FSBS and Australian Capital Territory (Compensation)
[2021] AATA 1661
•10 June 2021
FSBS and Australian Capital Territory (Compensation) [2021] AATA 1661 (10 June 2021)
Division:GENERAL DIVISION
File Number(s):2019/7802
Re:FSBS
APPLICANT
Australian Capital TerritoryAnd
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:10 June 2021
Place:Canberra
The decision under review is set aside and in place thereof the Tribunal decides that FSBS sustained an injury on 23 August 2019 for which the Australian Capital Territory (ACT) is liable to pay compensation.
The parties have not been heard on the issue of costs. The Tribunal will decide this issue following receipt of written submissions within 14 days. Should no written submissions be received within that period, the Tribunal will order the ACT to pay FSBS’s costs as agreed or taxed under the Tribunal’s Guidelines to the Workers’ Compensation Jurisdiction.
……………..[sgd]……………
Mr S. Webb, MemberWORKERS’ COMPENSATION – claimed back injury arising from the first of two alleged incidents 4 days apart – threshold liability – veracity of claim – issues of reliability and credit – probable soft tissue lumbar strain – assessment of strain as an ‘injury’ – tests for ‘disease’ and ‘injury (other than a disease)’ - ailment - factors when evaluating employment contribution – employment contribution to a significant degree – frank injury - meaning of ‘impairment’ and ‘incapacity for work’ – inability to complete work duties – ‘medical treatment’ – liability to pay compensation established – decision set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A-B, 14, 16, 19, 27.
Cases
Howes v Comcare [2016] FCA 1521.
Jones v Dunkel [1959] HCA 8.
Kelman and Prosegur Australia Pty Ltd [2014] AATA 675.
Military Rehabilitation and Compensation Commission v May [2016] HCA 19.
O’Callaghan and Comcare [2019] AATA 2511.
REASONS FOR DECISION
Mr S. Webb, Member
10 June 2021
The applicant in these proceedings, who I will refer to as FSBS, has a history of issues and symptoms affecting his lower back. In the course of employment at a school, FSBS asserts he sustained an injury to his lower back while carrying some chairs. He also asserts that, four days later, he again injured his low back while bending to lift a woodwork item from the back of his car. Initially, FSBS claimed compensation in respect of the first alleged injury. The Australian Capital Territory rejected the claim. FSBS applied for review by the Tribunal.
In the course of the Tribunal proceedings, shortly prior to the hearing, FSBS made a further claim in respect of the second alleged injury. Even though the factual circumstances of this alleged injury and related medical assessments have some relevance, contextually, to the matters the Tribunal must decide in respect of the first alleged injury, FSBS’s second claim is not before the Tribunal in these proceedings.
Credit
In important regards, the FSBS’s case turns on his own evidence. It is his report of the alleged events on 23 August 2019 and subsequent symptoms in his lower back on which his claim relies. No evidence was adduced by either party from key witnesses who may have been in a position to corroborate FSBS’s account, namely a student witness and FSBS’s supervisor who are identified in the Incident Report FSBS made on 2 September 2019.[1] While strictly there is no onus of proof in Tribunal proceedings of this kind, it is for the person who seeks to upset the status quo to place sufficient materials before the Tribunal in support of their case.
[1] T6 folios 23 and 24.
Certainly, there are inconsistencies in accounts FSBS has given in respect of the circumstances in which he allegedly injured his lower back on 23 August 2019. There are discrepancies in details he has given of the circumstances in which he alleges he was injured and in details of the symptoms he experienced as a result. For example, in his oral evidence at hearing, he described feeling a “click” in his lower back when descending some stairs while carrying chairs to set up a karaoke event on the school oval, and experiencing numbness that radiated into his left buttock shortly thereafter; there is no record of such details being reported by FSBS at the time or subsequently in reference to the incident on 23 August 2019. In part, this might be explained by the over-riding effect of the incident on 27 August 2019, in which FSBS asserts he experienced a ‘click’ in his lower back and the sudden onset of radiating pain in his left lower limb that caused him to be hospitalised.
