Gharakhan and Comcare (Compensation)

[2017] AATA 351

Gharakhan and Comcare (Compensation) [2017] AATA 351 (21 March 2017)

Division:GENERAL DIVISION

File Number(s):      2015/6357

Re:Fereshteh Gharakhan

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President

Date:21 March 2017

Place:Sydney

The decision under review is set aside, and in substitution, the Tribunal decides that the costs of surgical treatment to the L2/3 level of the applicant’s lumbar spine incurred by the applicant on 5 June 2015 is payable by Comcare under s 16 of the Safety, Rehabilitation and Compensation Act 1988.

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

The Hon. Dennis Cowdroy OAM QC, Deputy President

CATCHWORDS

COMPENSATION – entitlement to medical treatment expenses – surgery at L2/3 level of spine – whether the treatment was obtained in relation to a compensable injury – compensable injury of sciatica – decision set aside and decision made in substitution

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 16

CASES

Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570; 251 ALR 322

Dillon v Parker (1818) 1 Swans 359; 36 ER 422
In re Peacock, Long v Dow [1930] VLR 9
O’Connor v S P Bray Ltd [1937] HCA 18; 56 CLR 464

Spread v Morgan (1865) 11 HLC 588; 11 ER 1461

REASONS FOR DECISION

The Hon. Dennis Cowdroy OAM QC, Deputy President

21 March 2017

1. The applicant, by Application for Review filed on 8 December 2015, seeks review of a decision made on 11 November 2015 by a delegate of the respondent. Such decision affirmed an earlier decision that Comcare was not liable to meet the cost of a surgical procedure to the applicant’s lumbar spine performed by Dr Ralph Mobbs on 5 June 2015. The applicant’s claim for compensation had been brought under s 16(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The surgery was performed at the L2/3 level of the applicant’s lumbar spine.

2. Section 16(1) of the SRC Act states:

   “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 the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”

3. Section 5A of the SRC Act provides the definition of injury as follows:

   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.

   FACTS

4. The applicant migrated to Australia from Iran in 1991 and worked as a dental nurse from 1993 to 2000.  In 1996 she sustained a neck injury and in 1999 underwent a laminectomy.  Subsequently she worked at the Family Court of Australia performing office work and childcare and later obtained employment at the Refugee Review Tribunal and the Administrative Appeals Tribunal.

5. On 23 March 2004 whilst pushing a heavy document trolley which had a defective rear wheel, the applicant sustained a “popping” sensation in her lower back and abdomen region.  She experienced pain in her low back and left leg which became severe and was taken by ambulance to Royal Prince Alfred Hospital.  X-rays were provided and she was given pain relief by way of injection.

6. Subsequently she consulted her general practitioner who arranged a CT scan of her lumbar spine.  She was off work for two weeks but then returned to work.  Because of the pain she was referred to Dr T Kwong, Consultant Physician and Rheumatologist at St Vincent’s Clinic.  She also saw a new general practitioner, Dr Ali Zahedi.

7. On 17 June 2004, Comcare accepted ‘sciatica’ as a compensable injury under s 14 of the SRC Act.

8. An MRI conducted on 26 August 2004 revealed a “small focal protrusion to the left side at the L4/5 level displacing the L5 nerve root” (“the L4/5 injury”).  The scan made no reference to the L2/3 joint.

9. The applicant suffered sustained pain from 2004 and was treated by way of physiotherapy.  However on 7 March 2005 she consulted Dr Mark Davies who arranged for lumbar periradicular injections.  These did not significantly improve her condition and Dr Davies recommended lumbar spinal surgery by way of L4/5 decompression.  The surgery was performed on 9 March 2006.

10. According to the applicant, no significant relief resulted from the surgery.  An MRI scan performed on 23 August 2006 revealed no obvious neural compression.  At this stage she was working five hours per day, four days per week carrying out light duties

11. On 5 September 2006 a left L5 periradicular injection was performed but provided no relief.  The applicant then consulted Dr Milton Cohen, Rheumatologist at St Vincent’s Medical Centre who recommended various medications.

12. In December 2006 Dr Davies carried out an L4/5 fusion and a disc insert at L4/5.  The applicant noticed some initial improvement but still experienced bilateral leg pain.  On 26 March 2007 Dr Davies commented that her left leg pain had worsened with lateral thigh and buttock pain being aggravated by walking.  On 28 March 2007 an MRI scan of the lumbar spine showed no evidence of recurrent disc protrusion and there is no comment in relation to the L2/3 disc.

