Faulks and BIS Industries Limited (Compensation)

Faulks and BIS Industries Limited (Compensation) [2020] AATA 2951 (14 August 2020)
Division:GENERAL DIVISION
File Number(s):2017/4493, 2017/6915, 2019/6495
Re:John Faulks
APPLICANT

BIS Industries LimitedAnd
RESPONDENT

DECISION
Tribunal:Presiding Senior Member D O'Donovan,
Member Dr P Wilkins

Date:14 August 2020
Place:Canberra

The decision the subject of proceeding 2019/6495 is set aside and the Tribunal, in substitution, decides that, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), the respondent is liable to pay compensation, in accordance with the SRC Act, in relation to the injury to the applicant’s lumbar spine at the L5/S1 level which is secondary to the accepted L4/L5 injury.
The decision the subject of proceeding 2017/4493 is set aside and the Tribunal, in substitution, decides that the respondent is liable to pay compensation for the “right L5-S1 microdiscectomy surgery” pursuant to section 16 of the SRC Act and to reimburse the applicant for attendances with Dr Jerry Day on 10 November 2016 and 31 May 2017, parking fees for 31 May 2017 and travel on 31 May 2017 and 15 June 2017.
The decision the subject of proceeding 2017/6915 is set aside and the Tribunal, in substitution, decides that the respondent is liable to pay compensation under section 16 of the SRC Act for the medical account provided by Dr Jamie McCarney for anaesthesia services provided during the right L5/S1 microdiscectomy surgery on 18 July 2017.

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Presiding Senior Member D O'Donovan
Catchwords
WORKERS COMPENSATION –accepted injury to L4/5 in 2011 – ceased work – deterioration at L5/S1 requiring surgery – whether surgery is medical treatment obtained in relation to accepted injury – was L5/S1 condition a disease significantly contributed to by the applicant’s employment – significance of altered gait as a consequence of L4/L5 injury -– section 14 liability for injury or disease at L5/S1 level – decisions under review set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 20, 24, 27
Cases
Abrahams v Comcare [2006] FCA 1829
Comcare Australia v Lees (1997) 151 ALR 647
EMI (Aust) Ltd v Bes [1970] 2 NSWR 238
Telstra v Hannaford (2006) 151 FCR 253
Secondary Materials
AMA Guides to the Evaluation of Disease and Injury Causation, Melhorn et al (2nd Edition), American Medical Association (2014)
REASONS FOR DECISION
Presiding Senior Member D O'Donovan,
Member Dr P Wilkins
14 August 2020
INTRODUCTION

