Fisher and Comcare (Compensation)

Fisher and Comcare (Compensation) [2023] AATA 1883 (29 June 2023)
Division:GENERAL DIVISION
File Number(s): 2020/1291, 2021/0283
Re:Francesca Fisher
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:29 June 2023
Place:Hobart

The decisions under review are affirmed
...[sgn].....................................................................
A G Melick AO SC, Deputy President
Catchwords
Workers’ Compensation (Cth) — Injury — Disease — Whether injury arose out of or during the course of employment — Whether injury arising out of or during the course of employment aggravated an underlying condition — inconsistent evidence — pre-existing condition — decisions under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Adams and Comcare [2022] AATA 3404
Commonwealth and Beattie [1981] FCA 88
Ellison v Comcare [2022] FCA 335
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 624
May v Military Rehabilitation and Compensation Commission (2015) 322 ALR 330
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Miller and Comcare [2012] AATA 715
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Wuth and Comcare [2022] FCAFC 42
REASONS FOR DECISION
A G Melick AO SC, Deputy President
29 June 2023
INTRODUCTION A G MELICK AO SC, DEPUTY PRESIDENT

The Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of two decisions. Both applications were heard together on 9, 10 and 27 September 2021.
The first reviewable decision dated 15 November 2017 is a Non-Economic Loss determination. (NEL Application 2020/1291)
That decision affirmed a primary determination dated 15 July 2016 which determined that the Applicant suffered a total permanent impairment of 28% for “aggravation of spinal stenosis cervical region”, but determined the Applicant was not entitled to any compensation under s 27 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), in respect of “non-economic loss”.
The delegated Review Officer found that the symptoms experienced by the Applicant related to a pre-existing non-compensable condition.
The second reviewable decision is a No Present Liability determination dated 10 December 2020. (NPL Application 2021/0283)
That decision affirmed the primary determination dated 2 November 2020 which determined that the Applicant had no present entitlement to compensation under section 16, “for incapacity benefits under sections 19 (medical expenses) and 20 (incapacity when in receipt of a superannuation pension) and household services under section 29” of the SRC Act, in respect to the accepted conditions of “aggravation of spinal stenosis in cervical region” and “aggravation of generalised anxiety disorder”.
The designated Review Officer was satisfied that the Applicant did not presently suffer from the effects of either of her accepted conditions and was therefore not entitled to medical expenses, incapacity payments and household services pursuant to the above-mentioned sections of the SRC Act.
The facts and evidence in this case were voluminous and complicated. The Applicant was self-represented and extremely thorough which caused, at times, some potentially confusing duplication of materials.
Before dealing with the medical evidence, I set out a chronology of the Applicant’s review history and various events relevant to my determination.
CHRONOLOGY OF EVENTS
In 1977 the Applicant was in a motor vehicle accident (motor vehicle accident one), the accident was not work related, the Applicant states that there was no injury sustained to her neck.
In 1988 the Applicant became stuck in a lift (lift incident one). The Applicant noted that she did not suffer any repercussions from the incident at the time.[1]
[1] Transcript, Page 24.
In 2001, the Applicant suffered cervical stenosis. The Applicant was at work when she found that she could not move her left shoulder, there was no particular incident involved.[2] The Applicant reported pain radiating into her left arm and she had numbness/burning in the left fourth and fifth fingers.
[2] Anthony Buzzard, 18 July 2006, Exhibit 34.
In 2004, the Applicant was in a motor vehicle accident where she was rear-ended (motor vehicle accident two). The accident was not work-related. It was clear that the Applicant injured both her neck and her lumbar spine, Dr Bakker referred the Applicant to a pain specialist, Dr Paton, who noted increased neck and lower back pain following motor vehicle accident two.[3]
[3] Exhibit 29.
In 2005, the Applicant had disc replacement surgery at L4/5 and L5/6.
Towards the end of January 2013, the lift at the Applicant’s workplace malfunctioned (lift incident two). After lift incident two the Applicant reported experiencing right sided neck, shoulder and arm symptoms which were new for her, as her previous symptoms were left sided. It was also noted that she was experiencing anxiety about using the lift.
On 6 March 2013 the Applicant lodged a claim in relation to the neck injury sustained during lift incident two.
On 7 June 2013, the Respondent accepted liability for an aggravation of stenosis in the cervical region and an aggravation of generalised anxiety disorder.[4]
[4] T7, 2020/1291.
The Applicant underwent a two-level anterior cervical discectomy and fusion on 18 December 2013 which had a good resolution.
In September 2014 the Applicant returned to full time work duties.
During October 2014 the Applicant reported a recurrence of symptoms (recurrence one) without a recognised aggravating incident.[5]
[5] T10, T11 2020/1291.
In 2016 the Applicant ceased employment.
On 23 February 2016 the Applicant lodged a claim for permanent impairment relating to spinal stenosis in the cervical region. [6]
[6] T12, 2020/1291.
On 15 July 2016 Comcare determined the Applicant had a 28% whole person impairment due to aggravation of spinal stenosis cervical region. Comcare considered a payment of $0 for non-economic loss was appropriate, relying on Dr Gurgo’s (neurosurgeon) advice about the Applicant’s pre-existing conditions.
On 19 September 2016 liability was ceased by Comcare in relation to the accepted conditions of ‘aggravation of spinal stenosis in the cervical region’ and ‘aggravation of generalised anxiety disorder’ on the basis that the Applicant did not presently suffer from the effects of these conditions.[7]
[7] T20, 2020/1291.
On 19 October 2016 Comcare’s determination ceasing present liability under section 16 and 19 of the SRC Act was affirmed on the basis that the Applicant did not continue to suffer the effects of the accepted conditions sustained in lift incident two.[8]
[8] T22, 2021/1291.
On 20 July 2016, the Applicant submitted a further claim for compensation for “[a]ggravation to C7/T1 escalaction (sic) to my anxiety condition due to the pain associated with the aggravation” (claim 738912/7).
On 4 October 2016, a determination was made by Comcare rejecting liability in relation to the claim for compensation made on 20 July 2016 on the basis that the Applicant was not suffering from a work-related compensable condition.
The Applicant requested a reconsideration of the 19 September 2016 decision to cease liability for aggravation of spinal stenosis in the cervical region and aggravation of generalised anxiety disorder. She stated that her current condition is due to the after effects of her level 2 anterior cervical discectomy and fusion operation.
