Gazzard and Comcare (Compensation)

[2018] AATA 3276

Gazzard and Comcare (Compensation) [2018] AATA 3276 (5 September 2018)

Division:GENERAL DIVISION

File Number(s):      2016/5570; 2016/5575

Re:David Gazzard

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:5 September 2018

Place:Canberra

The Tribunal affirms the decisions under review.

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

Deputy President J Sosso

Catchwords

COMPENSATION: ceased effects determination – appropriate diagnosis – whether employment still contributes, to a significant degree, to the applicant’s ailments – cervical spondylosis – causal link between sedentary work and cervical spondylosis – Telstra Corporation Ltd v Hannaford - decisions  affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Australian Postal Corporation v Bessey (2001) 32 AAR 508

Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; 151 FCR 253

Tippett v Australian Postal Corporation (1998) 27 AAR 40

Secondary Materials

Al-Bustany DA, Aziz ZA 2009, ‘Cervical Spondylosis among Group of Computer Users in Erbil City’, Zanco Journal of Medical Sciences, vol. 13, no. 2, pp. 1 - 9.

Ariëns, G A M et al. 2001, ‘Are neck flexion, neck rotation, and sitting at work risk factors for neck pain? Results of a prospective cohort study’ Occupational Environmental Medicine, vol. 58, no. 3, pp. 200 – 207.
Binder, A 2007, ‘Cervical spondylosis and neck pain’, British Medical Journal, vol. 334, pp. 527-531.
Eskay-Auerbach, M, Talmage JB 2016, ‘Spine’ in Melhorn MJ et al. ‘AMA Guides to the Evaluation of Disease and Injury Causation’ (2^nd ed).

REASONS FOR DECISION

Deputy President J Sosso

5 September 2018

INTRODUCTION

1. Mr David Gazzard (“the Applicant”) has made two applications for review of decisions made by Comcare pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).

2. Those Applications can be summarised as follows:

   (a)

   Application 2016/5570 seeks review of a decision of 18 August 2016 (Exhibit 1 T97 pp. 522 -  527) affirming a “ceased effects” Determination of 3 May 2016 (Exhibit

   
   

   1 T82 pp. 447 – 450) under ss 16 and 19 of the Act for the previously accepted “aggravation of cervical spondylosis without myelopathy (unspecified), somatisation disorder and aggravation of adjustment reaction with anxious mood” with a deemed date of injury of 12 November 2007; and

   (b)

   Application 2016/5575 seeks a review of a decision of 18 August 2016 (Exhibit

   
   

   2 T12 pp. 103 – 107) affirming a Determination of 17 June 2016 (Exhibit 2 T9 pp. 69 – 73) under s 14 of the Act denying the Applicant’s claim for “chronic cervical spine pain syndrome, chronic thoracic spine pain syndrome, major depression and associated adjustment reaction with anxious mood as a result of occupational overuse injury” with a deemed date of injury of 12 November 2007.

3. Mr Woulfe of Counsel for Comcare submitted both at the hearing and in Comcare’s Written Submissions (“CWS”)  dated 21 May 2018 at para 2.5, that Application 2016/5575 in  substance, involves a duplication of the injuries on review in Application 2016/5570. It was submitted that nothing turns on the alleged diagnostic differences in each application for review, because the same disability, timeframe and circumstances are asserted in each proceeding. The Tribunal’s attention was drawn to the following observations of Madgwick J in Abrahams v Comcare [2006] FCA 1829; 93 ALD 147 at [20] – [21]/153:

   “The claim form indicates that the diagnosis was right carpal tunnel syndrome. In the ‘Report of injury or disease’ (which apparently accompanied the claim for compensation), where the applicant answered the question: “What injury/disease did you sustain? (Nature of injury):’, were the words: ‘Right Carpal Tunnel Syndrome’. In the context, it is clear that he was simply adopting the then medical diagnosis of his injury.  It was nevertheless entirely clear that he was complaining in fact of pain, swelling and inflammation in the right hand and wrist associated with decreased ability to lift and move objects with his right hand and decreasing strength in the hand.

   Nothing is more common than that medical diagnoses change and evolve, or are or become various. In my opinion, to hold that the applicant was irretrievably asserting that he had a right carpal tunnel syndrome as the injury to his hand is to take an over-literal view of a document that, as I have indicated, should be beneficially, broadly and practically interpreted.”

4. During the course of the first day of the proceeding the following exchange occurred – Transcript (“Tr.”) 23.04.2018 p. 9:

   “MR WOULFE:…Comcare’s position is that the claim in application number 2016/5575, is essentially a duplication of the previously accepted physical and psychological conditions which are before the tribunal on review, in application number 2016/5570 and Comcare’s position is essentially the same within that proceeding, as well.

   DEPUTY PRESIDENT: Subject to what Mr Gazzard has to say – Mr Gazzard, I have looked at the proceedings and they appear to me to be substantially an overlap and it doesn’t really matter whether there is two or one, from my perspective.

   MR GAZZARD: No, as far as I – I’m happy with having both streamlined into the one process, because they do really cover quite the same material”.

5. I agree with Mr Woulfe’s submission that the two applications cover the same ground and overlap. The disposition of Application 2016/5570 will, for all intents and purposes, flow on and result in the disposition of Application 2016/5575.

   BACKGROUND

6. The Applicant was born in 1965 and is currently 53 years old. He is a married man and has one adult daughter. After leaving school he worked for Australia Post  as a mail officer and then worked for the Australian Government Retirement Benefits Office, later known as ComSuper, as a Clerical Assistant Grade 1, eventually, over a 13 year period, being appointed to the APS 5 level – Exhibit 1 T1.1 p. 7, T9 p.56.

7. In 1998 the Applicant transferred to the Australian Tax Office (“ATO”) to work as a software and systems tester, and, after six months, having shown an aptitude for working with the software system, was moved to the Technical Support Office (“TSO”). The Applicant’s role expanded and he was given a team member to assist him in performing his duties. In addition, the Applicant was tasked with training team members in some of the less difficult aspects of running computer software for their respective projects. The Applicant claimed that as the size of the team increased his chances of taking breaks decreased and time spent on computer tasks increased. He experienced pain in his cervical and thoracic spine regions, with numbness and tingling in his right arm and hand.

8. In May 2002 the Applicant submitted a claim for “Cervicobrachial syndrome (diffuse) (right)” which Comcare accepted – Exhibit 1 T1.1 pp. 7 - 8.

9. The Tribunal was provided a copy of that claim which was admitted as Exhibit 7.

10. In response to Question 18(a) which asked: “Have you ever had a similar injury or illness before, work related or otherwise (even if you think it is unrelated to this injury or illness)?”, the Applicant ticked the “No” box.

11. The Applicant was performing “pre-injury” duties by September 2002 and in early 2003 he was moved out of the TSO role and transferred into a Software Tester role with a primary responsibility for testing low priority changes.

12. In July 2003, the Applicant attempted to commit suicide due to his depressed mood and spent time in the psychiatric ward of Calvary Hospital.  He submitted a further claim, which was accepted, for “aggravation of adjustment reaction with depressive reaction” – Exhibit 1 T1.1 p. 8.

13. In 2006 the Applicant was transferred to the Health and People Management Business Line (“ATO People”), involving case management and clerical services – Exhibit 1 T9 p.56.

14. In 2007 the Applicant and his wife had a three month overseas holiday. On his return to ATO People in November 2007, he was transferred from a Case Manager role to a placement with another employee that required him to handle incoming mail, scan the hard copies, load the digitised document into the electronic management tool and then advise the relevant case manager that mail had been received and was available for actioning. The Applicant made the following statement – Exhibit 1 T1.1 p. 9:

    “I was alone for the first week back. As the week went on the level of pain increased and by Friday the 9^th November 2007 I awoke in severe pain and did not attend work. Since this episode I have been in more severe continual pain and continued my time at the ATO on reduced duties and hours. I submitted a compensation claim in January of 2008 and Comcare made a determination to accept liability for “Aggravation of Cervical Spondylosis without Myelopathy, Somatization Disorder and Aggravation of Adjustment Reaction with Anxious Mood (DSM-IV coding 309.24).”

15. From 21 November 2007, until the end of that calendar year, the Application was assessed by his then general practitioner (“GP”), Dr Maisie Goh, on six occasions. On each occasion the reason for the visit was stated to be “Workcover” or “Workers’ Compensation”. The first assessment was 21 November 2007, when the Applicant informed Dr Goh that he had hurt his neck and shoulder from three days of typing. He also reported stomach problems and that he had an anxiety attack at work – Exhibit 1 T10.1 p. 66.  By 10 December 2007, the Applicant complained that the pain had worsened, that he was not coping and found it difficult to relax. Dr Goh prescribed him Valium – Exhibit

    
    

    1 T10.1 p. 69. Two days later the Applicant reported suicidal thoughts and an inability to sleep without sleeping tablets. That afternoon the Applicant was admitted to Hyson Green, the psychiatric unit of Calvary Hospital – Exhibit 1 T10.1 p. 70. He remained in the hospital for eight days and was discharged on 20 December 2007 – Exhibit 1 T6.1 p. 43; T10.1 p. 72. Dr John Sabiosky, his treating psychiatrist, observed in a letter dated 7 March 2008 – Exhibit 1 T6 p. 42:

    “As I recall his coming to hospital was very much related to an argument that he had had with his wife regarding his level of distress.