The applicant undertook heavy work for the respondent (and its previous corporate incarnations) for more than 15 years. Back problems, which the respondent accepts are compensable, developed in 2009, re-occurred in 2011 and eventually resulted in the applicant’s employment with the respondent ceasing in 2014. The 2011 problems, which resulted in the applicant ceasing to be employed, were focused on the left side of the applicant’s spine at the L4/L5 level. After the applicant ceased employment, further back problems developed resulting in the need for surgery on the right side at the L5/S1 level. The applicant seeks compensation in relation to that surgery either on the basis that the treatment he received was in relation to his accepted L4/L5 injury or because he has a separate L5/S1 injury which satisfies the requirements for the payment of compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
For the reasons which follow, the Tribunal is satisfied that the applicant has a compensable injury at the L5/S1 level on the right side.
THE REVIEWABLE DECISIONS
The Tribunal has before it three applications for review.
The first (2017/4493) seeks review of a reviewable decision made on 28 July 2017 which rejected a claim for compensation under section 16 of the SRC Act for microdiscectomy surgery performed on the right side of the applicant’s spine at the L5/S1 level on 10 November 2016. As noted above, that decision was made in the context of the applicant having an accepted 2011 injury at the L4/L5 level on the left side of his spine.
The second (2017/6915) seeks review of a reviewable decision made on 14 November 2017 rejecting a claim for compensation pursuant to section 16 of the SRC Act in relation to the costs of the anaesthetist who assisted in the microdiscectomy surgery.
The third (2019/6495) seeks review of a reviewable decision made on 4 October 2019 rejecting liability under section 14 of the SRC Act to pay compensation in relation to a condition secondary to the accepted L4/L5 injury being an injury to L5/S1 sustained in 2017. In practical terms the challenge to each of the reviewable decisions is an attempt to identify a pathway to the payment of compensation in relation to the surgery performed on 10 November 2016.
FACTS
Our findings of fact are set out below. Where the findings are controversial, we have referenced the evidence on which they are based.
The applicant has a long history of performing heavy manual tasks. In about 1995, the applicant started work with ‘Mquip,’ a forklift company, as a refueller. At some point he was subcontracted by Mquip to BIS Industries Limited (BIS) (at the time known as Brambles) and in 2004 he became a full-time employee of BIS.[1] BIS became a licensee under the SRC Act on 1 October 2008.
[1] At the time it was still known as Brambles.
When he worked for BIS, the applicant was responsible for refuelling vehicles which ran on liquid fuel and swapping over gas cylinders which powered forklifts. His work involved driving a truck, pulling fuel pump hoses, and carrying and manoeuvring heavy cylinders. Between 2004 and approximately 2008, the applicant’s work included manually lifting up, from the top of a flatbed truck, the large and heavy gas cylinders used to fuel forklifts. The applicant’s estimates of the weight of these cylinders when full was somewhere between 25kg and 45kg. The applicant was lifting cylinders more than 5 times a day and perhaps as much as 12 times per day. Precision on these matters is impossible given the passage of time, but we are satisfied that for a period of about 4 years when the applicant was employed by BIS, he was responsible for lifting and manoeuvring cylinders of at least 25kg more than 5 times a day, 6 days a week. Most of this work was undertaken prior to BIS becoming a licensee under the scheme in October 2008.
Around 2009 modifications were made to the truck the applicant drove so that he was no longer required to lift the cylinders off the truck. A hoist was installed to facilitate the lifting and a cage was built which prevented the removal of the cylinders without using the hoist.
The applicant gave evidence that these changes were made after he was injured for the first time. We are satisfied he genuinely believed this to be true. However, the Tribunal received a Task Analysis Report dated 23 December 2009 which indicates that the change occurred somewhat earlier, and we prefer that evidence to the recollection of the applicant.[2]
[2] ST105, folio 28. (refers to the use of a hoist in the applicant’s pre-injury duties)
As part of his work, the applicant drove to a number of different sites. At the Port Kembla Steelworks he was required to drive over many speed bumps.
In May 2009 the applicant suffered his first back injury. He has given a few accounts of what occurred which in broad detail are consistent.[3] The 2009 issues did not develop out of any specific traumatic incident but started to develop out of a pinching in his back and this came on while he was working. He put it down to getting in and out of a truck frequently.
[3] See Exhibit A6 (while climbing in and out of truck); T19, folio 64; T64, folio 189; ST104, folio 22 (delivering gas bottles).
The back pain was accompanied by left leg pain.
A CT scan and an MRI scan were taken. The correct interpretation of those scans was disputed between the doctors called by the respondent and the applicant. For present purposes it is sufficient to indicate that changes were noted at the L3/4 level, L4/5 level and L5/S1 level.[4] Nerve root impingement at the L3/4 level was regarded as the most significant problem but problems were already emerging at other levels.
[4] T7, folio 45; T8, folio 46.
The applicant ceased heavy work. The pain was treated conservatively. He was given two CT guided epidural injections at the L4/L5 level which relieved his pain and, following a period of leave, he resumed his previous duties.
On or about 17 August 2011 a second incident occurred. The applicant was performing his normal duties and felt the onset of pain in his back. It progressively worsened over the next few days until he was no longer able to work. The applicant also suffered pain in his left leg.
He was referred for further scans. Scans revealed that the disc protrusion at L3/4 and L4/5, which had been identified in the June 2009 study, had increased in size with acute nerve root compression noted at L4/L5.[5]
[5] T12, folio 51.
Dr Jerry Day, the applicant’s treating neurosurgeon, performed a left micro-discectomy at L4/L5 in September 2011.
Initially the results from the surgery seemed promising. However, a report dated 10 September 2012[6] indicates that, when the applicant returned to Dr Day for follow-up, he had developed a chronic left sided foot drop as a result of nerve root damage.
[6] Exhibit TA, at 34.
As a result of the foot drop, the applicant ended up with a significantly altered gait which required an orthotic to correct.[7] Although the respondent’s doctors expressed some scepticism about the extent to which the footdrop altered the applicant’s gait,[8] the Tribunal is satisfied, based on its assessment of the applicant as truthful, that the reporting of his gait, and the gait he showed to those doctors, accurately demonstrated the impact on his gait arising from the 2011 injury.
[7] Exhibit TA, at 34; Exhibit A1, at [66] – [80]; Exhibit A2, at 3.
[8] ST193, at 8; ST188, at 6.
The applicant never returned to the heavy work he was undertaking previously. He initially undertook sedentary work for BIS, but in 2014 his employment was terminated. He has undertaken some retraining as a security guard and work trials including at Bunnings, but he has not been in the workforce since 2014.
The respondent accepted liability in relation to the applicant’s second injury on the basis that the applicant suffered an injury arising out of or in the course of his employment - namely an L4/5 disc protrusion on 17 August 2011.[9] The medical report which supported that decision noted there was degenerative disc disease at L3/4 and L4/5 but considered that the cause of the applicant’s symptoms was a disc protrusion which was not an aggravation of the underlying disease but a separate injury.[10] This is significant for consideration of the applicant’s present claim. The respondent’s acceptance of liability was not based on the proposition that the nature and conditions of the applicant’s employment significantly contributed to degenerative disc disease at multiple levels of the applicant’s spine, but on the basis that the rupture of a specific disc at a specific level in the course of employment caused the condition. A finding of liability on such a narrow basis meant that it was far from inevitable that problems which emerged later, at different levels and after the applicant had ceased work, would be compensable.