On 22 August 2017 a consent decision made under section 42C of the Administrative Appeals Tribunal Act (1975) (AAT Act) was issued which found that from 19 September 2016, the Applicant had present entitlement to reasonable medical expenses and incapacity payments regarding the accepted conditions.
On 15 November 2017 a reconsideration was issued that affirmed the determination of 15 July 2016 on the same basis. (NEL Application 2020/1291)
On 1 July 2019 the Applicant’s General Practitioner noted that Mrs Fisher was presenting with increased pain in her cervical spine which was causing her distress.
On 3 March 2020 the Applicant lodged a claim for permanent impairment payment for aggravation of cervical stenosis at C7/T1.
On 24 August 2020 a notice to cease entitlements in relation to the accepted conditions of ‘aggravation of spinal stenosis cervical region and aggravation of generalised anxiety disorder’ was issued to the Applicant.[9]
[9] T32, 2021/0283.
On 2 November 2020 a determination was made that the Applicant had no present entitlement to compensation in relation to ‘aggravation of spinal stenosis cervical region and aggravation of generalised anxiety disorder’.
On 12 November 2020 the Applicant requested a reconsideration.
On 10 December 2020 the determination was affirmed.
On 8 January 2021 the Applicant applied to the Tribunal for review of the reviewable decision. (NPL Application 2021/0283)
ORAL EVIDENCE
The Applicant
The Applicant gave oral evidence, as well as calling her husband Mr Fisher and Dr Sharman. The weight of Mrs Fisher’s oral evidence is as follows.
Mrs Fisher retired from her position at Centrelink on incapacity grounds and applied for a permanent impairment payment in February 2016.
The Applicant was previously employed as an Administrative Officer with Centrelink, she commenced the work in 1978 and ceased employment during September 2015.
The Applicant wrote a statement dated September 2016 in support of her application which was tendered into evidence. She adopted those statements during the hearing.
When asked about lift incident one, the Applicant clarified that it occurred 1988 and her husband and son were in the lift with her. She said the incident had been taken out of context and nothing came of the incident, she reiterated that there were no repercussions from being stuck in the lift.
During lift incident two in 2013, when the lift door did not open properly, the Applicant said she put both arms in the door and then her knee. She opened the doors a little and then the doors shut again, when this happened, she continued pushing and got the door open enough to get out.
Mrs Fisher described lift incident two in the following terms:
Okay, the door opened 6 inches when we got to the second floor, didn't open fully at all. I put both arms in, first of all, I put my right hand in, then I put my left hand in and it wasn't moving. I put my knee in to try and prise the door open. It opened a little bit and then it sort of shut again to the same spot and then, I just kept pushing. I can't tell you timewise how long I was pushing, it just seemed like a lifetime. So, I kept pushing and it got open enough for us three to get out. One girl went straight-while that was happening, let me go back a bit-I felt a crunch in my neck or sharp pain and I was sweating at that stage and when I got out of the lift, I realized I was having a panic attack.
After the incident, Mrs Fisher said she only remembers going back to her desk and then home.
Cross-Examination of the Applicant
The Applicant was extensively cross-examined by counsel for the Respondent, set out below is a summary of what I consider to be the relevant evidence.
The Respondent asked about an incident a few weeks prior to lift incident two. The Respondent suggested that there was material indicating Mrs Fisher had jerked her neck a few weeks before lift incident two occurred. Mrs Fisher could not recall if the suggestion made by the Respondent occurred.
The Respondent asked Mrs Fisher how serious she believed her neck injury was given she felt a “crunch”. Mrs Fisher explained that she was “under a full-on panic attack and wasn’t really concerned about anything” all she remembered was “going back to my desk and going home”.
The Respondent asked Mrs Fisher what time she finished work after lift incident two. She explained that her husband had to pick her up. The Respondent asked if Mrs Fisher took a Xanax after the incident, she stated she could not remember but that it was recorded in her statement. However, she could not remember when the statement was written.
The Respondent took Mrs Fisher and the Tribunal to the Applicant’s Statement of Facts, Issues and Contentions (SOFIC) in relation to Mrs Fisher’s NEL Application where the Applicant describes her conditions and medical history.
Mrs Fisher was asked “even before you consulted your treaters and so forth … you’d researched a lot of this on the internet…in terms of what happens when a part of your spine is fused and whether adjacent segments are affected in time through extra stressors?”. She replied that “she didn’t self-diagnose [herself]”.
The Respondent asked Mrs Fisher about her neck symptoms and if “it is your understanding now that most, if not all, of your neck pain comes from C7/T1?”. Mrs Fisher replied that “it was my latest MRI that Dr Katie Daniels picked up, that it was above and below the spinal fusions, which is quite recent”.
The Applicant clarified “Dr Bakker and Mr Hunn have written reports and advised me that my pain is coming from the disc below the fused discs” but could not remember anything about where Dr Sharman believed the pain was coming from.
The Respondent also asked Mrs Fisher about motor vehicle accident two and Mrs Fisher acknowledged that she included injuries to her neck in her MAIB claim for the accident.
The Respondent noted the report from Dr Bakker in 2004, following motor vehicle accident two stating the Applicant was “experiencing cervical muscle spasms and had a severe episode the night before seeing me”. Mrs Fisher could not remember this. Three months after motor vehicle accident two, Dr Bakker noted “ongoing cervical, left shoulder and arm pain”.
Mrs Fisher was taken to her Comcare application for permanent impairment compensation where she outlined her inability to “fully participate in social activities due to pain” and it was clarified that Mrs Fisher did not avoid events before lift incident two. The Respondent asked if Mrs Fisher gave up bowling after the incident and Mrs Fisher agreed that she had.
The Respondent asked Mrs Fisher if she remembered an incident in 2015 where she twisted to talk to someone at work and felt severe back pain, Mrs Fisher could not recall the incident.[10] After being pointed to the APM Initial Assessment Report which was conducted on 28 April 2015, Mrs Fisher noted that it must have been a short term problem.
[10] APM initial assessment report dated 28 April 2015, 248.
Further paragraphs from the APM Initial Assessment Report by the Rehabilitation Consultant Dominque Higgins describe Mrs Fisher’s legs being numb following the incident, the document from April 2015 states that Mrs Fisher describes the incident as having “the most impact currently”.[11] Mrs Fisher furthered that she did not remember the incident.
[11] Ibid.
