Ellison and Comcare (Compensation) - [2020] AATA 698

Ellison and Comcare (Compensation) [2020] AATA 698 (2 April 2020)
Division:GENERAL DIVISION
File Number: 2018/3084

Re: DAVID ELLISON
APPLICANT

COMCAREAnd
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:2 April 2020
Place:Melbourne

The Tribunal affirms the decision under review.
.................[sgd]................................
Member K. Parker
Catchwords
WORKERS’ COMPENSATION – “ceased effects” determination – claim for payment of medical expenses and incapacity payments under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – applicant suffered from an underlying degenerative lumbar spine disease prior to 2009 – claim made by applicant for back injury suffered as a result of a specific incident on 21 April 2009 – Comcare accepted liability under s 14 for “lumbar sprain” – Comcare misdescribed compensable injury – Tribunal found that compensable injury was an aggravation of applicant’s underlying disease – effects of compensable injury ceased to exist as from 11 January 2018 to the present time and at the present time – ongoing symptoms after 11 January 2018 arose from effects of applicant’s underlying disease – non-binding observation made that underlying disease was contributed to, to a significant degree, by the general nature and conditions of applicant’s employment with the employer from 2002 to 2009 – scope of applicant’s claim did not extend to this injury – Tribunal did not have jurisdiction to make decision awarding payment of compensation under s 16 or s 19 to applicant in respect of ongoing effects of the underlying disease after 11 January 2018 – applicant at liberty to make further claim in respect of underlying degenerative disease – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, 5A, 5B, 6, 14, 16, 19, 54.
Cases
Abrahams v Comcare (2006) 93 ALD 147
Australian Postal Corporation v Trevor Arthur Nadge [1994] FCA 1163
Brackenreg v Comcare (2010) 187 FCR 2092009
Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163
Comcare v Muir (2016) 150 ALD 321
Comcare v Power (2015) 238 FCR 187
Cory Brothers & Co Ltd v Hughes [1911] 2 KB 738
Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136
F&T Grassi Pty Ltd v Ellendale Estate Pty Ltd [1985] WAR 294
Lang v Comcare (2007) 94 ALD 141
McDonald v Director-General of Social Security (1984) 1 FCR 354
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Phillips v The Commonwealth [1964] 110 CLR 347
Reitano v Commonwealth of Australia (1985) 9 ALN N201
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157
Szabo v Comcare [2012] FCAFC 129
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
The Commonwealth v Muratore [1978] 141 CLR 296
REASONS FOR DECISION
Member K. Parker
2 April 2020

This application is about whether the Applicant, Mr David Ellison, is entitled to receive incapacity payments and payment of medical expenses under ss 19 and 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) as from 11 January 2018 to the present time and at the present time, in respect of a lower back injury he suffered from a specific incident that took place on 21 April 2009 during a training course for which Comcare accepted liability to pay compensation under s 14 of the Act (Compensable Injury).[1]
[1] Refer to documents lodged by Comcare with the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 (T-Documents) at T10.
The decision under review in this application is the decision of Comcare dated 6 April 2018[2] affirming its primary determination dated 11 January 2018[3] that it had no present liability to pay such compensation to Mr Ellison in respect of the Compensable Injury with effect on, and from, 11 January 2018 (Decision Under Review).
[2] Refer to T-Documents T159.
[3] Refer to T-Documents T137.
Comcare lodged a set of documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which the Tribunal will refer to as the T-Documents. Mr Ellison lodged a witness statement made by him on 21 May 2019 (Mr Ellison’s Statement). Additional medical reports were lodged with the Tribunal by both parties.
Mr Ellison lodged a statement of facts, issues and contentions in May 2019 (Mr Ellison’s SFIC). Comcare lodged a statement of facts, issues and contentions in June 2019 (Comcare’s SFIC). Mr Ellison lodged an outline of submissions in July 2019 (Mr Ellison’s Outline of Submissions). Further short submissions were made by Mr Ellison in February 2020 following requests for further information made by the Tribunal.
At the hearing, oral evidence was given by Mr Ellison; his treating orthopaedic surgeon, Mr Royston Carey;[4] and two consultant orthopaedic surgeons, Mr John O’Brien and

Mr Iain Kelman. The Tribunal also had access to Mr Ellison’s medical records held by Bairnsdale Medical Group, Dr Philip Sewell, treating general practitioner, and Dr Carey, following their production under summonses.
[4] The Tribunal will refer to Mr Royston Carey as Dr Carey in these Reasons for Decision to avoid confusion with references elsewhere to Mr Mark Carey (Mr Carey) who was counsel for Mr Ellison in this application.
Upon careful consideration of the evidence before the Tribunal and the oral and written submissions made by the legal representatives of both parties, the Tribunal has decided to affirm the Decision Under Review for the reasons set out below.
ISSUES
The issues that arise for determination by the Tribunal are:
(a)whether Comcare misdescribed the diagnosis for the Compensable Injury when it accepted Mr Ellison’s claim for compensation in respect of the injury he suffered as a result of a specific incident on 21 April 2009;
(b)whether the effects of the Compensable Injury had ceased to exist as from 11 January 2018 until the present time and at the present time; and
(c)if so, whether the other entitling circumstances that would give rise to an entitlement by Mr Ellison to be paid compensation under ss 16 and 19 of the Act (arising from the wording of those respective provisions), existed during this period, namely:
(i)in the case of s 16, whether the claimed medical treatment was reasonable for Mr Ellison to obtain in the circumstances and whether the amount of compensation was appropriate in respect of those medical expenses; and
(ii)in the case of s 19, whether Mr Ellison was “incapacitated for work” as a result of the injury.
RELEVANT LEGISLATION
Section 14(1) of the Act provides that liability to pay compensation in accordance with the Act arises in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 16(1) of the Act provides that where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 of the Act applies to an employee who is incapacitated for work as a result of an injury. It provides that Comcare is liable to pay weekly compensation to be calculated in accordance with the formula set out in subsection 19(2).
“Injury” is defined in s 5A of the Act as:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
“Disease” is defined in s 5B of the Act. It means an ailment suffered by an employee or an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.[5]
[5] S 5B(1) of the Act.
“Significant degree” is defined in s 5B(3) of the Act and means a degree that is substantially more than material. In determining whether the ailment, or aggravation of it, was contributed to, to a significant degree by the employment, without limitation, the following matters may be taken into account:[6]
(a)       the duration of the employment;
(b)       the nature of, and particular tasks involved in, the employment;
(c)       any predisposition of the employee to the ailment or aggravation;
(d)       any activities of the employee not related to the employment;
(e)       any other matters affecting the employee’s health.
[6] S 5B(2) of the Act.
“Aggravation” and “Ailment” are defined in s 4 of the Act. “Aggravation” is defined to include “acceleration” or “recurrence”. “Ailment” means “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 4(9) of the Act provides as follows (emphasis added):
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
BACKGROUND
Mr Ellison is 50 years old and lives with his wife and two young children on a four-acre property in Metung in the State of Victoria. He was previously employed by the Commonwealth Government in the area of customs. For simplicity, the Tribunal will refer to Mr Ellison’s previous employer as Customs.[7]
[7] In Mr Ellison’s Statement at paragraph [6], he said the name of the agency he worked for was previously known as Customs Immigration Border Protection Service and subsequently, Customs Immigration Protection Border Service. Customs currently falls under the Australian Border Force.
Prior to Mr Ellison’s employment with Customs, he was a Senior Constable with the Victoria Police from 1995 to 2002. Before that, Mr Ellison worked on an ostrich farm in Bairnsdale for about 12 months.[8]
[8] Refer to paragraph [5] of Mr Ellison’s Statement.
While working for Customs, Mr Ellison held the position of Marine Tactical Officer (Customs Level 1), which required him to perform a vast number of physically demanding tasks including boarding and searching vessels at sea, seizing prohibited goods and apprehending and questioning suspects. This work was performed in confined spaces, under load and on a moving platform while at sea.[9] Mr Ellison’s duties also involved cleaning, cooking, maintenance, loading and unloading the bridge and navigation duties.[10] The use of physical force by and against others in border control activities was sometimes required as part of this role. Mr Ellison was required to undertake some administrative work in this role, including obtaining statements and preparing prosecution briefs.[11] Mr Ellison gave detailed evidence about this work at the hearing as set out below.
[9] Ibid at paragraph [6].
[10] Ibid.
[11] Refer to the duty statement for a Marine Tactical Officer (Customs Level 1).
Mr Ellison’s work in this role was carried out on a fly-in, fly-out roster basis; three weeks on, three weeks off. Specifically, Mr Ellison said he was required to be at sea continuously for 22 days when he was rostered on.
On 21 April 2009, Mr Ellison injured his lower back while he was participating in a “Use of Force” training session as part of his employment with Customs (2009 Workplace Incident). He was participating in a group training exercise that involved the participants “tagging” each other within a confined space. Mr Ellison said he twisted his upper body and felt discomfort in his lower back. Mr Ellison said he continued with the exercise but knew something was “not right” as the pain in his lower back was increasing.[12] Eventually when there was a break in the exercise, Mr Ellison said he had to lie down on the floor due to the pain in his back and was subsequently taken to see a doctor by one of the instructors.[13] The doctor prescribed him anti-inflammatories and pain-relieving medication, and issued him with a medical certificate. The same evening, Mr Ellison said he was unable to find a comfortable sleeping position and needed help to stand from a seated or lying down position.
[12] Refer paragraph [7] of Mr Ellison’s Statement dated 21 May 2019.
[13] Ibid at paragraph [8].
Mr Ellison said that after this incident he was required to remain in Canberra for three days before he drove back home to his residence in Victoria.[14] Upon arriving home, Mr Ellison saw Dr Sewell who issued him with a further medical certificate. Mr Ellison said that over the following few months his back “felt better to a degree”, but he said, “it was never right”.
[14] Ibid at paragraph [10].
Mr Ellison lodged an incident report with Customs and subsequently made a claim under the Act in respect of the injury sustained as a result of the 2009 Workplace Incident. In the incident report, the injury was recorded as occurring at 8.50am on 21 April 2009, “whilst conducting the chasing game during the warm-up. David noticed a tightening in his lower back which developed into back pain over the lunch period. David removed from training”.[15] In the “Claim for Compensation form” completed on 2 June 2009 Mr Ellison made a claim for an injury identified on the form as, “Muscle, soft tissue and disc damage. “musculo ligamentous strain of lower back””[16] and that the injury occurred at “0900” on “21/4/2009” at “OSU Fyshwick, ACT” while “completing morning warm-up for first lesson of the day, which involved rapid zig zag running movements” and that included “stretching, zig zag running or lunges”.[17] The claim was assessed by Comcare. On 20 June 2009, Comcare accepted liability under s 14 of the Act for an injury described by it as a “lumbar sprain”.
[15] Refer T-Documents T6/25.
[16] Ibid at T4/11.
[17] Ibid at T4/13.
At the hearing, there was uncertainty about the periods during which Mr Ellison was incapacitated for and did not attend work over the two years to follow the 2009 Workplace Incident and in relation to the treatment he received for his back. This is addressed in detail under the heading “Mr Ellison’s evidence” commencing at paragraph [45].
On 28 February 2011, Mr Ellison’s treating physiotherapist, Ms McNeill, reported to Dr Sewell that his back was “at its best it’s been for a while”. Ms McNeill stated that Mr Ellison’s palpatory signs remained significant at L4 and L5 and “stiff and painful” but had improved over the previous two weeks. Ms McNeill suggested that Mr Ellison was ready for work at that time and needed to commit to and do exercises.
On 30 March 2011, Dr Sewell referred Mr Ellison to Dr Carey for treatment. He requested that Dr Carey arrange for an MRI to be performed on his back and to advise whether surgery to decompress the L5 nerve root would help Mr Ellison.[18] Dr Carey advised that there was no “absolute indication” for surgery given the “natural history” of Mr Ellison’s condition, but that it was possible that surgery was required, given how long he had suffered from the condition and that it had been “bothersome”. Dr Carey arranged for an X-ray and MRI scans to be performed.
[18] Refer to letter of referral in documents produced by Dr Carey under summons.
Mr Ellison said that over the next two years he had constant bouts of aggravation and soreness in the same region of his lower back, causing him to take several patrols off work. He said the pain in his back was constant and varied, ranging from minor to debilitating for sometimes weeks at a time.[19] Mr Ellison received physiotherapy and chiropractic treatment for this injury. Mr Ellison’s injury caused him to experience intermittent sciatica and lumbar muscle spasm. Specific episodes of increased symptoms were experienced by Mr Ellison in 2011, 2013 and 2014 as detailed below under the heading “Mr Ellison’s evidence”.
[19] Refer paragraph [15] of Mr Ellison’s Statement.
In a rehabilitation Initial Assessment Report issued by APM dated 22 May 2012, Mr Ellison was reported to have informed the rehabilitation consultant that he had experienced “flare ups” occasionally lasting three days to up to five or six weeks, with the most recent “flare-up” being around 14 April 2012.
In 2014 Mr Ellison said his lower back pain escalated “to the worst I had ever experienced”. He said he could not get up if he sat down and that he would need to lower himself onto the floor to pick something up. He said he could not walk properly and experienced “electric shocks” when leaning forward. He said he had pain in the front and back of both legs and the back of his lower torso. He said he could not lift anything, found it difficult to drive for any period and found domestic chores, including washing himself in the shower, both difficult and painful. Mr Ellison said he had several episodes that lasted four to six weeks at a time.[20]
[20] Ibid at paragraph [16].
On two separate occasions in October 2014, Mr Ellison underwent a left L3, L4 and L5 medical branch block procedure. In November 2014, Mr Ellison underwent a lumbar radiofrequency neurotomy procedure. Mr Ellison said that it gave him some relief for a few months, but the severe pain returned, and he was forced to cease duties in May 2015. He has not returned to work with Customs since this time. Mr Ellison stated that he also received regular physiotherapy from Ms McNeil in 2014, which he described as not helping him much.[21]
[21] Ibid at paragraph [17].
Upon ceasing duties in May 2015, Mr Ellison was referred for a rehabilitation assessment. He said it was decided that continuing work on sea-going vessels was no longer an option for him. Considering that Mr Ellison lived a four-hour drive from the nearest Customs office, he said it was agreed that he should search for suitable employment outside of Customs. Mr Ellison said a rehabilitation provider was appointed and search for employment outside of Customs commenced.
Mr Ellison was referred to see Dr Carey again on 26 August 2015 who formed an opinion that he considered Mr Ellison “unfit for this work into the foreseeable future, and should seek alternative employment”. [22] After reviewing the MRI images, Dr Carey confirmed his opinion that there was no surgical intervention indicated for Mr Ellison.[23]
[22] Refer to T-Documents T68/123.
[23] Refer to letter from Dr Carey to Dr Sewell dated 22 September 2015.
From January 2016 for a period of eight weeks, Mr Ellison commenced twice weekly physiotherapy sessions.
From August to November 2016, Mr Ellison completed a 10-week course in Certificate II in Aeroskills Aircraft Mechanic (Pre-Apprenticeship). This course included temporary work placements which took place from November 2016 to February 2017. Mr Ellison said he had been unable to secure work in that industry. He said, in effect, that he had unsuccessfully applied for work as a Live Weigh Scales Operator and other “local work”.[24]
[24] Refer to paragraph [23] of Mr Ellison’s Statement.
In June 2017, a rehabilitation consultant wrote to Dr Sewell to seek his view as to whether several vocational options were suitable for Mr Ellison. Dr Sewell agreed that Mr Ellison was fit to undertake full time employment as a Stock and Station Agent or as an Aircraft Maintenance Engineer or Meter Reader provided he does not lift over 15kg and in the case of Meter Reader, provided he does not lift over 15 kg, sit for over four hours or stand for more than two hours. Dr Sewell said Mr Ellison was not fit to undertake work as a Police officer, Train Driver or Park Ranger.