[9] T21, folio 70.
[10] T19, folio 66.
This close focus on how the applicant’s work affected his disc at L4/L5 was also present when the applicant’s claim for compensation in relation to permanent impairment was considered. There was a difference between the basis on which liability to pay a lump sum was found and the basis on which the original claim had been accepted. Employment contribution to a significant degree[11] was found on the basis that work aggravated the diseased disc at L4/L5 rather than that a frank injury arose out of the applicant’s employment. There was however no suggestion that the nature and conditions of the applicant’s employment had set in train a degenerative process which would continue post-employment. Associate Professor McGill, who examined the applicant on behalf of the respondent at that time, and on whose report the decision maker relied, concluded:
Despite the absence of any specific event at work, I think the physical nature of his work duties including moving in and out of his truck frequently during the day (noting that when doing so he was moving a severely obese frame), probably did make a significant contribution to the disc protrusion that resulted in the L5 radiculopathy.[12]
[11] Instead of that an injury arose out of or in the course of employment as was the earlier finding.
[12] T64, folio 194.
It is clear that there is no acceptance by the respondent of responsibility for the degenerative disc disease which is apparent at other levels. Liability was accepted only in relation to the L4/L5 disc protrusion.
Since ceasing work, the applicant remains incapacitated as a result of his accepted injury.
In 2016 the applicant began to experience worsening back pain and right leg symptoms. In 2017 he consulted Dr Day again. MRI scans indicated that there was now a right sided disc bulge at the L5/S1 level which was impinging on the nerve root. Dr Day recommended that the applicant undergo surgery. He also prepared a request for the respondent to pay for the surgery on the basis that the new problem was related to the 2011 injury by reason of the applicant’s altered gait causing problems at the L5/S1 level.
On 31 May 2017, Dr Day reported in relation to the applicant:[13]
He has had to overload his right side consistently since sustaining his left L4-5 disc herniation resulting in nerve root damage and chronic weakness with foot drop on the left. He definitely has a direct association with this new herniation with the original injury, because the original injury caused the weakness that has mandated he overuse his right side and has chronically altered his gait. Now his right leg is failing and he is becoming less functional.
[13] T88, folio 246.
The respondent declined to pay for the surgery, but on 18 July 2017, the applicant proceeded with it anyway as a result of the pain becoming debilitating.
When Dr Day operated, he noted that the nerve impingement was coming from two sources: thickening of the edge of the right L5/S1 joint and bulging of the disc.[14] Dr Day decompressed the nerve root which provided the applicant with relief from the symptoms he had been experiencing.
[14] Transcript, at 161.
The respondent refused to pay for the surgery (and separately for the anaesthetist who assisted) on the basis that the surgery was not related to the accepted claim. The applicant sought review of those decisions which were affirmed. Two applications were made to the Administrative Appeals Tribunal (the Tribunal) to review those decisions. Subsequently, a further claim was lodged with the respondent in relation to an injury at L5/S1 on the basis that it was related to the injury at L4/L5. That claim was also rejected both initially and on review. That reviewable decision is also the subject of review by the Tribunal.
RELEVANT LEGISLATION
For the purposes of this decision the following provisions are relevant:
14 Compensation for injuries
(1)Subject to this Part, Comcare[15] is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
[15] Sections 108 and 108A of the SRC Act allow for licensees to be authorised to accept liability and pay compensation under the Act.
16 Compensation in respect of medical expenses etc.
(2)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.
In order to make out his claims the applicant must establish that his condition satisfies the statutory definition of an injury. The relevant statutory provisions are as follows:
5A Definition of injury
(1) In this Act:
injury means:
(a)       a disease suffered by an employee; or
(b)       an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)       an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
…
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(3)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(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.
This subsection does not limit the matters that may be taken into account.
(4)In this Act:
significant degree means a degree that is substantially more than material.
4 Interpretation
(5)For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a)compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b)it was reasonable for the employee to have obtained that medical treatment in the circumstances.
HOW THE APPLICANT PUTS HIS CASE
The applicant advances three separate bases on which the Tribunal could find the respondent liable to pay for the surgery undertaken by Dr Day on 18 July 2017.[16]
[16] Noting that one of them involves this Tribunal determining initial liability under section 14 and then a subsequent claim under section 16 being made in respect of the relevant expenses.
First, on the basis that the surgery was obtained in relation to the accepted injury. It is submitted by the applicant that the ‘in relation to’ test is satisfied because the purpose of the surgery was, as attested to by Dr Day, ‘to get [the applicant’s] gait back to his previous baseline so he could walk around without falling over’.[17] This evidence from Dr Day, the applicant submitted, meant there was ‘a direct correlation with the accepted and not disputed left leg radiculopathy and instability’[18] and the surgery undertaken.
[17] Transcript, at 160.
[18] Transcript, at 198.
Second, on the basis that the Tribunal should be satisfied that the accepted 2009 and 2011 injuries include, amongst other things, an injury to the applicant’s L5/S1 disc and facet joint. If disc disease at that level is treated as part of the accepted claim, then the cost of surgery is payable under the original claim. We note that in order to accept this submission it is necessary to characterise the applicant’s accepted claim as lumbar disc disease at multiple levels significantly contributed to by his employment, rather than as discrete injuries or disease aggravations manifesting as ruptured discs and thickening of the vertebrae at the L4/L5.
Third, on the basis that in addition to the 2009 and 2011 injuries, the applicant sustained an injury (appropriately described as a disease/ailment or aggravation of such) in relation to which the medical treatment was obtained, namely, an aggravation/acceleration of the applicant’s lumbar (L3/4, L4/5 and L5/S1 disc and facet joint) degeneration which was significantly contributed to:
(a)by the nature and conditions of his employment with the respondent from 2 October 2008 (when the respondent became a licensee) to 22 August 2011 (date of incident report[19]) and thereafter contributed to by the applicant’s limp/altered gait; or
(b)by the applicant’s limp/altered gait (which is a direct and acknowledged effect of the 2009 and 2011 injuries) from August 2011 to the date of the surgery on 18 July 2017.
[19] ST107, folio 47.
RESPONDENT’S SUBMISSIONS AND KEY ISSUES IN THE CASE