Nevertheless, the inconsistencies and the apparent evolution of FSBS’s account of what occurred on 23 August 2019 are sufficient to raise serious questions about the reliability of his sworn evidence. In these circumstances, it is not appropriate to accept FSBS’s evidence on controversial points without corroboration. That said, it does not follow that his case must fail – the unreliability of his account alone, is not determinative. The Tribunal is bound to consider all of the materials placed before it in order to make the correct or preferable decision.
Counsel for FSBS, Karl Pattenden, argued that the ACT’s failure to call key witnesses, including the student FSBS identified in the incident report he lodged and his supervisor at the time, should be a “significant factor” in the Tribunal’s assessment. Clearly enough, if there is anything significant to be made of the failure to call key witnesses, it would apply at least equally to FSBS. While it may be argued that the ACT’s initial determination or reconsideration of FSBS’s claim could have been assisted by such witness account, presently, it is FSBS’s account that is in need of corroboration and it is the Tribunal’s assessment that might be aided by evidence from such witnesses. Neither party obtained statements from these people, or called them to give evidence in these proceedings. Without attempting to determine the extent to which, if at all, the rule in Jones v Dunkel[2] might apply in proceedings of this kind,[3] where the Tribunal is not bound by the rules of evidence and the proceedings are not strictly adversarial, the failure to call a person who is able to explain the facts on which an inference is grounded as a witness is nevertheless a matter that may have some currency when assessing whether any relevant inference ought to be drawn. To my mind, however, this is not a case in which it is necessary to decide to such matters or to draw any inference of this kind – it is a case that largely turns of the reliability of FSBS’s evidence and, where his evidence is substantially supported by contemporaneous materials, as will appear, there is no cause for inferences to be drawn.
[2] [1959] HCA 8; per Kitto J at [5].
[3] Howes v Comcare [2016] FCA 1521 at [69]-[71].
Facts
On 26 October 2007, FSBS commenced employment with the ACT Department of Education and Training as a Youth Worker.
In this employment, FSBS made claims for compensation in respect of injuries to his right knee, right ankle and a finger.[4]
[4] Exhibit 7.
On 7 January 2013, FSBS lodged a compensation claim form in respect of a back injury that he alleged occurred on 28 September 2012.[5] In this claim, FSBS asserted that –
I was moving some weights and rearranging them in the fitness lab.
I lifted the weights and I heard my back go crack.[6]
[5] Ibid.
[6] Ibid, page 143.
On 2 October 2012, FSBS completed an Incident Report in which he stated –
I bent over to pick up some weights to move them into an area that we had cleared in the room. When I did this I felt my lower back click and then my upper back felt like it was pinching.[7]
[7] Ibid, page 151.
The clinical notes of Dr Michael Gan, general practitioner, illuminate the nature of FSBS’s symptoms –
4 December 2012:
2- lower back sore for last 10 weeks been to chiro a few times, had massage
Worse after waking up in the morning, bed soft
Had injured this at work – in work gym
8 January 2013:
Lower back pain got worse
Radiation down left leg
Unable to work ct back[8]
[8] Ibid, pages 93-94.
On 5 February 2013, Dr Gan issued a medical certificate, stating –
4.12.12 had lower back pain in the morning but got better as the day goes on. Problem got worse from last month, unsure why. Pain radiates down left leg and also having neck and headaches. CT lumbar sacral. Keen for chiropractor treatment CT back L4/5 moderate to severe central and left paracentral disc protrusion causing severe narrowing of the thecal sac and also compressing exiting L4 nerve root, also compression of L5 nerve root. Referral to neurosurgeon as the problem has worsened also referral to physiotherapy…[9]
[9] Ibid, page 163.
On 19 February 2013, Comcare accepted liability for a ‘lumbar sprain’ under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRCAct).[10]
[10] Exhibit 8, page 35.
On 23 February 2016, Comcare accepted liability for surgical treatments in relation to this injury.[11] I note an earlier claim by FSBS for permanent impairment compensation in respect of this injury was refused.
[11] Ibid, page 156.
FSBS decided not to undertake the surgical treatment.
