Elliott and Linfox Australia Pty Ltd (Compensation)

[2015] AATA 602

Elliott and Linfox Australia Pty Ltd (Compensation) [2015] AATA 602 (18 August 2015)

Division	GENERAL DIVISION
File Number(s)	2013/6754
Re	John Elliott
APPLICANT
And	Linfox Australia Pty Ltd
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	18 August 2015
Place	Sydney

The decision under review is varied as follows:

(a) the Respondent is liable to pay compensation pursuant to ss 16, 19, 24 and 27 of the SRC Act in respect to the Applicant’s lower back injury sustained on 23 February 2009 on the basis of a 23% whole person impairment.

The reviewable decision is otherwise affirmed.

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

Ms N Isenberg, Senior Member

CATCHWORDS

COMPENSATION – employee of licensed corporation – injuries to lower back, left knee and left ankle – whether entitlement to compensation for medical expenses, incapacity, permanent impairment and non-economic loss – decision varied

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19, 24, 27

SECONDARY MATERIALS

Guide to the Degree of Permanent Impairment Edition 2.1

REASONS FOR DECISION

Ms N Isenberg, Senior Member

18 August 2015

BACKGROUND

1. On 26 February 2009, the Applicant, John Elliott, made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of injuries sustained during his employment with the Respondent, Linfox Australia Pty Ltd (Linfox).

2. On 5 March 2009, a delegate of the Respondent accepted liability to pay compensation pursuant to s 14 of the SRC Act in respect of injuries to the lower back and left foot but, on 23 June 2009, denied liability for the Applicant’s secondary injury to the left knee. The Applicant sought a reconsideration of the determination dated 23 June 2009 but it was affirmed. On 29 January 2010, the Administrative Appeals Tribunal (the AAT) set aside that reviewable decision and decided, in substitution, that the Respondent pay compensation pursuant to s 14 of the SRC Act in respect of the Applicant’s injury to the left knee, namely a medial meniscus tear secondary to the Applicant’s lower back and left foot injuries.

3. On 8 January 2013, the Applicant made a claim for permanent impairment and non-economic loss in respect of injuries to the lower back and left foot and a medial meniscus tear of the left knee.

4. On 16 September 2013, a delegate of the Respondent issued a determination denying liability for any compensation under ss 16 (medical treatment), 19 (incapacity payments), 24 (permanent impairment) and 27 (non-economic loss) of the SRC Act in respect of the Applicant’s “lower back, left foot injury and medial meniscus tear of the left knee”. The Applicant sought a reconsideration of that determination and on 18 November 2013, a delegate of the Respondent issued a reconsideration affirming the determination. The Applicant seeks review of that decision.

   ISSUES

5. The Tribunal must decide:

   (a)Does the Applicant continue to suffer from the effects of his accepted conditions, namely his accepted “lower back”, “left foot” and “medial meniscus tear of the left knee” conditions?

   (b)If so, does the Applicant require reasonable medical treatment, in respect of the accepted conditions, such as to have an entitlement to medical treatment expenses in accordance with s 16 of the SRC Act?

   (c)Does the Applicant have an incapacity for work, as a consequence of his accepted conditions, such as to give rise to an entitlement to incapacity benefits in accordance with s 19 of the SRC Act?

   (d)Does the Applicant have an entitlement to compensation pursuant to ss 24 and 27 of the SRC Act in respect of the Applicant’s accepted conditions?

   THE ACCIDENT AT WORK

6. Mr Elliott was born in 1953, and, at the date of hearing, was nearly 62 years of age. He left school in Year 9, and worked as a salesman for some years, rising to senior sales positions with different employers, and then worked as a truck driver. The only interruption to his working life appears to have been for a short period following the tragic death of his infant son in 1982, in a house fire. However, he was able to overcome that tragedy and return to a productive working life.

7. Mr Elliott had commenced work as a truck driver with Linfox in approximately 2002, with responsibilities involving driving a 12 tonne truck in the Sydney region and occasionally to Gosford or Nowra.

8. On 23 February 2009, as the Applicant was walking down an external flight of stairs, carrying a small portable refrigerator in the company of his supervisor and another driver, he slipped on an accumulation of damp leaves on the stairs. He fell down some steps and consequently sustained injuries to the lower back and left foot and a medial meniscus tear of the left knee.

9. Mr Elliott made contemporaneous complaints of significant pain and injury, sought treatment the day after the accident, and made a prompt claim for compensation, which was accepted. Despite the injuries, Mr Elliott made an attempt to return to work on a graduated return to work plan. He said that he worked on suitable duties for one hour per day, three days per week, and then upgraded to four hours per day, three days per week, just sitting at a desk. He said he was still sore but he wanted to work. However, his “back was increasingly getting worse”, until he was put off work by Dr Fernando in May 2009. He has not returned to work since.

   MR ELLIOTT’S EVIDENCE

10. Mr Elliott provided a statement dated 23 February 2015 and gave oral evidence, on which he was cross-examined at length.

11. He recounted the medical history which is outlined below. Of particular relevance was his evidence that he experienced ongoing pain, especially in the lower back, with symptoms worse on sitting and walking. The cortisone injection relieved his pain for only about five hours. The Back to Life program did not assist; he said he had been compliant with the program, but had been unable to complete all the walking activities.

12. He was advised by Dr Rosenberg, orthopaedic surgeon, and Professor Owler, neurosurgeon, to have spinal fusion; at that time the pain was “excruciating”. Although he was hopeful of a positive outcome, unfortunately the result was that his pain worsened.

13. He said he had been keen to return to work, and had agreed to a return to work program to build himself up towards full duties. He was defeated by pain.