The starting point for the respondent’s submission is that when it joined the SRC Act scheme as a licensee, the applicant in all likelihood already had multilevel lumbar disc disease. The significance of this is that, regardless of whether the applicant’s condition was the product of the nature and conditions of his employment or whether it was entirely constitutional in nature or significantly contributed to by both, the condition of the spine was already set by that date. In those circumstances, there is no basis on which liability can be sheeted home to BIS as licensee.
Against this background, the respondent contends that none of the paths to compensation put forward by the applicant yield the result that the surgery is compensable. In particular:
(a)The applicant must establish his injury arose out of his employment between 1 October 2008 to 15 May 2014, however during this period he only undertook the duties of refueller for 6 months or so in 2011 and not thereafter.
(b)The evidence is against the theory that damage at a higher disc level creates a risk of contralateral damage at the level below.
(c)The applicant’s evidence on how he was undertaking refuelling duties should not be accepted in light of the other evidence.
(d)The research provided by Associate Professor McGill does not support the proposition that refuelling duties would be causative of the right side L5/S1 disc herniation.
(e)There is little evidence to support the proposition that the L3/L4 disc protrusion identified in 2009 could have played any part in relation to the surgery required at the L5/S1 level on the right in 2017.
(f)The antalgic gait could not have caused an injury or aggravated a pre-existing injury at the L5/S1 level that was related to the applicant undertaking his refueller duties. Associate Professor McGill pointed out in his report of 16 December 2019 that it would be necessary for the limp to be severe and prolonged, meaning present for years, for it to have a significant impact on the initiation or aggravation of arthritis of the spine.
(g)Dr Khurana and Associate Professor McGill establish that the cause of the L5/S1 disc protrusion can be attributed to progressive, non-work related degenerative changes attributed to a natural predisposition and obesity.
(h)The problems at the L5/S1 level were not significantly contributed to by the applicant’s employment because:
(i)Dr Khurana and Associate Professor McGill’s evidence should be accepted;
(ii)the applicant only undertook refuelling duties for 6 months while the respondent was a licensee;
(iii)the applicant has not worked since 2014;
(iv)the L5/S1 condition was not part of the accepted condition;
(v)Mr Sergides’ opinion should not be accepted because he amended his opinion in his oral evidence; and
(vi)Dr Bentivoglio’s opinion should not be accepted because he could not credibly apportion the contribution between work and obesity, and it is clear he relies on a 20-year work history which is not the correct period of assessment.
Most but not all of these propositions can be accepted. Dealing with each in turn the Tribunal finds as follows:
(a)Contrary to what is submitted by the respondent, it may not be the case that the applicant must establish his injury arose out of or was significantly contributed to by his employment between 1 October 2008 to 15 May 2014. The relevant period of inquiry might be extended in two ways. First, as we discuss further below, it is not obvious that a licensee is only liable for periods when it is a licensee as opposed to an employer. If this is correct, the relevant period of employment is longer than the respondent would suggest. Further, because the 2011 injury and associated surgery caused the applicant’s footdrop, any consequential damage to the spine arising from that injury arose out of the applicant’s employment even if that damage did not occur until after the applicant ceased employment.
(b)The evidence is against the theory that damage at a higher disc level creates a risk of contralateral damage at the level below. Associate Professor McGill’s critique of the literature relied on is accepted.[20]
[20] ST217, folio 619.
(c)As noted above, we prefer the documentary evidence setting out when the applicant’s system of work was altered, but we accept that, for a significant period when the applicant was employed up until 2009, the applicant did do heavy work.
(d)We accept that the research cited by Associate Professor McGill does not support the proposition that refuelling duties would cause disc herniation at L5/S1 level.
(e)We accept that there is little evidence to support the proposition that the L3/L4 disc protrusion identified in 2009 could have played a direct role in relation to the surgery required at the L5/S1 level on the right in 2017.
(f)We do not accept the proposition that the antalgic gait could not have caused an injury or aggravated a pre-existing injury at the L5/S1 level. We note, as accepted by Associate Professor McGill in his report of 16 December 2019, that there is material which supports the conclusion that a severe and prolonged limp, might have a significant impact on the initiation or aggravation of arthritis of the spine. For reasons explained below we do not discount this material in the same way that Associate Professor McGill does.
(g)We accept Dr Khurana and Associate Professor McGill’s evidence to the extent that they recognise the contribution that progressive, non-work related degenerative changes attributed to a natural predisposition and (possibly) obesity can have.[21] However, accepting that there are significant non-work related factors in play does not rule out significant contribution to the aggravation of the applicant’s underlying degenerative disc disease by his antalgic gait.
(h)We do accept that there is a relationship between the applicant’s injury in 2011 and the changes at the L5/S1 level which required surgery in 2017. The applicant’s altered gait following surgery in 2011 provides the necessary causal link. Consequently:
(i)Dr Khurana’s evidence does not address this issue and sheds no light upon it. Associate Professor McGill casts doubt on the material which supports this view but for reasons explained below we do not accept that view;
(ii)the respondent’s submission that the applicant only undertook refuelling duties for 6 months while the respondent was a licensee is not relevant because we are satisfied that it is the applicant’s altered gait which is aggravating his underlying degenerative disc disease;