The Respondent asked about the Applicant’s prescriptions issued through City Doctors and noted that in 2011 she was prescribed 720 tablets of Panadeine Forte over a period of just under 33 weeks which works out at about 21 tablets per week. It was clarified that the Applicant was not experiencing neck pain during this time and noted she was experiencing major dental problems.
The Respondent clarified that Mrs Fisher avoids flexing her neck and driving and relies on her husband for housework. Mrs Fisher confirmed that this was correct and confirmed the changes occurred after lift incident two.
Mrs Fisher was pointed to a letter from Dr Hunn dated 15 July 2003 that reports a number of things Mrs Fisher was unable to do because of neck pain, the Applicant stated that she recovered from this injury.
The Applicant’s husband, Mr Fisher
Mr Fisher provided a written statement which was not challenged.[12]
[12] Exhibit 27.
In that statement he noted that his wife had been previously very active including being involved with her mother's nursing home, going 10 pin bowling every week and walking to work from New Town.
He picked her up from work the day of lift incident two. She was very panicky and in pain but in the days following she was in much more pain.
His wife still does as much as she can but it aggravates her and she goes and lays down. His wife showers alone with regular stops but will not shower when he is not at home. His wife always has her pain and anxiety tablets with her.
She could do short walks with the pram when we're looking after the grandchildren but he is usually pushing the pram.
His wife doesn't sleep through the night even though she goes to bed exhausted and falls asleep straight away.
Medical Evidence
In addition to the oral evidence provided, I have also considered the reported medical evidence provided to the Tribunal. I will set out relevant parts of the reports now.
Aggravation of spinal stenosis in the cervical region
Dr Bruce Taylor (neurologist)
Dr Taylor provided a report dated 6 January 2003, he noted that he had seen the Applicant on ten occasions since 16 February 2000 when she presented with bilateral arm pain.
Dr Taylor wrote that the most accurate diagnosis for the injury on 31 January 2001 was an acute C7 radiculopathy. He continued that he did not know if anything particularly precipitates or contributes to the development of radiculopathy except for sudden unexpected movement, stress of the neck, or repetitive overuse.
The report also notes that the Applicant has some degeneration of the cervical spine which would be considered a normal phenomenon “in a lady of her age” and that the injury of January 2001 has not left her with “any significant disability”, rather a residual weakness “which can result in recurrence or worsening of her symptoms with overuse”.
Dr Taylor concluded that Mrs Fisher will require further treatment as time goes by “as she has certanitly has a predisposition to develop significant worsening of the condition with incorrect use or overuse of the arm”.
Dr Bakker (General Practitioner)
Clinical notes from Dr Bakker provide that the Applicant suffered significant pain prior to lift incident two however there is no clear link between the persistent symptoms and the lift incident.
Twelve months prior to lift incident two Dr Bakker recorded “neck is worse and TOTALLY is against having neck surgery”.[13]
[13] Exhibit 26, page 28.
The records indicate that significant health problems arose after lift incident two, including dental issues, lower back pain, sciatica, suspected bilateral carpal tunnel syndrome and wrist issues that led to the fusion in her right wrist.[14]
[14] Exhibit 4, Exhibit 66, page 47.
In a clinical entry dated 27 April 2010, Dr Bakker noted that the Applicant had seen Dr Paton in relation to pain relief and that there were problems with the last epidural being technically difficult.[15] Mrs Fisher was experiencing constant pain going down the arm and had been constantly taking Norspan patches but now wanted Panadeine Forte.
[15] Exhibit 26, page 24
On 27 July 2010 Dr Bakker reported to Dr Paton that the Applicant had deteriorated in the past twelve months with increasing neck pain.[16]
[16] Exhibit 33, page 10.
In a letter dated 15 May 2013, addressed to Comcare, Dr Bakker wrote that Mrs Fisher sustained an injury at work when a lift malfunctioned (lift incident two), and as a consequence she is now suffering daily pain of her cervical spine with radiation into both arms.
Dr Bakker provided another letter to Comcare, dated 28 July 2016 that describes Mrs Fisher as presenting with symptoms of pain in her cervical spine with forward head flexion whilst at work, as a result of her duties.
In a letter addressed to Liam Clarke, dated 7 September 2020, Dr Bakker notes that Mrs Fisher had an MRI of her cervical spine on 2 April 2015 which showed degenerative changes at the mid cervical spine level and at the C7/T1 level. The cervical spine fusion did not suggest any compression of the spinal cord and noted the pain is now originating from the level above and below her fusion site.

The letter stated:
I diagnosed her with C7/T1 degenerative disc and adjustment disorder secondary to her pain. She had known degenerative changes and a cervical spine fusion under a workers compensation claim. The resultant pain in the disc below her cervical fusion was a direct result of her previous surgery and work… duties.
Dr Bakker provided another letter, addressed to Mr Ben Banks-Smith on 13 September 2016. It noted that the Applicant is unable to sit at her desk for more than ten minutes without experiencing an escalation in pain and has continued to use 4 to 8 Panadeine Forte a day, depending on her activities.
The letter furthers that Mrs Fisher continues to use Xanax 0.5mg to assist in managing panic attacks related to her anxiety disorder and that Dr Bakker believes her condition is permanent and likely to deteriorate over time.
Dr Hunn (Neurosurgeon)
On 19 August 2003, Mr Hunn reported on the Applicant’s cervical MRI scan documents regarding the extent of degenerative change present in the Applicant’s neck.
He noted that there was “mild central canal stenosis due to broadly based disc bulging and some posterior osteophytic spurring at C5/6 and C6/7” as well as “intervertebral foraminal stenosis” on both sides however most marked on the left at C6/7.
Mr Hunn opined that it is a misunderstanding to believe that the symptomatic degenerative changes were caused by a short period of abnormal posture, what is possible, is that an area vulnerable to stress has been rendered symptomatic by a “period of awkward posture and asymmetric stress”. Mrs Fisher described that the awkward posture would occur when she would hold her phone between her jaw and shoulder because of the unavailability of a regular headset.
Further, the report by Mr Hunn noted that the Applicant’s condition would be classified as an aggravation in accordance with the definition provided in Section B of the explanatory notes to the Workers Compensation Medical Certificate.
An MRI performed on 30 April 2013 showed degenerative change of the cervical spine. The imaging showed foraminal stenosis and deformity of the exiting nerve root affecting the left more than right C6 nerve root and the left C7 nerve root.[17] Dr Hunn again concluded that the Applicant was suffering from cervical spondylosis with possible facet joint dysfunction, and is likely the cause of her discomfort while sitting.