14. His knee is now “’90 per cent right”. He presently has severe back pain radiating down both legs, the left worse than the right. Sometimes he is unable to get out of bed. He uses a walking stick. He cannot participate in previous pastimes and cannot undertake the full range of domestic duties. He has difficulty driving a car, let alone a truck. He continues to need medical treatment, which he cannot afford. He has a large TENS machine which he uses two to three times a day, uses topical analgesics and takes Nurofen Plus, but it only “dulls” the pain.

15. A video, the product of several days’ surveillance, was shown. It depicted the Applicant shopping at the supermarket with a woman, and leaning on the trolley. In the car park he went to the passenger’s side of the vehicle and eased himself into the car. It was unclear if he had a role in loading the groceries into the car. Another segment showed him walking tentatively down the path to his residence.

    MEDICAL EVIDENCE

16. In the circumstances of this matter it is convenient to explore the evolution of the Applicant’s conditions over time. A chronology of the Applicant’s medical treatment was helpfully set out in the submissions and they have been largely reproduced here. Other medical evidence is also included, as are the various medico-legal reports obtained by the parties. At the hearing, evidence was given by Drs Ryan, Bodel, and Maxwell. All, especially Dr Maxwell, were subjected to vigorous cross-examination.

17. The day after the accident the Applicant attended his then GP, Dr Tin Nguyen. His clinical notes record:

    [Patient] presented with pain at his back, bottom, left leg/foot. He is a truck driver … He walked down the stairs yesterday at work. He slipped and fell and landed [on] his bottom/back and slided [sic] down about 4-5 steps. Denied chest pain, [shortness of breath], other symptoms. [On examination]: Looks well. Chest clear … Back: slight tender[ness] at T8-9, tender at L5-S1 and cocygeal [sic] area, reduced [range of motion] …

18. As to the Applicant’s foot, he noted some tenderness and a normal range of motion.

19. The following day, he underwent radiological imaging of his thoracic spine, lumbar spine, sacrum and coccyx, and left foot. It was recorded that “no fracture [was] detected in the regions examined”.

20. On 12 March 2009, the Applicant underwent a CT scan of his lumbar spine which revealed:

    The discs between L1 and L5 show no herniation and bulging and the facet joints are normal. At L5/S1, there is a very minor bulge of the disc just impressing on the theca, not involving the nerve roots. The epidural fat is maintained in the lateral recesses and I do not think this is clinically significant. The facet joints are normal. There are no signs of any fracture or compression. On the left side of the body of L2, there appears to be a vertebral haemangioma, of no real clinical significance.

21. In a referral from Dr Nguyen to Dr Y Kai Lee, orthopaedic surgeon, dated 12 March 2009, noted that the CT scan of the Applicant’s lumbar spine revealed only a “very minor bulge of disc at L5/S1”, he had been treated with Voltaren, Tramal and physiotherapy but “he did not get any better”. Dr Lee gave the Applicant instructions to do flexion exercises and continue hydrotherapy. He wrote to Dr Nguyen:

    In Mr Elliott’s case, the injury is to the posterior elements of his back. Time is the essential treatment. As I understand he is now doing two hours suitable duties. I believe we may be able to upgrade that to about three hours but still he should not be lifting anything heavy and he should not be sitting for long periods of time. It will be a while before he can go back to drive a truck.

22. Dr Lee reported on 25 March 2009 the presence of back pain radiating down the left leg. At that stage, the presence of injury to the left knee had not been identified.

23. On 18 April 2009 the Applicant again attended Dr Nguyen, whose notes record:

    [The patient] came for review. Still [complaining of] back pain. His foot got better. Has been having no problem with the suitable duties so far.

24. The Applicant, however disputes that this was an accurate history.

25. The Applicant attended Dr Nguyen on 30 April 2009 on an unrelated matter and made no mention of his complaints with respect to the accident.

26. Dr Robin Chase, occupational physician, reviewed the Applicant at the request of Linfox, on 3 April 2009 and provided a report several days later. Dr Chase also recorded the presence of back pain radiating down the left leg. He was of the view that the Applicant had sustained “soft tissue injuries” and that he had “... actually bruised his buttocks and probably has some contusion of the sciatic nerve”. He expected recovery within the following 12 weeks, and noted that the Applicant was continuing with suitable duties. He recorded:

    I spoke to Dr Nguyen on 3 April 2009. There was no disagreement. I have no argument with the current management plan and suitable duties, four hours per day, five days per week, essentially sedentary duties only. In two weeks time, it may be possible to increase him to five hours per day and thereafter increase by one hour per day every 1-2 weeks.

27. An MRI scan of the left foot and ankle in May 2009 showed a split of the peroneal brevis tendon.

28. The knee injury was also confirmed by MRI scan on 14 May 2009.

29. In his medical report dated 12 June 2009, Dr Nguyen advised that he was of the view that the Applicant had suffered a “soft tissue injury due to his fall, mild disc bulging at L5/S1 and bruise of the left sciatic nerve”. He stated:

    Analgesia, NSAIDs, physiotherapy and time are the essential treatment. The prognosis is good. I believe that he is able to return to his pre-injury duties within 3 months.

30. On 12 June 2009 Dr Chase reviewed Mr Elliott again and reported, on 15 June 2009, that the Applicant complained of worsening pain both in the back and down the left leg and foot. He walked with a left limp. He reported:

    When I saw Mr Elliott on 3 April 2009 he told me that he was improving but he had ongoing pain in his low back that went down the back of both legs, worse on the left than the right. He had pain in the left heel.

    After I saw him, Mr [Elliott] changed nominated treating doctor to Dr Fernando … [who] sent him for an MRI scan of his left knee, low back and left foot and ankle! He was put off work and referred to Dr Kuo. …

    He says he is worse. His low back feels like something is “pinching” and he has burning at the front and top of his left knee and pain in the popliteal fossa which is like “stinging”. His left leg continually aches and he has burning pain down the calf and lateral foot.

