. Although he does not specifically say so it seems that the only inference one can draw from use of the word legs in the plural is that both legs were affected by the relevant pain concerned. (Although, Mr Drnda does state that the pain experienced by the Applicant is predominantly in the right leg.) Presumably, this pain is the sciatica that was complained of by the Applicant in his evidence which has been accepted by the Tribunal.

22. Another feature of both reports from Mr Drnda which obviously, because he did not give evidence, could not be explored is that there is a consistency in the history recounted that from the time of the incident with the photocopier paper tray in 2003, there had been a development of the back pain (emanating from the lumbar spine) experienced by the Applicant from “mild” and “relatively mild” to “worse” such that his legs were going to “give up”. Whilst this may not be an overly elegant expression of the conditions suffered by the Applicant, it must surely mean that the pain was of such severe proportions that the Applicant was unable to maintain any leg function to any significant extent. One infers further from this that therefore, the pain experienced since the incident with the photocopier paper tray has slowly but progressively developed since that incident to the extent that leg function was severely impaired, as recorded by Mr Drnda in both of his reports. This is consistent with the Applicant’s evidence as to the level of pain that he did experience as and from the time of the incident with the photocopier paper tray in 2003. The Tribunal as noted earlier has accepted such evidence.

    MR JOHNSON

23. Mr Johnson’s report dated 12 September 2015 recounted the incident with the photocopier paper tray. Interestingly, he recorded that the Applicant rapidly developed discomfort in the back and right buttock which has persisted over the years.[23] There is no record of a history of left-side pain or left-side sciatica as referred to in the claim form completed by the Applicant. Also he noted that over the last 12 months the symptoms had worsened and were becoming troublesome.

    [23] This observation is consistent with the overall picture of the progression of the back pain experienced by the Applicant as recounted in the two reports of Mr Drnda referred to previously.

24. Whilst nowhere in his report does he use the term sciatica, he does nonetheless, record that the Applicant complained of intermittent right buttock pain that radiates to the front of the shin with associated numbness. Such symptoms experienced by the Applicant being worse with walking, standing and sitting.[24]

    [24] Once again this is consistent with the observations of Mr Drnda that his legs or leg were giving up.

25. Mr Johnson also reviewed recent MRI scans and concluded that they revealed a multilevel lumbar degeneration. The changes were found to be worse at the L4/5 level where there was identified a left-sided disc bulge with an associated central canal and bilateral L 5 lateral recess stenosis. The conclusion he reached was that it was most likely his symptoms are related to a lower lumbar nerve root compression. He recommended that the most reliable method of obtaining relief from such prolonged symptoms would be decompressive surgery.

    THE RELEVANT LEGISLATION

26. Liability for compensation in these circumstances is imposed by section 14 of the SRC Act. Pursuant to section 14 of the SRC Act the Respondent is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if such injury results in death, incapacity for work, or impairment. A finding or acceptance of liability under section 14 provides such injured employee access to other forms of compensation under the SRC Act, including medical expenses[25], incapacity payments[26] and payments for permanent impairment[27] and non-economic loss[28].

    [25] Section 16 of the SRC Act.

    [26] Section 19 of the SRC Act.

    [27] Section 24 of the SRC Act.

    [28] Section 27 of the SRC Act.

27. This then of course poses the question of what is the definition of “injury” as it is the trigger to the operation of section 14 and consequent liability thereunder.

28. The definition of “injury” is to be found in section 5A(1) of the SRC Act. It is:

    (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;

    …

    THE ISSUES FOR DETERMINATION

29. There is agreement between the parties as to the issues for determination by the Tribunal[29]. Those issues are as follows:

    (a)In proceeding 2016/ 4037 – Whether the Applicant is entitled to medical treatment pursuant to section 16 of the SRC Act from 12 April 2016; and

    (b)In proceeding 2017/1421 – Whether the Applicant’s “laminectomy L4/5 and bilateral rhizolysis procedure” which took place on or about 11 May 2016 is reasonable medical treatment pursuant to section 16 of the SRC Act.