(iii)the respondent’s submission that the applicant has not worked since 2014 is again not relevant as the altered gait is the relevant factor in aggravating the applicant’s condition;
(iv)the L5/S1 condition was not part of the accepted condition, however the applicant is still liable for it either on the basis that the altered gait which emerged as a consequence of the 2011 injury has aggravated the underlying disc disease at the L5/S1 level or alternatively the altered gait and the consequential aggravation of the underlying disc disease is the result of treatment of the 2011 injury. On balance we prefer the first analytical approach;
(v)the fact that Mr Sergides amended his opinion in his oral evidence is of significance and would, absent other factors, persuade the Tribunal that his views should not be accepted. However, given the convergence of the views of Dr Day and Mr Sergides, and the publicly available material on the impact of altered gait, we are satisfied that his evidence is relevant and useful; and
(vi)for the reasons stated below, we accept that Dr Bentivoglio’s evidence should not be accepted.
[21] We note that the medical literature is mixed on the question of whether obesity is a significant contributor to disc degeneration. In Exhibit A3 (The relationship between obesity, low back pain, and lumbar disc degeneration when genetics and the environment are considered: a systemic review of twin studies The Spine Journal 15 (2015) 1106-1117) it found ‘’When familial factors were controlled for, body weight was positively associated with LDD [lumbar disc disease] in all five cross-sectional studies. Only two cross-sectional studies investigated the relationship between obesity-related measures and LDD accounting for familial factors, and the results were conflicting. One longitudinal study in LBP [lower back pain] and three longitudinal studies in LDD [lumbar disc degeneration] found no increase in risk in obese individuals, whether or not familial factors were controlled for.”
As should be clear from the discussion above, we are satisfied that the applicant has made out the third basis on which he puts his claim. We are satisfied that the applicant had underlying degenerative disc disease at L3/L4, L4/L5 and L5/S1. The diseased disc at L4/L5 was aggravated by the applicant’s work getting into and out of his truck[22] resulting in radiculopathy. The damage to the nerve caused by the radiculopathy and subsequent surgery resulted in the applicant suffering a left foot drop and left leg weakness which altered his gait. The applicant’s altered gait aggravated the degenerative disc disease from August 2011 until the date of surgery on 18 July 2017. We are satisfied that the gait significantly contributed to the aggravation of the applicant’s lumbar disc disease resulting in the need for surgery.
[22] T64, folio 194.
The relevant medical evidence on which these conclusions are based is discussed below.
THE MEDICAL EVIDENCE
The Tribunal received written evidence from a number of doctors, and 5 doctors prepared reports for the proceedings and gave oral evidence in relation to their views.
Dr Bentivoglio
Dr Bentivoglio is a neurosurgeon. His view was that the heavy nature of the applicant’s work caused his spine to degenerate and that he has been the victim of that degeneration ever since. All the post-work degeneration which the applicant’s spine has demonstrated is not constitutional but the product of a process set in train by the heavy work which he undertook over many years, including from 2004-2011 working for the respondent.
Dr Bentivoglio was an argumentative witness. His report shows little evidence of careful preparation in that the work history is extremely brief and there is little elaboration on questions of causation by reference to the literature. The absence of reference to the literature is important to his credibility because it is clear that it is now a contested question as to how significant heavy work is in causing or aggravating lumbar disc disease. Twin studies quoted in the AMA Guide to the Evaluation of Disease and Injury Causation[23] suggest that genetic factors are overwhelmingly important and for the lower lumbar spine manual labour is in most cases unimportant. However, a twin study in Croatia implicated intensity of physical labour at work in lumbar disc disease.[24] Dr Bentivoglio’s failure to engage with the complexity of the issue, take a careful work history or properly examine how much heavy work was done by the applicant with this employer, makes his report and opinions of limited assistance.
[23] AMA Guides to the Evaluation of Disease and Injury Causation, Melhorn et al (2nd Edition), American Medical Association (2014), at 196-235.
[24] Exhibit R4 (Saftic R et al. Case controlled study of risk factors for lumbar intervertebral disc herniation in Croatian Island populations. Croatian Medical Journal 2006; 47: 593-600); Exhibit A8, at 3.
Mr Sergides
The second doctor who gave evidence for the applicant was Mr Sergides. He is a practising neurosurgeon. He prepared a single medico-legal report which was decidedly vague and unpersuasive. He suggested that there was ‘potential injury’ at three levels in 2009 and if the respondent was liable for the L4/L5 damage it was reasonable to relate the L5/S1 injury to the same origin.[25]
[25] Exhibit A2, at 4.
When he gave his oral evidence Mr Sergides offered a more elaborate explanation of the relationship between the applicant’s earlier symptoms and his 2016 problems. He suggested for the first time that the altered gait (which he had not noted in his original report) was what caused the observed degeneration at L5/S1. He had not proffered such a view previously. He dismissed obesity as a possible cause of the degeneration (which is a view contested in the literature)[26] and proffered the view that the applicant’s pronounced Trendelenburg gait had the same effect as having one leg longer than the other and was relevant to the development of symptoms in 2017 because ‘walking like that is very likely to give you problems with your back’.[27] This analysis involves a significantly different analysis to his original views.
[26] Transcript, at 124-5.
[27] Transcript, at 126.
In his oral evidence Mr Sergides also emphasised that the changes that were observable in 2009 in the applicant’s spine at the relatively young age of 38 were, in his experience, difficult to explain on the basis of genetics alone but were usually brought on by heavy work.
Mr Sergides also provided a useful supplementary report dated 25 February 2020 which addressed the applicant’s limp. The report noted that:[28]