    The pains are worse if he sits for too long and he finds it very uncomfortable at any time to sit on his left buttock.

    EXAMINATION

    On examination, Mr Elliott was considerably more distressed than when I first saw him. He became short of breath with panting on dressing and undressing. He had to use a shoehorn to get his shoes off. Waddell’s tests for abnormal illness behaviour were positive.

    …

    My diagnosis remains unchanged. I would acknowledge that the MRI scans of the knee and ankle show that he has a tear of the posterior horn of the medial meniscus and some evidence of a peroneous brevis split and tendonopathy.

    However, with regards to the ankle, the radiologist observes that this may not be symptomatic and these may be incidental findings and related to old trauma. Similarly, the MRI scan of the left knee may be an incidental finding.

    …

    I see no reasons why Mr Elliott should be off work. In fact, he is now presenting with increasing pain behaviours and disability…

    As stated previously, nerve injuries often take a while to settle down. In some cases it can take up to 12 months though I would have expected more improvement in Mr Elliott’s case. In particular, I am concerned by the evidence of pain and disability behaviour.

31. Dr Chase thought that Mr Elliott’s prognosis was poor and that his rehabilitation would be prolonged, despite expressing the view that he could work for four hours per day in sedentary duties.

32. He reported that he had a long discussion with Dr Fernando:

    … He agrees with me that there are sciatic symptoms, but he disagrees with me that this is the major problem. He believes that Mr Elliott’s predominant problems are as a result of direct trauma to the knee and ankle. He very much supports surgery to the ankle. He does not believe that Mr Elliott is capable of returning to work in any capacity.

33. Review by Dr Roderick Kuo, foot and ankle surgeon, in June 2009 resulted in a left ankle arthroscopic debridement and synovectomy and repair of the peroneus brevis tendon. In a report dated 3 August 2009, Dr Kuo detailed that he considered the Applicant to require “physiotherapy and a work-conditioning programme”.

34. The Applicant was re-examined by Dr Chase on 4 September 2009. In his report dated 8 September 2009, he once again expressed the view that “the majority of his left lower limb symptoms [were] consistent with neuropathic pain due to direct trauma to the sciatic nerve”. Dr Chase drew attention to the “consistently absent left ankle jerk”, indicative of some nerve dysfunction. Dr Chase observed:

    I carefully reviewed the history that I obtained previously. He says that after the fall he had “unbearable pain” down the left leg. He does not specifically remember twisting his ankle…

    He says he does not want to wake up because it is all a “nightmare”. He believes that Linfox thinks that he is a “worthless piece of shit … I can’t handle this pain”.

    …

    On examination, once again, Mr Elliott is considerably more distressed than when I first saw him. His pain behaviours increased markedly during the formal examination. He told me that his left knee is swollen though I could not see any swelling.

    He had full range of movement in the cervical spine and shoulders but this provoked complaints of low back pain. Range of movement in the lumbar spine showed that forward flexion and side bending were reduced by 50% and extension and rotation were reduced by 80%. He observed that my examination caused his low back to “start aching again” …

    Mr Elliott appears to be engaging in a relentless decline though precisely why this should be the case is unclear to me. In my previous report I had not been able to determine any clear abnormalities in the ankle though his response to the surgery clearly indicates that he did have some pain in the ankle as a result of the peroneal tear…

35. Dr Chase referred to his further conversation with Dr Fernando, the Applicant’s new GP, who, he said, completely disagreed with him. He reported that Dr Fernando was of the view that “the knee is a major issue and [was] making [the Applicant’s] back worse” and recommended knee surgery. Dr Fernando did not believe the Applicant was capable of returning to work in any capacity.

36. On 22 September 2009, the Applicant underwent a further MRI of his lumbar spine.

37. Dr Fearnside, neurological surgeon, who saw Mr Elliott on 16 November 2009 at the request of Linfox, also obtained a history of constant severe low back pain and left sciatica on most days. There was also chronic pain in the left knee and some loss of sensation along the lateral border of the left foot. He expressed the opinion:

    [8.1] As a result of the fall on 23/2/09, Mr Elliott sustained a soft tissue injury to his back and left buttock and to the left ankle. The left ankle injury is most likely an inversion type of injury when he fell. Surgery has been undertaken and to date, the results have been positive and improved mobility and less pain.

    [8.2] With regard to the low back, Mr Elliott has little in the way of pathology on radiological investigations. He has some loss of signal in the T2 weighted image at L5/S1 suggesting degenerative change and a possible very small annular tear which could well be degenerative in nature. The symptoms of which he complains namely left sciatica (on the right) are not explained by any abnormality on the two MRI scans. It is possible that he sustained a direct injury to the left sciatic nerve to cause the left sciatica and nerve conduction studies which have been planned may further elucidate this possibility. Otherwise, there is no clear explanation for his sciatic pain.

    [8.4] On the balance of probabilities, Mr Elliott’s left ankle and low back and sciatic pain are the result of his employment with Linfox Australia Pty Ltd. There was no pre-existing congenital or constitutional condition, other than the degenerative change at L5/S1 which could be considered normal for age. Of itself, this may well be coincidental. Alternatively, it is possible that he sustained an internal disc injury at L5/S1 although that would not explain the sciatic pain.

38. Dr Fearnside did not think that Mr Elliott was fit to work as a truck driver at the same level as his pre-injury duties, but was fit for some suitable duties. He doubted that some light physical work would cause any deterioration in his back condition.

39. In November and December 2009, Mr Elliott was examined by Dr Walker, consultant neurologist, Dr Gray, hip and knee surgeon, and Dr Sorrenti, orthopaedic surgeon. None of these specialists recorded any impression that Mr Elliott’s presentation was incompatible with organic injury.