On 18 December 2017, Comcare determined that it had no present liability under s 16, s 19 and s 27 of the Act in respect of FSBS’s lumbar sprain injury.[12] This decision was affirmed on reconsideration and FSBS applied for review by the Tribunal. Ultimately, the application for review was withdrawn.
[12] Ibid, page 178.
In the course of the resulting proceedings, FSBS claimed compensation for permanent impairment. The claim was refused.[13]
[13] Ibid, page 230.
FSBS asserts that he injured his lower back when carrying chairs for a school karaoke event on 23 August 2019. He has given a number of accounts of the circumstances in which this claimed injury allegedly occurred. There is some controversy over the contents of these accounts to which I will return.
FSBS attended the Belconnen Chiropractic Clinic on 23 August 2019 and consulted Charlotte McClure, a chiropractor. I understand that FSBS consulted Ms McClure as his usual chiropractor, Mark Tapper, was not available. Ms McClure made the following clinical note –
LBP
Wrong lifting technique with music equipment
PIEXL, S2BP
B/L knee protocol
On 27 August 2019, FSBS attended the Emergency Department of the Calvary Public Hospital. The Hospital records include the following clinical assessment note –
Patient presents with 5 days of lower back pain. Patient reports moving chairs at work on Friday, reports noticing mild tightness post work.
Reports taking nurofen and stretches for back which controlled pain. Patient reports sudden onset worsening pain while bending forward to get in the car.
Patient reports pain is sharp/stabbing and radiating into the bottom of the legs.
Patient reports difficulty ambulating.
…
O/E
In wheel chair, unable to stand due to pain.
…[14]
[14] T23, folio 70..
On 28 August 2019, a CT scan of FSBS’s lumbosacral spine was reported to reveal –
At L4-L5, there is a central disc protrusion and this is slightly more prominent within the right paracentral region. The disc is abutting the descending right L5 nerve root within the lateral recess. There is no significant foraminal narrowing and there is no compression of the exiting nerve roots. Mild bilateral facet joint osteoarthritis is present at this level.
The rest of the lumbar discs are normal…
There is advanced osteoarthritis at L5-S1 on the left and moderate osteoarthritis on the right. The paravertebral soft tissues are normal.[15]
[15] T5, folios 18-19.
On 29 August 2019, FSBS was discharged from the Hospital and consulted Dr Diana Kirk, his treating general practitioner. Of this consultation the doctor noted –
… Review post ED
Is a workplace injury
On Friday was lifting chairs at work and had pain
Tuesday afternoon leaning into car and felt back click and couldn’t move
ED short stay with pain relief[16]
[16] Exhibit 10, page 103.
FSBS also consulted Dr Tapper, chiropractor, on 29 August 2019. Mr Tapper noted –
Tues flexed fward in car and pulled back w R arm causing instant R LB and leg pain to the R Gt Toe and P+N feeling. Could not bear his body wght to stan…
Can now walk and move w a straight back.
OE no motor (5/5)sensory( pin) or reflex knee and achilles 2/2 changes in lower limb, PR going down, SLR no leg pain but r/BPOE Lx rom was full
Dx facet jpoint strain and swelling now subsiding with rest and meds on an old disc bulge.[17]
[17] Exhibit 4.
On 2 September 2019, FSBS completed an Incident Report in respect of the alleged incident at ’13:00’ on 23 August 2019 –
… I carried a stack of 6 chairs from out the front of the school office hallway, towards the shaded area on the school oval.
… I carried the chairs half way to where I needed them put for the Karaoke event on the school oval.
… I carried the chairs correctly holding them close to my body but after I had carried them I felt lower back pain.
…
Describe your Injury: Lower back pain, I could stand up had to go to hospital.
…
Treatment Given: Doctor/Casualty/Physiotherapy[18]
[18] T6, folio 22.
On 2 September 2019, Dr Kirk provided a medical certificate for FSBS in which she recorded –
Date of Injury: 23/08/2019
…
Description of Injury/Aetiology: Exacerbation of L4-L5 severe disc protrusion on friday was lifting chairs at work and had pain. Tuesday afternoon leaning into care and felt back click and couldn’t move.