Associate Professor McGill quotes a discussion paper prepared for an insurance appeals tribunal by Harrington IJ. Mr McGill writes that in conclusion this paper stated, “Each case must be considered individually and all of the above factors considered. However, in the case of an antalgic gait, secondary to leg pain due to sciatic, it would probably be necessary for the limp to be severe and prolonged, meaning years, for it to have a significant impact on the initiation or aggravation of arthritis of the spine. As well, it would be necessary for the Trendelenberg Gait pattern to have been severe and present for an extended period of time, probably years, for it to have a permanent effect on the spine.”…Mr Faulks did have a severe limp and an antalgic gait and a foot drop and a Trendelenberg Gait which had been present between 2011 and 2017 when he underwent an L5/S1 microdiscectomy. Therefore, Associate Professor McGill’s quoted discussion piece serves as an argument for Mr Faulks’ case more than it does for his opposition.
[28] Exhibit A8.
The report also noted the contradictions in the literature concerning the role of obesity in lumbar disc disease.
While unpersuasive in his primary thesis that there was an actual injury at L5/S1 suffered in the course of the applicant’s employment at the same time as the accepted injury at L3/4 and L4/L5, Mr Sergides’ comments on the contribution of the applicant’s altered gait to his disc disease at L5/S1 provide support for a finding that the progressing disc disease now apparent at that level was significantly contributed to by the applicant’s altered gait.
Dr Day
The third doctor who gave evidence for the applicant was Dr Day. He was the treating surgeon.
He reported to the applicant’s General Practitioner on 31 May 2017 in the following terms:[29]
He has had to overload his right side consistently since sustaining his left L4-5 disc herniation resulting in nerve root damage and chronic weakness with foot drop on the left. He definitely has a direct association with this new herniation with the original injury, because the original injury caused the weakness that has mandated he overuse his right side and has chronically altered his gait. Now his right leg is failing and he is becoming less functional.
[29] T88, folio 246.
Dr Day has always linked the changes at L5/S1 to the applicant’s altered gait. He was unable to point to any literature supporting his view and unfortunately, he supplied references which did not support his view and in fact were irrelevant to it. He is however an experienced and well qualified neurosurgeon and he indicated in his evidence that his clinical experience supported the view that altered gait produced degeneration of the kind he observed in the applicant.[30] Since he gave his evidence, material has come to light which supports the view that an altered gait can produce changes in the spine.[31]
[30] Transcript, at 163.
[31] See Exhibit R4 (Supplementary Report of Dr McGill dated 16 December 2019 and the 9 supporting Articles/Studies) and Exhibit A8 (Supplementary Report of Mr Sergides dated 25 February 2020).
Associate Professor McGill
Associate Professor McGill is a rheumatologist who gave evidence for the respondent. He was strongly of the view that the applicant’s gait was not implicated in the development of changes at L5/S1. His view was that gait would only be implicated if there was a significant difference in leg length. He did not provide any literature references to support that view but did explain why the studies referenced by Dr Day were not supportive of his view.
Associate Professor McGill’s views were undermined by a discussion paper, that was put to the parties by the Tribunal on 19 November 2019 and considered in his supplementary report. He weakened in his view that gait could not contribute to degenerative changes in the spine. Specifically, after reviewing the discussion paper provided, Professor McGill said ‘it is a well worded, reasonable assessment of the possibility or potential for limping to aggravate spinal symptoms and possibly the degree of degeneration’.[32] However, he maintains his view in relation to the gait question on the basis that the supportive literature only sustains a possibility not a probability that gait is implicated in aggravation of back pain.
[32] Exhibit R4, at 2.
The applicant criticises Associate Professor McGill’s supplementary report as he was briefed to specifically address the detailed evidence of Mr Sergides concerning the applicant’s altered gait and instead only did so much as ‘note’ the evidence of Mr Sergides. Further Professor McGill did not dispute or challenge the evidence of Mr Sergides in respect of the applicant’s altered gait. The applicant therefore contends that the Tribunal should accept that Associate Professor McGill agrees with the evidence of Mr Sergides concerning the nature and impact of the applicant’s altered gait.[33] That is not a submission we are prepared to accept.
[33] See Applicant’s Written Submissions filed on 17 April 2020.
Associate Professor McGill also rejected the idea that the applicant’s heavy manual work was implicated. Such an adamant view is not universally supported by the literature.[34] He was of the view that constitutional factors were overwhelmingly responsible for the deterioration at L5/S1.
He also provided a twin study which pointed to constitutional factors being more important than exposure to the vibration from truck driving in the development of degenerative disc disease in twins.
[34] Exhibit R4.
Dr Khurana
Dr Khurana, an experienced neurosurgeon, gave evidence for the respondent. His view was that the 2009 and 2011 incidents prompted an acute change in the applicant’s spine, thus constituting injuries. Then, after the applicant finished work his spine continued to degenerate resulting in the need for surgery in 2017. He considered that the applicant’s work did not significantly contribute to the development of the problem. He considered the applicant’s short pedicles, obesity and constitutional predisposition were much more significant than his work. He gave a percentage contribution of at least 80% arising from the constitutional factor, which was the congenital narrowing of the canal.[35] He accepted that the heavy work probably accelerated to some degree the onset of symptoms, but considered that the applicant would have ended up in the same state, though perhaps a bit later if he had not done heavy work.
[35] Transcript, at 74.