    He settled relatively quickly after exploration of relational issues and the way that he was coping with his disability.”

16. The Applicant lodged a workers’ compensation claim on 3 January 2008. The diagnosed condition claimed was described as “OOS injury in neck/shoulder/arms, Anxiety and Severe Depression”. The parts of the body injured were: “Neck/back/shoulder/arms Psychological – Anxiety/Severe Depression”. The Applicant claimed that the injury occurred, or that he first noticed it on 9 November 2007, and that the cause of the injury was using “the keyboard and mouse” - Exhibit 1 T3 pp. 26, 28.

17. The Applicant was asked whether he had ever had a similar symptom, injury or illness, work-related or otherwise, and he responded in the affirmative and gave these details – Exhibit 1 T3 p. 27:

    “May 2002 – OOS Injury – Neck/Right shoulder/arm

    May 2003 – Anxiety/Severe Depression”.

18. When the Applicant was asked about what he was doing at the time he was injured he provided the following response – Exhibit 1 T3 p. 28:

    “Return to work on 05/11/07 following 3 months leave. Assisted with attaching incoming mail to PIES. Noticed that neck and shoulders were sore Thursday 08/11/07. Woke up on Friday 09/11/07 in agony and had limited movement in my neck and shoulders. Took Friday off on Sick Leave. Came to work on Monday 12/11/07 at 8:00am and experienced an Anxiety Attack at 9:00am and went home at 10:00am.”

19. The Applicant underwent an MRI scan of his cervical spine on 4 January 2008. The treating doctor, Dr Meng Chung, noted that spondylosis was most pronounced at C5/6, where there may have been impingement on the right C6 nerve root. Dr Chung noted that there had been no significant change since the Applicant’s previous MRI scan of

    
    

    15 September 2004 – Exhibit 1 T10.3 p. 81.

20. The Applicant also had an MRI scan of his right shoulder on this day. Dr John Faulder, who performed the MRI scan, opined that there were no tears or bursitis, and the most likely diagnosis was Enchondroma – Exhibit 1 T10.2 p. 80.

21. The Applicant was assessed by Dr Marcus Navin, occupational physician, on 29 January 2008. Dr Navin opined that the Applicant’s predominant problem was his pain. Indeed,

    
    

    Dr Navin was of the opinion that the Applicant was “…overwhelmed by his symptoms and the presence of discomfort with stiffness and pain”. Moreover, Dr Navin was of the view that the Applicant’s anxiety negatively impacted on his pain perception and accentuated even physical hardships – Exhibit 1 T5 p. 39.

22. Dr Navin, when discussing the Applicant’s shoulder and neck problems, provided the following historical information, which he had obtained from the Applicant – Exhibit 1 T5 p. 38:

    “…[I]t is interesting to note that he has had a series of multiple motor bike accidents over the years. Some of these have been reasonably significant specifically early in his career. He recounted one accident of note; when he was hit by his bike after his wife and he were thrown to the road. His reaction when recounting to me reflected the severity of the accident was evident. He remains aware that he could well have been more severely injured by a car which was travelling in the opposite direction, but managed to avoid hitting him. In 1980 he also had a back injury when he was thrown from his bike during an off road motocross activity. He was on crutches for his right hip injury which may have been related to the dislocation at that time. There are other episodes of motor bike accidents (or events) which involved Mr Gazzard losing control of his bike but not suffering any apparent significant injury.”

23. The Applicant was also assessed by Dr Graham George, a consultant psychiatrist.

    
    

    Dr George diagnosed the Applicant as suffering from a Pain Disorder associated with a medical condition and psychological factors. He opined that the Applicant’s Pain Disorder was causally related to his neck and shoulder pain, which appeared to be related to a prolapse of cervical discs. Dr George also opined that his then current condition was probably a continuation of symptoms suffered from 2003 onwards.  Nonetheless, he was of the view that the Applicant did not suffer from an aggravation of a pre-existing disorder, but rather a re-emergence of pre-existing symptoms related to an unfolding medical scenario from 2000 - 2003 onwards – Exhibit 1 T8 pp 50 – 51.

24. In addition, the Applicant was also examined by Dr Iain Kelman, orthopaedic surgeon. 

    
    

    Dr Kelman’s assessment will be discussed later.

25. The Applicant resumed work on 8 January 2008, beginning with a graduated return to work program comprising four hours, three days a week (Monday, Wednesday and Friday) – Exhibit 1 T5 p. 37; T11.1 p. 86.

26. On 30 June 2008, Comcare accepted liability under s 14 of the Act for “aggravation of cervical spondylosis without myelopathy; and…somatization disorder” – Exhibit 1 T12 – T12.1 pp. 87 – 95. In reaching this decision, the Comcare Delegate referred to the consultation notes of Dr Goh and the medical reports of Drs Kelman, Glaser, Saboisky, George and Navin.  The Delegate made the following findings – Exhibit 1 T12.1 p. 94:

    “…I am satisfied that you suffered an aggravation of your cervical spondylosis and that aggravation was significantly contributed to by your employment. In reaching this conclusion, I have had particular regard to the opinion of Dr Kelman that the cervical spondylosis was a result of ‘work related activities in 2002 and was aggravated again in 2007’.

    Further, having regard to the medical and factual evidence, I am satisfied that your pain disorder was also significantly contributed to by your employment. In reaching this conclusion, I have had particular regard to the opinion [of] Dr George that your pain disorder is related to your neck and shoulder pain, which is related to prolapsed discs with associated depressive symptoms.

    Although I am satisfied that you are currently suffering depressive ‘symptoms’ as a consequence of the pain disorder, there is evidence indicating that your suffer from an underlying depressive disorder which is unrelated to your employment.  Accordingly, I am not satisfied, on the balance of probabilities, that you suffer depression as a result of your employment.”

27. The Applicant accepted an invalidity retirement, as a result of his claimed conditions, on 23 May 2013 – Exhibit 1 T68 pp. 337 – 338.

    MEDICAL EVIDENCE

28. The Tribunal has been presented with extensive medical evidence. However, for current purposes, reference need only be made to the evidence of three Doctors.

29. The Applicant seeks to rely on the medical assessments of Dr Kelman, orthopaedic surgeon, whilst Comcare relies on the assessments of Dr Uthum Dias, occupational physician and Dr Derek Lovell, psychiatrist.

30. The reports of each of these experts are set out below. It will be noted however, that the Tribunal also had the benefit of hearing Drs Dias and Lovell give evidence. The Applicant did not call Dr Kelman to give evidence, and, accordingly, Mr Woulfe did not have the opportunity to question Dr Kelman.

31. It is important to set out what is a self-evident truth. Medical evidence, when not solely based on analysing objective information or data, is predicated on the treating doctor being provided a comprehensive and accurate medical history by the patient. When a treating doctor is either given inadequate or inaccurate information, the validity and accuracy of a subsequent diagnosis is inevitably suspect. In short, when a medical expert makes a diagnosis based on a flawed factual matrix, the tribunal of fact must necessarily give much less weight (if any) to the diagnosis in the relevant medical report(s).

    Dr Kelman

32. Dr Kelman assessed the Applicant on two occasions, the first being on 8 April 2008. In the section of his report entitled “Past Medical History”, Dr Kelman made the following observations – Exhibit 1 T9 pp. 57 - 58:

    “He denies any previous injuries to his neck or upper limbs prior to May 2002.

    He has had an injury to his ankle in 1999 and has also had a ligament reconstruction procedure on his right knee.

    He suffers from irritable bowel syndrome and diverticulitis and has had a bowel resection for the treatment of this.”

33. The Applicant informed Dr Kelman that there was a family history of Scheuermann’s disease.

34. Dr Kelman viewed both MRI scans set out above (see paras 19 – 20). Dr Kelman’s interpretation of the MRI neck scan was “…that there is mild cervical spondylosis at C5/6 and C6/7 with no cord impingement. The lateral recesses appear satisfactory” – Exhibit

    
    

    1 T9 p. 58.

35. Dr Kelman interpreted the MRI of the Applicant’s right shoulder as showing “no major pathology in the bone or in the rotator cuff” – Exhibit 1 T9 p. 59.

36. Dr Kelman diagnosed the Applicant with cervical spondylosis. Based on the history he was provided, Dr Kelman opined that the causative factor for the diagnosis “…is not of specific trauma but considerable tension in his neck as a result of his work related activities of working long hours at computer hardware.” In reaching this conclusion,

    
    

    Dr Kelman went on to state: “Prior to May 2002 he had no history of injury to his neck. The injury to his neck in 2002 came about as a result of prolonged periods of work without appropriate management of his work or workstation” – Exhibit 1 T9 p. 59.

37. Dr Kelman did “not consider that there is any pre-existing injury” and again stated that there was “…no history of any previous diseases or neck injuries prior to May 2002” and further “There is no history of any pre-existing condition” - Exhibit 1 T9 p. 60.