    [29] The Applicant at paragraph 69 of his Statement of Facts, Issues and Contentions dated 22 February 2018 identifies issues for determination by the Tribunal in these terms. This distillation of the relevant issues for determination by the Tribunal was conceded by the Respondent at paragraph 31 of its Statement of Facts, Issues and Contentions dated 19 March 2018.

    THE CONTENTIONS OF THE APPLICANT AND THE RESPONDENT

30. The starting point in an analysis of this matter is to determine whether or not the Applicant as an employee suffered an injury in the relevant sense and then identify what that injury is. Then of course there is the question of what is reasonable treatment as contemplated by the SRC Act.

31. A key consideration in this case is whether the injury complained of by the Applicant was to some extent causally connected with his employment. The Applicant’s contention in short is that there was a permanent aggravation of the Applicant’s lower lumbar spine which caused sciatica. The way the injury to the Applicant occurred in the 2003 incident with the photocopier paper tray produced new effects in the form of lumbar degeneration, causing low buttock pain leading to a pathological change of the lower lumbar spine, without which there would not have been the sciatica complained of in the way that it did. It was sciatica which progressed over the years which was overall constant and significant and continued without abatement until his surgery in May 2016[30].

    [30] If it needs to be repeated, is the subject matter of the Second Reviewable decision.

1. On the other hand the Respondent relying upon the report of Dr Khurana contended that the cause of the Applicant’s condition was a progression of constitutional, underlying and pre-existing multilevel lumbar spondylosis as opposed to the work injury. With respect to the work injury, it was contended that it was more likely than not the injury was a temporary aggravation of such pre-existing lumbar spondylosis and in the subsequent 12 years the progression was related to a combination of natural ageing, progression of pre-existing spondylosis and a contribution from obesity and chronic smoking[31] rather than the incident with the photocopier paper tray in September 2003.

   [31] Paragraph 33 of the Respondent's Statement of Facts, Issues and Contentions are referred to.

2. The Respondent’s counsel, in closing submissions to the Tribunal with considerable force and effect, also contended that a critical issue for consideration by the Tribunal was of course precisely what the injury was. It was submitted that the evidence did not bear out the claim as it was currently framed because it was clear from early reports that left sided sciatica was the gravamen of the complaint. The subsequent development of right-handed sciatica was a new development in 2014 and 2015. Additionally, it was submitted that the other medical reports do not support the contentions of Mr Kossman that the sciatica concerned migrated from the left to the right. References were made to the relevant sections of Dr Khurana’s report concerning this question. It was also emphasised that in giving history to doctors more recently the Applicant referred to the right side and that there was no reference to left-sided symptoms.[32] Therefore, the current sciatica is not or was not derived from or caused by, the injury that liability had previously been accepted for.

   [32] With respect this is not strictly correct. In Dr Khurana’s report under the heading "Current Status" there is reference to the Applicant stating that he has symptoms of "less than 10% of the time" in the left leg. However, as noted earlier in these reasons it is fair to say that in the more recent medical reports provided by other medical practitioners there is little or no reference to left side sciatica.

3. Additional submissions were made that in short little if any weight should be given to the evidence and report of Mr Kossman. There were several reasons offered in support of this contention. Firstly, that his report contains references to numerous injuries apart from the one which is the subject of the proceeding. Secondly, that Mr Kossman has provided no substantive opinion as to the manner in which the Applicant’s back injury in 2003 has worsened to the stage it currently is. (The injury was described as a “minor” back injury.) Also it is submitted that there was a failure by Mr Kossman to explain the manner in which there continues to be a material contribution to the injury suffered by the Applicant as a result of his employment with Centrelink.

4. By reason of this analysis reasonable medical treatment for the injuries suffered was not the surgery that the Applicant had undergone in May 2016. In other words, the Applicant did not need surgery for left-sided sciatica. It was contended that the evidence of Mr Drnda contained in his reports showed that surgery was for the purposes of relieving or treating sciatica to the right side.