[17] T6 2020/1291.
On 2 September 2013 Mrs Fisher was referred to Mr Hunn due to “increasing disability affecting her arms” and it was recommended that she undertake an epidural, however she subsequently required treatment for a lower back condition that became the focus.
In the appointment with Mr Hunn the Applicant described her previous history with her neck indicating she had coped with it for years without needing time off work. The Applicant also described the circumstances surrounding lift incident two.
During the assessment she described her symptoms as headaches, pain and discomfort in her arms and neck pain at a high intensity.
In a report incorrectly dated 2 September 2012 (it was written 2 September 2013) Mr Hunn noted:
The mention of cervical canal stenosis is incorrect terminologies and has been provided by a general practitioner. The correct terminology would have been exacerbations of cervical spondylosis. There has been no exacerbation of the cervical canal stenosis per se.
At the time of my last assessment of her, Francesca Fisher continue to have symptoms consistent with an exacerbated cervical spondylosis, have a history was consistent with that having been associated with the lift incident that has been described.
It was indicated to Ms Fisher , Will want to be required, would be a C5/6 and C6/7 anterior cervical fusion.
That surgery was approved by Comcare and Mr. Hunn performed the surgery in December 2013.
On 30 April 2015, Mr Hunn reported no evidence of instability or any significant disc protrusion or nerve root compression. He opined the neck discomfort with neck flexion was coming from C7/T1.[18] He reported the MRI scan “shows that the disc is narrowed and there is no evidence of instability nor any significant disc protrusion or nerve root compression”.
[18] T9 2020/1291.
Dr Hunn’s report dated 27 March 2017 compares a recent cervical MRI scan to the MRI scan from 2013. Dr Hunn noted there had not been any significant deterioration in the discs at C4/5 or C7/T1 when comparing the two scans. The report furthered that the observation did not mean “that those levels might not be influenced by the fusion at C5 to C7. In fact [it is known] that a fusion will certainly increase intra-discal load due… to extra stressors that are involved… [which] could be related to the symptomatic issues”. The report concludes that the above sets aside Comcare’s contention that the Applicant’s problems are purely a progression of degenerative change”.
Dr Hunn’s report furthered that Mrs Fisher has likely experienced symptoms for “for some considerable time” but that the symptoms have escalated after lift incident two. In Dr Hunn’s opinion “there was underlying and pre-existing cervical spondylosis… and that it has been aggravated in her employment with the Commonwealth in three ways”. The three ways are:
(a)Inappropriate head and neck positioning due to the lack of headset
(b)Posture when sitting at a computer
(c)The specific incident of the entraptment whithin the lift and forced exit (lift incident two)
On 13 October 2015, Dr Hunn, after reading Professor Gordon Stuart’s report dated 28 May 2015, reported that a number of initiatives have been put in place to aid Mrs Fisher in the workplace, including a modification of her workstation and seating.
In the same report, Dr Hunn noted the emphasis had been on reducing the Applicant’s need for her to work with her neck flexed.
Ruth Feeger (Occupational Therapist)
The Applicant was referred to Ms Feeger after lift incident two. Ms Feeger provided a report dated 21 Feburary 2013 which noted that Mrs Fisher’s main difficulty at work is being comfortable with her neck, as she gets progressively stiffer as the day wears on.
The report described the Applicant as experiencing right-sided neck, shoulder and arm symptoms. It was noted that the symptoms were new for Mrs Fisher, as her previous symptoms were on her left side.
Dr Grantley Tschirn (Consultant Occupational Physician)
In a report dated 19 February 2015, Dr Tschirn stated “at the present time Mrs Fisher has quite a limited capacity for work however it is not desirable for her to remain away for too long lest she disengage and the barriers grow higher”. He notes “I suspect there is fear at having been through such pain previously and there is probably an element of central sensitisation i.e. pain amplification as an aberrant response which she is not consciously able to control”. An MRI was taken on 31 March 2015 it showed multilevel degenerative facet joint changes most pronounced in the mid cervical spine. There was degenerative disease of the L4/5 facet joint. [19]
[19] T8 2020/1291.
In a report dated 29 May 2015 Dr Tschirn confirmed that Mrs Fisher continues to “suffer the after effects of a two segment cervical fusion” and that “there seems to be a chronic anxiety state”.
Dr Tschirn opined that “the main issue is related to the cervical spine and the repetitive looking down as though to look at a keyboard or paperwork on the desk” he furthered that “Ms Fisher has done very well in making a return to work following cervical disc surgery to the point of being fully cleared however has then developed relapsing remitting symptomatology which has become frustrating and has probably exacerbated an underlying generalised anxiety disorder as previously diagnosed by psychiatrist Dr Scott Chambers”.
The report found that Mrs Fisher “is not currently fit for her usual duties and hours” but is “fit to undertake a return to work programme” as “in my opinion, there are sufficient ergonomic aids to assist her to do this though I made the comment that the proficiency in touch typing would also be very helpful in minimising neck flexion”.
Dr Tschirn provided that Mrs Fisher was experiencing barriers relating to her neck condition and beleives “there is a significant psychological component to this which comprises motivation for return to work and participating in a return to work programme. Her chronic anxiety and whether in fact there is a depressive component as well influencing this”.
The report noted that Dr Tschirn did not see her as becoming totally and permanently incapacitated for work “in the future at this stage”. He noted that “she has a condition which can be successfully managed”.
In another report dated 22 Feburary 2016, Dr Tschirn reported that Mrs Fisher was using around eight Panadeine Forte per day on working days and about four per day on non-working days. She works three hours per day and “says even in those three hours she has difficulties with focusing and concentrating which she attributes as entirely due to her chronic neck pain and sometimes has left work early and gone home”.
Dr Tschirn noted that Mrs Fisher travelled overseas in 2015 which involved a 14-hour flight to Abu Dhabi and then a connecting flight to Italy. The report notes “her medication requirements were few and she only had Panadeine Forte on the odd occasion”. She took a “Kalma” tablet for the plane flight back to Australia and noted she took “a couple of such tablets and slept from Melbourne to Abu Dhabi”.
Dr Tschirn’s notes stated that, on return to Australia “her symptoms increased quickly as did her consumption of pain medication. As late as last week she had what she described as a panic attack when she was getting ready to go to work. She broke down crying and was anxious. She took a Kalma tablet and had some rest”.