40. Also in November and December 2009 (and into January 2010) the Applicant attended pain management counselling, and a report was provided by Ms Coralie Wales, pain management counsellor, dated 22 January 2010. She wrote that early in the program the Applicant identified the relationship between his mood and pain. It was mentioned, though, that although he had made good gains with the techniques he had been taught there were (unspecified) “events in his personal life [that] were at times overwhelming.”

1. On 22 January 2010, Dr Sorrenti carried out an arthroscopic partial medial meniscectomy on the left knee, with drainage of a cyst, and chondroplasty of the medial femoral condyle and patella. That surgery confirmed the presence of a cleavage tear of the medial meniscus. In his report of 4 February 2010 he wrote of the Applicant’s commitment to strengthening exercise and thought a good outcome with respect to the knee should be expected. He hoped the Applicant would be back to normal activities within a month.

2. On 12 February 2010 an MRI scan of the thoracic and lumbar spine reported by Dr Makeham in February 2010 showed a central annular tear and degenerative disc dehydration in the L5/S1 disc although “no significant thoracic pathology” was identified.

3. Mr Elliott was then examined at the request of Dr Fernando, by Dr Rosenberg, orthopaedic surgeon, who reported on 1 March 2010 that an x-ray of his spine was normal, as was a bone scan, but two MRI scans showed the lumbo-sacral disc to be desiccated, and an annular tear. Dr Rosenberg expressed the view that Mr Elliott was “undoubtedly ... far worse than his radiology”. Dr Rosenberg pointed out that the technology to perform a dynamic MRI, that is, when the back was under load, was not available. Dr Rosenberg thought that Mr Elliott had an injury to the lumbo-sacral disc which was then unstable and dynamically protruded when Mr Elliott loaded his back. In summary, Dr Rosenberg thought that a provocative discogram would be appropriate, and if positive, surgery by way of fusion could significantly upgrade Mr Elliott’s situation. However, no discogram was carried out.

4. When reviewed by Dr Sorrenti on 4 March 2010 the Applicant’s knee was “well on the way towards good recovery”.

5. Mr Elliott was examined on 25 March 2010 by Dr Maxwell, orthopaedic surgeon, at the request of Linfox. Dr Maxwell did not consider that there was any significant pathological lesion of the back, and he did not suffer from radiculopathy. He also thought that the changes in the lumbar spine were minimal, and quite typical of someone his age, and were not responsible for his symptoms. However, Dr Maxwell thought that the symptoms were related to his employment with Linfox, in that he had an abnormal reaction to minor injuries, and had a period of disuse and inactivity. He thought that the employment with Linfox probably contributed to the pathology in the left ankle, and in relation to the knee, Dr Maxwell thought it was mainly degenerative but probably became symptomatic from limping. He did not think there were any specific contributing factors unrelated to work, apart from relative inactivity.

6. On 7 April 2010 Ms Wales reported:

   John presents in a bad way. He reports high levels of distress and a sense of not being able to manage his pain. He is very stiff. He has stopped shaving. He is at risk of depression…

7. Mr Elliott was examined on 13 May 2010 by Dr Muratore, sports physician, at the request of Linfox. Dr Muratore thought that Mr Elliott had sustained a soft tissue injury of his lumbar spine and a possible facet joint sprain in the fall down the stairs, which had now been complicated by chronic pain syndrome with abnormal illness behaviour. He was uncertain how the tear of the medial meniscus had occurred. He also accepted that there was a tear of the peroneus brevis, which had been corrected surgically. In terms of Mr Elliott’s presentation, Dr Muratore thought “it would be extremely difficult for any doctor to certify him fit for any form of work.” He also thought a psychological and/or psychiatric assessment may be warranted.

8. On 11 June 2010, Mr Elliott was examined by Associate Professor Owler, neurosurgeon. Professor Owler obtained a history of back pain with some radiation to the lower limbs, but also episodes of faecal incontinence as well as problems with bladder function. He agreed with Dr Rosenberg that Mr Elliott would be a candidate for an L5/S1 fusion. He also thought it would be quite reasonable to conduct a discogram, although that test was certainly not 100% accurate. In the first instance, Professor Owler thought that an L5/S1 epidural cortisone injection under CT guidance would be appropriate.

9. When Professor Owler saw Mr Elliott about three or so weeks later, he had undergone the cortisone injection carried out by Dr Goh. Mr Elliott reported a worsening of his pain, which Professor Owler thought was unusual, and the only explanation might be that the nerve root was particularly irritable.

10. In July 2010, Linfox organised an appointment with Dr Lewin, psychiatrist, possibly to advise whether Mr Elliott’s pain may have had a psychiatric origin, particularly one unrelated to his work. Dr Lewin found no family history of psychiatric illness, and no relevant history of substance abuse. He found the issue of pain was raised repeatedly as the main complaint, and this was what was limiting the Applicant’s capacity to work and undertake other activities. Dr Lewin thought Mr Elliott had developed an adjustment disorder with mixed features of anxiety and depressed mood in the weeks following the injury and had described a worsening when surgical treatment did not lead to an immediate cure. He thought that it was unlikely he would have developed this condition but for the accident in February 2009. The Applicant had reported a range of anxiety and depressive symptoms which had fluctuated in intensity in accordance with his emotional reaction to pain symptoms. Dr Lewin thought that a multidisciplinary approach would be the most effective form of treatment. He considered the Applicant’s adjustment disorder would remit if he were able to return to work, but the Applicant felt he could only return to work when his back pain and leg symptoms remitted.