5. Whilst all the experts concede that as someone ages there will be spinal degeneration which will progress with the passage of time, there was of course significant difference between the parties and their experts on whether the incident with the photocopier paper tray caused an aggravation, let alone an acceleration, of such degeneration or whether it was merely temporary.

6. Mr Carey on behalf of the Applicant cited a decision of the then Full Court of the Supreme Court of New South Wales, Salisbury v Australian Iron and Steel Ltd.[33] A passage from the judgement of Sir Frederick Jordan CJ occupied some careful consideration in submissions from both counsel for the Applicant and the Respondent. At pages 161 to 163 of such decision the learned Chief Justice conducted an analysis of the situation that occurs where a worker is suffering from a progressive non-employment disease which has not yet incapacitated him but will in the ordinary scheme of things eventually do so. Initially, such non-employment disease will partially incapacitate him then totally. The injured worker may incur an employment injury which causes him incapacity for several reasons[34]. If the work-related injury is permanent in its effects and such effects are added to the effects of the existing degenerative disease, they lead to a partial incapacity which did not previously exist and would not otherwise have then come into existence or there is a premature increase in the extent of the previously existing incapacity. In combination they continue with the effects of the existing degenerative disease to contribute to the premature occurrence of disability which would not have been produced by the pre-existing condition alone and to the continuance of the incapacity so occurring. As His Honour noted, in the long run the disease alone in the ordinary scheme of things would have caused the disability by reason of the natural ageing process. However, the injury anticipates it. In such circumstances, the addition of the effects of the employment injury produces the incapacity or increases incapacity which would not otherwise have existed. Accordingly, whilst such effects continue, the fact that a non-employment injury supervened in the form of an accentuation of the non-employment disease, sufficient of itself to produce incapacity or increased incapacity, does not deprive the worker of his right to continue to receive compensation.

   [33] (1943) 44 SR (NSW) 157. This decision was also approved of by Hill J in Casarotto v Australian Postal Commission (1989) 17 ALD 321 at 330. This decision was referred to by counsel for the Respondent. In the course of such submissions additional reference was made to two diagrams that were included in the decision of Hill J which endeavour to provide a pictorial representation of the concepts of natural progression, acceleration and aggravation as considered in the relevant authorities and also Salisbury v Australian Iron & Steel Ltd.

   [34] Sir Frederick Jordan divided this analysis into two parts with the second part containing two potential scenarios. The passage is referred to in its entirety for its full force and effect. The consideration above summarises the scenario 2 (b) of the Chief Justice’s analysis which the Applicant in this proceeding contends applies to the fact situation and medical evidence adduced on behalf of the Applicant.

7. The Respondent also referred to Salisbury v Australian Iron and Steel Ltd in its submissions and quite properly referred the Tribunal to further considerations of Jordan CJ where he observed[35]:

   The question in every case is, would the injured worker, had there been no supervening non-employment event, still be incapacitated by the effects of his employment injury operating solely or as a contributing factor.

   [35] (1943) 44 SR (NSW) 157 at 164.

8. In the course of the Respondent’s submissions several authorities were referred to, including Australian Postal Corporation v Sellick[36]. In that case there was a debate that was not dissimilar to the fact situation here, arising because the claim by the Applicant was for an injury that covered pain in the right shoulder which was different to the way the Applicant described his pain in his evidence. Also, the Tribunal in that case found that both pain and injury to the relevant shoulder had resolved, but failed to explain how additional conditions that continued after the resolution of such pain and injury were related to the actual claimed injury of shoulder pain. An appeal from the Tribunal decision found it in error because it failed to explain how the Respondent was liable in the circumstances where conditions diagnosed by the treating doctors or examining doctors were found to have resulted in pain in a different area to that the subject of the claim, namely the mid thoracic spine. Further error was identified by reason of the Tribunal’s failure to explain how the claimed pain and injury (occurred in 2002), which had resolved, had resulted in additional conditions which, in turn, were the claimed reasons for the Applicant’s ongoing pain. It was this failure to consider such issues and offer an explanation for its decision that constituted the error of law which was successfully appealed against. The degenerative spinal condition which was the subject of the claim in that case, was a pre-existing condition not apparently related to the claimed injury of shoulder pain.