In October 2017, Comcare arranged for Mr Ellison to be medically examined by Dr Haynes, occupational physician. As detailed further below at paragraph [157], Dr Haynes formed an opinion that Mr Ellison’s incapacity for work was not contributed to by his previous employment, because his current symptoms were related to degenerative changes in the low lumbar region. The following month, Mr Ellison was notified by Comcare that it longer considered that the Compensable Injury was work-related and all medical and financial compensation would cease.
Mr Ellison acquired and commenced operating an arbory business in March 2019, in which he employs one arborist and two labourers to carry out the manual work.
EVIDENCE
Radiological findings
2009
On 9 May 2009, an X-ray was performed on Mr Ellison’s lumbar spine. The radiologist concluded, “The lumbar spine is normal. The SI joints are normal”.
On 17 June 2009, a CT scan was performed on Mr Ellison’s lumbosacral spine. The radiologist made the following findings:[25]
A focus of trabecular coarsening and fairly well defined transition zone is noted right posteriorly at L3 vertebra extending to the pedicle, measuring 24 x 16 x 12mm, likely a haemangioma. Vertebral body heights are maintained.
Slight narrowing at L5/S1 disc space associated with postero-lateral osteophytosis, on the left slightly impinging on the exiting L5 nerve root. Adjacent vertebral sclerosis, slight annular disc bulging partially effacing the anterior epidural fat space. Facet joint prominence is mild.
L4/5 annular disc bulging slightly bows the anterior theca with mild central canal stenosis, sparing the exiting nerve roots.
[25] Refer to T-Documents T9/29.
2011
A further CT scan was performed on Mr Ellison’s back on 11 February 2011 and reported as showing:[26]
L5-S1 disc desiccation with left sided lateral osteophyte which is contacting the exiting left L5 root.
Diffuse annular bulge L4-5 disc.
[26] Refer to T-Documents T11/34 and T13/36.
On 19 May 2011, a MRI scan was taken of Mr Ellison’s lumbar spine. The radiologist concluded as follows:[27]
?haemangioma,?focal fibrous dysplasia right L3 pedicle exteniing(sic) into the adjacent body. Radial tear and dorsal bulge L4-5 disc contacting the right L5 nerve and dorsal left eccentric caudal protrusion L5/S1 disc indenting the left S1 nerve. A bone scan may be considered.
[27] Refer to T-Documents T17/40.
The following day, an X-ray was performed on Mr Ellison’s back and the radiologist concluded as follows:[28]
Lumbar vertebral body heights are maintained. Disc spaces are normal. Facet joints are normal. Spinal canal dimensions are exit foramina are not compromised.
[28] Refer to T-Documents T18/41 and T30/54.
On 13 July 2011, a further CT scan was performed on Mr Ellison’s lumbar spine and the radiologist made the following findings:[29]
Lytic area noted through L3 posterior body extending into the right pedicle. non expansile. No cortical break Vertebral height is preserved.
Comparison made with the previous CT dated 17/06/2009.
Rest of the lumbar vertebrae appear normal. Minimal spondylotic change is noted at L5-S1 level. Disc height is preserved. Facet joints are normal. SI joints are normal.
CONCLUSION:
Appearances have remained stable with no further progression.
Features are consistent with benign lesion such as haemangiomata.
[29] Refer to T-Documents T20/43 and T31/55.
On 15 July 2011, a whole-body bone scan was performed which showed mild facet joint disease present in the left side of L2/3 and at the lumbosacral junction. The “tracer activity” was normal throughout the remainder of the lumbar spine.[30]
[30] Refer to T-Documents T21/44 and T28/52.
2015
On 16 September 2015, an X-ray of Mr Ellison’s lumbosacral spine was performed, and the radiologist concluded as follows:
Normal lumbar spine alignment is seen.
Vertebral body and disc heights are within normal limits.
No significant facet arthropathy noted.
No suspicious bony lesion is seen.
On the same day, a further MRI was performed, and the radiologist concluded as follows:[31]
Report:
The vertebrae shows normal alignment and lordosis: Hyperintense T1/T2W signal focus seen in the L3 vertebral body on the right extending in to the pedicle ? haemangioma.
The spinal canal dimensions, vertebral body heights are normal.
L4/5 disc shows hyperintense zone in its annulus right dorsolateral and dorsal disc bulge mildly indents the thecal sac.
L5/S1 disc shows diminished height and mild ventral bulge of its annulus. Disco osteophyte left dorsal lateral aspect L5/S1 and modic type 1 change at the adjacent end plates along the left aspect is seen. Conus medullaris and the rest of the lumbar discs are normal in morphology and signal intensity.
Conclusion:
Annular fissure right dorsolateral L4/5 disc bulge and Modic type 1 L5/S1 endplate changes which may indicate recent injury. No disc protrusion or root compression.
[31] Refer T-Documents T69/124.
Mr Ellison’s evidence
Mr Ellison described his situation following the 2009 Workplace Incident as follows:[32]
I was in continuing pain to different degrees and my movements were restricted depending on the activities I had undertaken that day. Sometimes I would only have minor pain if I never undertook any physical activity, and sometimes I would be in moderate to severe pain for several days and even weeks at a time. I quickly learned that any activity such as prolonged or repeated sitting, kneeling, leaning forward or lifting anything over about 10 kilograms would severely aggravate my injury.
[32] Refer paragraph [12] of Mr Ellison’s Statement.
In Mr Ellison’s Statement, he described his history of symptoms relating to his back as follows:[33]
25.I have been in constant pain and had restricted movement since the injury occurred in 2009. The type of pain and the location of the pain has not changed, in fact I believe it has got worse over the last eighteen months which causes me great concern. I have been unable to exercise consistently due to pain. I used to run about five kilometres twice a week and workout in the gym three times a week before the injury. Today I find it difficult to do any exercise that is weight bearing.
26.I did not have any ongoing back pain prior to the 2009 injury. I don’t doubt that from time to time I have felt some back pain for one reason or another but it was never constant, never required any significant treatment and didn’t stop me doing the sort of physical Marine Officer duties that I did from 2002 to 2009 for any significant amount to(sic) time. I certainly never had continuous symptoms.
[33] Ibid at paragraph [25].
2003 NZ cramped driving event
At the hearing, Mr Ellison was taken to a clinical note by Dr Carey dated 12 April 2011. It referred to him having experienced lower back pain while he was driving a car in a cramped position while travelling in New Zealand in early 2003 (2003 NZ cramped driving event).   This note stated as follows:
?Early 2003 – awoke [with] LBP (8.5/10) one AM – travelling in NZ in Falcon
P/T -> McKenzie extensions
-    Bouts on/off since.
-    ’03 was worst until
-    4/2009 – At work – “use of force course”
-    Warming up running avoiding touch
-    > LBP “went” -> could hardly stand
-    > P/T? exercises/rest
Mr Ellison said he recalled this trip to New Zealand. He said he was doing most of the driving and there were several people in the car. He said that due to his height (being “6’2’’ and a half”); the car seat had to be pushed up to a position for someone shorter than him. He said that they were travelling for several days before the incident happened. He said he woke up with a very sore back. Mr Ellison said he saw a physiotherapist who advised Mr Ellison to perform “McKenzie extensions” (a back exercise) and to take anti-inflammatories. He said this pain went away after a few days.
When Mr Ellison was asked at the hearing whether he had experienced “bouts pain on/off” since this 2003 incident, Mr Ellison said this was not consistent with his recollection.
2004 beach rugby tackle event
Mr Ellison told the Tribunal that he recalled suffering an injury in 2004. He said he did not see anyone about it. He said he was in Customs and they were undertaking a patrol to the Southern Ocean in search of “Patagonian tooth fish pirates”. He said there was an intensive five-week training program in Perth, and he recalled the following about an incident that had occurred:
I recalled one time we were all in the beach. One of the guys who is still in the unit, [name omitted], ran down the beach, I was in the water, probably up to just above knee height water, facing out to the ocean, he has come up behind me I don’t know whether … I think he has rugby tackled me, his shoulders hit me fair in the lower back and it hurt. I sustained some sort of damage. Not enough to send me home but I was in pain for a few days. I didn’t report it. I didn’t want to say anything because I probably would have been returned home and wouldn’t get to go down to the Southern Ocean. The only incident I can recall….
Mr Ellison said he did not recall having any symptoms after this event. He said he was “Sore for a few days – possibly more than bruising. But nothing was broken. I could function 100%”.
2004 lifting trailer event
Mr Carey asked Mr Ellison about a clinical note produced by the Bairnsdale Medical Group showing an entry for 22 December 2004 as follows:[34]
Lifted a tandem trailer into his car 1/52 ago and has damaged his back.
Unable to put his shoes on.
[Left] lower paralumbar sited pain and stiffness.
SLR O.K. [downward arrow] movements generally.
Unable to work on a boat.     C. 22-29/12
-    Nurofen Plus
-    Panadeine Forte
[34] Clinical note produced under summons by Bairnsdale Medical Group.
Mr Ellison said he did not remember this incident, but he remembered calling Customs to say he could not work because of the injury. Mr Ellison stated that he vaguely remembered lifting a trailer and feeling a twinge and that he had lifted “thousands of trailers”. Mr Ellison clarified that he lifted the trailer up onto the ball socket at the back of the car towing the trailer.
Mr Ellison said he could not remember taking medicine for this injury and that in general, he did not like taking “that type of medication” and that “he would rather put up with the pain”. Mr Ellison said he did not have any problems resuming work. Mr Ellison gave evidence that he “did not have any back pain later on” and that “it was a pulled muscle”. He said he had done this twice in his back and dozens of times in other parts of his body. He stated that they were isolated incidents and he did not have any ongoing issues.
Mr Ellison’s claim form lodged in 2009
During cross-examination, Ms Cathy Dowsett, counsel for Comcare, took Mr Ellison to his claim form dated 2 June 2009.[35] Mr Ellison confirmed that he completed that form, even though he said he did not remember doing so.
[35] Refer to T-Documents T4.
Mr Ellison acknowledged that he had listed his “lower back” as the part of the body most affected by his injury or illness; that he was injured or first noticed he was ill at 9am on