11. In August 2010, Linfox arranged for Mr Elliott to be assessed by Mr Haralambous, clinical psychologist. Mr Haralambous obtained a history of constant and persistent back pain travelling down the back of Mr Elliott’s legs. He thought there was a significant psychological component to his purported physical complaints, and that rather than being secondary or reactive to pain, they were pre-existing psychological factors. He thought the findings were consistent with a “Somatoform Pain Disorder”. He expressed the view that pain disorder “is particularly associated with depressive and anxiety conditions which at times precede the Pain Disorder and hence, predispose the individual to it, co-occur with it, or result from it”, noting:

    on the basis of all the information that is currently available before me, it is my opinion to a reasonable degree of certainty that, although currently presenting with a Pain Disorder with psychological factors, this is not of a nature or severity that is likely to limit Mr Elliott’s capacity for employment.

12. Professor Owler saw Mr Elliott again on 24 November 2010. He reported that Mr Elliott continued to have significant pain, and that the cortisone injection had resulted in the pain being worsened. Professor Owler reported that Mr Elliott was “quite keen to undergo Botox [treatment] and to be enrolled in the Back to Life Program”, which had been recommended by Dr Adler, rehabilitation physician in August 2010.

13. The Applicant participated in the Back to Life program from 7 February 2011 to 28 February 2011. He was described as an active program participant. In a multidisciplinary report dated 13 April 2011, following the pain management program, it was reported:

    Mr Elliott presented with major restrictions in all lower back movements, with reported pain being the main limitation. There was considerable spasm and shortening in all the lower back and lower thoracic paravertebral muscles as well as the hip flexors, Piriformis, Gluteal, Quadriceps and Hamstrings muscles (with the left side being most affected). His gait was antalgic, with decreased hip and knee extension during stance phase (more so on the left). Core strength was also very poor.

    Following completion of the intensive component of the program, lumbar spine range of motion had improved, with all outcomes measures increasing. Mr Elliott’s gait pattern remained antalgic, but hip extension had increased. Further improvements are expected if Mr Elliott continues with his prescribed home exercise program.

14. The Applicant was recorded to have “presented as being very pain focused and fear avoidant and observed to be quite self limiting with regards to activity and exercise”. He made improvements, such as increasing his treadmill capacity from 4 to 17 minutes. At its conclusion those running the program thought that Mr Elliott would be fit to commence on 16-20 hours a week of suitable duties packing cigarettes into boxes. The Applicant was certified as “fit to manage at least 20 hours per week of his work duties with a 10kg lifting limit”.

15. In March 2011, a nerve conduction study carried out by Dr Watson suggested bilateral SI nerve root pathology as the most likely explanation for Mr Elliott’s pain. The following month, Professor Owler reported that it was reasonable now to proceed to an L5/S1 posterior lumbar interbody fusion and rhizolysis.

16. Linfox sought a second opinion from Dr Bookallil, neurosurgeon, and asked (inter alia) whether Dr Bookallil thought that the surgery proposed by Professor Owler was reasonable treatment for the compensable condition. Dr Bookallil examined Mr Elliott on 27 June 2011, and reported to Linfox’s insurers that he believed that the back surgery proposed by Professor Owler provided “a reasonable chance” of reduction in symptomatology, and thus was appropriate, although the result could not be guaranteed. Dr Bookallil, in response to a question concerning Mr Elliott’s prognosis, stated:

    Without the surgery the symptoms are likely to remain unchanged. With the surgery there is a possible outcome that Mr Elliott could be the same, he could be better or he could be worse. I would state that about half of the patients who have this operation are better, but a quarter is the same and about a quarter are worse. Those that are better may be a little better or a lot better.

17. In response to further questions from Linfox, Dr Bookallil stated in a report dated 2 August 2011 that it was likely that Mr Elliott suffered a degenerative disease at the time of the injury, and that was aggravated by the injury. He went on to state:

    Without the injury he is unlikely to have been symptomatic. The symptoms would not have come on spontaneously. It is certainly conceivable that the compensable condition is aggravation of degenerative disease of the lumbar spine. It is not really possible to give you an absolute answer to this question.

18. It appears that approval for the surgery was then given by the insurer, and it was carried out by Professor Owler on 30 August 2011. In a report of 27 September 2011, Professor Owler stated that the diagnosis was “discogenic back and lower limb pain due to internal disc disruption and an annular tear of the L5/S1 disc”. In October 2011, Professor Owler reported that Mr Elliott’s lower limb pain had resolved, and he no longer had sciatica, but had some numbness. He had also developed an inguinal hernia, which Professor Owler accepted might have occurred when Mr Elliott tried to get out of bed post-surgery, and was therefore related to his surgery.

19. CT and MRI scans of the lumbar spine were conducted by Dr Goh at the end of November 2011. Dr Ho reported that there was “a narrow zone of anterior epidural enhancement extending to the mid S1 level, representing epidural scarring”.

20. Professor Owler saw Mr Elliott in December 2011 and again in March 2012. Mr Elliott reported back and leg pain on each occasion. In a report dated 19 December 2011, Professor Owler, made the following comment:

    I think John has improved since his surgery but his description today was that he was terrible. There is mainly back and leg pain. His physiotherapy has been suspended because he is having more pain but I think he really needs to continue as the worst he could do is nothing.

21. Mr Elliott underwent a multidisciplinary assessment at the Sydney Pain Management Centre in March 2012, with a view to putting in place a pain management program. It was noted that Mr Elliott was greatly distressed by his pain, and feared that there was “still something significantly wrong in his back”. It was also reported that Mr Elliott was depressed, was not sleeping, and was missing his job.