38. Dr Kelman again examined the Applicant on 3 March 2010 for the purpose of assessing:

    ·whether the condition(s) caused by the compensable injury are permanent;

    ·the degree of permanent impairment of the claimant as a result of the injury, addressed as whole person impairment (“WPI”); and

    ·the amount of any non economic loss resulting from the effects of any permanent impairment.

1. Dr Kelman’s conclusions were as follows – Exhibit 1 T27 p. 142:

   “Mr Gazzard, who is currently 44 years of age, has been involved in information technology most of his working life. He began to have problems in 2002 when he was working in IT support. Thereafter followed a long history of pain in his neck and upper limbs. He has had multiple assessments and multiple treatments including pain management programs, multiple investigations. He has also developed psychiatric problems with depression and anxiety. A problem with irritable bowel syndrome has been exacerbated by his condition.

   Diagnosis

   ·        Cervical spondylosis at C5/6 with right lateral stenosis.

   I consider this diagnosis is consistent with the causes which have been described in the history above.

   There are no conditions which are not listed which are caused by the compensable injury.”

2. Dr Kelman opined that the Applicant’s neck condition was permanent and was unlikely to alter significantly even with further treatment. The total percentage of WPI for the assessed conditions caused by the injury was said to be 8% - Exhibit 1 T27 p. 142.

   Dr Dias

3. Dr Dias assessed the Applicant on 20 January 2016. He was given an extensive brief containing medical reports from all the medical experts who had assessed the Applicant from 2007 as well as the MRI and CT scans of the Applicant – Exhibit 1 T74 pp. 380 – 382.

4. After setting out at length the Applicant’s medical history, Dr Dias gave the following diagnosis – Exhibit 1 T74 p. 389:

   “Mr Gazzard suffers from symptomatic degenerative cervical spondylosis. This is a constitutional and degenerative condition, and is progressive in nature. The risk factors usually relate to age, and constitutional factors, and there has also been noted to be an increased risk with smoking, and being overweight. There is no objective medical evidence that relates to the development of cervical spondylosis to computer based keyboarding and mouse-based work, or prolonged work in a sedentary position. His clinical symptoms and signs support the diagnosis, and the diagnosis correlates with the imaging studies performed of his cervical spine over the course of the past seven years.”

5. Dr Dias opined that, on the balance of probabilities, the Applicant’s physical health condition related to the natural progression of an underlying constitutional degenerative condition, and he did not believe that his condition was any longer related to his employment with the ATO – Exhibit 1 T74 p. 390.

6. Dr Dias also opined that the Applicant “…does not have any signs of radiculopathy in his upper limbs at the present time” and that he did not believe that the Applicant “…would require monthly chiropractic treatment sessions on an going basis, for the maintenance of his condition.”  – Exhibit 1 T74 p. 388. Indeed, Dr Dias, went on to state that there was no evidence to suggest that ongoing chiropractic treatment improves the symptomatic manifestation or associated functional capacity of cervical spondylosis, at more than eight years after the development of the Applicant’s symptomatology – Exhibit 1 T74 p. 391.

7. Further, Dr Dias observed that in the context of the Applicant’s cervical spine condition alone, he “…will be fit to return to the workforce on a part-time basis of up to approximately 20 hours per week, within the appropriate restrictions” – Exhibit 1 T74 p. 388. Dr Dias outlined the following restrictions – Exhibit 1 T74 p. 392:

   ·the Applicant should avoid lifting objects greater than 5 kg;

   ·the Applicant should avoid driving for more than 60 minutes at a time;

   ·the Applicant should avoid any duties that involve prolonged standing for greater than 15 minutes at a time;

   ·the Applicant should avoid sitting for longer than 60 minutes at a time;

   ·the Applicant should take breaks from computer-based keyboarding activities every 30 minutes for approximately two to five minutes to rest and stretch his cervical spine and shoulders; and

   ·the Applicant should not perform any overhead work or use any vibratory tools.

8. Dr Dias was of the opinion that, taking into account the outlined restrictions, the Applicant was capable of working on a part-time basis in a light administrative, or customer service capacity.  Dr Dias cautioned that his evaluation of the Applicant was limited in that it excluded an assessment of his mental health condition. Dr Dias noted that psychiatry was not his area of expertise and he recommended that in order to evaluate the Applicant’s employment capacity from a mental health perspective, the Applicant should be independently evaluated by a psychiatrist – Exhibit 1 T74 p. 392.

   Dr Lovell

9. In accordance with the recommendation of Dr Dias, the Applicant was assessed on

   
   

   29 February 2016 by Dr Derek Lovell, consultant psychiatrist. Dr Lovell set out in his medical report of 8 March 2016 the following summary and opinion – Exhibit 1 T75 pp. 400 - 401:

   “Currently, Mr Gazzard self-manages his pain. He does not suffer from significant depressive symptoms.

   At present, he describes intermittent pain-related irritability and disturbed sleep, secondary to pain. He does not describe significant anxiety symptoms. He is prescribed 100 mg of amitriptyline.

   He has recently involved himself in online gaming. He took a holiday to New Zealand in May 2015. He performs home duties but paces these during the day, whilst his wife is at work…

   He does not suffer any current psychological condition.”

10. Dr Lovell outlined a schedule of questions and stated the following in response to a question about what specific condition the Applicant currently suffers from– Exhibit 1 T75 p. 401:

    “There is no evidence that he suffers from a recurrent major depressive disorder, but that rather intermittently, he has been affected by the stressors of neck pain and the diagnosis of his wife’s cancer. There is a long-term difficulty with irritable bowel syndrome. Since being medically retired, his reactive depressive symptoms have abated. He does not fulfil the criteria for any current psychological condition.”

11. Dr Lovell was also of the opinion that, based on the evidence available, the prognosis for the Applicant’s current condition was “excellent” - Exhibit 1 T75 p. 401.

12. Finally, regarding the Applicant’s employment relationship, Dr Lovell emphasised that he was “…not of the view that his current psychological presentation relates to his employment with the Australian Tax Office” – Exhibit 1 T75 p. 402.

    CROSS-EXAMINAITON OF THE APPLICANT

13. The Applicant was cross-examined by Mr Woulfe at the Hearing. During the course of that cross-examination, Mr Woulfe referred to documents produced by Hawker Medical Practice pursuant to a summons – Exhibits 5 and 6. The documents included typed patient progress notes for the period 1999 – 2017 (Exhibit 5) and handwritten patient progress notes for the period 1985 – 2004 (Exhibit 6). Mr Woulfe posed a series of questions to the Applicant based on those progress notes, and, because of their importance, they are set out at some length below.

14. First, Mr Woulfe referred to notes made on 29 May 1985 which stated – Exhibit 6 p. 22:

    “Back pain intermittently 5 years. Lumbar & Thoracic spine”.

15. The following exchange occurred – Tr. 23.04.2018 p. 30:

    “You accept that to be an accurate reflection of what you told the doctor when you saw them on 29 May---? ---I do.

    ---1985, don’t you? ---Yes I do.”

16. Also in the notes of that day is the following observation: “Parents OA. Neck.” – Exhibit

    
    

    6 p. 22. Mr Woulfe drew this notation to the attention of the Applicant and the following exchange occurred – Tr. 23.04.2018 p. 31:

    “MR WOULFE: So ‘Parents OA neck.’ Assume from me that ‘OA’ means osteoarthritis. Do you accept that you told the doctor on 29 May 1985 that your parents both had osteoarthritis of the neck? ---Not as I recall.

    Do you have any understanding of whether your parents had osteoarthritis of the neck? ---My father was in the Army, he had never had a day off the Army as a result of neck pain.

    That wasn’t my question, Mr Gazzard? ---Sorry.

    I’d ask you to please answer the question? ---Yes.

    Did you have knowledge of your parents both having osteoarthritis in the neck? ---No.”

17. Mr Woulfe then drew the Applicant’s attentions to file notes of consultations on 1 and

    
    

    4 December 1986 (Exhibit  6 p. 21) and the following exchange occurred – Tr. 23.04.2018 pp. 31 – 32:

    “It says:

    Hurt shoulder, right, at work today.

    Do you see that? ---Yes.

    That was before you worked for the Australian Tax Office, isn’t it? ---That’s correct.

    And it says at the next line:

    Came on while picking up heavy files.

    See that? ---Yes.

    Do you accept that’s an accurate reflection of what you told the doctor on or around---? ---I would assume so, based on what’s written here.

    You have no reason to doubt that, do you? ---No.

    And you see the second line after the line mentioning ‘Files’, it says:

    Clicking, soreness right shoulder.

    Doesn’t it? ---Yes.

    And then---? --- “Aching over---’

    Aching over shoulder joint.

    ? ---Yes

    ROM,

    assume from me that means range of motion. And please tell me if, in your researches, you get all these acronyms? ---Yes I did.

    Right.  Thank you.

    ROM,

    range of motion:

    Full but painful elevation from 120 degrees,

    Yes? ---Correct. Yes.

    And I take it that you accept that that accurately – the contents of that note accurately reflects your status physically on 1 December ‘86? ---Correct.

    Please go down, then, to the entry of 4 December ‘86, it’s the next one down on the page?---‘Continued pain’.