The report noted that Mrs Fisher “continues to face the impasse of not really wanting to be at work but harbouring financial considerations that are keeping her at work. Mrs Fisher gave me the impression that she has resigned herself to accepting that she will leave work”.
Dr Tschirn provided “there is little doubt in my mind Mrs Fisher has continued to suffer with chronic neck symptoms having undergone a cervical fusion in 2013. She did however make a good recovery”. He furthers that “things then regressed and her symptoms deteriorated to the point where she was off work regularly and increasing her hours beyond just a handful was proving extremely difficult during this time she has travelled overseas, on more than one occasion, tolerating this quite well only to see her symptoms escalate quickly when going back to work. From her reports neck pain increases within a few minutes of starting work, it is significantly better when away from work and with long duration seated travel”.
The report found that “[t]here is a clear pattern when Ms Fisher’s symptoms are better away from work and worse when at work. The symptoms reportedly come on quickly (within a few minutes) and are so severe when at work in what is a sedentary occupation. [I]n an ergonomically sound and well set-up workplace, including the use of voice recognition technology, a kneeling seat, sit/stand workstation and the ability to take breaks”.
Dr Tschirn concluded that he could not reconcile the above with international plane travel and stated “the main barrier is Ms Fishers own willingness and desire to continue to participate [in the rehabilitation programme]. When trying to do so her anxiety levels go up as well which probably also results in a magnification of pain levels resulting in the creation of the so-called vicious cycle”.
Dr Gurgo (Neurosurgeon)
In a report dated 27 May 2016 Dr Gurgo assessed the Applicant as suffering from a 28% whole person impairment and appointed 10% of the impairment to her pre-existing conditions.
The report noted that the Applicant was “essentially asymptomatic” before lift incident two but did report a history of cervical spinal problems beginning in the early 2000’s.
Reportedly, the Applicant underwent a two-level anterior cervical discectomy and fusion on 18 December 2013 which had a good resolution. The Applicant returned to work in about April or May and built up to full duties after several months, however she ceased employment in September 2015 because of “persisting neck pain and … heaviness in her arms”.
The report described Mrs Fishers symptomology as related to the effects of ongoing progressive cervical spondylosis. It notes “the work related event … may have caused an exacerbation of her cervical spondylosis, but would not be responsible for her current symptomology. Ms Fisher has had a satisfactory outcome from the described surgery”.
Dr Gurgo also reported that “no further neurosurgical treatment is required” and he believed that “Ms Fisher is medically fit to engage in appropriate and suitable work”.
In response to questions about what kind of work Mrs Fisher could perform, Dr Gurgo reported the Applicant “should be able to return to a job that does not have manual duties”, further “given her history of neck pain, it is probably unlikely she would be able to sit at a workstation for prolonged periods of time”. The report concludes that the condition is stable and stationary.
In a second report, dated 30 June 2016, Dr Gurgo documented that “it is very likely that Ms Fisher had a degree of pre-existing cervical spondylosis and that the workplace event which occurred in February of 2013 aggravated this pre-existing condition. It is extremely unlikely that it would have been causative of it”.
In response to the question “has the workplace incident and subsequent surgery accelerated the natural degeneration of Ms Fisher’s cervical spondylosis?” Dr Gurgo wrote that lift incident two probably caused an aggravation of the pre-existing condition and necessitated surgery, however he did not believe “the surgery itself would have accelerated the natural degeneration” of the condition.
Dr Lucas (Consultant Occupational Physician)
Dr Lucas’s report dated 26 September 2016 described Mrs Fisher as advising in early 2015 that she became increasingly troubled by cervical region discomfort which resulted in her reducing work hours, attending physiotherapy, medical review and attending imaging including MRI. Mrs Fisher was advised of a considered diagnosis of symptomatic C7/T1 degenerative disease on the basis of the image findings.
Dr Lucas outlined that Mrs Fisher was experiencing symptoms of “variable cervical and upper shoulder/ upper trapezius region discomfort” which she described as ranging from a “3 to 8 or 9/10 in severity”.
The report concluded the Applicant’s considered diagnosis is mechanical cervical pain with multilevel cervical degenerative changes noted on the imaging for which cervical fusion surgery was undertaken.
Dr Lucas wrote that in his opinion, the current symptoms are attributable to age-related progression of the Applicant’s underlying cervical degenerative disease and not aggravated by her employment participation.
Dr Sharman (Consultant Occupational Physician)
Dr Sharman’s report dated 7 November 2016 noted that after initially attending her doctor in 2000 with heavy arms and neck problems “due to her neck posture at work”, Mrs Fisher had yearly epidurals up until 2005 with no further problems.
Dr Sharman’s report explained that the Applicant’s more recent neck problems started in 2013 after she sustained an injury to her neck in a lift (lift incident two). The Applicant returned to work in April 2014 and by November she was deteriorating despite intervention including the provision of voice recognition software.
Dr Sharman wrote that at the time of the review, Mrs Fisher was reported as experiencing a continuing dull ache in her neck that is constantly present. She also has left arm symptoms with aching in her forearm and dull/sharp pain affecting her hand and fifth finger.
Dr Sharman provided a diagnosis of probable C7/T1 degenerative disease which he believed would have been unlikely to develop without the demands on her neck during employment and the fusion surgery performed in the context of a claim, however he noted “it is more difficult to prove that for legal purposes”.
In a second report dated 16 May 2017, Dr Sharman found that it was not possible to know the extent of symptomatic cervical disease the Applicant would have suffered in the absence of any demands during employment. However, the report furthers that in the absence of obvious non-work related injury, “it seems more likely that (sic) not that she would not have the extent of cervical and upper limb symptoms that she currently suffers in the absence of the combination of factors that affected her cervical spine from employment with Centrelink”.
On 1 July 2020, Dr Sharman provided a review of the report of Dr du Plessis dated 4 May 2020. The report of Dr du Plessis provided that Mrs Fisher “did not have the demeanour or the appearance of a person with this level of physical discomfort”.
In response to Dr du Plessis’s report, Dr Sharman wrote that the Applicant told him she had taken an alprazolam tablet before the assessment and was unsure if she mentioned this to the Doctor. She said as a result of taking the medication she became “relaxed within about 20 minutes of the assessment”.
Dr Sharman wrote that the report of Dr du Plessis is based on a Telehealth consultation where he utilised the services of a physiotherapist and acknowledged “some doubts about the technical basis of the assessment”.