…
[X] Unfit for work from 27/08/2019 - 10/09/2019
…[19]
[19] T24, folio 76.
On 4 September 2019, FSBS lodged a compensation claim in respect of a low back injury arising from this incident. In the claim form he stated that his ‘back, legs, arms, neck’ were affected.[20]
[20] T7, folio 25.
On 13 September 2019, an MRI scan of FSBS’s lumbar spine was reported to show –
…
At L4-5, central disc protrusion has worsened and is now moderate. It may impinge on the descending L5 nerve roots especially on the left side. Moderate facet arthrosis is unchanged. Mild central canal stenosis. The exiting L4 nerve roots are clear.
At L5-S1, the disc height is normal. There is very mild broad-based posterior disc bulge. Marked facet arthrosis is similar. No central canal stenosis or nerve root impingement.
…[21]
[21] T13, folio 42.
On 25 September 2019, Dr Kirk reported –
Q1. Is a workplace injury originally. On Friday, 23/08/2019 was lifting chairs at work and had pain. Tuesday, 27/08/2091 afternoon leaning into car and felt back click and couldn’t move…
…
Q6. As per question 1, patient was lifting chairs to stack them in a classroom when he felt pain in his back. The action of flexion-extension has meant that his disc which, was already injured was more likely to bulge.
…[22]
[22] T16, folio 49.
I note that Dr Kirk’s report is somewhat inconsistent with her clinical notes of the consultation with FSBS on 29 August 2019, following his discharge from hospital. The clinical notes do not refer to FSBS stacking chairs in a classroom. Dr Kirk was not called to given oral evidence, so it is not possible to ascertain if the contents of her report are more accurate than her contemporaneous clinical notes.
On 30 September 2019, Dr Tapper reported –
[FSBS] presented to this Centre on 23.08.2019 and was seen by my Associate, Dr Charlotte McClure. Treatment notes indicate that [FSBS] hurt his lower back lifting music equipment.
[FSBS] presented to the clinic again on 29.08.2019 stating that he had been in hospital due to severe low back and right leg pain (sciatica) in the distribution of the right L5 nerve root.
The pain was exacerbated when he bent forward, with the pain radiating down the leg to the foot and great toe. The great toe felt like pins and needles and weak.
…[23]
[23] T17, folio 51.
On 2 October 2019, Employers Mutual Limited (EML), claims manager for the ACT, issued a determination denying liability for FSBS’s compensation claim in respect of “low back pain at L4/5 sustained on 23 August 2019”.[24]
[24] T19.
On 1 November 2019, FSBS requested reconsideration of this determination.[25]
[25] T20.
On 19 November 2019, an EML Reconsiderations Officer issued a reconsideration decision affirming the original determination denying liability.[26]
[26] T22.
On 28 November 2019, FSBS applied for review by the Tribunal.
On 23 March 2020, Dr Ron Brooder, a consultant neurologist produced a medico-legal report in which he stated –
The diagnosis of [FSBS’s] condition is consistent with an aggravation to the injury involving his L4-5 intervertebral disc associated with an increase in the intervertebral disc protrusion and aggravation to the degenerative changes involving his lumbosacral facet joints with a particular aggravation to the left-sided L5-S1 facet joint arthritis.
…
I would consider that it is more likely than not that [FSBS’s] condition diagnosed above was caused by the subject incident on 23 August 2019 and had been associated with a further transient work-related aggravation to the condition on 27 August 2019.[27]
[27] Exhibit 6, page 15.
On 14 April 2020, Dr Gautam Khurana, a consultant neurosurgeon, produced a report in which he stated –
There was substantial and relevant pre-existing disease at L4/5, and this appears to have been well documented and conservatively managed and serially imaged since 2012/13. The 27/08/2019 event precipitated radiological and clinical central re-herniation at L4/5 (very similar radiologically to what occurred in 2012/13). [FSBS] has explained to me that the 27/08/2019 activity was a work-related one, although he has (bizarrely) attributed the re-herniation to the chair lifting symptom of 23/08/2019 which was at work. I do not believe that the 23/08/2019 incident was clinically relevant to the spine but was probably a musculoligamentous/soft tissue strain readily rectified by his chiropractor before 27/08/2019. The disc herniation at L4/5 that occurred on 27/08/2019 has occurred because this disc was substantially chronically diseased and previously herniated as clearly shown in the imaging attachments. Were it not for this disc to be so diseased, it should not have herniated by the relatively innocuous (as reported) mechanical act of bending in a car to lift some light objects.[28]
[28] Exhibit 5, page 16.