    Yes, that’s the one. It says:

    Continued pain right shoulder. Minimal improvement.

    Now, you accept that to be an accurate reflection of what ---?---Yes.

    ---you told the doctor on that date too, don’t you?---Yes I do.”

18. Mr Woulfe next referred to the patient progress notes of 19 March and 19 May 1987 – Exhibit 6 p. 20, and the following exchange occurred – Tr. 23.04.2018 pp. 32 – 33:

    “[MR WOULFE] It says:

    Pain right arm for about 1/52

    Assuming that 1/52 means one week, please, you’d accept that you attended the doctor on 19 March ‘87 complaining of pain in your right arm for about a week, wouldn’t you? ---Correct.

    And the pain was over your wrist and your forearm and your shoulders, wasn’t it? ---Yes, correct.

    And you had a dull ache to occasional sharp pains, didn’t you? ---As far as I can tell, yes.

    And---? ---And numbness little finger.

    That’s right.

    Still feels different.

    You see that? ---Yes.

    And it says:

    Says due to excessive writing at work since changing jobs one month ago.

    ? ---Yes.

    So you accept that to be an accurate reflection---? ---Yes.

    ---of what you told the doctor on 19 March 1987, don’t you? ---Yes.

    If you could go then down to the next entry which looks like 19 May or August  ‘87, it’s a little hard to tell again, but it’s the last entry on that page? ---Yes.

    And it talks about:

    Woke up yesterday morning with low back pain. Sat cross-legged on floor, played cards night before.

    ? ---Yes.

    And you accept that to be an accurate reflection of what you told the doctor in 1987, don’t you? ---Yes.”

19. Mr Woulfe proceeded with this line of questioning, however, having regard to its length, it is summarised below:

    (a)21 February 1989: the Applicant told his GP that he had right shoulder pain, which had been intermittent since December 1986. The pain became worse after any prolonged use, for example writing and occasionally after keyboard work. On examination, the Applicant was presenting with some supraspinatus tenderness – Exhibit 6 p. 18. The Applicant agreed that this was an accurate reflection of what he told his GP – Tr. 23.04.2018 pp. 34 – 35;

    (b)

    22 August 1989: the Applicant complained to his GP that he had experienced

    
    

    18 months of intermittent back pain, which was worse at work. The notes record the Applicant as stating that he “sits all day” and “blames it on chair” and experiences “stiffness in mornings” – Exhibit 6 p. 18. Again, the Applicant corroborated that this was an accurate account of the notes, and agreed that he had these symptoms when working for Australia Post in 1985 – Tr. 23.04.2018 p. 35;

    (c)6 September 1989: the Applicant informed his GP that he was suffering back pain in the upper lumbar spine, and was experiencing aching across his lower back – Exhibit 6 p. 18; Tr. 23.04.2018 p. 35;

    (d)13 September 1995: the Applicant reported headaches, and the attending GP noted that his neck was “supple” and on examination found he was tender at C3/C4. On the handwritten progress notes the GP noted “? cervical” – Exhibit 6 p. 14. The Applicant agreed that the notes were accurate and spoke about the tenderness in his neck: “Well it was supple, yes.” – Tr. 23.04.2018 p. 36;

    (e)4 November 1996: the Applicant reported to his GP that he was still suffering from lower back pain – Exhibit 6 p. 13; Tr. 23.04.2018 p. 37;

    (f)26 November 1999: the Applicant was assessed by Dr Paterson Kwan, and reported that he was suffering from a “sore neck and interscapular area”. Dr Kwan recommended physiotherapy and aqua recovery classes – Exhibit 5 p.2; Tr. 23.04.2018 p. 42;

    (g)16 May 2000: the patient progress notes disclose that the Applicant presented complaining of a week of mid back pain. Dr Kwan noted that the Applicant was “tender T4/T5” – Exhibit 5 p. 2; Tr. 23.04.2018 p. 43;

    (h)21 June 2000: the patient progress notes included a drawing of a stick figure with markings on the upper right quadrant – Exhibit 6 p. 10. Mr Woulfe referred to crosses in the neck and shoulder region and asked the Applicant if he had complained to his GP about symptoms affecting his neck and shoulder. The Applicant’s answer was: “Based on that diagram, yes” – Tr. 23.04.2018 p. 38;

    (i)3 July 2000: on this occasion the Applicant presented with a headache that he had from the time he had woken up, and a sore neck. He informed the GP that this condition had been “intermittent for a few months” but was getting “gradually worse” – Exhibit 6 p. 10. The Applicant accepted during cross-examination that he had a sore neck intermittently for a few months when he presented to his GP on this date – Tr. 23.04.2018 p. 39. The GP also made note of the Applicant’s “tender left side of neck muscle”;

    (j)4 December 2000: Dr Kwan noted that the Applicant presented with a right sided headache of one day’s duration, and that his neck was supple – Exhibit 5 p. 3; Tr. 23.04.2018 pp. 43 - 44;

    (k)16 April 2002: on this visit the Applicant said that he had right forearm pain and a right sided headache. He informed Dr Kwan that he had been using a mouse a lot, was right handed, and had been playing computer games – Exhibit 5 p. 7; Tr. 23.04.2018 p. 45;

    (l)28 May 2002: the progress notes state “neck pain” and the GP drew a stick figure with a cross on the neck area – Exhibit 6 p. 7. The Applicant answered in the affirmative to the proposition that he had visited his GP on that day complaining of increased neck pain – Tr. 23.04.2018 p. 40;

    (m)3 June 2002: the Applicant again visited his GP complaining of neck pain – Exhibit 6 p. 7, Tr. 23.04.208 p. 40. Dr Kwan noted “neck sore T 1, reduced left rotation” – Exhibit 5 p. 7; Tr. 23.04.2018 p. 46;

    (n)21 June 2002: although the handwritten progress notes for this date include a drawing of a stick figure with markings on the neck area and upper left quadrant, the progress notes disclose that the Applicant consulted with his GP about neck and shoulder pain that he had experienced the previous day. Further, the Applicant confirmed at the Hearing that based on this drawing, he presented to his doctor about symptoms affecting his neck and shoulder – Exhibit 5 p. 7, Tr. 23.04.2018 pp. 38 and 46;

    (o)17 July 2002: Dr Kwan noted the Applicant presented with arm and neck aches and was tired – Exhibit 5 p.7; Tr. 23.04.2018 p. 46;

    (p)

    13 August 2002: the Applicant again presented with neck pains and headaches.

    
    

    Dr Kwan noted “…neck tender, tried fiorinol” – Exhibit 5 p. 8;26 November 2004: the consulting GP noted – Exhibit 6 p. 1:

    “Neck pains”

    - poor sleep overnight

    Exacerbation upper thoracic/lower neck pain”

20. Having taken the Applicant through the summonsed medical records of the Hawker Medical Practice, Mr Woulfe then asked the following questions – Tr. 23.04.2018 p. 47:

    “[MR WOULFE:] So taking into account all of those notes to which I’ve taken you, Mr Gazzard, you accept that you had pain in your neck and arms before your employment with the ATO, don’t you? --- Yes.

    And that some of that pain had occurred since 1985, at the age of 20 years, hadn’t it? --- Yes.

    It’s certainly not the case that you were asymptomatic in your neck and arms before commencing employment with the ATO, were you? --- That is correct.”

    LEGAL OVERVIEW

21. Section 14 of the Act provides that, subject to Part II of the Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.

22. “Injury” is defined by s 5A(1) of the Act to mean:

    (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.

23. “Disease” is defined by s 5B(1) of the Act to mean:

    (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.

24. Subsection 5B(3) of the Act defines “significant degree” to mean “a degree that is substantially more than material.”

25. The proper construction to be given to the term “material” in this definition was explained by Finn J in Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536. His Honour made the following observations:

    “13…the inclusion of the word ‘material’ imposes an ‘evaluative threshold’ below which a causal connection may be disregarded….

    14 What is problematic is identifying where the threshold lies…

    15…I consider that one of the meanings of the word ‘materially’ in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –

    ‘4. In a material degree; substantially, considerably.’

    An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the ‘loose sense’ of the definition of ‘material’ in the Macquarie dictionary ‘namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’.”

26. “Aggravation” is defined in s 4(1) of the Act to include “acceleration or recurrence”.

27. Mr Woulfe drew the Tribunal’s attention to the following observations of Windeyer J in Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537 at 593:

    “ ‘Aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli’: Federal Brom Co. Pty. Ltd. v .Semlitch…”

28. There can be an “aggravation” of a pre-existing injury by activity which increases or precipitates pain. This was explained by Evatt and Sheppard JJ in Commonwealth v Beattie (1981) 35 ALR 369 at 378 as follows:

    “It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.”

1. Further guidance is to be found in the judgment of Finklestein J in Tippett v Australian Postal Corporation (1998) 27 AAR 40 (“Tippett”).  His Honour referred both the High Court decision of Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and Commonwealth v Beattie (1981) 35 ALR 369 and then made the following observations (43 – 44):

   “In other words, there will be an exacerbation of an injury when the experience of the injury is increased or intensified without any alteration to the underlying physical or mental condition…In addition, because ‘aggravation’ of an injury is defined to include the ‘recurrence’ of that injury it is not necessary to show that the experience of an injury is increased or intensified. It will be sufficient if, as a result of activities undertaken in the course of employment, a previous injury occurs again whether or not the experience of it is at the same level of intensity as before.