   [36] [2008] FCA 236. In particular paragraphs [70] and [71] were referred to.

9. Hill J in Casarotto v Australian Postal Commission[37] helpfully explained the concepts of “acceleration” and “aggravation” in the context of the relevant workers compensation legislation that has been enacted in various Australian jurisdictions over the years[38].

   [37] (1989) 17 ALD 321

   [38] He also conducted a very useful analysis of several authorities from various Australian jurisdictions including of course Salisbury v Australian Iron & Steel Ltd. Helpfully, he summarises hypothesis (2)(b) of Sir Frederick Jordan’s judgment referred to previously in these terms:

   "In the case his Honour refers to as (2) (b) His Honour was of the view that so long as the effects of the employment injury which produces incapacity or increased incapacity which would not otherwise have existed, continue, the fact that a non-employment injury supervenes does not deprive the worker of his right to continue to receive compensation."

10. His Honour explained acceleration in terms of presupposing “a progressive disease, one that, running its ordinary course, increases in gravity until a climax such as death or total invalidism is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli”. [39]

    [39] Hill J quoting Windeyer J in Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626.

11. Aggravation, his Honour considered, connotes the disease becoming more severe. These are really not difficult concepts to comprehend.

    CONSIDERATION AND CONCLUSION

12. The medical evidence before the Tribunal in this matter demonstrates that the Applicant was at the time of the incident with the photocopier paper tray in September 2003 suffering from lower lumbar multilevel spine degeneration. This was not inconsistent with what to expect for a person of his age at the time of such incident.

13. As noted earlier the Tribunal accepts the evidence of the Applicant concerning the incident with the photocopier paper tray and the “twinge”, “pain”, “pinch”, “ping” in his lower back and/or “sudden discomfort” that followed such an incident. Also accepted by the Tribunal is the evidence of the Applicant that this pain has continued since that date and became progressively worse to the point that he struggled to use his legs for basic functions such as walking, standing and even sitting[40]. Such pain and its evolutionary path or as Dr Khurana described its “trajectory”, as described by the Applicant, was caused by the incident with the photocopier paper tray in 2003. Accordingly, in such circumstances the condition that the Applicant had of lower lumbar multilevel spine degeneration was permanently aggravated, causing the sciatica complained of, which was only relieved by the decompressive surgery that the Applicant undertook in May of 2016.

    [40] As noted earlier he gave evidence to this effect in his witness statement, viva voce evidence and in histories to several medical practitioners.

14. Some observations should be made concerning what appears from reading the respective reports of Mr Kossman and Dr Khurana a conflict between their evidence. Whilst at least to some level there is a conflict between Mr Kossman’s conclusion that the sciatic pain can move from left to right and Dr Khurana’s evidence that such sciatic pain tends to be unilateral or bilateral but not migratory. However, when one carefully considers the evidence given by both of them in the witness box in conjunction with the contents of their reports, such conflict is not so clear-cut.

15. The reason why such conflict does not emerge following a face value reading of the respective reports of Mr Kossman and Dr Khurana coupled with their evidence in the witness box is the concession made by Dr Khurana in cross-examination, which as noted earlier goes very much to his credit. Dr Khurana conceded that if the Applicant’s history concerning the incident with the photocopier paper tray in September 2003 and the subsequent pain symptoms is accepted, it pointed to a pathological change which set the trajectory described. Therefore, whether the conclusion expressed by Mr Kossman or Dr Khurana is correct or not, such conflict does not need to be resolved in the face of such concession.