Issues
The issue to be decided in this review is whether FSBS sustained an ‘injury’ to his lower back on 23 August 2019 for which the ACT is liable to pay compensation.
This issue is to be decided under the Safety, Rehabilitation and Compensation Act 1988 (Act). The definition of ‘injury’ in s 5A applies –
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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
The word ‘disease’ is given meaning in s 5B –
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.
(2) 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.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Thus, applying these provisions and being mindful of the approach to be adopted following the High Court judgement in Military Rehabilitation and Compensation Commission v May,[29] albeit that the Court was dealing with different but comparable legislation, it is necessary to determine if, on 23 August 2019 –
(a)FSBS suffered from an ‘ailment’ or an ‘aggravation’ of an ailment;
(b)his employment contributed to a significant degree to the ailment; and if not
(c)FSBS sustained a physical injury, or an aggravation of a physical injury, arising out of, or in the course of, his employment.
[29] [2016] HCA 19, per French CJ, Kiefel, Nettle and Gordon JJ at [50]-[56].
Ailment
FSBS gave oral evidence of experiencing a ‘click’ in his lower back that was shortly followed by symptoms of pain with numbness radiating into his left buttock, possibly associated with a sensation of something moving forward in his back towards his stomach. It is possible this occurred, but aspects of his evidence on this point are not supported by reliable evidence. If he reported the alleged numbness to Ms McClure or any other health practitioner, as he asserts, one would expect to find some clinical notation of it, but there is no such record. The first time FSBS referred to the ‘click’ and numbness radiating into his left buttock was in his oral evidence during the hearing.
Nevertheless, the evidence of Ms McClure, Dr Kirk, Dr Tapper, Dr Brooder, Dr Khurana and the Calvary Public Hospital notes, support the proposition that FSBS experienced low back pain on 23 August 2019.
FSBS asserts that the onset of low back pain occurred while he was carrying items to set up for a karaoke event on the school oval. There is some inconsistency in the records of what it was that FSBS was carrying. Ms McClure records this to be “music equipment”. Dr Kirk refers to stacking chairs. Nevertheless, to varying degrees, the notes and reports of Dr Kirk, Dr Brooder, Dr Khurana and the Calvary Public Hospital corroborate FSBS’s assertion that he experienced low back pain when he was lifting or carrying a stack of plastic chairs at the school where he worked on 23 August 2019.
That being so, on balance, I am reasonably satisfied and find that FSBS experienced the onset of low back pain while carrying a stack of plastic chairs in the course of his employment on 23 August 2019.
On the question of the correct medical diagnosis of the cause of FSBS’s low back pain on 23 August 2019, there are divergent medical opinions in evidence.
On the one hand, Dr Kirk and Dr Brooder are of the opinion that the pain resulted from exacerbation of spinal pathology at the L4/L5 level. Dr Kirk examined FSBS on 29 August 2019, after the incident on 27 August 2019 which caused FSBS to be hospitalised, and reported that the injury was an “[e]xacerbation of L4-L5 severe disc protrusion”.[30] Dr Brooder reported his diagnosis to be “aggravation to the injury involving his L4-5 intervertebral disc associated with an increase in the intervertebral disc protrusion and aggravation to the degenerative changes involving his lumbosacral facet joints with a particular aggravation to the left-sided L5-S1 facet joint arthritis”.[31]
[30] T25, folio 76.
[31] Exhibit 6, page 15.
On the other hand, Dr Khurana considered the pain to result from a probable “local musculoligamentous/soft tissue strain” that was amenable to improvement with chiropractic treatment.[32]
[32] Exhibit 5, page 16.