   What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable…

   Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment then the employee will have suffered a compensable injury: Commonwealth Banking Corp v Percival (1988) 20 FCR 176 at 179 – 180. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee’s employment…

   This passage [from Beattie as quoted above] draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.”

2. Finally, reference can be made to Australian Postal Corporation v Bessey (2001) 32 AAR 508. Mr Bessey was employed between 1989 and 1997 to deliver mail for Australia Post using a motor bike. In February 1997, Mr Bessey was placed on restricted duties that did not involve bike riding due to lower back pain. One of the grounds of appeal concerned the claimed aggravation of Mr Bessey’s underlying degenerative lower back spondylosis. Gyles J made the following observations (509 – 511):

   “…if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.

   In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable so incapacitating the respondent.

   This would require compensation for the period when the symptoms were operative, but would not, without more, constitute continuing injury. To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continued to have an effect. The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulting from a work-related injury (including aggravation) but rather resulted from the underlying condition…

   …the Tribunal acted on the view that the pain suffered by the respondent whilst riding the bike was an aggravation and, as the pain was incapacitating, there was therefore an entitlement to continuing compensation. This was an error of law.”

3. The word “ailment” is defined in s 4(1) of the Act to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”

4. Section 16 of the Act provides that:

   “where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment”.

5. Section 19 of the Act provides that Comcare is liable to pay to an employee who is incapacitated for work as a result of an injury compensation calculated in accordance with the prescribed statutory formula.

6. In this matter, Comcare invites the Tribunal to make findings of fact that undercut the findings of fact in the original determination that accepted liability to pay compensation to the Applicant pursuant to s 14 of the Act. Reliance is placed on the Full Court decision of Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; 151 FCR 253.

7. Reference can be made, firstly, to the observations of  Heerey J ([8] – [11]/255-256):

   “9. One of the decisions the AAT, standing in the shoes of Telstra, was required to make was whether, within the meaning of s 24(1), Mr Hannaford had an injury which resulted in a permanent impairment. The effect of s 4 was that ‘injury’ included a disease that was contributed to in a material degree by his employment.  The disease in question was Ross River fever. It was squarely within the AAT’s jurisdiction to make a finding as to whether or not Mr Hannaford had that disease at the time of the hearing.  It is difficult to see how the AAT, in making a finding that he did not suffer from the disease, must be excluded from relying on the (uncontradicted) expert evidence before the tribunal that he had never had it.

   10 As Conti J points out (at [57]), the SRC Act allows for progressive and evolving decision-making for the changes in circumstances which are inevitably likely to happen. This is in the interests as much of employees as employers.

   11 A determination under s 14 is subject to the SRC Act, and in particular to Part II thereof, which provides for such benefits as medical expenses (s 16) and weekly payments (s 19). If an employee obtained a s 14 determination for, say, disease X but later claimed increased medical expenses for disease Y, it would be a strange construction of beneficial legislation to conclude that the employee was ‘estopped’ by the original determination from alleging that he really suffered from Y all along.”

8. Heerey J referred to observations by Conti J later in the judgement. Those observations are set out below ([57]/273 – 274):

   “57…the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here, of course, Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context  of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers’ compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part…’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.”

   APPLICANT’S CONTENTIONS

9. The Applicant provided the Tribunal with a detailed Statement of Facts, Issues and Contentions (“ASFIC”).

10. The Applicant submitted (ASFIC paras 4 – 7, p.1) that although he had been diagnosed with Scheuermann’s Disease of the lower thoracic spine region, he had no previous history of problems with his lower spine prior to the injuries he suffered between 2000 and 2003 and that again presented in 2007. Further, the Applicant submitted that no other members of his family suffered with cervical spondylosis.

11. In the period 2000 – 2002 the Applicant claimed (ASFIC para 8, p. 3) that he was:

    (a)working fifteen and a half hours per day five days a week;

    (b)working an additional 10 hours on weekends;

    (c)using  a keyboard and mouse for extended periods;

    (d)reading and checking large quantities of hardcopy output;

    (e)reading large quantities of data electronically;

    (f)manipulating large quantities of data electronically; and

    (g)performing other duties as required (e.g. liaison, mentoring, subject matter assistance etc).

12. As previously outlined, the Applicant lodged a compensation claim in 2002 for “ACHE IN NECK WITH SORE UPPER ARM, NUMB RIGHT THUMB. ALSO GET EXTREME TINGLING DOWN ARM.” – Exhibit 7.

13. At the hearing the Applicant outlined his case as follows – Tr. 23.04.18 pp. 12 – 14:

    “When I submitted a claim and it was accepted back in 2002, it was for cervical brachial pain syndrome. It progressed from 2002, until 2007. It has never been determined to have ceased and then, in 2007, my wife and I went on a lovely three-month overseas holiday, came back to work and ended up with an injury in November 2007.

    At the time, I submitted a claim and the claim was treated as a new injury. I do not understand why it was done as such, as it was really an exacerbation, recurrence injury of the original injury back in 2002 and when I was examined by Comcare’s independent medical examiners in 2007, it was by an orthopaedic surgeon, Dr Iain Kelman, who determined that cervical spondylosis was the result of my original injury back in 2002 and that it was – that there was an aggravation of that injury, as well…

    As a response to the no present liability, I lodged a subsequent compensation claim in 2016, under the ‘’06 claim, with the additional chronic cervical spine, chronic thoracic spine, depression, associated anxiety, because I needed those to have been brought into the public arena that we are in – process – that they can be considered as part of the original claim for reconsideration. I did it to claim those as sequela injuries to the primary injury that happened in 2002, the cervical brachial pain syndrome…

    When Comcare – sorry, when the ATO denied liability, they used current medical evidence, they did not apply medical evidence that was available at the time of the original injury. They did not treat the injuries as being secondary, they treated it as being a primary injury, with no new occurrence…”

14. In the ASFIC paras 3 – 6; 10 – 14, pp. 16 - 17, the Applicant’s summation of the case has been outlined well.  Relevant extracts are set out below:

    “3. In comparison the two IMEs [Independent Medical Examiners] that Comcare and the ATO have relied on have only seen at best a one hour slice of my life in a medical examination.

    4. How can two examinations that lasted a total of one hour be more relevant than the opinions of my treating Doctors who have been involved since the 2002-03 injuries and the 2007 recurrence injury?

    5. The first IME denies that the physiological injury was anything other than ‘constitutional’ and provided no evidence to support this claim and while the second examiner based their medical opinion upon the findings of the first and he could not get the medical and timeframe information correct!

    6. Neither of the two Medical Examiners were interested in the amount of time spent sitting at the computer, the amount of time using the keyboard and mouse, the time spent at work, the amount of work and the physical and psychological impacts that were a result of these working conditions…

    10. All injuries have been recognised as occurring in the workplace, were a direct result of my job role and occurred in exactly the same place at the C5/C6/C7 discs in the Cervical/Thoracic spinal regions.

    11. How can the diagnosis of ‘cervicobrachial syndrome’ or ‘cervical spondylosis’ in the C5/C6 and C6/C7 discs as the physical injury in 2002 suddenly change or transform into a ‘natural progression of an underlying constitutional degenerative condition’ fifteen years later when there was no underlying medical condition prior to the injury? [bold in the original]

    12. Why was the Recurrence Injury in 2007 treated as a new injury?

    13. Comcare has failed to show or prove that there has either been a break in the chain of causation in my injuries or that the injuries suffered in 2002, 2003 and 2007 have ceased to exist.

    14. Neither of IMEs that Comcare have relied upon in their determinations have provided any evidence to show how and when the chain of causation had been broken between the 2002, 2003, 2007 injuries or that there has been a change in my injuries between 2007 and today…”

    (Emphasis in the original)

15. The Applicant contended (ASFIC para 29, p. 19) that there was ample evidence available in medical journals and other peer reviewed reports, where it has been found that occupational overuse injuries can lead to the type of injuries the Applicant sustained.

16. Two articles, in particular, were relied upon. The first to be discussed is entitled, ‘Cervical spondylosis and neck pain’ by Dr Allan Binder and is published in the British Medical Journal (10 March 2007, vol. 334) – Exhibit 12.

17. Dr Binder made the following initial observation – Exhibit 12 p. 527:

    “In cervical spondylosis, degenerative changes start in the intervertebral discs with osteophyte formation and involvement of adjacent soft tissue structures. Many people over 30 show similar abnormalities on plain radiographs of the cervical spine, however, so the boundary between normal ageing and disease is difficult to define.  Even severe degenerative changes after often asymptomatic, but can lead to neck pain, stiffness, or neurological complications.”

    (Footnotes omitted)

18. Dr Binder noted that two thirds of the UK population suffer neck pain at some time in their life, with the prevalence highest in middle age – Exhibit 12 p. 527. Acute neck pain usually resolves within days or weeks, although, it can recur and become chronic. The focus of the remainder of the paper focused on how to diagnose spondylosis and preferable treatments.