In Dr Sharman’s opinion, the errors in the Telehealth Assessment create doubt as to the reliability of the report. Dr Sharman also states Dr du Plessis is incorrect to state that an incident could not have resulted in an injury to the cervical spine, particularly if frightening.
Finally, Dr Sharman stated that he did not agree with Dr du Plessis’s argument that work in a sedentary office-based employment does not have the potential to contribute to cervical degenerative disease.
After referring to Dr Hunn’s report (dated 2 September 2012), on 11 November 2020 Dr Sharman provided a further report where it was noted:
I think it is reasonable to state that the lift incident was the immediate, proceeding cause for the need for fusion surgery. Prior to the incident, symptoms had been controlled, but the incident caused stress on the cervical spine with an escalation of symptoms and the need for surgery.
While it is possible that there might eventually have been a requirement for such surgery due to the progression of her underlying degenerative condition, I think it is reasonable to state the need for such surgery was directly attributable to the left incident, or at least it bought forward the need for such surgery by many years.
On 21 June 2021 Dr Sharman provided an additional report which read “since my report dated 11 November 2020, I understand [the Applicant’s] condition has worsened”.
The report noted “as outlined in my previous reports, my main concern was about progressive degenerative change at the C7/T1, but the recent plain imaging also suggests progression of the degenerative change at C4/5 level, the level above the fused segment”.
Finally, the report provided “the history suggests a significant escalation of symptoms most likely due to trauma even if the precise nature of that trauma cannot be demonstrated by the available imaging” and that “solely age-related degenerative change… seems highly unlikely”.
Dr du Plessis (Consultant Neurologist and Rehabilitation Physician)
Dr du Plessis provided a report dated 4 May 2020. The assessment was conducted via video conference and the report notes “my opinion is valid and dependable and was not limited as a result of conducting this assessment via video”.
The report noted that Mrs Fisher “reported that she continues to have neck pain at the base of her neck that spreads up her neck and towards both the shoulders”, it continues “at maximum this pain can be 10/10 in severity” however “usually her pain is between 4/10 and 5/10 severity”.

Dr du Plessis provided that “she still is anxious every day. This increases her pain level as well” and that “overall Ms Fisher was of the opinion that in the last six months her condition has worsened”.
He described the sequence of events following her injury as:
[S]he attempted to return to work, but this was not that successful. She then had neck surgery from C5 to C7 performed by Mr Hunn. Pre-operatively she could not move her arms and had a lot of pain in her neck. Post-operatively the pain in her arms dissipated, but she continued to have pain in the lower neck region spreading to both the deltoid regions and up her neck. At this stage she no longer had pain in her arms, but she continued to experience some numbness in her fingers, the right hand being more affected than the left. This numbness involved the index, the middle and at times possibly her ring fingers bilaterally.
During Dr du Plessis’s examination he recorded that “Ms Fisher reported that she had 8/10 to 9/10 severity physical discomfort… She did not have the demeanour or the appearance of a person with this level of physical discomfort”.
The report stated that the examination was carried out by a physiotherapist and that “the nature of the neurological examination involves a number of techniques not often known to therapists and this makes the examination difficult particularly with regard to certain subtleties”.
Dr du Plessis provided that:
[T]here are some discrepancies with regard to what is being reported, what has been observed during the consultation and the clinical findings that were elicited by Mr Oakley. In particular, the extent of Ms Fisher’s reported physical discomfort not correlating well with her demeanour and her appearance during the consultation and the physical examination as well as the level of physical movement noted during the consultation compared to that measured by Mr Oakley during the physical examination. These are all aspects that need to be reviewed in order to create a detailed picture of Ms Fisher in terms of what her physical status was like prior to the accident bearing in mind that she is known to have had cervical pathology as far back as at least November 2000 when she had an MRI scan of her cervical spine, and how this pathology and symptomatology had progressed over time.
Dr du Plessis described the causative factors as:
[T]hat of the normal ageing process. This process is usually genetically determined and some people develop degenerative changes at an earlier age than others. I do not consider that degenerative changes are hastened by the type of employment undertaken by Ms Fisher. It is more likely that pre-existing or lifestyle-related conditions could be factors and in the case of Ms Fisher the fact that she had been involved in a rear-end accident when she sustained a back injury may have been one of the factors that hastened the degenerative process.
He wrote that “I do not consider that a sedentary type of occupation which she works in would be responsible for the development of further degeneratve (sic) change or symptoms”.
In a report dated 21 August 2020, Dr du Plessis quoted significant parts of Dr Sharman’s response to his first report that he described as “not adequate”.
He stated:
Dr Sharman did not agree with my statement that working in a sedentary office-based employment position does not have potential to contribute to cervical degenerative disease. I would like to see the reference from Dr Sharman confirming that cervical spinal degenerative disease occurs in the absence of any other factors, other than working in a sedentary office-based employment position. I accept that neck pain can occur, but this is usually due to muscular activity/strain and usually settles, particularly when the work is no longer being performed.
The report furthered:
Dr Sharman admits that he was not aware of any scientific literature that specifically considered the risk of sustained neck flexion in employment and potential effect on cervical degenerative disease where fusion of some cervical segments was already present, but stated that it was known that sustained spinal flexion did increase loading on discs and it was plausible that such activities could accelerate discal degeneration.
The report did acknowledge that a fusion at one or two levels causes additional stress above and below levels of the fusions and causes hastened degenerative changes “but in the case of Ms Fisher, no degenerative changes were noted in relation to these earlier fusions between the years 2013 when the operation occurred and 2017 when Dr Sharman had previously assessed Ms Fisher”.
Aggravation of Generalised Anxiety Disorder
Dr Scott Chambers (Physiatrist)
Dr Chambers provided a report dated 20 May 2013, he stated that the Applicant has been experiencing more anxiety since lift incident two and has been using Alprazolam as required. She has also been able to use lifts since the incident.
The report noted that Mrs Fisher reported occasional panic attacks characterised by crying, a sense of impending doom, nausea and shortness of breath. She also reported “generalised anxiety and concern about her physical pain, and concern about her finances”.
Dr Chambers reports Mrs Fisher as suffering from Generalised Anxiety Disorder (GAD). He describes the known causation factors as being “a previous episode of being stuck in a lift, her diagnosis of cervical stenosis… and most recently an episode of being caught in a lift”.