The only health practitioner who examined FSBS after the incident on 23 August 2019 and before the incident on 27 August 2019 was Ms McClure. While her clinical notes of the consultation with FSBS on 23 August 2019 are very brief, they do not suggest the occurrence of a spinal injury.
FSBS asserts that, after the onset of low back pain on 23 August 2019, a Friday, he left work early in order to obtain chiropractic treatment at short notice. He asserts that he would usually consult Dr Tapper, but the only available chiropractor on that day was Ms McClure. There is no reliable evidence to corroborate his account of leaving work early on that day.
FSBS returned to work on Monday 26 August 2019. It appears that the chiropractic treatment he obtained on 23 August 2019 assisted in relieving his low back pain symptoms, albeit that the symptoms of low back pain may have persisted at a lower level. There is no radiological imaging or contemporaneous clinical evidence to support the assessments of Dr Kirk and Dr Brooder of lumbar spine or discogenic involvement. There is also no reliable evidence that FSBS experienced any resultant difficulty walking or undertaking his usual duties on 26 August 2019 or during the day on 27 August 2019, before the incident in which he experienced the sudden onset of strong low back pain radiating into his left lower limb. FSBS asserts that he experienced ongoing pain, albeit at a reduced level on 26 and 27 August 2019.
On Dr Khurana’s evidence, and having regard to Ms McClure’s contemporaneous notes, this history would be more consistent with a local musculoligamentous or soft tissue strain in FSBS’s lower back than discogenic spinal pathology. I accept Dr Khurana’s assessment that it is difficult to accept that FSBS would have been capable of undertaking his usual work duties if the incident on 23 August 2019 was associated with exacerbation or aggravation of previously existing disc pathology at the L4-L5 level in his lumbar spine.
That said, I accept Dr Brooder’s evidence, with which Dr Khurana substantially agreed, that some weakness or vulnerability to recurrence might persist at the site of the previous discogenic pathology at the L4-L5 level which was first identified in a CT scan of FSBS’s lumbosacral spine in January 2013. It is possible that carrying chairs commenced a pathological process in FSBS’s lumbar spine, possibly involving the L4-L5 disc, that became highly symptomatic on 27 August 2019, but this is not presently established by evidence, on the balance of probabilities.
Adopting the approach adopted in Kelman and Prosegur Australia Pty Ltd[33] and O’Callaghan and Comcare,[34] I am not persuaded that the symptoms FSBS experienced when carrying chairs on 23 August 2019 are properly characterised as the result of a pre-existing condition, to the extent that the pain symptoms should be attributed to, or consider to be an effect of, FSBS’s previously existing lumber spine condition.
[33] [2014] AATA 675 at [25].
[34] [2019] AATA 2511 at [134]-[138].
With regard to Dr Brooder’s evidence in respect of possible aggravation of L5-S1 facet joint arthritis, this might be consistent with symptoms FSBS described in his oral evidence, namely experiencing a ‘click’ followed by low back pain and numbness radiating into his left buttock area. The difficulty here is that the matters FSBS described in his oral evidence are not corroborated by any earlier record or report of symptoms he experienced on 23 August 2019. Once again, it is possible that Dr Brooder’s assessment that FSBS’s previously existing L5-S1 facet joint arthritis was aggravated when he carried chairs when setting up a karaoke event on 23 August 2019 but, having carefully considered the available evidence, I am not reasonably satisfied that is what occurred.
I note that, prior to the incident on 27 August 2019, which remains controversial, the only treatment FSBS sought for symptoms he experienced on 23 August 2019 was from Ms McClure. He did not consult Dr Kirk until his release from the Calvary Public Hospital on 29 August 2019, on which day he also consulted Dr Tapper, his usual chiropractor. Dr Kirk’s diagnostic opinion in respect of what may have occurred physiologically in FSBS’s lower back on 23 August 2019 must be assessed in these contextual circumstances. The doctor was not called to give oral evidence, so the basis on which her opinion was formed cannot be closely examined or tested.