19. The article does not provide the Tribunal with much assistance in its task to resolve this matter. However, the Applicant sought to rely on the first two sentences of the article – Exhibit 12 p.527:

    “Most patients who present with neck pain have ‘non-specific (simple) neck pain,’ where symptoms have a postural or mechanical basis. Aetiological factors are poorly understood and are usually multifactorial, including poor posture, anxiety, depression, neck strain, and sporting or occupational activities.”

    (Footnotes omitted)

20. The second article, entitled “Cervical Spondylosis among Group of Computer Users in Erbil City”, was written by Drs Al-Bustany and Aziz and was published in (2009) Zanco Journal of Medical Science (2009 vo.13, no.2) – Exhibit 13 pp. 1 - 9. Erbil City is the capital of the Kurdistan region of Iraq.

21. The article details the results of a comparative study undertaken between January and July 2008. The sample size was 200 male employees and comprised of two groups, one group (99) used computers and the other group (101), did not use computers.

22. The conclusions reached by the authors are as follows – Exhibit 13 p. 8:

    “1. The study has confirmed that during working on computer forward head posture, when maintained over along period of time, can have harmful effect on the cervical spine of the computer users.

    2. Longer work periods without a break time and total weekly work hours appear to place workers at risk to develop cervical spondylosis.

    3. For any workers in who forward head posture occurs as a result of jobs it is important to assess how this may be correct…”

    CONSIDERATION

    Introduction

23. Much of the Applicant’s case was weakened by the concessions he made during

    
    

    Mr Woulfe’s cross-examination.

24. Mr Woulfe forcefully submitted (Comcare’s Written Submissions (“CWS”) para 17) that most of the medico-legal opinion that supports the Applicant’s case (at one level or another), was based on factual assumptions that were exposed during the cross-examination to be partially incorrect.

25. First, Mr Woulfe drew the Tribunal’s attention to various passages in the reports of

    
    

    Dr Kelman.

26. In his report of 9 March 2010, Dr Kelman made the following observation – Exhibit 1 T27 p. 142:

    “Mr Gazzard, who is currently 44 years of age, has been involved in information technology most of his working life. He began to have problems in 2002 when he was working in IT support. Thereafter followed a long history of pain in his neck and upper limbs.”

27. This misconception flowed from the self-reported information given to Dr Kelman by the Applicant when he was assessed on 8 April 2008. In his first report dated 14 April 2008, in the section headed “Past Medical History:”, Dr Kelman noted – Exhibit 1 T9 p. 57:

    “He denies any previous injuries to his neck or upper limbs prior to May 2002”.

28. Subsequently (at Exhibit 1 T9 p. 59), Dr Kelman again noted that prior “…to May 2002 he had no history of injury to his neck”, and again on the next page of his report – Exhibit

    
    

    1 T9 p. 60:

    “There is no history of any previous diseases or neck injuries prior to May 2002.”

29. It is patently clear that the Applicant was less than fulsome in giving Dr Kelman an accurate account of his past neck problems, and Dr Kelman’s reports were predicated on an incomplete medical history. The strength of Dr Kelman’s reports are weakened by these omissions.

30. Unfortunately, the failure of the Applicant to provide a full and accurate medical history does not only affect Dr Kelman’s medical reports. This problem appears in a number of the medical reports prepared by other professionals who examined the Applicant over the years.

31. When the Applicant was assessed by Dr George, consultant psychiatrist, on  7 April 2008, he “…said he had his chronic neck and shoulder pain from 2002 and that more recently, his pain had become more constant” – Exhibit 1 T8 p. 48.

32. Likewise, when the Applicant was assessed by Dr Anthony Sheehan, consultant psychiatrist on 5 March 2010, he told Dr Sheehan “…that in the period 2000 to 2002 he developed neck and shoulder pain described as ‘occupational overuse syndrome’” – Exhibit 1 T28 p. 149. Again, there was no mention of the Applicant experiencing neck pain over a prolonged period of time before this assessment.

33. The Applicant informed Dr Phillip Vecchio, rheumatologist, on 24 June 2011, “…that his neck became symptomatic in 2000/2001 when he was working in technical support, and was required to tolerate a significant escalation in staff to whom he was offering support and service.” – Exhibit 1 T42 p. 222.

34. On 2 May 2012, the Applicant was examined by Dr David McGrath, specialist physician in Spinal and Occupational Medicine, who was provided the following information – Exhibit

    
    

    1 T55 p. 263:

    “Mr Gazzard developed neck pains about 2000, from which he recovered. He re-developed pains about 2007. He believes his pains are due to poor ergonomic furniture.”

35. Finally, when the Applicant was assessed by Dr Richard Burek, consultant psychiatrist, on 13 February 2013, the Applicant informed Dr Burek that in “…2000 he developed pain in his neck, right shoulder and right arm.” Exhibit 1 T64 p. 321.

1. A close reading of the numerous medical reports prepared and admitted into evidence, discloses that on no occasion, did the Applicant disclose to any of the treating professionals the full extent of his medical history prior to 2000. Certainly, in some instances, the Applicant had provided some pertinent background information about events prior to 2000.

2. For example, when the Applicant was examined by Dr Hundertmark, consultant psychiatrist, on 10 July 2012, he said that he had “…a longstanding neck complaint.”

   
   

   Dr Hundertmark opined that it was “…possible that the original injury is related to motorbike accidents, which occurred earlier in his life.” – Exhibit 1 T59 p. 283.

3. Likewise, when the Applicant was assessed by Dr Dias on 20 January 2016, it was reported that – Exhibit 1 T74 p. 383:

   “Mr Gazzard reported he had one previous episode of neck pain in 1995, whilst working for ComSuper. He reported this was also a work-related injury that occurred as a result of prolonged computer keyboarding and mouse-based work. He reported that this injury was treated conservatively with physiotherapy and acupuncture, and subsequently resolved within eight weeks.”

4. Nonetheless, despite disclosing the 1995 incident, Dr Dias was informed that the Applicant “…did not have any significant history or known conditions with respect to his cervical spine prior to April 2002.” – Exhibit 1 T74 p. 387.

5. Despite this somewhat clouded history, Dr Dias opined that the Applicant – Exhibit 1 T74 p. 389:

   “…suffers from symptomatic degenerative cervical spondylosis. This is a constitutional and degenerative condition, and is progressive in nature…There is no objective medical evidence that relates to the development of cervical spondylosis to computer based keyboarding or mouse-based work, or prolonged work in a sedentary position.”

6. When Dr Dias was subsequently briefed with the Hawker Medical Practice records, he stated that this “…did not cause me to change any of the opinions expressed in my previous reports or in answer to the above questions.” – Exhibit 10 p. 5.

   Appropriate diagnosis of the Applicant’s condition

7. On 4 January 2008, the Applicant underwent an MRI scan of his cervical spine and it disclosed spondylosis, most marked at C5/C6 – Exhibit 1 T10.3 p. 81.

8. Dr Kelman, who examined the Applicant on 8 April 2008, diagnosed the Applicant as suffering from cervical spondylosis – Exhibit 1 T9 p. 59.

9. A similar diagnosis was made by Dr Vecchio in 2011 and Dr Le Leu in 2013 – Exhibit

   
   

   1 T42 p. 224; T69 p. 350.

10. Dr Dias also reached the same conclusion in 2016 – Exhibit 1 T74 p. 389.

11. The Tribunal accepts that the correct diagnosis of the Applicant’s condition is cervical spondylosis.

    Does the Applicant continue to suffer the effects of his condition?

12. It is not contested that the Applicant continues to suffer from chronic degenerative cervical spondylosis (without radiculopathy).

13. The Tribunal accepts the diagnosis given by Dr Dias, namely that the Applicant currently suffers from symptomatic degenerative spondylosis– Exhibit 1 T74 p. 389:

    “His clinical symptoms and signs support the diagnosis, and the diagnosis correlates with the imaging studies performed of his cervical spine over the course of the past seven years.”

    Is there a causal link between sedentary computer work and the onset/aggravation of cervical spondylosis?

14. The first contested issue which arises is whether it is open to the Tribunal to proceed on the assumption that there is a causal link between computer keyboarding and mouse-based work and the onset or aggravation of cervical spondylosis.

15. Dr Dias, in both of the reports quoted above, and during his oral evidence, rejected outright the possibility of any such causal link. The following exchanges occurred between Mr Woulfe and Dr Dias – Tr. 24.04.2018  pp. 69 – 71:

    “Well, we can deal with them serially, if you wish?---Yes. Okay. So the study by

    
    

    Dr Al-Bustany and Dr Aziz is basically a comparative cross-sectional study. It’s a weaker level of evidence than, say, a cohort study or, in particular, a randomised control trial, or a systematic review of many randomised control trials. So it’s, number 1, it’s quite weak in the evidence hierarchy.