It appears that the evidence in the literature to implicate obesity is conflicting and it may not be a factor.[36]
[36] Exhibit A8.
Dr Khurana avoided the question of the contribution made by the applicant’s gait altogether.[37]
[37] Transcript, at 69
CONSIDERATION
Before dealing with the submissions of the applicant which the Tribunal accepts, it is necessary to deal briefly with the two bases on which he puts his case that the Tribunal has not accepted.
First contention
It is submitted by the applicant that the ‘in relation to’ test is satisfied because the purpose of the surgery was, as attested to by Dr Day, ‘to get [the applicant’s] gait back to his previous baseline so he could walk around without falling over’.[38] This evidence from Dr Day, the applicant submitted, meant there was ‘a direct correlation with the accepted and not disputed left leg radiculopathy and instability’[39] and the surgery undertaken.
[38] Transcript, at 160
[39]. Transcript, at 198.
In essence this submission is based on the proposition that the 2017 surgery had the purpose of restoring left leg function which had been lost as a result of the 2011 injury and therefore the medical treatment was obtained in relation to the 2011 injury as required by section 16 of the SRC Act.
With respect, this involves reading the relevant passage of the transcript without regard to context. The relevant passage is as follows:[40]
…you…formed the opinion that he needed some urgent surgery?
Well yes, I thought it was urgent because he was having even more trouble trying to walk around and I was concerned that if he did not have urgent treatment he would develop a permanent weakness problem in his right leg as well.
And the object of the surgery was to – can you tell me what it was?
Similar to what he’d had in his original procedure. This was another microdiscectomy, this time on the right side of the L5 disc to remove a piece of disc and pressing on the nerve.
And so the object was to preserve or prevent any permanent right-sided weakness and was that one of the objects?
Yes definitely.
It was one of the other objects to address the pain he was experiencing in his lumbar spine? Yes.
And were there any other objects of the surgery? Well, no, I mean those things on top of trying to get his gait back to his previous baseline, so he could walk around without falling over.
[40] Transcript, at 160.
Read in full context, it is clear that Dr Day is indicating that in undertaking the surgery he was trying to address the additional deterioration in the applicant’s condition over and above the impact of the 2011 injury and surgery. In particular the impact of the nerve compression at L5/S1 on the functioning of the applicant’s right leg. Accordingly, it is not true to say that the surgery was in relation to the already accepted injury at the L4/L5 level. The surgery involved treating the new symptoms that had evolved because of changes at L5/S1.
Consequently, the applicant’s first proposed basis for the Tribunal accepting liability must be rejected.
Second contention
The applicant also submits that the Tribunal should be satisfied that the accepted 2009 and 2011 injuries include, amongst other things, an injury to the applicant’s L5/S1 disc and facet joint. If disc disease at that level is treated as part of the accepted claim then the cost of surgery is payable under the original claim. We note that in order to accept this submission it is necessary to characterise the applicant’s accepted claim as lumbar disc disease at multiple levels significantly contributed to by his employment rather than as discrete injuries or disease aggravations manifesting as ruptured discs and thickening of the vertebrae at the L3/L4 and L4/L5 levels.
We do not accept that characterisation. It was not the basis on which either the 2009[41] or 2011[42] injuries were accepted. The medical evidence which led to acceptance of the claims focussed on specific problems at specific levels of the spine. The applicant’s medical evidence does not persuade us that the bases on which initial liability was accepted should be re-visited and that an analysis based on the nature and conditions of employment causing degenerative change or injuring the applicant’s spine at multiple levels should be embraced. For the reasons explained above, we do not accept the evidence of the proponents of these theories, namely Dr Bentivoglio or Mr Sergides.
Third contention
[41] See in particular the report of Dr Matheson at ST104, folio 22.
[42] See discussion at [23] and [24] above in relation to the basis.
Turning then to the third basis on which the applicant puts his case, if the Tribunal accepts one of two propositions, the applicant can succeed in establishing liability for the degeneration at the L5/S1 level which occurred post-employment Those propositions are:
(a)The nature and conditions of the applicant’s employment set off a degenerative process in the applicant’s spine at 3 levels, weakening it, with the result that his spine has continued to degenerate even though he stopped work altogether 2 years before the L5/S1 level became symptomatic; or
(b)The applicant’s injury in 2011 (which all parties accept was work related) caused the applicant’s left foot drop which altered the applicant’s gait and aggravated and/or accelerated degenerative change at L5/S1 level.
The Tribunal is not satisfied that the first proposition is made out. Whether working conditions make a significant contribution to degenerative lumbar disc disease is subject to doubt in light of the competing studies in the area. At the very least a careful analysis of the work history would be required to make out the causal link. Dr Bentivoglio, who was the chief proponent of this path to compensation, never undertook such an analysis.
The issue is further complicated by an issue about how much of the applicant’s work history with the respondent can be considered when determining whether the nature and conditions of his employment significantly contributed to his L5/S1 degeneration. The applicant only did about 6 months of heavy work after the respondent became a licensee in late 2008. He was however doing heavy work for the respondent as an employee for more than 5 years.
To succeed, the applicant must establish that the ailment or aggravation of the ailment from which he suffers was contributed to, to a significant degree, by the employee’s employment by a licensee. The question arises, does that phrase mean:
(a)significantly contributed to by an employee’s employment when the employer was a licensee, or
(b)significantly contributed to by an employee’s employment with an employer who is a licensee at the point a claim is made?
If it is the former then there is a very short period of heavy work in this case. If it is the latter the relevant period of work is much longer. In the present case, we did not receive submissions from either party on the question, and as it is not necessary to resolve it, we do not propose doing so.
We are however satisfied that the respondent is liable to pay compensation in relation to the effects of the injury at the applicant’s L5/S1 level on the basis that the alteration of the applicant’s gait significantly contributed to the degenerative disc disease found at that level.
There is no dispute between the parties that the 2011 injury is compensable because either:
(a)it involved a frank injury when the disc prolapsed in the course of employment; or
(b)the getting into and out of the delivery truck significantly contributed to the prolapse of the degenerating disc.
We are satisfied that the 2011 compensable injury produced the applicant’s footdrop and his altered gait.
If the altered gait significantly contributed to the aggravation of the applicant’s underlying disc disease, then the changes at L5/S1 which resulted in the need for surgery are compensable.
In relation to the question of whether the altered gait significantly contributed to the changes in the applicant’s spine at L5/S1, we were initially confronted with a strong difference of opinion as between the medical experts for each party. The gait theory was advanced by Dr Day and (eventually) by Mr Sergides. Initially Associate Professor McGill vehemently opposed it. However, by his final report Associate Professor McGill appeared to accept that it might be possible for a lumbar spine problem to be aggravated by an altered gait, subject to certain conditions being satisfied.