The report states that Mrs Fisher’s first episode of anxiety occurred approximately 24 years ago “and she appears to have recurrent anxiety since her diagnosis of cervical canal stenosis approximately 10 years ago”.
Dr Chambers notes the current medical condition is a recurrence of a pre-existing condition and “the current presentation is a worsening of the diagnostic indicators”.
Dr Chambers provided a second report dated 26 August 2015, he describes the Applicant as experiencing anxiety about her pain and stated that she feels “useless” due to her physical restrictions. Regarding the Applicant’s future, Dr Chambers notes Mrs Fisher “is not able to look up or down at a screen due to neck pain” and that she is unsure about alternative work options.
The report details that from a psychiatric perspective the Applicant is not currently fit for her usual duties and hours as “[Mrs Fisher’s] anxiety levels and preoccupation with her pain and physical symptoms limit the hours she is able to undertake in the workplace”.
Dr Chambers notes the Applicant would be fit to undertake a return-to-work programme and notes “the employee is able to work 3 hours per day for 3 days per week currently”.
Dr Schultz (Consultant Psychiatrist)
Dr Schultz provided a report dated 4 August 2014 noting that Mrs Fisher reported that she was experiencing changes at work that she was not overly happy about as she was “previously doing work on family tax benefits, but now it is to do with the aged pension, and she has had to figure it out and there is some online training”.
The Applicant reported that her anxiety has “generally improved” and that “while not particularly enjoying the work she is coping with it”.
Dr Schultz observed that “there are no longer any limitations to full-time work as a result of mental illness” and that “she has adequate mood, concentration, her anxiety is manageable she is not having panic attacks and the work is well within her long-term experience and skills”.
Peter Farnbach (Consultant Psychiatrist)
Dr Farnbach reported on 31 March 2016 that Mrs Fisher described her biggest concern regarding her anxiety is her panic attacks. She described having panic attacks most days, characterised by a shortness of breath, feeling hot, nauseated and like “I’m not going to breathe”. The report stated “Ms Fisher told me that she was having frequent panic attacks at work and that this was a substantial component of her inabilility (sic) to stay at work”.
Regarding prognosis, Dr Farnbach expected a significant reduction in Mrs Fisher’s symptomatology over a three to six month period. He states that “from a psychiatric point of view consideration of invalidity retirement is premature. She should have a trial of more vigorous treatment first”.
When discussing a possible diagnosis, Dr Farnbach wrote “based on examination and review of documents provided, I formed the view that she is markedly exaggerating her symptoms in the context of external motivation and I cannot provide a current valid DSM-IV or DSM-5 psychiatric diagnosis”.
Phillip Reid (Consultant Psychiatrist)
Dr Phillip Reid provided a report dated 29 April 2016 that described Mrs Fisher’s complaints of anxiety symptoms, she felt that most of her anxiety stemmed from her pain “although treatment of her anxiety pre-dates her neck pathology”.
Mrs Fisher stated that “there had been an event in a lift many years before, but this had not precipitated the anxiety that she was experiencing now” and that “she did not so much get anxiety from the phobic situation”. However, she did claim increasing anxiety “over the last three years”.
Dr Reid stated that in the last twelve months the Applicant was experiencing less anxiety but “her pain levels were high”.
The report described the commencement of Mrs Fisher’s panic disorder and notes that it “occurred many years before her injury”. It furthered “there is no temporal relationship between her neck injury and previous development of anxiety”. The second lift incident was discussed as “an earlier frightening experience in a lift” and although “there was not a temporal relationship with the onset of the condition, certainly her anxiety state worsened with her neck pain, especially attempting to manage it in the worksite”.
Dr Reid concluded that Mrs Fisher is not fit for work or a rehabilitation programme, that her degree of permanent impairment is 10% but with consideration of her pre-existing condition of GAD/Panic Disorder creates a whole permanent impairment rating of 5%.
Dr Reid provided a secondary report on 11 July 2016 where he confirmed Mrs Fisher’s anxiety had stabilised. However he also noted that “she has been left with a residual ongoing exacerbation of her generalised anxiety disorder. Her generalised anxiety disorder is worse now than prior to her February 2013 injury”. He also noted that “the contributing factor to Mrs Fisher’s exacerbation is her ongoing neck pain”.
Dr Miller (Consultant Psychiatrist)
In a report dated 12 July 2016, Dr Miller stated:
I spoke with Ms Louise Dewis, Clinical Psychologist who had worked with Ms Fisher on managing her chronic pain. She told me that Ms Fisher had not described panic attacks to her and she found some difficulty in eliciting just what Ms Fisher’s goals were and she was not at all sure that she achieved a great deal with her.
Dr Miller described the details of lift incident two and the chain of events leading up to her current position “where Ms Fisher has not worked since February 2016”.
The Applicant’s symptoms were described without reference to panic attacks, however “her concentration is impaired”. Regarding a diagnosis, Dr Miller wrote “I think adjustment disorder with anxiety is a reasonable conclusion. She has reported panic attacks which no longer seem to be dominant and seem to be work-related and not present at home. I suspect they have diminished because they were linked to her work”.
The report described Mrs Fisher as “entrenched in a chronic pain syndrome; exacerbated by her intense anxiety when thinking of or approaching her former place of work”. He furthers “while her mental disorder alone may not make her permanently incapacitated, the combination of her anxiety/mood symptoms with her chronic pain, make the likelihood of recovery to the degree she can work, improbable ~ Thus I am of the opinion Ms Fisher is totally and permanently incapacitated for work”.
The report concluded “in my opinion I do not consider that she suffers from a psychiatric condition that has been caused or worsened by her employment” and “I [have] formed the view that she is markedly exaggerating her symptoms in the context of external motivation”.
Dr Lee (Consultant Psychiatrist)
In a report dated 6 May 2020, Dr Lee outlined Mrs Fisher’s background and noted “although pain is the major reason that she is away from work, being unable to do many things has caused general anxiety”. He also wrote that “there was a quality of exaggeration” during the examination.
He furthered that Mrs Fisher’s ‘Modified Somatic Perceptions Questionnaire’ indicates overreporting as “such scores are rarely achieved other than in persons known to be malingering”.
Dr Lee also noted the following:
I note that there was a previous elevator incident some years prior to her incident of 2013, and also note reference to her first panic attack in the early two thousand’s while driving.