The preferable conclusion is that the low back pain FSBS experienced on 23 August 2019 was the result of a musculoligamentous or soft tissue strain in his lower back. The extent to which, if at all, this may have affected any site of discogenic weakness, or vulnerability to recurrence of pathology, in his lumbar spine, including in respect of L5-S1 facet joint arthritis, cannot be reliably ascertained on the present evidence.
It can readily be accepted that the musculoligamentous strain FSBS sustained on 23 August 2019 meets the description of an ‘ailment’, as defined in s 4(1) of the SRC Act.
Employment contribution
Even though there are questions about the reliability of FSBS’s evidence, and there are apparent inconsistencies in records of accounts he has given over time about the circumstances in which he hurt his back on 23 August 2013, two consistent elements are quite clear. Firstly, FSBS has consistently maintained that he hurt his back while he was carrying items at work on 23 August 2019. Secondly, FSBS has consistently maintained that, consequently, he attended for chiropractic treatment later on that day.
These two elements of his case were not contradicted or countered by evidence and they were not seriously challenged under cross examination.
That being so, on the evidence of Ms McClure, Dr Kirk and the Calvary Public Hospital records, I am reasonably satisfied that the two elements at the heart of FSBS’s account of having sustained a low back injury on 23 August 2019 are made out. From this it follows that the musculoligamentous or soft tissue strain he experienced on that day was a strain that occurred in the course of his employment.
The extent to which FSBS’s employment contributed to the strain he sustained is contextual – the employment contributed to the strain to the extent that FSBS sustained it while carrying chairs in the course of his employment. The detailed mechanism by which the strain occurred involves biomechanical forces proportionate to the weight of the load FSBS was carrying and the position or posture of his body at the time. These are matters of detail that are not apparent on the present evidence, although they may be inferred as sufficient to cause the strain FSBS sustained.
Considering the matters that should be taken into account for the purposes of s 5B(2) of the SRC Act, FSBS had been an employee of the ACT for several years prior to 23 August 2019, albeit that he had returned to his duties as a Youth Worker in a school in May 2019, following an extended period of absence. There is no dispute that his duties may have included the activities in which he was engaged, carrying chairs on 23 August 2019. There is also no dispute that FSBS had previously existing discogenic lumbar spine pathology at the L4-L5 level and facet joint arthritis at the L5-S1 level. These conditions may have created some vulnerability in his lumbar spine and may have predisposed him to a risk of injury.
All these matters notwithstanding, on Dr Khurana’s evidence, the musculoligamentous or soft tissue low back strain FSBS sustained was probably caused by biomechanical issues relating to carrying chairs, without any involvement of lumbosacral spinal structures.
On that basis, and taking into account the relevant matters to which I have referred under s 5B(2) of the SRC Act, it is probable that FSBS’s employment contributed to the musculoligamentous or soft tissue strain to a degree that is substantially more than material, such that the strain might amount to a ‘disease’ for the purposes of the SRC Act.
If that is correct, FSBS’s claimed injury satisfies the terms of s 5A(1)(a) of the SRC Act.
Nevertheless, even if I am wrong in that conclusion, the alternative basis of liability under s 5A(1)(b) is to be considered. Under this provision, it is necessary to determine if the low back strain FSBS sustained on 23 August 2019 amounts to an ‘injury (other than a disease)’ that occurred in the course of his employment.
On Dr Khurana’s evidence, it is quite plain that the musculoligamentous strain was associated with inflammation of soft tissues in FSBS’s lower back. This is a sudden, ascertainable physiological change that is more consistent with a frank physical injury (in the ordinary sense) than it is a disease (in the ordinary sense).
That being so, the legal threshold under s 5A(1)(b) is satisfied and I think this more closely reflects what occurred – the musculoligamentous or soft tissue low back strain is a frank physical injury (in the ordinary sense) that occurred in the course of FSBS’s employment.
Injury
In either course under s 5A(1)(a) or (b), in respect of a ‘disease’ or an ‘injury (other than a disease), the same result is obtained on the present evidence. The musculoligamentous soft tissue low back strain FSBS sustained in the course of his employment on 23 August 2019 is an ‘injury’ for the purposes of the Act.