    Yes?---Number 2, I mean, in terms of the inclusion criteria, they’re very specific about selecting males between 30 and 50 who are not – with a BMI, I think, or a body mass index of under 25, and don’t have any previous history of neck pain or previous trauma to their cervical spine, or abnormalities in their cervical or thoracic spine. And that’s – those are exclusion criteria that would – you know, that would exclude a lot of people. You know, if you look at Mr Gazzard’s case in particular, you know, he’s got a past history of thoracic spine pain. He’s got a documented history of pre-existing thoracic kyphosis. His BMI, at least at the time when I assessed him, was 33.5 kilograms per metre squared. So he would have been excluded from the study based on the inclusion criteria of the study itself. But, you know, it’s a relatively weak study, compared to the studies that are used in the AMA guide for the evaluation of disease and injury causation, second edition. You know, I think that the evidence looked at in those studies, they were mostly either randomised control trials, or prospective cohorts which shows stronger evidence.  And so I would probably defer to the AMA guides as opposed to this study, this comparative cross-sectional study that looks at people just at one point in time…..

    Perhaps we could turn to the ‘Cervical spondylosis and neck pain article’ by Alan Binder?---Yes.

    What do you have to say about that?---I mean, I think – I don’t actually disagree with what they say in the article. It kind of basically says that – I mean, they’re talking about treatment in the article. I assume that’s what we’re referring to here, is treatment in this article, so I couldn’t really see anything about causation that was specific in the article. But in terms of the treatment, I mean, they basically say that, you know, mobilisation, manipulation and exercise do appear to be more effective in combination at three months following the development of pain, but no difference is seen at 12 months or at two years, when compared with exercise alone. And then it just basically says, look, there are some studies that say there is some benefit. There are some studies that say there isn’t benefit and, you know, the evidence is conflicting about the long-term uses in relation to manipulation and motorisation. And I think that’s basically – I think the bulk of medical literature, I think, suggests that there is a place for mobilisation and manipulation and exercise up to around 12 months prior to the onset of neck pain, or 12 months following the onset of surgery. And that’s being pretty generous but about 12 months. Beyond that, you know, there’s no strong evidence or sufficient evidence to support ongoing mobilisation and manipulation in terms of an ongoing benefit for chronic neck pain, or post-surgical intervention. So I think this article basically alludes to that. I mean, it never really – it basically says at the end, you know, there needs to be further study in this area. I would probably agree with that, but at this stage, I mean, all of the studies that I’ve seen – and the Hopkin review group, which there’s been two major Hopkin review groups, and they basically say, look, it’s up to a certain period of time, around 12 months, and beyond that there’s no real evidence at this stage to say that it’s, you know, any better than just exercise alone and treating symptoms with analgesia….

    I see. So just to summarise again – and again tell me if I’m getting this wrong – but essentially what you’re saying is this article is more directed to treatment rather than questions of causation, and it supports your contention or opinion, rather, that there’s no role for ongoing passive modalities such as chiropractic treatment, in this case?---Yes.”

16. Having read both articles, the Tribunal agrees with the description and analysis provided by Dr Dias.

17. The article by Dr Binder focused almost entirely on the diagnosis and treatment of cervical spondylosis and neck pain. With the exception of the first paragraph of the article, there is no mention of, let alone any detailed analysis of, questions of causation. The footnotes to the relevant portions of the article, are in fact references to an article and a textbook which were authored in whole or part by Dr Binder. Accordingly, little weight can be given to the Binder article in advancing the Applicant’s case.

18. The article by Drs. Al-Bustany and Aziz is published in the Zanco Journal of Medical Sciences. That journal is published by the Hawler Medical School which is located in Erbil, the capital of Iraqi Kurdistan.  Without being at all critical, it would be fair to note, that this journal is not one of the most well-known or established of medical journals.

19. Having read the article closely, Dr Dias’ analysis of it is patently correct. It is not a robust work that could be relied upon to advance the Applicant’s case. If it was supported by articles, the subject of more robust research techniques, then it could be cited with greater confidence. Taken alone, however, it lacks the attributes of robust research that were carefully and convincingly expounded by Dr Dias.

20. Both Mr Woulfe and Dr Dias referred to the American Medical Association “Guides to the Evaluation of Disease and Injury Causation”. Chapter 8 of this publication was admitted into evidence as Exhibit 8. The Tribunal has carefully read and considered this chapter.

21. Chapter 8 deals with the spine and is authored by Drs Eskay-Auerbach and Talmage.

22. The authors note that neck pain is assumed to be of multifactorial origin, and it is likely that multiple risk factors contribute to its development. It is noted that the evidence available in previous systematic reviews has been “weak” with respect to the identification of the physical and psychosocial factors that increase the risk of neck pain – Exhibit 8 p. 185.

23. The authors point out that the population studies of cervical pain and cervical disc disease have lagged behind the studies of the lumbar spine, and that there are only a small number of prospective cohort studies that addressed risk factors for neck pain, cervical disc herniations or cervical stenosis/myelopathy – Exhibit 8 pp. 185 – 186.

24. In the next section of the Chapter, which is entitled “Activity Factors”, the authors dealt with both heavy physical work and sedentary, repetitive and precision work. In the latter case, the following observations were made – Exhibit 8 pp. 186 – 187:

    “Ariens noted that several literature reviews considered work-related physical risk factors for the development of neck pain with some inconsistencies related to study design. However, there seemed to be a consensus that static postures, neck flexion, repetitive arm use, and sitting were potentially the main physical risk factors. Neck flexion and rotation were not statistically significantly associated with neck pain, even for longer periods of time. Work with hands above the shoulders was not associated with either incidence or recurrence of neck pain in the study of nursing-home and elderly-care workers by Luime.

    Prolonged work in a sedentary position, including use of a mouse or keyboard, had a dose-related association with neck pain in 2 studies. Those who worked in a sitting position for more than 95% of the time were at a statistically significant risk for increased neck pain with a RR of 2.34 (95% CI 1.05-5.21) in the Ariens study.  Work with a mouse more than 30 hours per week was also statistically significantly associated with neck pain in 1 study, although the same association was not noted with keyboard use. The authors noted that their data did not support a threshold above which an increasing effect could be anticipated. Jensen found no association between work time or using a mouse, and Luime found only a weak relationship between prolonged work in the same position and the onset of neck pain but not the recurrence. In 3 other studies, no significant association was identified for repetitive work, or with use of a mouse.

    There is insufficient evidence for neck posture, prolonged work in a sedentary position, or repetitive and precision work as risk factors for neck pain…” (Footnotes omitted)

25. One of the two articles cited spoke of a positive relationship between sitting at work and the development of neck pain – G A M Ariens et al, ‘Are neck flexion, neck rotation, and sitting at work risk factors for neck pain? Results of a prospective cohort study’, (2001) 58 Occupational Environmental Medicine 200 – 207 (“Ariens”). A prospective cohort study was performed with a follow up being conducted three years later among 1334 Dutch workers from 34 companies. The conclusions reached were as follows – Ariens p. 207:

    “(1) There is a significant positive association between prolonged sitting at work and neck pain, implying that there is an increased risk of neck pain for people who are working almost all day in a sitting position (more than 95% of the working time). Due to the prospective study design and thorough adjustment for confounding, it can be concluded that this relation between sitting posture and neck pain is probably a causal connection.

    (2) There is a positive trend for an association between neck pain and neck flexion at work, although not significant, suggesting that there is an increased risk of neck pain for people who are working with the neck flexed more than 20º for a major part of their working day. A low endurance time of the neck muscles seems to play an important part in the development of neck pain due to neck flexion at work.

    (3) No clear relation was found between neck rotation at work and neck pain…”

26. A search of Google Scholar discloses that this article has been cited in journal articles and books more than 500 times. A cursory perusal of some of those articles indicates that similar conclusions have been reached by some other researchers.

27. It is not necessary for the Tribunal to reach a settled view as to whether there is or is not a causal link between keyboarding and the use of a computer mouse over a prolonged time while an employee is in a sedentary position and either the onset of cervical spinal problems or the aggravation of an existing cervical spinal condition. The Tribunal is only required to reach a conclusion as to whether this is a finding that is open to the Tribunal, dependent, though it is, on the particular evidence presented.

28. The emphatic rejection by Dr Dias of any possibility of a causal link between computer-based sedentary work, and the onset or aggravation of cervical spondylosis, based on the absence of any evidence, is clearly wrong. It may be that the preponderance of medical research would be contrary to such a finding (and the Tribunal is not in a position to determine if that is so), but clearly there is a body of research that would support the existence of such a causal link. Accordingly, it is open to the Tribunal to consider the evidence presented and make a finding as to whether it would support the relevant causal link.

    Was the Applicant’s cervical spondylosis the result of a work-related injury in 2002?

29. The Applicant’s case is that his condition was caused by a work-related injury in circa 2002 and this is, to a large degree, dependent on the findings of Dr Kelman.

30. As previously noted, Dr Kelman’s reports were predicated on an inadequate medical history provided by the Applicant.

31. In both reports Dr Kelman proceeded on the assumption that the Applicant “…began to have problems” with his cervical spine in 2002 when he was working in IT support – Exhibit 1 T27 p. 142. As Mr Woulfe’s cross-examination highlighted, this is not the case. The summonsed medical records disclose that the Applicant was suffering from spinal pain since the age of 15, shoulder pain since at least 1986, and neck pain since at least 1995.