21 April 2009; and that he first sought medical treatment on 22 April 2009 from Dr John Broderick, general practitioner, in Belconnen (a suburb of Canberra).
History of medical certificates and treatment received by Mr Ellison
Mr Ellison acknowledged that Dr Broderick had certified him as being unfit for work from 21 April 2009 to 1 May 2009 in a Medical Certificate for Workers Compensation Comcare form, signed by him on 22 April 2009. The Tribunal notes that on this medical certificate, Dr Broderick described Mr Ellison’s injury as having occurred on 21 April 2009 and that he was suffering from “musculo ligamentous strain lumbo-sacral spine”.[36] Mr Ellison acknowledged that the next three medical certificates were issued to him when he returned to Bairnsdale.[37]
[36] Refer to T-Documents T160/440.
[37] Those three medical certificates comprise T-Documents T160/441&442; T160/443 and T160/444.
Ms Dowsett took Mr Ellison to Dr Carey’s clinical note dated 12 April 2011 referring to Mr Ellison having “bouts of pain on/off since” the 2003 episode. Mr Ellison said that he did not recall telling Dr Carey that. Mr Ellison accepted that he would have done his best to give an accurate history to the doctors he had seen for treatment or for medico-legal purposes. He also accepted that his recollection closer in time to the event, would have been more accurate.
Mr Ellison did not dispute that he had not seen a doctor in respect of lower back pain between July 2009 and January 2011, when this was put to him at the hearing. Mr Ellison was asked why he had not done so. Mr Ellison explained that he knew what was wrong with his back and that he knew what the doctors would tell him. Mr Ellison said that if he had back pain or an episode, he would “just put up with it because there was no gain in going to see the doctor”.
Mr Ellison gave evidence that he had experienced back pain on and off since 2009 and that he did not have any debilitating back injuries between 2004 and 2009. He said the incidents in 2003 and 2004 (described in paragraphs [47] to [54]), stopped him from going to work, but he had not had any incidents since then. He said he did not recollect having any back injuries or a sore back over this period. Instead, he said he experienced “pulling muscles” two or three times per year and that he recalled pulling a muscle under his shoulder blade. He said he believed them to have been muscular strains. He said he did not go to the doctor unless he absolutely needed to.
After referring to Dr Carey’s clinical note dated 26 August 2015 stating, “13/10/13 - <this – on/off ~ 2011”, Ms Dowsett put it to Mr Ellison that this meant he was having back pain on and off as from 2011. Mr Ellison agreed and added that he was also having back pain on and off from 2009 to 2011.
Mr Ellison confirmed that he was certified as unfit for work from 10 February 2011 to 24 March 2011 and for a second period in April 2012. Mr Ellison accepted that he would have been at work for a portion of the period between April 2011 and March 2012, subject to leave and the roster.
Mr Ellison said he had received physiotherapy up until 2009. Mr Ellison was asked whether he had received any treatment for his back at all in 2010 to which he responded that, “it was self-managed. I had an extensive knowledge of anatomy and from what being told what to do by doctor and physiotherapist, I self-managed it”.
Mr Ellison agreed that he had not been to see Dr Carey since 2011. Mr Ellison confirmed that he was off work from February to March 2012 and then he returned to work.
Mr Ellison said that while he was unable to recall, he did not think he had ever attended for physiotherapy for which he did not claim compensation. Mr Ellison was referred to a list prepared by Comcare generated on 15 June 2018 detailing information about services provided to Mr Ellison (Treatment List).[38] Ms Dowsett highlighted that the first attendance on this list was with Mr Broderick on 22 April 2009.
[38] Refer Exhibit “R6”.
The Tribunal notes that the first session Mr Ellison had with a physiotherapist referred to on the Treatment List took place on 24 April 2009, followed by further sessions with Mr Ray Hancock, physiotherapist, in quick succession on 27, 29 and 30 April 2009 and then on 5, 11, 13, 18 and 21 May 2009. The Treatment List indicates that there was a short break in physiotherapy sessions until he saw Mr Hancock again on 23 June 2009,

1 and 15 July 2009. After that, several months passed before he saw Mr Hancock on 27 October 2009 and thereafter, on 27 October 2009, 25 and 27 November 2009 and

1 and 9 December 2009.
The Treatment List shows that Mr Ellison started to see a different physiotherapist, Ms McNeill, on 1 and 4 February 2011, with six follow up sessions with her extending through until March 2011. There was another long break in physiotherapy sessions until Mr Ellison returned to see Ms McNeill on four occasions during the month of May 2012. At the hearing, Mr Ellison confirmed that he had received physiotherapy from Ms McNeil in 2011 and 2012.
There was a further break in physiotherapy treatment until Mr Ellison saw Ms McNeill again on 1 April 2014, following which he attended sessions on a regular basis up until