16. In so far as the Tribunal is required to resolve such conflict between the conclusions reached by Mr Kossman and Dr Khurana, it considers that overall the opinion of Mr Kossman is to be preferred. The Tribunal acknowledges that, as submitted by the Respondent, Mr Kossman’s report perhaps does not have the level of reasoning or explanation, concerning the contribution to the injury suffered by the Applicant by the incident with the photocopier paper tray in 2003, that he offered in the witness box. When he was in the witness box he did amplify his opinion in a way that addressed these concerns, particularly in the context of explaining the transfer of pain or the migration of such symptoms experienced by the Applicant from the left leg to the right leg.

17. There are several reasons for reaching this conclusion. Firstly, he articulated an explanation for the transfer of the pain by rotation as noted above. Secondly, also as previously noted and will be addressed further, there is the issue of the extensive history that he took which was conceded by Dr Khurana. Thirdly, because the Tribunal has accepted the Applicant’s evidence of the pain that he has experienced since the incident, the opinion expressed by Mr Kossman provides a rational explanation for this trajectory of pain or development of the sciatica endured by the Applicant. Finally, whilst other specialists were not called to give evidence, namely Mr Drnda and Mr Johnson (and therefore only limited weight can be placed upon those reports), they have recorded a consistent patient history that accords with the explanation offered by the Applicant as accepted by the Tribunal. This history records the experience in 2003 as a result of the incident with the photocopier paper tray at the Centrelink premises where he worked and the development of the pain over the intervening years or as it was described by Dr Khurana its “trajectory”.

18. Therefore, the conclusions of Mr Kossman are to be preferred in so far as he concludes that the incapacity first occurred in September 2003 was a result of the incident described by the Applicant with the photocopier paper tray. This conclusion is also fortified by the concession made by Dr Khurana concerning the more extensive history that was provided to Mr Kossman. In the light of such concession and given the history provided to

    
    

    Mr Kossman the preponderance of the evidence would indicate that his conclusions given in evidence to the Tribunal should also be preferred.

19. Therefore, as the incident with the photocopier paper tray that occurred in September 2003 occurred in the course of the Applicant’s employment, the Tribunal must conclude that the Applicant suffered an injury for the purposes of section 5A(1)(b) of the SRC Act. As a result of suffering such injury the Applicant is entitled to appropriate medical treatment pursuant to section 16 of the SRC Act.

20. By reason of the foregoing matters insofar as it needs to be expressly concluded or otherwise observed, the Tribunal concludes that the laminectomy L 4/5 and bilateral rhizolysis procedure which the Applicant underwent on 11 May 2016 was reasonable medical treatment for the condition suffered by the Applicant as a result of the injury incurred in September 2003 with the photocopier paper tray.

21. By reason of the foregoing matters and the conclusions reached, the Tribunal sets aside the First Reviewable decision and the Second Reviewable decision. The Tribunal proposes to make the following orders:

    (a)In proceeding 2016/ 4037 :–

    (i)The First Reviewable decision is set aside; and

    (ii)From 12 April 2016 to the present date and at the present date, the Applicant continued to suffer from the effects of the injury, identified as “lumbar sprain and sciatica (left)” sustained on 17 September 2003, arising out of his employment with Centrelink, resulting in a need for medical treatment pursuant to section 16 of the SRC Act;

    (b)In proceeding 2017/1421 :–

    (i)The Second Reviewable decision is set aside; and

    (ii)The Applicant’s “laminectomy L4/5 and bilateral rhizolysis procedure” which took place on or about 11 May 2016 is reasonable medical treatment pursuant to section 16 of the SRC Act.

    (c)The Respondent shall pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act.

22. The Tribunal will allow the parties 7 days to apply to be heard on the form of proposed orders. Otherwise, orders will be made in the form proposed.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of R Cameron Senior Member

...............................[sgd].........................................

Associate

Dated: 15 June 2018

Date(s) of hearing:	11, 12 April 2018
Counsel for the Applicant:	Mark Carey
Solicitors for the Applicant:	SLATER & GORDON LAWYERS
Counsel for the Respondent:	Cathy Dowsett
Solicitors for the Respondent:	MORAY & AGNEW