32. It would appear that Dr Kelman did not have the benefit of this information when making his diagnosis.

33. In these circumstances, it is not open to the Tribunal to find in favour of the Applicant on the question of whether his cervical spondylosis was caused by his employment, as the evidence suggests that his spondylosis, as diagnosed by Dr Dias, is constitutional and degenerative and predates 2002.

34. By the time Dr Dias provided his report of 4 April 2018 (Exhibit 10), he had the benefit of perusing the records of the Hawker Medical Practice. In short, he was able to provide an opinion based on a full medical history of the Applicant. In this respect he was at a unique advantage compared to Dr Kelman.

35. Mr Woulfe highlighted in his written submissions the particular skills of Dr Dias, and the Tribunal agrees that Dr Dias is qualified to express a very learned opinion about the issues in contention in this matter.  Moreover, as Mr Woulfe submitted (CWS para 20.4), there was no challenge made to Dr Dias’ qualifications, training or experience during the hearing.

36. Having regard to the above matters, the Tribunal prefers the diagnosis of Dr Dias, that the Applicant was suffering from an ailment, namely cervical spondylosis that preceded the events of either 2002 or 2007.

    Did the Applicant suffer an aggravation of his ailment that was contributed to, to a significant degree, by his employment by the Commonwealth?

37. Having concluded that the Applicant’s ailment was of a constitutional and degenerative nature, and not caused by his employment, the next question is whether his ailment was aggravated by his employment.

38. Dr Dias did “…not believe that Mr Gazzard has suffered from an ailment, or an aggravation of an ailment that was contributed to, to a significant degree by his employment by the Commonwealth” – Exhibit 10 p. 2.

39. However, this diagnosis is predicated on Dr Dias’ view that there is no evidence to support the contention that there is a causal link between computer-based sedentary work and the onset or aggravation of cervical spondylosis. As previously noted, that absolutist position is not sustainable. Indeed, the mere fact that the Applicant was able to produce the article by Drs Al-Bustany and Aziz, who provide some evidence of such a link, contradicts and undermines the position taken by Dr Dias. Furthermore, there is other research that also supports such a link, and two such articles were quoted in the AMA Guide.

40. Accordingly, the question of whether the Applicant’s ailment was aggravated by his employment requires a careful consideration of the evidence. Whilst the Applicant’s less than fulsome account of his state of health prior to 2002 undermines his contention that the onset of his ailment was caused by his employment, it is not determinative of the question of whether his employment aggravated his ailment.

41. The Applicant’s account of his working conditions in the period 2000, until his retirement, has not been seriously challenged. The Tribunal accepts the Applicant’s account as set out in his Statement of 17 October 2016 – Exhibit 1 T1.1 pp. 7 – 23.

42. In his initial report, Dr Kelman opined that the Applicant was suffering from cervical spondylosis, which “…is not of specific trauma but considerable tension in his neck as a result of his work related activities of working long hours at computer hardware.” – Exhibit 1 T9 p. 59. Dr Kelman was of the view that the “…injury to his neck in 2002 came about as a result of prolonged periods of work without appropriate management of his work or workstation.” – Exhibit 1 T9 p. 59. He was also of the view that his condition “…was aggravated again in 2007.”- Exhibit 1 T9 p. 60.

43. Clearly, Dr Kelman’s diagnosis that the onset of the Applicant’s cervical spondylosis was brought about by his employment is not borne out by the evidence before the Tribunal. However, it is patently clear, when reading Dr Kelman’s report, that the Applicant’s employment was having a profoundly negative impact on his health, both physical and mental.

1. Dr Kelman refers to the aggravation of the Applicant’s spinal condition in 2007, and it is clear from reading the medical evidence, that the Applicant was suffering from spinal problems throughout this period.

2. However, the question before the Tribunal, is not whether the Applicant was suffering pain whilst at work, but whether the activities of his employment caused him to suffer pain more intensely – Tippett at 43 – 44.

3. The evidence discloses that the Applicant was suffering from a constitutional degenerative condition that caused him pain and discomfort. However, the evidence also discloses that his long working hours performing keyboarding tasks and using a computer mouse aggravated his pre-existing condition and caused him to experience elevated pain, discomfort and distress.

4. The misdiagnosis of Dr Kelman was to confuse onset of cervical spondylosis with the aggravation of that ailment.

5. The contrary diagnosis of Dr Dias, is, as noted above, based on his absolutist view of the absence of any causal link between sedentary computer related tasks and either the onset or aggravation of cervical spondylosis. Just as Dr Kelman’s diagnoses were coloured by relying on an incomplete factual matrix, so too was Dr Dias’ diagnosis coloured by framing his conclusion within an overly narrow diagnostic prism.

6. Nonetheless, it is important to closely analyse the whole basis for Dr Dias’ diagnosis. 

   
   

   Dr Dias correctly observed, having considered all of the notes of the Applicant’s treating GP, that his cervical spondylosis had progressively worsened with the passage of time, with periods when the condition “flared up” or worsened - Tr. 24.04.2018 pp. 72 – 73.

   
   

   Dr Dias testified that in the period 1990 – 2017, the Applicant attended his treating GP on

   
   

   60 occasions with neck pain as the primary or secondary complaint. On six of those occasions, the Applicant cited computer-based keyboarding as the cause of the pain.

7. Dr Dias inferred from this material that the Applicant’s cervical spondylosis would have progressed irrespective of his employment, as the main factors contributing to its worsening were age and the passage of time – Tr. 18.04.2018 p. 73.

8. During the hearing, and answering questions posed by Mr Woulfe, Dr Dias testified that in his opinion, the Applicant’s employment had not led to any permanent worsening of his underlying spinal condition – Tr. 18.04.2018 p. 74.

9. These conclusions were open to Dr Dias, and the Tribunal accepts that Dr Dias’ diagnosis was carefully made, having regard to a comprehensive review of all of the evidence. In this regard, the Tribunal agrees with Mr Woulfe’s submission that the reports and evidence of Dr Dias are intelligible and convincing.

10. However, Dr Dias did not have the benefit of examining the Applicant while he was still working, and when he would have been suffering the impact of the worsening of his underlying condition. When Dr Dias first examined the Applicant, he had long left the workforce, and any negative impact of his work on his condition would have dissipated.

11. In short, Dr Dias has made, in part, a desktop diagnosis, based, as it was, on the history of the Applicant.

12. The treating medical practitioners who examined the Applicant while he was still in employment, did not rule out the negative impact that the Applicant’s employment was having on his health, and the Tribunal prefers the contemporary diagnoses of the Applicant compared to the retrospective diagnosis of Dr Dias, intelligible and fully researched as it is.

13. The “flare ups” of the Applicant’s spinal condition during his employment can be better described as the aggravation of his underlying condition, and meets the test of aggravation as expounded in Tippett.

14. In reaching this conclusion, the Tribunal considered the findings of Dr Le Leu, who examined the Applicant in October 2013. Dr Le Leu made the following diagnosis – Exhibit 1 T69 pp. 350 - 351:

    “He developed cervical spondylosis which is a degenerative condition of the neck predominantly due to age or acute injury. Chronic poor posture due to perhaps a poorly designed workstation may exacerbate the symptoms and that probably occurred in Mr Gazzard’s case…His cervical spondylosis could have been exacerbated by years of performing a lot of sedentary work with a poor posture at a poorly designed workstation.”

    Does the Applicant’s condition continue to be contributed to, to a significant degree, by his employment?

15. The Applicant ceased employment in November 2012, and, when he was examined by

    
    

    Dr Le Leu, the following diagnosis was made – Exhibit 1 T69 p. 352:

    “His work cannot be continuing to contribute to his condition since he was medically retired in November last year.”

16. Even on a favourable view, the evidence before the Tribunal is that the Applicant is suffering from a degenerative spinal condition that has caused, and will continue to cause, him pain, discomfort and negatively impact on his lifestyle and health.

17. The question to be determined is not whether the Applicant is a sick man who is in pain, but whether his employment continues to contribute to that state of ill health, to a significant degree.

18. The Tribunal accepts the current diagnosis of Dr Dias, namely – Exhibit 1 T74 p. 390:

    “On the balance of probabilities, Mr Gazzard’s physical health condition, relates to the natural progression of an underlying constitutional degenerative condition, and therefore, his condition is consistent with a combination of (c) [a pre-existing, congenital, constitutional or underlying condition], (d) [the natural progression of an underlying condition] and (e) [underlying degeneration as part of the natural aging process]. I do not believe that his current condition is any longer related to his employment with the Australian Taxation Office.”

19. The Tribunal therefore finds that the Applicant’s compensable condition is no longer contributed to, to a significant degree, by his previous employment.

    CONCLUSION

20. The Tribunal therefore finds that the Applicant’s former employment ceased to significantly contribute to any aggravation of his cervical spondylosis as at 3 May 2016.

    DECISION

21. The decisions under review are affirmed.

I certify that the preceding 165 (one hundred and sixty – five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

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

Associate

Dated: 5 September 2018

Date(s) of hearing:	23 - 24 April 2018
Date final submissions received:	18 June 2018
Applicant:	In person
Counsel for the Respondent:	Mr Peter Woulfe
Solicitors for the Respondent:	HWL Ebsworth Lawyers