23 June 2014. Mr Ellison did not dispute that he did not go back to see Ms McNeil for treatment in 2013 when this was put to him at the hearing.
The next period of physiotherapy treatment commenced on 5 November 2015 at True Care Physiotherapy and continued, on a regular basis, until 1 June 2015. The Treatment List indicated that Mr Ellison did not attend physiotherapy for his lumbar spine from this date until at least 15 June 2018, being the end of the search period for the Treatment List.
At the hearing, Mr Ellison acknowledged that the clinical records produced by Macleod Street Medical Centre (MSM Centre) included:
(a)an entry for 5 January 2015 indicating, “Had ablations…can return to work mid Feb, clearance from mid Jan”;[39] and
(b)an entry for 1 June 2015 indicating that Mr Ellison, “had to come in from offshore due to LBP. Better for David to have Sick Leave rather than Comcare leave for now”. Mr Ellison explained that if he took sick leave, he would receive 100% of pay rather than 75% under workers’ compensation.
[39] Refer page 10 of MSM Centre clinical notes.
Mr Ellison agreed with Ms Dowsett that he went back to see Dr Carey in August 2015.[40] Mr Ellison accepted that he must have asked Dr Carey to prepare a letter dated 26 August 2015 and that at that time, it was considered that it was better for him to find work off the boats so he would be on a stable platform. This letter was obtained as an “instigation to put that plan in process”. Ms Dowsett referred Mr Ellison to the following statement made by Dr Carey in this letter:
Between 2011 to now he has continued to have back discomfort, but following an exacerbation 13.10.2013 he was off work indeed for most of 2014.
[40] Refer T-Documents T68/123.
Mr Ellison said this statement was not accurate because the continual discomfort and injury had been present since 21 April 2009. He said it was exacerbated in 2013 and 2014 for no apparent reason. He accepted that the 2013 exacerbating incident was the 2013 fun run event, which Mr Ellison described as a “trigger, one of the many triggers I have had”.
During cross-examination, Ms Dowsett referred Mr Ellison to a letter by Dr Daniel Bates, Sports Medicine Registrar of Metro Pain Clinics (which includes among others the Metro Spinal Clinic (MSC)) dated 1 September 2014.[41] Mr Ellison said he recalled seeing Dr Bates and that he confirmed giving Dr Bates a history of his back pain being triggered by a five kilometre run. Mr Ellison confirmed he told Dr Bates that the level of his pain was 9/10 once per week and 7/10 otherwise (on a visual analogue scale).
Issue arising as to when Mr Ellison was absent from work after the 2009 Workplace Incident and call for leave records
[41] Refer to Exhibit “R1”.
At the hearing, Mr Ellison said he could not recall exactly when he returned to work with Customs after the 2009 Workplace Incident. He said he could only be guided by what the documents had indicated.
In that regard, Mr Ellison was taken to the medical certificate issued by Dr Jiang on 25 June 2009, covering the period 25 June 2009 to 19 July 2009[42] and to the next medical certificate for a further period in 2011.[43] Mr Ellison was asked whether it was consistent with his recollection that he was not incapacitated for work as a result of his back pain during the second half of 2009 and all of 2010. Mr Ellison answered in the negative.
[42] Refer to T-Documents at T160/446, 447 & 448.
[43] Refer to T-Documents at T160/449.
However, Mr Ellison accepted that the documents might have shown that he had not made any claim for incapacity for work during that period, as there were no medical certificates in the T-Documents for that period. Mr Ellison explained that he would only need to obtain a medical certificate if he could not go to work due to an aggravation to his back. Mr Ellison also explained why he did not always need a medical certificate due to the way his rosters had worked (namely, if he took leave for one patrol; he would have a total of 66 consecutive days off), and that he had carried over accumulated long service leave and recreation leave from his employment with Victoria Police to Customs. Mr Ellison explained that he took two lots of leave each year, so it was possible that he did not need a medical certificate, but he said this did not mean that he did not have a sore back. He also said he “bought leave”. He said in some years, he would only work (at sea) for four months of the year.

Mr Ellison said it was his recollection that as from April 2009 to May 2015 (when he finished working on the boats), he had constant time off work due to his back injury. Ms Dowsett put it to Mr Ellison that he did not in fact take time off work from July 2009 and 2011 because there were no medical certificates for that period. Mr Ellison said that if there were no certificates, he conceded that “I guess that is the case”. Mr Ellison said his “sea book” would show “exactly when I was at work”. When asked whether he had regard to his sea book when making his witness statement lodged in this application, Mr Ellison said he did not. The Tribunal called for production of Mr Ellison’s sea book.
Periods of service on ship based on sea book
Mr Ellison lodged with the Tribunal photocopied pages from his sea book.[44] The sea book recorded that Mr Ellison was serving a “swing” on duties on a boat during the following periods between October 2008 to August 2011:
[44] Exhibit “A3”.
(a)29 October 2008 to 18 November 2008;
(b)1 January 2009 to 27 January 2009;
(c)16 February 2009 to 9 March 2009;
(d)8 August 2009 to 28 August 2009;
(e)18 September 2009 to 9 October 2009;
(f)30 October 2009 to 21 November 2009;
(g)11 December 2009 to 30 December 2009;
(h)6 February 2010 to 12 February 2010;
(i)17 April 2010 to 7 May 2010;
(j)9 July 2010 to 29 July 2010;
(k)28 September 2010 to 19 October 2010;
(l)10 November 2010 to 1 December 2010;
(m)21 December 2010 to 11 January 2011;
(n)27 April 2011 to 18 May 2011; and
(o)20 July 2011 to 10 August 2011.
Mr Ellison’s leave records held by Customs
The Tribunal also called for a copy of Mr Ellison’s leave records held by his employer.[45] Based on those records, Comcare prepared a marked up calendar for the years 2009 to 2019, showing when Mr Ellison was absent from work and what type of leave he had taken at different times over that period (Leave Calendar). The accuracy of those records and the Leave Calendar prepared by Comcare were not disputed by Mr Ellison and the Tribunal finds that they establish an accurate account of when he was absent for work and what type of leave he had taken as detailed below.
[45] Exhibit “R8”.
The Tribunal notes that the Leave Calendar indicates that Mr Ellison had taken:
(a)no leave in the months of August 2009 to February 2010;
(b)eight days of annual leave in March 2010;
(c)two days of annual leave in April 2010;
(d)two days of carer’s leave in May 2010;
(e)five days of carer’s leave in June 2010;
(f)no leave in July 2010;
(g)eight days of annual leave and two days of long service leave in August 2010;
(h)seven days of long service leave in September 2010;
(i)no leave in October and November 2010; and
(j)seven days of personal leave/compensation leave in December 2010;
(k)in the year 2011, compensation or personal leave for most of February and March 2011;
(l)in the year 2012, compensation or personal leave over two periods from 20 to 30 April 2012 and 16 May to 11 June 2012;
(m)in the year 2013, compensation leave from 20 November 2013 to 1 December 2013 and on 12 and 13 December 2013;
(n)in the year 2014, compensation leave for two substantial periods from 24 March 2014 to 16 June 2014 and from 1 September 2014 to 24 December 2014;
(o)
in the year 2015, compensation leave from 2 to 14 January 2015 and