She may have initially suffered an adjustment Disorder, but the prolonged duration of symptoms is inconsistent with the mechanism of the condition described and examination findings. As stated above, based on examination and review of the documents provided, I thought the view that she is markedly exaggerating her symptoms in the context of external motivation and I cannot provide a current valid DSM-IV or DSM-5 psychiatric diagnosis.
Inconsistencies in her reports overtime indicate that her employment does not contribute to a significant degree to her current presentation.
I consider that she has not suffered a permanent impairment as the mechanism of injury is inconsistent and because there has been marked variability in her course overtime inconsistent with the anticipated trajectory of an adjustment disorder.
Cross Examination of Dr Sharman
The Respondent questioned Dr Sharman on the reliability of Mrs Fisher’s history regarding her symptoms, Dr Sharman agreed that he relied on the history to form his report and that the detail and emphasis on the history depends on the context of what a doctor is doing.
Dr Sharman was asked about the causation of cervical spondylosis and said that “sustained neck posture caused cervical spondylosis”.
The Respondent took Dr Sharman through his record keeping and questioned the accuracy of such records.
The Respondent asked Dr Sharman whether he believed the Applicant had any further neck problems after her last epidural in 2009, Dr Sharman confirmed that his statement was correct and that the Applicant did have further neck problems.
Dr Sharman was asked about reports from Dr Paton that describe a painful epidural process, the Respondent suggested that the Applicant did not stop having epidurals because the pain was gone, but because they were not having the desired effect.
The Respondent referred to records from City Travel Doctors (Exhibits 25 & 26) which indicated use of Panadeine Forte between 22 September 2011 and 8 May 2012 of approximately three tablets a day.
The Respondent suggested that the use of Panadeine Forte before lift incident two, suggests the Applicant was symptomatic. The doctor agreed that “what [the Respondent] presented does suggest [the Applicant] has symptomatic cervical disease”.
The Respondent asked Dr Sharman about motor vehicle accident two, he accepted that the incident “did upset her cervical spine”.
Dr Sharman was also read a clinical note from Dr Paton which read “pain constant and going down arm and constant. Took Norspan patches”. The Respondent argued the note was indicative of the serious cervical pain experienced by Mrs Fisher in 2010, Dr Sharman disagreed.
Dr Sharman agreed that at a superficial level the operation had effectively resolved the symptoms that resulted directly from lift incident two. He expanded:
But, you know, it's more complicated than that because once you have a fusion, that changes an annex of the neck and that leaves you vulnerable to different sets of things. So her symptoms would change.
It was noted that Mrs Fisher had a fusion in December 2013, Dr Sharman agreed that the Applicant developed symptoms in C7 and T1 after the fusion, he further clarified that “a significant proportion of symptoms are coming from the C7 T1 level”.
Dr. Sharman further expanded:
While there is limited evidence of observable progression C7 T1 degenerative disease on imaging studies, it seems most likely that the C7 T1 segment is symptomatic or that other structures in the lower cervical spine have become symptomatic.
The Respondent called Dr Daniels (radiologist), Dr Lee (psychiatrist) and Dr du Plessis, (neurologist and rehabilitation physician) to give evidence.
Dr Leonard Lee
During examination in chief, Dr Lee gave evidence that he had no actual memory of the length of time taken to examine the Applicant, however he noted that on average his consultations took longer than one hour.
The Applicant contended that the time taken was significantly shorter but I am satisfied that because of the length and detail of the report that Dr Lee spent sufficient time with the Applicant to enable him to provide an appropriate report.
The Applicant did not initially seek to cross examine Dr Lee but after some questions from the Tribunal she suggested to Dr Lee that he might have misinterpreted some of her answers and ticked the wrong box. That suggestion was disputed by Dr Lee.
Dr Katherine Daniels
Dr Katherine Daniels (Radiologist) provided a report dated 19 March 2021 and a supplementary report dated 8 July 2021.
Dr Daniels reviewed the Applicant’s MRI images from 30 April 2013, 31 March 2015 and 14 March 2017 and made the following comments:
I note that the reports of the cervical spine scans that were performed in 2001, 2002 and 2006 describe C5/6 and C6/7 disc degeneration and left sided C6 and C7 foraminal narrowing. The 2001 study also describes a mild eccentric right-sided C7/T1 disc protrusion.
The preoperative MRI cervical spine performed after the workplace incident on 5/2/2013 does not demonstrate any traumatic abnormality. There is no fracture or evidence of disc protrusion. The C5/6 and C6/7 disc degeneration is now severe with left-sided central canal stenosis at C5/6 and severe left-sided foraminal narrowing at the C6/7 level.
On review of the post-operative imaging, especially comparing the 2013 scan to the 2017 scan There is a significant improvement at the C5/6 and C6/7 levels after surgery,with resolution of central canal stenosis and improved foraminal appearance,especially on the left at the C6/7 level.
Dr Daniels reported that there is evidence of degenerative disease of the cervical discs and facet joints. The report notes that Dr Daniels cannot access any reports prior to 2013, but noted that the degeneration demonstrated is “in keeping with the natural history of spinal degeneration”.
It is noted in Dr Daniels’ report that there is:
[N]o evidence of an acute spinal injury on the MRI performed in April 2013 as a result of the February 2013 workplace incident. There is no fracture or bony oedema/brusing and there is no evidence of a spinal disc or ligament injury.
When asked to consider whether an increase in the extent and rapidity of the degenerative change over time would be expected, Dr Daniels reported that it would depend on contextual factors and the nature of activities undertaken.
In a supplementary report, Dr Daniels was asked to examine an x-ray of the Applicant’s cervical spine from 26 May 2021.
She wrote that the additional x-ray did not change the view that she had previously expressed. She furthered:
I believe that the role of previous spinal fusion on the aetiology of degenerative changes seen often at adjacent spinal segments is controversial. While previous fusion surgery does produce biomechanical changes in the spine, patient factors leading to the underlying degenerative disc disease exist, which increase the likelihood of disc degeneration at other spinal levels. One of the risk factors for adjacent segment degeneration is pre-existing degenerative changes in the adjacent level, thus the distinction between natural progression of that adjacent degeneration and postsurgical acceleration is impossible. Degenerative spinal disease alone can also affect spinal biomechanics so that even without surgery increased stress on adjacent level will occur over time. I suspect that the development of disc and facet joint degeneration adjacent to a level of previous surgery is multifactorial.

[2023] AATA 1883

29 June 2023

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Expert Evidence

Statutory Construction

Appeal