22. On 27 February 2012, the Applicant underwent a left inguinal ultrasound. In a report dated 26 March 2012, Professor Owler recommended that the Applicant be appraised by someone in relation to his hernia. The Applicant was consequently examined by Dr Gary McKay, colorectal surgeon, in relation to his inguinal hernia. In his report dated 18 April 2012, Dr McKay formed the view that the Applicant’s hernia condition had arisen in the context of obesity and constipation, which were as a result of the Applicant having put on weight due to immobility, and to chronic opioid use for back pain. On 24 May 2012, the Applicant underwent a laparoscopic left inguinal hernia repair. Dr McKay therefore was of the view that it was likely to be directly related to the original workers compensation claim for vertebral injury. Following that surgery, Dr McKay noted on review that Mr Elliott had “made a good recovery from the point of view of the hernia”, but was still experiencing “terrible back pain”.

23. In July 2012, 11 months after his spinal surgery, Mr Elliott was examined, at the request of Linfox, by Dr Annemarie Fulop, occupational physician. Dr Fulop made the diagnosis of “L5/S1 disc injury with laminectomy and fusion with subsequent nerve root scarring, resulting in neuropathic pain of the buttocks and lower limbs”. She thought that Mr Elliott was now suffering from a “chronic pain syndrome” resulting in global dysfunction, and the prognosis for recovery was extremely poor given that it was now more than three years since the injury. She thought he had no capacity for work, and the barriers to a return to work were unlikely to be overcome due to the chronicity of his condition, and the failure to achieve amelioration following maximal intervention.

24. In February 2013, Mr Elliott was seen again by Dr Watson who was said to have reported that his pain was essentially unchanged, although he had gained a little more acceptance that he was not going to get better and was not going to return to work.

25. In February 2013, Mr Elliott was examined by Associate Professor McGill, rheumatologist, for Linfox’s insurer. Professor McGill reported on 28 February 2013 what he described as “marked abnormal illness behaviour during the formal examination”, and also an “unusual gait”. There were very restricted movements of the thoracolumbar spine. Professor McGill found that the left to peroneal tendon tear (surgically repaired), medial meniscal tear of the left knee (with partial medial meniscectomy), and low back injury with L5/S1 fusion, were all related to his employment with Linfox. Professor McGill said:

    Although his reported symptoms and pattern of behaviour have not been proportional to the objective evidence of injury and his behaviour today was not explicable on organic grounds, had the fall on 23 February 2009 not occurred, he would not have developed the pattern of abnormal behaviour which was set in train by that event.

    Professor McGill also said:

    I do not think he currently has the capacity to engage in the work that he was performing immediately prior to the injury. If he had an interest in returning to work, he would be fit to perform activities where he could change from seated to standing posture, not requiring substantial bending and with a weight restriction of 10kg.

26. Professor McGill thought that much of the reason for the lack of capacity to return to work was Mr Elliott’s “attitude”. Professor McGill accepted that Mr Elliott had a 23% whole person impairment in accordance with Table 9.17 of the Comcare Guide, and that as the spinal fusion would not have occurred had the fall in February 2009 not occurred, all of the impairment was work-related.

27. In May 2013 Mr Elliott was again assessed by Dr Maxwell. Dr Maxwell observed:

    Throughout the course of the examination he exhibited modified pain behaviour with sighing, grimacing and wincing. He became progressively more disabled during the course of the examination.

    …

    There is no pathological cause for Mr Elliott’s gradual downward spiral with regard to his lumbar spine. The examination now shows evidence of modified pain behaviour. It was my impression that this was on a voluntary basis as there were some paradoxical physical signs including extreme limitation of back movement on formal testing. There is certainly no evidence of radiculopathy clinically. This would accord with the investigations which showed no nerve root irritation.

    …

    In relation to his left knee, I consider it is essentially a constitutional condition.

    …

    I consider that he should return to work and gradually upgrade and I consider that he would be fit to return to his usual duties. Motivation however is a factor.

    …

    In the worker’s compensation situation is he is [sic] likely to continue to complain of pain in the foreseeable future.

28. He noted that the success rates of spinal fusions being extremely low. Dr Maxwell essentially repeated his pre-surgery opinion, to the extent that he regarded Mr Elliott as capable of a gradual upgrade until he was “fit to return to his usual duties”. Furthermore, he thought that Mr Elliott had no whole person impairment as a result of the slip at work. He did not think that the “spinal surgery was necessary as a result of any specific work related injury despite his symptoms.”

29. The Applicant was examined by Dr Bodel, orthopaedic surgeon, who provided two reports dated 2 May 2014. Dr Bodel noted Mr Elliott’s current complaints as constant dull aching pain in the lower part of the back, aggravated by prolonged sitting, bending and lifting, as well as pain that radiated down both legs, the left worse than the right. There was also intermittent neck and left arm pain. Straight leg raising was 70° on both sides and limited by hamstring tightness. Dr Bodel diagnosed a disc rupture at the L5/S1 level, a tear of the medial meniscus in the left knee and a tear of the peroneus brevis tendon in the region of the left foot and ankle as a consequence of his fall. He thought that Mr Elliott required ongoing intermittent physiotherapy and hydrotherapy on an as needs basis, and analgesic medication to manage his pain. Dr Bodel thought that Mr Elliott had no current capacity for work, and his prospects for returning to work were very poor. He agreed with Professor McGill’s assessment of 23% whole person impairment for the spine under Table 9.17.

30. In his oral evidence, Dr Bodel said that the most probable reason for Mr Elliott’s back pain was internal disc disruption, and in this diagnosis he supported Professor Owler, and Dr Fearnside. He also made the point that no surgeon would recommend spinal fusion surgery unless he or she held a strong belief that surgery would help. That in turn involved the evaluation of the patient’s presentation. Surgery was the solution that was pursued “if all else fails”. Dr Bodel said he would regard it as “most unusual” if a patient would take on all of the attendant risks of such complex surgery without good cause (in the absence of a diagnosis of Munchausen’s syndrome, which has no application to this case).