8 September 2015 to 24 December 2015 and on 30 and 31 December 2015;
(p)in the year 2016, save for a few days, compensation leave from 2 January 2016to 5 August 2016 and from 22 November 2016 to 23 December 2016;
(q)in the year 2017, save for a few days, compensation leave for the entire year;
(r)in the year 2018, save for a few days, compensation leave until 10 January 2018 and thereafter personal leave until 25 July 2018 and thereafter either annual leave or long service leave for the remainder of the year; and
(s)in the year 2019 until the hearing of this application, either annual leave or long service leave for the entire period.
Improvement of condition after 2009 Workplace Incident
Mr Carey asked Mr Ellison if his back pain had improved following the 2009 Workplace Incident after bringing to his attention a reference in a medical report by Mr Kelman dated 6 February 2019, stating that Mr Ellison had told the doctor during this examination that his pain had settled after three to four weeks of physiotherapy and he had returned to normal duties.
Mr Ellison said that “the next few days” after the 2009 Workplace Incident were “the worst period” and after that, his pain eased. He said he had a number of weeks off work and obtained a medical certificate to be able to resume work. The Tribunal notes from Mr Ellison’s sea book that he did not resume work after the 2009 Workplace Incident until 8 August 2009, being four months after the 2009 Workplace Incident which took place on 22 April 2009.
Mr Ellison gave evidence that the reason he had the X-ray on 29 May 2009 (about five weeks after the injury) and the CT scans performed on 17 June 2009 (about eight weeks after the injury), was that he was experiencing ongoing pain from the injury arising from the 2009 Workplace Incident. Mr Ellison confirmed that he had physiotherapy treatments between 27 April 2009 and 9 December 2009 in respect of his lower back pain. At the hearing, Mr Ellison said he continued to have “continuous back pain of varying degrees” from April 2009 “right through” until “today”.
2011 Lorne surf event
Mr Ellison was also taken to a reference in Dr Carey’s clinical note dated 12 April 2011 as follows:[46]
“2/12 ago – at beach in Lorne – ran into surf – “felt it go” – worse – worst ever”
[46] Refer Exhibit “R2” on page 2.
Mr Ellison said he remembered this incident and it had caused him to go back to Dr Sewell; was the reason why he issued a medical certificate for 2011; and was the reason why Mr Ellison was referred to Dr Carey in 2011.
2013 fun run event
Ms Dowsett took Mr Ellison to a reference in Dr Carey’s clinical note dated 26 August 2015 and he agreed that he had an aggravation of back pain on 13 October 2013 caused by a “fun run”, at which time he was referred by his general practitioner to Dr Bates at MSC. At the hearing Mr Ellison told the Tribunal that the “fun run” involved simply running along a road.
Mr Ellison also agreed that he had a “flare up” in 2013 and that it was worse than the 2011 event. He said this was a prolonged period of pain and the pinnacle of the episodes he had experienced. He said he did not recall whether the 2013 “flare up” was worse than the injury following the 2009 Workplace Incident. Mr Ellison agreed that after 2013, the pain became “constant, pretty much” he said, “it was a prolonged period of repeated episodes”.
Ms Dowsett asked Mr Ellison whether his constant pain had commenced at the time of the 2013 fun run event, to which he responded:
I would have to answer that by saying, since 2009 I’ve never been without pain. It’s been different degrees. But in 2013, 2014, late 2013 – late 2014, it escalated to its highest peak and its most prolonged period over that time; and that was during this time when I was referred to Dan Bates.
2013 flare up while working on a ship
Ms Dowsett asked Mr Ellison whether something else had taken place on 20 November 2013. Mr Ellison said he could not recall anything specific. Ms Dowsett took Mr Ellison to:
(a)a medical certificate issued by Dr Sewell on 22 November 2013 which referred to an aggravation “by heavy lifting, moving around ship, bending etc at work” sustained on 20 November 2013;[47]
(b)a clinical note by Dr Chapman of the MSM Centre dated 22 November 2013;[48]
(c)a clinical note by Dr Sewell dated 6 December 2013 referring to “back pain settling, more mobile”; and
(d)a clinical note dated 13 December 2015 stating that Mr Ellison was fit to return to work.
[47] Refer to T-Documents T160/463.
[48] Refer to MSM Centre clinical notes at page 15.
When faced with that evidence, Mr Ellison conceded that it was possible that something else had happened at that time. He said he had been in Melbourne and had aggravated his back. In trying to make sense of those documents, Mr Ellison said that when he returned to Bairnsdale, he saw another doctor (who was available) and then returned to see Dr Sewell for a “return to work” certificate.
Reports of other injuries sustained in 2013 and 2014
Mr Ellison acknowledged the medical certificates issued by Dr Sewell after examining him on the following dates:
(a)on 22 November 2013, indicating that he had sustained an injury on 20 November 2013;[49]
(b)on 31 March 2014, indicating that he had sustained an injury on 24 March 2014;[50]
(c)on 8 April 2014, indicating that he had sustained an injury on 31 March 2014;[51]
(d)on 28 April 2014, indicating that he had sustained an injury on 31 March 2014;[52]
(e)on 16 May 2014, indicating that he had sustained an injury on 3 March 2014;[53]
(f)on 5 January 2015, stating that he was unfit for work from 18 December 2014 to 14 January 2015 and that he had sustained an injury on 3 March 2014;[54] and
(g)on 7 September 2015, indicating that he was unfit for work from 8 September 2015 to 5 October 2015 and that he had sustained an injury on 3 March 2014. [55]
[49] Refer to T-Documents T160/463.
[50] Refer to T-Documents T160/466.
[51] Refer to T-Documents T160/467.
[52] Refer to T-Documents T160/470.
[53] Refer to T-Documents T160/472.
[54] Refer to T-Documents T160/481.
[55] Refer to T-Documents T160/482.
March 2014 plane event
In reference to the certificate referred to in paragraph [91(c)], at first Mr Ellison gave evidence that nothing had happened to him on 31 March 2014. Mr Ellison explained that he had to “pull up Dr Sewell a couple of times on dates and things” (in the certificates).
Subsequently, Mr Ellison said he recalled injuring his back on the plane (March 2014 plane event). Mr Ellison acknowledged that he had reported an incident which took place on 24 March 2014 to Customs, in a Workplace Health & Safety Incident Report Form as follows:
Caught a flight from Melbourne at 8.40am and flew to Darwin direct. Noticed my lower back getting stiff and sore half way into flight. On arrival in Darwin it was painful to sit and walk or bend over. On arrival at A.C.V, I spoken to C.O. Tony Bourke and went straight to doctor.
Mr Ellison confirmed at the hearing that it was his own handwriting on the completed incident report.[56] When asked whether this event had “taken him back to Dr Sewell in March 2014”, Mr Ellison said, “I would say so”.
[56] Refer to T-Documents T43/77.
Accordingly, Mr Ellison confirmed that he hurt his back on 24 March 2014 as referred to in the certificate set out in paragraph [91(b)].
In reference to the certificate mentioned in paragraph [91(d)] indicating that Mr Ellison had sustained an injury on 31 March 2014, Mr Ellison sought to explain this certificate as follows:
Maybe I was coming good and then had a relapse when I hurt my back at the gym. We are not talking about different injuries here, we are talking about aggravation of the same injury. Pain in the same place, same area, same types of things seemed to aggravate it. If my management techniques lapse, I suffer the consequences for it. The method of managing my pain levels doesn’t alter that much. I only attend physiotherapy, got to point where I didn’t think the physio was assisting me that much. I stopped going as waste of time and money. When it is at its worse and I have physio, I do the physio and it helps to a certain degree. But once I hit the plateau I stop going. I have been to work every day since 2009 suffering pain – just the degree of pain while I was at work. If I can put up the pain, I will go.
Mr Ellison said he could not recall a specific incident that occurred on 3 March 2014 as referred to in the certificate mentioned in paragraph [91(e)], except that it noted that he was “sitting on a plane”. Mr Ellison said he thought that this was “one and the same of the incident of lifting the bag”.
April 2014 home gym event
Although Mr Ellison said he did not recall this event, he accepted the reference in the MSM Centre clinical note dated 28 April 2014 indicating that he had an “aggravated low back doing gym work at home over the weekend” (April 2014 home gym event). Mr Ellison acknowledged that the MSM Centre clinical note dated 16 May 2014 noted that Dr Sewell intended to refer him to the MSC and that subsequently, Dr Sewell referred Mr Ellison to Dr Bates.
Decision to stop working on the boats and to pursue retraining and alternative employment
Mr Ellison confirmed that he decided in consultation with the relevant rehabilitation person to cease working on sea duties and to move into another area. He said this decision was made because of his ongoing back injury which he said “they” thought was going to get worse due to the nature of the work involving a moving platform, confined spaces and heavy lifting. He said this decision was made under the pretext that he would be protected by Comcare. He said that if he knew he was going to end up “here”; he would have persisted on the boats.
Mr Ellison told the Tribunal at the hearing that the idea to undertake the Aeroskills Aircraft Mechanic course was his idea based on him thinking he will probably have another 20 years in the workforce and having had done dynamic interesting work, he was not the type of person who “could go and do a boring office job”. Mr Ellison said he had an interest in airplanes and that “his back could tolerate it”.
Maintenance of Mr Ellison’s four-acre property
Mr Ellison confirmed that he lived on a four-acre property which he purchased in 2010 (notably after he injured his back in 2009). When asked whether anyone had helped him to maintain the property, Mr Ellison said that his wife had three horses, so most of the property was paddocks. He said he mowed the “little bit of lawn” on the property using a ride-on mower. He said he could not say whether the ride-on mower had aggravated his back injury and added that he had learnt over time, what he could and could not do. Mr Ellison said his wife worked part-time.
When asked whether Mr Ellison had considered moving to a smaller property on account of his injuries, he responded as follows:
No. I don’t need to and I am not going to have my life defined by this injury any more than it needs to be. I am not an invalid. I am very capable, but with persistent and varying degrees of back pain and that has been the case of the last ten years.
During re-examination, Mr Carey asked Mr Ellison if he considered himself to be incapacitated. Mr Ellison said he was not incapacitated, but restricted, and that the restriction was that he did not have the capacity to resume as a marine officer on the boats. Mr Ellison clarified, “as far as returning to work on the boats, yes I am incapacitated”.
Mr Ellison’s took over ownership of an established arbory business in March 2019
Mr Ellison confirmed he had not worked with Customs since May 2015. He said he had to, “go out and buy a business to keep a roof over my head”.
Mr Ellison told the Tribunal it was an arbory business (tree lopping), which he took over and commenced operating (on a full-time basis) on 4 March 2019. Mr Carey indicated to the Tribunal, on instructions, that Mr Ellison was operating as a sole trader (as an individual).
When responding to questions at the hearing, Mr Ellison confirmed that the arbory business had occupied him on a full-time basis. He said he “had one arborist and two workers (one full time and one part time)”. Mr Ellison said he did the administration, the quotes, and the “maintenance organisation”. He said that if he ended up on a job site and there was “a bit of light raking, something to be done, I will do that”.
Mr Ellison told the Tribunal that the heavy work was done by the arborist and labourers. When asked by the Tribunal whether this work aggravated his back, Mr Ellison responded:
No sometimes there can be a fair bit of driving but I do them in a three hour block and I get to walk around in between.
When asked by the Tribunal about the turnover for the arbory business, Mr Ellison answered as follows, “I don’t know. The money coming in is good, but there is a lot of money going out. I haven’t sat down and quantified it. I’ve only done one BAS statement” and subsequently he gave the following evidence:
I honestly couldn’t tell you. Only a part…look on average probably bringing in $7,000 per week and probably having $4,500 to $5,000 in expenses.
The Tribunal requested that Mr Ellison produce this Australian Taxation Office Business Activity Statement (BAS) statement to get a sense of the scale of Mr Ellison’s arbory business. He did so after the hearing had concluded.
When asked whether the duties Mr Ellison performed in carrying on this business had aggravated his back, Mr Ellison said:
No that’s alright. Only thing I find is that the quotes can be far apart, so I spend a lot of time driving. I do quotes between 3pm and 6pm. I drive there, get out of car and walk around, so it is tolerable.
Mr Ellison said if he was able to maintain it, he had a five-year plan for continuing to do this work.
When asked whether he had done any other work before acquiring the business, Mr Ellison said he had looked for work with Comcare‘s assistance. He said that when Comcare had ceased payments, he used his sick leave and long service leave (which had lasted for about a year) and when that ran out, he stumbled across the arbory business.
The BAS statement, for the period January 2019 to March 2019, produced by Mr Ellison referred to the activity statement account name as “…Activity statement – 001 – ELLISON TRAILERS & FLOATS” and notably there was no mention on the BAS statement to an arbory business. The Tribunal made an inquiry with Mr Ellison to ascertain if the correct BAS statement had been lodged with the Tribunal and to seek confirmation as to whether Mr Ellison had operated a further business selling or hiring trailers or floats at any time since 2009. This anomaly was clarified by Mr Ellison in his response to the Tribunal, via his lawyers, received on 19 February 2020 as follows:
1Yes, I had a business name registered as Ellison Trailers and Floats. In my previous employment on the Australian Customs Vessels, my roster was 3 weeks on and 3 weeks off. If I took leave it was a period of 9 weeks off work. I have held a DLI 3e Welding Certificate since 1994 and always had an interest in metal fabrication. I had the idea of building trailers in my days off as a sideline, however I only ever built and sold one trailer. My total profit for the 6 years (2010-2016) was $237.
2The revenue generated in the BAS statement provided, 4 March to 31 March is solely from the tree lopping business, ‘That Tree Feller’.
Mr Ellison confirmed that the BAS statement provided related to his arbory business. The BAS recorded total sales (item G1) of $13,239. The $13,239 in sales were generated for this business for the period 4 March 2019 to 31 March 2019.
Involvement in building a plane on Mr Ellison’s property
The Tribunal asked Mr Ellison whether he had been involved in building a plane on his property based on information that was included in the documents before the Tribunal.[57] Mr Ellison said it was a kit plane and “just a hobby”. He said he bought it when it was “half built”. He said, “all the wings and fuselage was there” and that he had “put the canopy on it, brakes on it and did the upholstery”. He said another person who had lived at his house for three weeks had built most of it. Mr Ellison said it was “only a small aeroplane” and “everything was light”. Mr Ellison said he had purchased it in 2008 and did not finish it until 2016. Mr Ellison said he would only work on the plane when he felt okay. Mr Ellison gave evidence that he had a pilots’ licence, but he had not done any flying prior to 2015.
[57] Refer clinical note of Dr Sewell dated 18 February 2016 that included a reference, “Built his own plane”.
Activities when working as a Police officer