Having regard to the literature discussed by Associate Professor McGill and Mr Sergides, combined with the history given by the applicant and the consistent views of Dr Day, we are satisfied that the applicant’s altered gait did significantly contribute to the aggravation in his underlying disc disease at L5/S1 level.
The discussion paper Limping and Back Pain[43] is central to us reaching that view.
[43] Exhibit T1.
It relevantly states:[44]
[44] Exhibit T1, at 6-9.
With limping there is a shift of the body’s centre of gravity towards the affected leg. This results in lateral bending of the trunk towards that side…This produces a see saw effect where the disc centres become the centres of rotation or fulcrum for the para-lumbar muscle force, necessary to balance the body weight acting through the centre of gravity through the body’s mass. This is a lever system of the first class. Repetitive pull of the trunk musculature could, in time, result in increased wear and tear of the disc segments since the force transmitted across the discs by the trunk musculature would, in theory, be greater for an individual who limps than for someone with a normal gait. This in turn might cause or aggravate degenerative change (osteoarthritis) of the disc and facet joints….The magnitude of force (load) transmitted by biological joints is directly related to:
·     obesity
·     joint deformity
·     stride length
·     limb length discrepancy
·     walking speed
·     presence of a Trendelenburg gait or any gait pattern where there are major displacements of the centre of gravity of the body’s mass.
In all probability, from a biomechanical perspective, limping can cause back pain and aggravate pre-existing back pain. Clinical data, however, ie patient studies directly related to the incidence of back pain in the general population for individuals walking with a limp, are limited and inconclusive. Therefore, each case must be considered individually and all the above factors considered.
However, in the case of an antalgic gait secondary to leg pain due to sciatica it would probably be necessary for the limp to be severe and prolonged, meaning years, for it to have a significant impact on the initiation or aggravation of arthritis of the spine. As well, it would also be necessary for the Trendelenburg gait pattern to have been severe and present for an extended period of time, probably years, to have any permanent effect on the spine…
In evaluating these appeals, a Panel must establish:
1. That the limp was documented;
2. The limp was caused by a compensable injury;
3. If possible, the type and magnitude of the limp and leg length discrepancy, if present.
4. Did the limp pre-exist the compensable injury? If so, were the associated back symptoms?
5. The duration of the limp.
6. Was there pre-existing back discomfort? If so, was it aggravated by the work related limping
The applicant is tall and obese, has (from the Tribunal’s observation) a long stride length and a gait where there is a major displacement of his centre of gravity. His limp is well documented (although its severity disputed), and there is no question that it has been present since 2011 and is the result of his original compensable injury (or the surgery which followed).
We note Associate Professor McGill’s comments in relation to this discussion paper. He states:[45]
With respect to the discussion paper prepared by Dr Ian Harrington, I think it is a well worded, reasonable assessment of the possibility or potential for limping to aggravate spinal symptoms and possibly the degree of degeneration. There is no published evidence to support the possibility. It should be appreciated for what it is, that is a discussion paper of possibilities, not a review of published findings.
[45] Exhibit R4, at 2.
While accepting that the discussion paper is not the gold standard in medical research for establishing the link between significant limps and degenerative disc disease across populations, it does more than simply canvass possible links. The paper provides a biomechanical explanation of the link between limping and effects on the spine. It identifies factors which make it more probable that biomechanical alteration to a person’s gait will result in damage to the spine. Most of the significant factors identified are present in this applicant’s case. In those circumstances, and particularly when regard is had to the views expressed by Dr Day, an experienced neurosurgeon who has treated the applicant, we are satisfied that in this applicant’s case it was his altered gait which resulted in the deterioration in his spine at the L5/S1 level.
In reaching this conclusion we note that in EMI (Aust) Ltd v Bes [1970] 2 NSWR 238 at 242, Herron CJ stated:
… if medical science is prepared to say that it is a possible view, then, in my
opinion, the judge after examining the lay evidence may decide that it is probable.
It is only when medical science denies that there is any such connexion that the
judge is not entitled in such a case to act on his own intuitive reasoning. It may be,
and probably is, the case that medical science will find a possibility not good
enough on which to base a scientific deduction, but courts are always concerned to
reach a decision on probability and it is no answer, it seems to me that no medical
witness states with certainty the very issue which the judge himself has to try.
In the present case, Dr Day has indicated based on his experience that the altered gait is the cause of the damage he saw when he operated on the applicant. There is evidence to support this hypothesis even if the hypothesis could not be described as having been positively established in all cases by the literature.
Accordingly, we are satisfied that the applicant’s 2011 injury led to an alteration in the applicant’s gait which aggravated his constitutional lumbar disc disease resulting in the need for urgent surgery in 2017.
Consequently, the respondent is liable to pay compensation in relation to the injury.
DECISION
In light of this finding, the Tribunal finds as follows:
(a)The decision the subject of proceeding 2017/4493 is set aside and the Tribunal, in substitution, decides that the respondent is liable to pay compensation for “right L5-S1 microdiscectomy surgery” pursuant to section 16 of the SRC Act and to reimburse the applicant for attendances with Dr Jerry Day on 10 November 2016 and 31 May 2017, parking fees for 31 May 2017 and travel on 31 May 2017 and 15 June 2017.
(b)The decision the subject of proceeding 2017/6915 is set aside and the Tribunal, in substitution, decides that the respondent is liable to pay compensation under section 16 of the SRC Act for the medical account provided by Dr Jamie McCarney for anaesthesia services provided during the right L5/S1 microdiscectomy surgery on 18 July 2017.
(c)The decision the subject of proceeding 2019/6495 is set aside and the Tribunal, in substitution, decides that, pursuant to section 14, the respondent is liable to pay compensation in accordance with the SRC Act in relation to the injury to the applicant’s lumbar spine at the L5/S1 level which is secondary to the accepted L4/L5 injury.
Unless the respondent advises the Tribunal that it wishes to be heard on the question of costs, the Tribunal orders that the costs of the proceeding be paid by the respondent.

92. I certify that the preceding 91 (ninety one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan and Member Dr P Wilkins.

........................................................................
Associate
Dated: 14 August 2020

Date(s) of hearing: 13 – 15 November 2019; 16 January 2020

Solicitor for the Applicant:
Mr Aadil Ahmed, Gerard Malouf and Partners

Counsel for the Applicant:

Solicitor for the Respondent:

Counsel for the Respondent

Mr Karl Pattenden

Ms Claire Tota, HBA Legal

Mr John Wallace

[2020] AATA 2951

14 August 2020

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