31. Dr Simone Ryan, occupational physician, reviewed the Applicant on behalf of the Respondent on 14 August 2014 and provided a report dated 10 September 2014. She also gave oral evidence. She thought that Mr Elliott’s left foot condition, left knee condition and lower back condition were all related to the incident of 23 February 2009. In terms of permanent impairment suffered by the Applicant, Dr Ryan formed the view that the Applicant had not sustained a permanent impairment in respect of either his left foot or left knee condition. With respect to the Applicant’s lower back condition, Dr Ryan ascribed a 23% whole person impairment under Table 9.17 of the Comcare Guide. However, Dr Ryan thought that Mr Elliott demonstrated “significantly abnormal illness behaviour”, and in her report and oral evidence gave some examples of that. Nonetheless, she agreed that even if Mr Elliott displayed unusual pain behaviour that did not mean that he was not experiencing severe pain. She thought that Mr Elliott developed the abnormal illness behaviours as a result of his pain secondary to his work-related fall. She also noted that:

    Mr Elliott seemingly had an enjoyable and long-term career working in roles where he thrived to the point that he was promoted to a sales management position and a sales representative role. In addition to this, Mr Elliott mentally ‘survived’ the death of his 2-year-old son in a house fire and returned to successful and gainful work for a long period thereafter. This in itself, in my opinion, gives testament to his character.

1. Dr Ryan thought that he would never be able to return to his pre-injury duties as a truck driver, based solely on the surgical interventions and outcomes as a result of his work-related fall. She also thought that Mr Elliott would benefit from returning to work on a part-time basis in a sedentary role in a sales environment with an ergonomically suitable workstation. However, she did not have any particular work model or job description in mind, and in particular, Linfox had not indicated to her that such work was available there, even though they remained the current employer.

2. Dr Ryan made the following comments:

   Mr Elliott stated that he has constant low back pain ranging between 5/10 and 10/10 with the 10 being unimaginable on a pain score. He stated that it starts right across his lower back and then radiates around the front into his lower abdominal region, radiates down to his buttocks and down through the back of his legs into his feet. He described that his 5th toes are numb…

   Mr Elliott stated that he is able to drive to his doctors ‘ and to the local shops. He stated that he has a female friend who attends Sydney every week and performs cleaning and washing for him…

   On greeting him in the waiting room, he was in a standing position. He then was able to bend, stand and lift up a bag of images and then walked comfortably for a period of 30 [metres] to the consultation room. During the consultation, Mr Elliott writhed in pain at various times and at other times sat very comfortably. He spent much of the history-taking section of the assessment in a standing fashion, flexed forward [through] from his lumbosacral spine region and holding his weight through the back of his two chairs. At other times, he, in a very exaggerated fashion, then knelt on the floor and did this is several cycles... At one time during the consultation, whilst in a sitting position, he dropped his wallet on the ground and then twisted to the right to be able to retrieve it with an extended arm from the floor.

   …

   There was an underlying theme where Mr Elliott was entirely fixated on the process of what had happened to him and the compensatory issues around it. At one point, he was also very fixated on the report of a Dr Anne-Marie Phillips and asked me, “Have you read that?” On advising him indeed that I had, he then produced a copy of it in case I needed to read it again.

3. Dr Maxwell provided another report – dated 15 September 2014. There he agreed the Applicant had a 23% whole person impairment in relation to the lumbo-sacral spine. He considered the knee condition as relating “to a certain extent” to degenerative changes and was not particularly related to the fall and assessed the left ankle as giving rise to 0% whole person impairment since it was associated with minor symptoms but Mr Elliott had a normal range of movement.

   CONSIDERATION

4. The Respondent submitted that the weight of the medical evidence, specifically the recent report provided by Dr Ryan, support a conclusion the Applicant no longer suffers from symptoms associated with his accepted “left foot” and “left meniscus tear” conditions. I agree with this submission, as the Applicant’s case focussed on his back condition. Indeed the applicant’s evidence was that his knee, at least, was “’90 per cent” and his treating foot surgeon, Dr Kuo, reported a good outcome with respect to the foot. Therefore I find the Applicant has no present entitlement to payment of compensation pursuant to ss 16 and 19 of the SRC Act arising from his accepted ‘‘left foot” and “medial meniscus tear”. In terms of the Applicant’s entitlement to payment of lump sum permanent impairment compensation and non-economic loss compensation, the Respondent contended that the weight of the medical evidence supports a finding that the Applicant does not have an entitlement to payment of compensation pursuant to ss 24 and 27 of the SRC Act in respect of his accepted “left foot” and “left knee” conditions. In view of my findings above, I agree.

5. The Respondent accepted, however, that the medical evidence indicates that the Applicant continues to suffer from lower back symptoms, but contended that any ongoing lower back symptomatology does not give rise to a need for medical treatment and/or any incapacity for employment. Rather, the Respondent contended that any claimed ongoing need for medical treatment and claimed incapacity for employment is attributable to the Applicant’s non-compensable abnormal illness, pain and disability behaviour. Similarly, the Respondent submitted, that the Applicant has an entitlement to payment of lump sum permanent impairment compensation and non-economic loss compensation pursuant to ss 24 and 27 of the SRC Act as a consequence of his accepted lower back condition on the basis of a 23% whole person impairment, providing that the back condition was related to his employment, and not his non-compensable abnormal illness, pain and disability behaviour.

6. There was no evidence that Mr Elliott had any history of back pain prior to the injury in February 2009. From that time onwards through to the surgery in August 2011, Mr Elliott suffered from severe back and leg pain, which, for at least some of that time, was accepted as being caused by the injury in February 2009.