The Tribunal asked Mr Ellison whether he had sustained any injuries during the years he worked as a police officer. Mr Ellison said he had not, so far as he could recall.
Mr Ellison gave evidence that his back condition could not have arisen from work he had done with the Police force, because he said that work was “not physically demanding at all”. Mr Ellison said there was no requirement to stay fit; he was working in a country town; and he “would drive from house to house doing reports”. He said that occasionally he would have to fight someone, but there was no heavy lifting.
Mr Ellison said that apart from isolated incidents which he said could be years apart, it was “all very easy and gentle”. When asked about those instances, Mr Ellison said there was one instance where he had lost some skin after being hit by a baton. He also said he had broken a rib when he had “a crook” in a headlock and had squeezed this person so hard; he dislocated his rib out of the cartilage. Mr Ellison said he was involved in several altercations, but they did not happen every day. He said that once he had to carry a person who was heavier than expected out of a house but suffered no injuries as a consequence.
Activities when working with Customs as a Marine Tactical Officer
By comparison, Mr Ellison said he would have to carry his 32 kg bag for Customs “down flights of steps and throw it from the wharf to the boats” and “through the hatches”. He said they would also have to carry approximately $3,000 worth of groceries on board. He said the heavy items were stored in the void at the front of the boat which was down two flights of stairs. Mr Ellison referred to the violent rocking motion of the boats, needing to board other boats and pulling heavy ropes and nets up out of water. He said it involved “the constant sitting down doing a watch for four hours” and then they would “kit up” and jump on a “6 m tender” straight out into the sea, jumping up and down over waves. Mr Ellison described it as an “unnatural and dynamic environment”.
Mr Ellison said he had difficulty transferring between decks. He said it was difficult to describe how dynamic it was when working on the sea boats. He said he could lie in his bed on the boat and would be lifted out of it, because of the motion of the boats. He said it was an “aggressive and dynamic work area”. He said it was necessary to step over a foot and a half of lower doorways to move along inside the boat. He said they would undertake drills on the boat where they would have to put an unconscious patient on a stretcher and lift them out of the engine room.
Mr Ellison said there was an expectation that he would carry the heavier load because he was “one of the bigger blokes” and had always had an interest in physical fitness. He said he found himself in situations where he would do “a lot more heavy lifting” than other people and he thought this had a profound effect on his back. Mr Ellison said that since the injury, he had learnt the positions that could cause an aggravation of the back and they included positions that he would have to do as part of his job, for example, sitting in the “helm chairs” for four hours at a time.
What was different about the 2009 Workplace Incident?
When asked what was different was about the 2009 Workplace Incident compared to the other incidents that had been mentioned at the hearing, Mr Ellison responded:
I believe that that incident was part of a bigger incident that has taken place in the preceding years from the very nature of the work I have been doing since I have joined the customs marine unit. And at the time, that was the catalyst or the straw that broke the camel’s back. It was a dynamic manoeuvre in an unnatural position. Whatever had gone wrong down there… that has taken place. But I believe there was a build up to that and it was from work, from what I do at work, from the constant sitting, the violent rocking motion.
During re-examination, Mr Ellison also said that the difference about the 2009 Workplace Incident was:
That event was the catalyst for the pain I have experienced since. Before that I didn’t have ongoing pain. Since then, varying pain right up until today.
Treatment since 2016
Mr Ellison confirmed at the hearing that since 2016 he had been managing his pain through exercise and knowledge. He said he had not had physiotherapy on his back since 2016. He said that after seeing a physiotherapist, Mr Patel, he was “allowed to have a therapy break” to allow self-management.[58] He said that since 2016, he had not required hands on care. Mr Ellison said that there had been no suggestion that he required surgery or any treatment of that kind in relation to his back and that he had not had any surgery on his back since 2016.
[58] Refer to Exhibit “R5”.
Medical opinion of Dr Carey, treating orthopaedic surgeon
Dr Carey has practised as a consultant orthopaedic spine surgeon for 36 years. Dr Carey first consulted Mr Ellison on 12 April 2011.
Dr Carey confirmed he had written a series of letters (but no medical report) in respect of Mr Ellison’s medical condition. Those letters are dated 12 April 2011, 20 July 2011, 26 August 2015,[59] 22 September 2015[60] and

30 January 2018.[61]
[59] Refer to T-Documents T68.
[60] Refer to T-Documents T70.
[61] Refer to T-Documents T147.
Dr Carey wrote to Dr Sewell on 12 April 2011 to advise as follows:[62]
[62] Refer to Exhibit “R3”.
…He disclaimed any history of spinal pain or injury until early 2003 when he awoke with back pain one morning whilst travelling around New Zealand in a Falcon car. He is a tall man and thinks that the people in the rear seat may have cramped his leg room.
He described this pain as “8.5 out of 10”, he saw a physiotherapist who gave him some McKenzie extensions and he thinks that that settled.
He had had bouts of this pain on and off since.
The next bad bout occurred in April 2009 where he was doing a “use of force course” and running around avoiding being touched.
He developed a marked aggravation of pain which again settled with time and some simple treatments.
Two months ago he was at the beach in Lorne, ran into the surf and “felt it go”, he described this particular episode of back pain as the worst ever.
He has had treatments including chiropractic (over many years), Voltaren 50mg tds, but he has had no injections and bracing and ceased his gym/strengthening program two months ago after the last episode.
Now, his principal pain is in the low back mainly to the left and down the back of the leg to the left knee. When it does go to the right it also goes into the right groin. He has never had any symptoms below the knees at all.
He tends to wake with turning over, awakes stiff and sore in the mornings, and any leaning activity is uncomfortable.
Nevertheless he battles on with helping his partner do heavier home duties.
He disclaimed any history of spinal pain or injury before 2003. He is otherwise well although had a thyroid nodule removed. He is a non-smoker. He has no red flag or cauda symptoms.
Before his last patrol period he took off – this was in February 2011. He is due to go back late April 2011.
In this report, Dr Carey concluded as follows:
I think he likely has a symptomatic degenerate disc at the base of the spine and will arrange some simple x-rays and an MR scan to further outline the pathology.
Given the natural history of this condition there will be no absolute indications for surgical interventions but as he has had it for so long and it has been so bothersome, there may be the possibility for surgical treatment.
I will let you know how we get on when the tests are to hand.
On 26 August 2015, Dr Carey also wrote to Dr Sewell to report as follows:[63]
We had a long discussion about his continuing back discomfort, and the unreliability of his back.
I would agree that it would make confined work off Darwin in patrol boats difficult or impossible for him and he would likely be unreliable in his ability to undertake all the duties associated with this anyway.
After discussion he does wish to pursue the suggested MRI given that there was some uncertainty about the pathology when he was last here over 4 years ago.
[63] Refer to Dr Carey’s letter to Dr Sewell dated 26 August 2015, lodged with the Tribunal on 9 July 2019.
Dr Carey confirmed his opinion in a further letter to Dr Sewell dated 22 September 2015, following review of the results of an MRI performed on 6 September 2015:[64]
You have copy of David’s MR report 6.9.2015. I have examined the images on disc today.
I confirm the conclusion, and also note the coincidental findings of haemangioma in the left posterior part of the L3 vertebral body extending into the pedicle.
Given that these changes are all degenerate, disc heights are satisfactory (although the discs are degenerate) and there is no neurocompression, I do not consider that there are any appropriate surgical interventions here.
Whether or not he is able to undertake his work is a different matter, and the only thing that may aid him there is a specific exercise based program. The “unreliability” of his back however may make it difficult or impossible for him to continue in this work…
[64] Refer to T-Documents T70/125.
In a letter dated 30 January 2018, Dr Carey referred to the medical views of Dr Haynes as referred to below, making it clear he did not agree with him. Dr Carey stated:[65]
There is nothing in Mr Ellison’s history or upon review of the letter of Dr Phillip Sewell 5.12.2017 to indicate that Mr Ellison has ever had anything other than a continuum of low back problems causing pain and disability since the time of his accepted injury April 2009.
If indeed there has been a continuum of pain since the accepted injury, it would surely be up to the reporting occupational physician, Dr Haynes, to determine at which time the pain and disability changed from being work related to being constitutional/degenerative.
Further, accepting the diagnosis of a “sprain” as the accepted and compensable injury has not been helpful, as of course one would expect (given its definition) that all of the symptoms associated with a sprain (of anything) would have completely resolved by 6-12 weeks.
Further, there is no such thing as “…pre-existent congenital degenerative changes…” as proposed by your IME.[66]
Lastly, pain and disability does not necessarily accord with imaging changes otherwise described as “degenerative”.
For all of these reasons, I could not possibly support the suggestion that in some way Mr Ellison’s problem has changed from being caused by the accepted injury to now being degenerative/constitutional/congenital, an opinion which, given that you initially accepted the claim, makes now no medical sense.
[65] Ibid.
[66] “IME” is a reference to Independent Medical Examiner.
Dr Carey agreed with the following propositions put to him by Mr Carey:
(a)radiological investigations may show incidentally degenerative changes on a spine without any symptoms of pain or disability;
(b)it is possible for radiological investigations to have no correlation with degree of pain and disability; and
(c)the patient history and the nature and continuum of symptoms is the most reliable clinical guide to forming views of disability and their origins.
Mr Carey put the following history to Dr Carey at the hearing:
(a)Mr Ellison had a history of some back pain in early 2003, after waking up in pain after being cramped in a car;
(b)a week prior to 22 December 2004, Mr Ellison lifted a trailer onto the ball connection of his car, following which he took some time off work, did not like to take any medication and the pain resolved;
(c)between 2004 and 2009, Mr Ellison could not recall any specific incidents except that he referred to a strain in his upper back next to the shoulder blade;
(d)Mr Ellison had experienced pain since 2009, which fluctuated since then (until the present time);
(e)in 2011, Mr Ellison went into the sea at Lorne and developed low back pain; and
(f)in 2013, Mr Ellison had increased low back pain after a fun run.
Dr Carey confirmed that this was the history upon which he based his opinion that there was “a continuum of low back pain since 2009” in Mr Ellison’s case.
During cross-examination, Dr Carey gave evidence in effect, that it was his practice to take down his consultation notes whilst talking to his patients. Dr Carey confirmed that he recorded in his note dated 12 April 2011 that Mr Ellison had “bouts on/off” since 2003.[67] He clarified that in his note dated 26 August 2015 the reference to “on/off ~ 2011” meant that the low back pain was on and off since the last time he had seen Mr Ellison, which was in 2011.
[67] Exhibit “R2”.
Referring to Dr Carey’s note dated 24 January 2018 stating “continuum since date of injury 2009 (ongoing)”, Ms Dowsett put to Dr Carey that the notion that pain had been on a continuum since 2009, was not consistent with the history he had taken from Mr Ellison which was that he had pain in 2003 that settled with some treatment and another episode in 2009 which also settled with time and treatment. Dr Carey responded:
My understanding from looking at my notes and I looked at these last night and again just now before you called is that the acute exacerbations or aggravations may have settled but there was a continuum of lower back discomfort of some type since 2009.
At the hearing, Dr Carey confirmed that he rejected the diagnosis of a “sprain” by reference to the duration of Mr Ellison’s symptoms. He said that “sprain” was used by definition to an injury that “is resolved in six to twelve weeks maximum”. He said that “something that goes on for years is not a sprain”.
Ms Dowsett asked Dr Carey if he was aware that in 2009, Mr Ellison was only incapacitated for work from 22 April 2009 to 19 July 2009, and whether his ability to go back to work in “just under three months” was consistent with him having sustained a sprain. Dr Carey confirmed that it was, “provided the symptoms completely resolved”, but that “just because he went back to work, doesn’t mean he had a pain score of zero".
At the hearing, Dr Carey agreed that the fact that Mr Ellison required no medical treatment in 2010 was consistent with the history he took that the condition had settled. He said that by “settled”, he did not mean that Mr Ellison’s pain had returned to zero.
Dr Carey agreed with a general proposition put to him at the hearing that there was no way to definitively determine when the changes seen in the 2009 radiological investigations had occurred. Dr Carey qualified this by saying that imaging changes shown on the images taken at the time of the 2009 Workplace Incident could not possibly have been caused by that incident, because “these changes of loss of signal, loss of height, degenerative changes and so on, take some years to develop, generally”.
Dr Carey agreed, “broadly speaking”, that in analysing or looking at radiological investigations, it is correct to compare “like with like” by comparing the series of plain X-rays from 2009, 2011 and 2015 (and so on, with respect to the separate series of CT and MRI scans), rather than comparing across different types of scans. Dr Carey said he used imaging as a means of confirming or elaborating upon what he had determined clinically, by taking a history from the patient and undertaking a physical examination. Dr Carey said that imaging changes of themselves, particularly those called degenerative or age-related; did not necessarily correlate with symptoms.
At the hearing, Dr Carey referred to the CT scans dated 17 June 2009 and 11 February 2011. Ms Dowsett suggested that there was no mention of any disc bulge in the 2009 CT scan report. However, upon the Tribunal reviewing the 2009 report, this suggestion does not appear to be correct. That report states, “L4/5 annular disc bulging slightly bows the anterior theca with mild central canal stenosis, sparing the exiting nerve roots”. Nevertheless, Dr Carey gave evidence that a comparison of those two reports did not suggest that something had happened to Mr Ellison’s back between the time of the 2009 and February 2011 reports. He said that two different radiologists could report results differently. Dr Carey said that all he could say from those reports was that there were “long-term degenerative changes in summary” and they were “all in essence degenerative change. It does not mean anything much”.
Dr Carey was taken to the conclusion in the further CT scan performed on 13 July 2011 as follows, “appearances have remained stable with no further progression” and asked whether this meant there was “no change between February and July 2011”. Dr Carey said the third radiologist stated that he had made a comparison with the CT scan on