Compensation
The ACT’s liability to pay compensation in respect of the ‘injury’ FSBS sustained is to be determined under s 14 of the SRC Act –
14 Compensation for injuries
(1) Subject to this Part, Comcare 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.
(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
This is often referred to as a gateway provision as the amount of any compensation that might be payable to FSBS remains to be determined under provisions governing particular heads of compensation entitlement, none of which are presently before the Tribunal.
Clearly enough, the first of the three preconditioning criteria is not presently applicable – FSBS is very much alive.
As to the second criterion, in respect of ‘incapacity for work’, this phrase is given meaning in s 4(9) –
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
FSBS asserts that he was unable to continue to carry the chairs when he first experienced low back pain on 23 August 2019 and he was assisted by a student (the witness nominated in the Incident Report FSBS subsequently lodged) to complete the task in which he was engaged. This, he argues, amounts to an incapacity to work at the same level. Furthermore, he asserts that he left work early that day in order to obtain chiropractic treatment for the low back pain. In his submission, this, too, is an incapacity for work.
These submissions are not supported by contemporaneous independent evidence.
It was open for FSBS to call evidence from the student he nominated as a witness, but he did not do so. Consequently, there is no independent witness evidence supporting his account of what occurred on 23 August 2019, namely that he was unable to continue carrying chairs. Ms Dempsey, FSBS’s then supervisor, appears to have completed components of the incident report FSBS lodged on 2 September 2019, after the incident on 27 August 2019, and her record lends support, albeit weakly and from afar, to FSBS’s evidence that he hurt his back while carrying items on 23 August 2019.
The time of FSBS’s consultation with Ms McClure on 23 August 2019 is not recorded in her clinical notes.
These difficulties notwithstanding, there is sufficient to accept that FSBS experienced sudden pain carrying the chairs that caused the musculoligamentous or soft tissue strain in his lower back and that this caused him to stop carrying the chairs, as he alleges. This is not contradicted or contra-indicated by other evidence, and it is consistent with his attendance on Ms McClure for treatment later that day. It is also consistent with Dr Khurana’s evidence in respect of the musculoligamentous or soft tissue strain.
The inability to continue with the work task in which FSBS was engaged on 23 August 2019 amounts to a partial incapacity for work, albeit temporary.
Even if I am wrong on this point, the third preconditioning element in s 14 is in respect of ‘impairment’ resulting from ‘injury’.
The word ‘impairment’ is given meaning in s 4(1) of the SRC Act –
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
On Dr Khurana’s evidence, the musculoligamentous or soft tissue strain and associated inflammation is consistent with an ‘impairment’. While inflammation, like pain, may be a natural function of bodily systems working properly, they are a reaction to tissue damage, in this case the strain FSBS sustained when carrying items in the course of his employment. This conclusion is reinforced by the chiropractic treatment FSBS obtained in respect of the injury he sustained on 23 August 2019. I note that the chiropractic treatment FSBS obtained from Ms McClure on that day is consistent with ‘therapeutic treatment’ for the purposes of the definition of ‘medical treatment’ in s 4(1) of the SRC Act.
Thus, the ‘injury’ FSBS sustained on 23 August 2019 resulted in a partial ‘incapacity for work’ on that day as well as an ‘impairment’.
From this it follows that, under s 14(1) of the SRC Act, the ACT is liable to pay compensation to FSBS in respect of the injury he sustained on 23 August 2019. The amount of any compensation remains to be determined, subject to claim and merit-based assessment under any applicable head of compensation the SRC Act provides.
Decision
The decision under review is set aside and in place thereof the Tribunal decides that FSBS sustained an injury on 23 August 2019 for which the ACT is liable to pay compensation.
The parties have not been heard on the issue of costs. The Tribunal will decide this issue following receipt of written submissions within 14 days. Should no written submissions be received within that period, the Tribunal will order the ACT to pay FSBS’s costs as agreed or taxed under the Tribunal’s Guidelines to the Workers’ Compensation Jurisdiction.
I certify that the preceding 88 (eighty eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
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Associate
Dated: 10 June 2021
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