7. It was clear from the evidence that the Applicant had damage to the disc at L5/S1 which is productive of symptoms, although there were reservations by some of the doctors about the proportionality of Mr Elliott’s response to the level of pathology identified. Conservative treatment, such as participation in the Back to Life program, did not assist Mr Elliott; at the conclusion of the program he still had a limited range of movement. Neither did a cortisone injection provide lasting relief. On the advice of Dr Rosenberg, Professor Owler, and supported by Dr Bookallil, the Applicant underwent spinal fusion. Dr Bodel described that surgery as the solution “if all else fails”. I do not think Mr Elliott would have subjected himself to the surgery, if he had not been in severe pain, and was hopeful of a positive outcome. This is a powerful conclusion, especially in light of the criticisms, discussed below, of the Applicant’s subjective pain response to his work-related injuries.

8. Dr Maxwell thought the surgery was contraindicated in any event. However, once the surgery took place, (having been approved and paid for by Linfox) then it was too late, in my view, for the Respondent to revisit the question of whether it was a good idea to have the surgery. Dr Bodel made the point, which I accept, that no surgeon would recommend spinal fusion surgery unless they held a strong belief that the surgery would help, and that this necessarily involved an evaluation of the patient’s presentation. I reject the Respondent’s contention to the effect that the specialists were overly-influenced by the Applicant’s self-report.

9. As well as Dr Maxwell, Dr Muratore, Dr Ryan and Professor McGill were critical of the Applicant and his “abnormal illness behaviour”, although Professor McGill still concluded that the Applicant’s work injury was responsible for his lack of capacity to work as a truck driver, and his permanent impairment. (Dr Muratore, as early as May 2010, considered it extremely unlikely that any doctor would certify the Applicant as fit for work.)

10. On the other hand, neither his treaters Professor Owler and Dr Rosenberg, nor Dr Bookallil made such an observation. There was some suggestion that other aspects of his life may have impacted upon his pain threshold, but there was no evidence of that. There was no consensus (Dr Lewin, psychiatrist and Mr Haralambous, psychologist) that he has a condition which creates psychologically generated pain, which prevents him working. I observe that the Applicant reported to a number of doctors (for example, Professor Owler and Dr Watson) that he was missing work. Even Dr Ryan, it appeared, referred to the Applicant thriving in the work in the past, which was consistent with his evidence of wanting to get back to work.

11. I accept that Mr Elliott experienced and continues to experience, a genuine sensation of pain which is causally connected with his compensable injuries, in particular his back. I accept that if there is any amplification it is not being done consciously; everybody’s response is different. The video evidence was consistent with him currently experiencing ongoing pain such that he did not drive, his movements were limited and he had difficulty getting into a car. Further, I accept that his condition requires reasonable medical treatment.

12. The balance of the medical evidence indicates that Mr Elliott is not fit for his pre-injury employment, mainly because of severe back and leg pain deriving from the back injury. Even Dr Ryan and Dr Bodel say he is not fit for work as a truck driver. He still remains an employee of Linfox, although he has not worked since the back surgery, nor does it seem, that returning to work has been explored with him.

13. The test of incapacity for work is that found in s 4(9) of the SRC Act, namely whether Mr Elliott had after 16 September 2013 had “... an incapacity to engage in work at the same level at which he ... was engaged … immediately before the injury happened” and I accept that the test is satisfied on all the evidence in respect to the back injury.

14. As to permanent impairment, the Applicant has had the spinal fusion. If the spinal fusion is related to the original injury then, according to the Comcare Guide, the appropriate assessment under s 24 of the SRC Act is 23%, as agreed by Professor McGill, Dr Bodel, and Dr Ryan. Dr Maxwell also agreed that the proper rating for the degree of impairment was 23%, but said that the surgery was not related to the compensable injury.

15. It was contended by the Respondent, relying on Dr Maxwell in particular, that Mr Elliott is not entitled to a permanent impairment payment, despite having undergone a spinal fusion as a result of the compensable injury. The consequences of the surgery are themselves to be taken as consequences of the injury. I accept that the chain of causation is clear. The appropriateness of the spinal fusion surgery, and its connection to the compensable injury, were accepted by Dr Bookallil, the neurosurgeon advising the Respondent, and the surgery was accepted and paid for by Linfox’s insurer.

    CONCLUSION

16. With respect to the Applicant’s “left foot” and “medial meniscus tear” conditions I find that Mr Elliott does not continue to suffer from the effects of those conditions. Consequently, he has no entitlement to medical treatment expenses in accordance with s 16 of the SRC Act in respect of those conditions; nor incapacity for work, as a consequence of those conditions, such as to give rise to an entitlement to incapacity benefits in accordance with s 19 of the SRC Act; nor entitlement to compensation in accordance with ss 24 and 27 of the SRC Act in respect of those conditions.

17. With respect to the Applicant’s “lower back” condition, I find he continues to suffer from the effects of that condition. Consequently, he requires reasonable medical treatment, in respect of that condition, such as to have an entitlement to medical treatment expenses in accordance with s 16 of the SRC Act; and an incapacity for work, as a consequence of that condition, such as to give rise to an entitlement to incapacity benefits in accordance with s 19 of the SRC Act; and an entitlement to compensation in accordance with ss 24 and 27 of the SRC Act in respect of that condition, assessed at 23% whole person impairment.

    DECISION

18. The decision under review is varied as follows:

    (a)the Respondent is liable to pay compensation pursuant to ss 16, 19, 24 and 27 of the SRC Act in respect to the Applicant’s lower back injury sustained on 23 February 2009 on the basis of a 23% whole person impairment.

    The reviewable decision is otherwise affirmed.

I certify that the preceding 89 (eighty -nine) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

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

Associate

Dated 18 August 2015

Dates of hearing	16 – 18 March 2015
Date final submissions received	1 April 2015
Counsel for the Applicant	Mr L Grey
Solicitors for the Applicant	Turner Freeman Lawyers
Counsel for the Respondent	Mr C Clark
Solicitors for the Respondent	Moray & Agnew Lawyers