17 June 2009 and he “says they are much the same”.
Dr Carey was taken to the following conclusion in the report for the MRI performed on 16 September 2015: “Modic type 1 L5/S1 endplate changes which may indicate recent injury. No disc protrusion or root compression”. Dr Carey said he had viewed the images of that MRI himself on disc and that he agreed with radiologist’s conclusion. When asked whether Modic 1 changes were suggestive of a recent injury, Dr Carey explained that Modic is the name of a radiologist and that Modic type 1 changes indicated that there was inflammation in the bone associated with injury, infection or various other things, compared to Modic type 2 or 3 changes which were “older changes”. He said that Modic 1 changes were “more of a correlation with symptoms at the time”.
Dr Carey considered that it was appropriate for Mr Ellison to have managed his own pain through exercise since May 2016. He said, “Yes, he doesn’t have any life or limb threatening condition so he can manage it whichever way he wishes. But avoiding provocative activity and general and specific exercises is a good way to manage it”.
Dr Carey confirmed that no recommendations had been made to Mr Ellison for any specific invasive or surgical treatments. He said he had commented as to management strategy in 2011. He said the last time he had seen Mr Ellison; he had not discussed any treatment with Mr Ellison because he had seen him for the purpose of providing a letter to support his case because of Dr Haynes’ report.
During re-examination, Mr Carey asked Dr Carey whether Mr Ellison’s lower back pain could fluctuate, to which he gave the following evidence:
Yes, of course. If one assumes a pathology or condition giving rise to a continuum of symptoms, the continuum may fluctuate for quite innocent reasons. Yes, it can relate to absolutely nothing at all, to be aggravated.
Dr Carey was asked whether one could have an exacerbation by everyday activities of living to which is answered, “Yes, of course”.
Medical report by Dr Daniel Bates, pain specialist – September 2014
Dr Bates provided spinal treatment to Mr Ellison (i.e. two “medial branch blocks” and subsequently, radiofrequency neurotomy).[68] Dr Bates’ “provisional diagnosis” of Mr Ellison in September 2014 was that he had “left L4 and L5/S1 facet joint arthropathy”. Dr Bates opined that Mr Ellison’s somatic back pain was “likely arising from lower lumbar facets, sacroiliac joint or disc origin” stating that this was “on a background of no significant medical history”.[69]
[68] Refer to T-Documents T58/101 and T62/106.
[69] Refer to Exhibit “R1” on page 1 of the letter.
In Dr Bates’ letter to Dr Sewell dated 1 September 2014, he states as follows:[70]
[Mr Ellison] described the onset of pain five years ago, but more recently this current pain commenced 12 months ago. It was triggered after going for a 5km run. He states that it significantly seized up afterwards. He locates this pain over his left-sided L5/S1 sacroiliac joint region and he states that this is a tennis ball in size and 90% of his pain is in this region. His pain is 9/10 once per week and 1-7/10 otherwise. It wakes him up at night, particularly when he rolls over in bed and it is increased each morning for approximately 20 minutes with decreases as he moves. He denies any mechanical and neuropathic features. He has significant exacerbations particularly with kneeling and forward flexion. He is also experiences pain with rolling over in bed, prolonged sitting and going from sitting to standing, but not with stairs. He has pain in the region of his back with crossing his legs, getting in and out of a car and putting on his socks. It is worse with standing greater than 30 minutes. He denies any pain with walking. He gets relief with standing and has no red flags. His management had included physiotherapy and traction. He has stated that he avoids any pain relief, but has previously trailed Diclofenac.
[70] Ibid.

The Tribunal finds that Mr Ellison’s impairment arising from the Underlying Degenerative Disease is at a level that allows him to engage in activities referred to in paragraph [278(b)]. However, there was no dispute among the medical experts in this application, and the Tribunal finds that Mr Ellison was no longer fit to work as a Marine Tactical Officer for Customs and he has not done since 2015.
Mr Ellison gave evidence about the general nature and conditions of his employment with Customs, both in his statement and at the hearing. Mr Ellison was not challenged about this evidence during cross-examination. Based on his unchallenged description about the activities he was required to perform as a Marine Tactical Officer as described by Mr Ellison in paragraphs [119] to [121], the Tribunal considers that his duties were extremely physically demanding while he was working with Customs between 2002 to 2009.
Dr Sewell stated in his letter to CASA dated 13 November 2017 that Mr Ellison had suffered from lower back pain for at least 10 years as a result of his work as a Customs Officer, “stooping, bending and lifting on various patrol boats in Northern Australia” – see paragraph [153]. The Tribunal accepts this evidence.
Further, Dr Sewell opined in his letter dated 5 December 2017 that had Mr Ellison not been employed for seven years in a role “which involved sitting on a moving boat seat, bouncing up and down in waves for up to 8-12 hours per day, lifting heavy objects in confined spaces, moving up and down confined ladders and boarding moving vessels, crawling through fishing boats and lifting heavy objects off fishing boats and other boats that were intercepted in the course of his work”, that “he would not have developed this degenerative disease in his spine that he has done” – see paragraph [161] of these Reasons for Decision. The Tribunal also accepts this evidence.
Later in the same letter, Dr Sewell opined that the 2009 Workplace Incident had also contributed to Mr Ellison’s injury. However, Dr Sewell did not explain why, nor did he make any mention of the other events before and after 2009 which had caused an increase in the pain in Mr Ellison’s lower back. Dr Sewell did not explain why those other events had not been considered as a potential contributing factor to Mr Ellison’s injury. The Tribunal considers that many of Mr Carey’s contentions relied upon the Tribunal ignoring the specific significant episodes that took place in 2003 and 2004 which included an absence from work following the 2004 trailer lifting event. The Tribunal considers that given the clinical notes of Dr Carey, when he examined Mr Ellison on 12 April 2011 in an unguarded setting, the episodes in 2003 were recorded in a way that reflected, the Tribunal’s satisfaction, that they were significant.
Mr Carey invited the Tribunal to find that Mr Ellison had sustained an injury as a result of the 2009 Workplace Incident even though it had taken place in the setting of an underlying but asymptomatic disease – see paragraph [217]. However, the Tribunal is not satisfied that Mr Ellison’s Underlying Degenerative Disease was asymptomatic before 2009. Instead, the Tribunal finds that the Underlying Degenerative Disease was symptomatic with Mr Ellison experiencing intermittent symptoms before 2009, including the three specific episodes of back pain between 2003 and 2004, one of which led to a short period of incapacity for work.
The Tribunal accepts that the 2009 Workplace Incident contributed to, to a significant degree, Mr Ellison’s Compensable Injury but the effects of this injury had ceased to exist as from at least 11 January 2018 to the present time and at the present time. The Tribunal considers that Mr Ellison continued to suffer from the effects of his Underlying Degenerative Disease as at 11 January 2018 to the present time and at the present time. As mentioned above, the Tribunal makes a non-binding observation that it considers that the Underlying Degenerative Disease was contributed to, to a significant degree, by the general nature and conditions of his employment with Customs over the period 2002 to 2009.
The Tribunal’s findings and non-binding observation made in the previous paragraph are further supported by Dr Haynes’ opinion arising from his examination of Mr Ellison in October 2017, that his symptoms were related to the degenerative changes in his lower lumbar region (see paragraph [34] and [157]). Surprisingly, Dr Haynes concluded that those degenerative changes were not related to Mr Ellison’s employment merely by (or as an automatic conclusion arising from) the fact that those changes were degenerative. The Tribunal does not accept this latter aspect of Dr Haynes’ evidence because the rationale for his medical opinion is flawed. The Tribunal considers that it is illogical to suggest that degenerative changes may not potentially arise from significant additional stresses and strains placed on a person’s spine as a consequence of extremely physically demanding work activity undertaken over 22-day blocks of time on a repetitive and full-time basis over a period of seven years. Logically, this may be a potential cause of a degenerative injury, just as the ageing process may be a possible cause for such an injury. The Tribunal notes that Mr Ellison, being 50 years of age, is not an elderly man. In the present application, the stress and strain of Mr Ellison’s work activities with Customs over the years may provide a sound explanation as to why certain parts of his spine have started to degenerate. In this regard, the Tribunal prefers the evidence given by Dr Sewell expressing his opinion that the nature and conditions of Mr Ellison’s employment was a contributing factor and had contributed to, to a significant degree, the degeneration of his spine and also Mr Ellison’s own evidence that he considered that this had caused the deterioration of his lower back.
There was no medical evidence to suggest that the specific events in 2003 and 2004 referred to in paragraphs [47] to [54], either separately or in combination, were a possible cause of or catalyst for the development of Mr Ellison’s Underlying Degenerative Disease.
Mr Carey contended that Mr Ellison had suffered an “injury (other than a disease)” from the 2009 Workplace Incident “in the medium of a disease”. The Tribunal has considered the observations of Justice Gageler in May (footnotes omitted, and emphasis added):
77. Every ailment or worsening of an ailment can at some level be described as an alternation from the functioning of a healthy mind or body. Indeed every manifestation of an ailment or of the worsening of an ailment might potentially be so described. Not every ailment or worsening of an ailment can be described as an injury in the ordinary sense. At least in the case of a physical injury, to suffer an injury is more than just to experience the onset of dysfunction.
78.The understanding of an injury as a definite or distinct physiological change or disturbance was first expounded in cases in which catastrophic consequences of pre-existing medical conditions came to be recognised as constituting injuries. The exposition has remained particularly useful in cases within that category. The analysis undertaken in those cases has always looked beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alternations; destruction of tissue, collapse of vertebrae, rupture of blood vessels, occlusion of an artery, development of a lesion. The point of explaining an injury in terms of a definite or distinct physiological change or disturbance has been to highlight the necessity for such an analysis to be undertaken.
79.The need to identify some underlying physiological occurrence to justify the finding of a physical injury is perhaps best illustrated by the reasoning of the majority in Zickar v MGH Plastic Industries Pty Ltd, which concerned a worker who collapsed at work after the rupture of a congenital cerebral aneurism. Having said that: “[i]f there was no rupture there would be no event answering the description of personal injury”, Toohey, McHugh and Gummow JJ added “[b]ut there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury”. Together with Kirby J, their Honours concluded that the rupture itself was properly characterised as an injury in the normal sense.
80.The Full Court was right to point out in the decision under appeal that the Act and the case law do not “preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion” and to observe that “[w]hether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case”. But the Full Court was wrong, in my opinion, to infer that the Tribunal proceeded on a different basis.
81. The Tribunal demonstrated that it understood the ultimate question which it needed to answer to determine Mr May’s claim when it stated its conclusion in terms that it was “not satisfied on the balance of probabilities that Mr May suffered a physical injury – an injury simpliciter – amounting to a sudden or identifiable physiological change in the normal functioning of the body or its organs”.
While it is true there was a sudden onset or experience of increased symptomatology after the 2009 Workplace Incident, in the form of pain in Mr Ellison’s lower back, the Tribunal is satisfied on the balance of probability that those symptoms were a reoccurrence of symptoms he had experienced intermittently and including on at least three specific occasions previously in 2003 and 2004. At least with respect to the period after 2009, during which a number of similar episodes to his lower back occurred, Mr Ellison identified himself at the hearing as follows – see paragraph [96]:
We are not talking about different injuries here, we are talking about aggravation of the same injury. Pain in the same place, same area, same types of things seemed to aggravate it.
The Tribunal also considers the same applies with respect to the earlier injuries that Mr Ellison conceded at the hearing that had taken place in 2003 and 2004, in that they were all aggravations of the same injury. Accordingly, the Tribunal is not satisfied on the balance of probabilities that Mr Ellison suffered a physical injury, i.e. injury simpliciter, from the 2009 Workplace Incident, amounting to a sudden or identifiable physiological change in the normal functioning of the body or its organs based on the medical opinions and radiological findings before the Tribunal.
Mr Hancock provided advice to Comcare in 14 March 2010, that the injuries as described in the June 2009 CT scan “can and do cause recurrences of pain and do required treatment from time to time”. The Tribunal accepts Ms Dowsett’s contention that Mr Hancock was not referring to the injury that arose in 2009 when he made that comment. The Tribunal finds that given that it followed on from the findings of the June 2009 CT scan indicating degenerative changes, the Tribunal considers that Mr Hancock was referring to Mr Ellison’s Underlying Degenerative Disease.
In conclusion, the Tribunal is satisfied that Mr Ellison’s Underlying Degenerative Disease was contributed to, to a significant degree, by the nature and conditions of his employment with Customs over the period 2002 to 2009 and that he suffered specific aggravations at different times between 2003 and 2014 to his back, one of which was the Compensable Injury. However, and importantly the purpose of deciding the present application, the effects of the Compensable Injury had ceased to exist as from at least 11 January 2018 to the present time and at the present time.
The Tribunal was invited by Ms Dowsett to make findings as to whether there were any “new” injuries sustained after the 2009 Workplace Incident which superseded or wholly displaced the effects of the injury arising from the 2009 Workplace Incident. However, it is not necessary to address this contention because the Tribunal has found that the effects of the Compensable Injury have not continued to exist as from 11 January 2018 to the present time and at the present time. For this reason, it was unnecessary to address in detail Mr Carey’s contentions in reply in relation to this issue.
“Injury” sustained for which claim has not yet been made
At the commencement of the hearing, the Tribunal raised with Mr Carey whether there was a difficulty arising from Mr Ellison having made his claim on the basis that it arose from the 2009 Workplace Incident, in circumstances where some of the medical evidence pointed to the likely impact of the physically demanding nature and conditions of his duties on the patrol boats over the seven years of his employment with Customs. Mr Carey acknowledged the decision of Szabo v Comcare [2012] FCAFC 129 (Szabo), but did not seem to acknowledge that there was an issue arising in the way Mr Ellison had made his claim in the present application. Instead, Mr Carey suggested that the authorities had established that there was “no such thing as a nature and conditions claim” and that the decision-maker had to turn their minds to the elements of any injury, and that Comcare had found liability on that basis.
As referred to in paragraph [239] and [240] above, Ms Dowsett disagreed with Mr Carey. She invited the Tribunal to focus on 21 April 2009, because she said, “that is, the injury in respect of which notice was given and compensation claimed”.
As set out above, the Tribunal considers that Mr Ellison was suffering from the effects of an “injury” as defined by the Act which was in existence as from 11 January 2018, but it was not the Compensable Injury the subject of Mr Ellison’s claim. Instead, it was an injury that arose due to the general nature and conditions of his employment.
There is authority for the proposition that the Tribunal may reformulate the terms of a claim for workers’ compensation, consistent with the evidence before it, notwithstanding the characterisation of the claim made by an earlier decision maker – see Abrahams v Comcare (2006) 93 ALD 147. Justice Jagot, sitting as a presidential member of the Tribunal in Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136, held that “the Tribunal must assess for itself the true scope of the claim and is empowered to conduct its review on that basis”.
However, the Tribunal notes the conclusion of Justice Flick in Comcare v Muir (2016) 150 ALD 321, at [35] (emphasis added):
Although limited flexibility is conferred upon the Tribunal to reformulate a claim, and whatever may be the outer limits of the power to do so, a claim confined to an injury suffered in October 2013 cannot be transformed into a claim for an injury suffered in 2010-2012. Unlike the claim resolved by Katzmann J in Kennedy where there had been a general description of the injury suffered and no specification of the date of injury, the facts in the present case stand in contrast. On the facts of the present case there was repeated reference to the injury the subject of the claim being that suffered in October 2013. It is not capable, with respect, of a conclusion that the claim was for an injury suffered at an earlier, unspecified point in time.
The Tribunal notes that in Szabo, the Full Federal Court held that Mr Szabo’s claim did not extend beyond a claim for a specific injury occurring on a specific date to a claim in respect of some injury or disease, arising from the nature and conditions of his employment. Emmett and Greenwood JJ also observed as follows:[126]
That is not to say that it would not now be open to him to make a claim. However, until such a claim is made, and has been determined by Comcare, there can be no decision that could be the subject of review by the Tribunal. There was no error on the part of the Tribunal.
[126] Refer to [42].
The Tribunal considers that it is bound to adopt the same approach in the present case and consistent with that approach, the Tribunal finds that Mr Ellison’s claim did not extend beyond a claim for the specific injury suffered as a result of the 2009 Workplace Incident being the Compensable Injury, to a claim in respect of the some other injury or disease (and as the Tribunal has found, specifically, the Underlying Degenerative Disease) arising from the nature and conditions of his employment with Customs.
Mr Ellison is at liberty to consider making such a claim for compensation under the Act in respect of the Underlying Degenerative Disease arising from the general nature and conditions of his employment at Customs. If such a claim is made, it will proceed through usual claims processes as set out under the Act.
CONCLUSION
In summary, the Tribunal has found that before the 2009 Workplace Incident, Mr Ellison suffered from a symptomatic Underlying Degenerative Disease being, “degenerative spondylosis, disc degeneration and canal stenosis at the L4/L5 and L5/S1 vertebra and facet joints”. As a result of the 2009 Workplace Incident, Mr Ellison suffered an aggravation of the Underlying Degenerative Disease, being the Compensable Injury. However, the Tribunal is persuaded that as from 11 January 2018 to the present time and at the present time, the effects of the Compensable Injury has ceased to exist.
By way of observation, the Tribunal considers that as from 11 January 2018 to the present time and at the present time, Mr Ellison has continued to suffer from the effects of his Underlying Degenerative Disease. Given the general nature and conditions of Mr Ellison’s employment with Customs from 2002 to 2009, the Tribunal considers that this employment contributed to, to a significant degree, the development of his Underlying Degenerative Disease.
Accordingly, while the Tribunal is persuaded that the “gateway” entitling circumstance of Mr Ellison having an “injury” as defined by the Act, did, in fact, exist from
11 January 2018 to the present time and at the present time, this injury was not the subject of any claim (as yet) that Mr Ellison has made under s 54 of the Act, for which Comcare has accepted liability under s 14. Mr Ellison is at liberty to make such claim should he wish to do so subject to the requirements and procedures under the Act.
On the basis of the conclusion in paragraph [305], there is no need to address whether the other entitling circumstances under ss 16 and 19 of the Act as referred to in paragraph [7(c)] in respect of the Compensable Injury, existed as from 11 January 2018 to the present time and at the present time, or to address the contentions of the parties in relation to those matters.
Accordingly, the Tribunal affirms the Decision under Review.

I certify that the preceding three hundred and seven (307) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

.....................[sgd]..........................................
Associate
Dated: 2 April 2020

Date of hearing:
11 and 12 July 2019

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Mark Carey

Slater & Gordon Lawyers

Counsel for the Respondent: Ms Cathy Dowsett

Solicitors for the Respondent: Moray & Agnew Lawyers

Date of hearing:	11 and 12 July 2019
Counsel for the Applicant: Solicitors for the Applicant:	Mr Mark Carey Slater & Gordon Lawyers
Counsel for the Respondent:	Ms Cathy Dowsett
Solicitors for the Respondent:	Moray & Agnew Lawyers