13. On 17 July 2007 Dr Davies again consulted with the applicant and was puzzled by her persistent leg and back pain.  As a result on 7 November 2007 revision spinal surgery was performed by Dr Davies incorporating rhizolysis of the L4 and L5 nerve roots and revision of the L4/5 pedicle screw internal fixation interbody and posterolateral fusions. Further revision surgery was performed on 14 November 2007. Dr Davies observed that there had been a misplaced right L5 screw found in his investigation.

14. The applicant felt there was no significant improvement of her low back pain which spread to both legs with the right leg becoming more painful.  In 2008 she travelled to Iran and Germany where she obtained further opinions and spinal injections.  Subsequently in 2008 it appears that she saw a pain physician. On 19 March 2009 the applicant had a further MRI scan of the lumbar spine which revealed no significant change since the 2007 examination.  A small broad based protrusion at L5/S1 was seen without causing compression. The L2/3 disc was reported to be normal.

15. The applicant consulted Dr T Steel and also Dr A Cree for advice.  On 22 December 2010 she consulted Dr Ralph Mobbs, Neurosurgeon and Spine Surgeon.  As a result some of the pedicle screws were removed by him on 4 April 2011.  The applicant felt some relief from pain.

16. On 8 December 2011 a further MRI scan of the lumbar spine was carried out which showed very minor generalised disc bulging at L2/3 but no central canal or foraminal stenosis.  Post-surgical changes were still present without an impingement of the L5 nerve root.

    FALL IN 2013

17. In 2013 the applicant visited Iran again.  She had found that she was experiencing severe left thigh and back pain with a tendency for her legs to give way and had had some falls at home and was using a walking stick.  She received further advice in Iran.  On 18 August 2013, whilst in Iran, she states that her leg gave way and she fell on her right buttock and hip (“the fall”).  The applicant felt severe back pain and was assisted to her feet but was unable to walk.  She was taken by ambulance to hospital where X-rays were taken. The X-rays showed a thin fracture at L2/L3 which was believed to be an old fracture. Subsequently an MRI scan was performed which showed a fracture of the L3 vertebra.  She was given a brace and returned to Australia in October 2013 and saw Dr Mobbs on 29 January 2014.  Dr Mobbs advised her to consult Professor Chris White concerning osteoporosis.

18. On 21 January 2015 a further MRI scan was carried out on the applicant’s lumbar spine.  It revealed a large Schmorl’s node on the superior end plate at L3 with moderate central disc protrusion, but no spinal canal or foraminal stenosis.

19. The applicant continued to experience low back and leg pain and was placed on painkillers, namely Endone and Panadol.  Further injections did not assist.

20. On 2 March 2015, Comcare accepted payment of several bilateral L2/3 facet joint block injections.

21. On 5 June 2015, the applicant underwent the surgery which is the subject of this application.

22. The applicant consulted Dr Mobbs on 29 July 2015.  Such consultation was 6 weeks following the L2/3 fusion procedure.  He observed that there was significant improvement in the applicant’s bladder and bowel function and also her pain and that her longstanding back and leg symptoms had remained stable.  He recommended continuing physiotherapy.  At this consultation the applicant commented that her legs were not giving away quite as much as previously.

23. On 25 November 2015 the applicant consulted Dr Mobbs.  He noted that the applicant was complaining of increased low back pain.  She commenced Lyrica therapy and later Norspan patches.  She also tried another medication which caused her skin irritation and accordingly that was discontinued.

    APPLICANT’S CURRENT CONDITION

24. The applicant experiences lumbosacral pain more marked on the right side and worse when sitting and rising from a chair.  She also experiences bilateral leg pain, worse on the right side.  She experiences pain in the right posterior thigh and calf in the lateral aspect of the foot with some radiation to the toes in the right foot.  The pain is described as of a burning quality with some tingling and numbness.  In respect of the left leg she experiences pain chiefly in the calf and foot.  She has limited ability to cook and clean, and her husband assists with activities.  She is able to do some domestic duties but is unable to iron and her husband does the shopping.  Her walking is limited and she usually requires support.  Her social activities are restricted and she has to stand, even in restaurants, to relieve pain, and has difficulty sitting in a car.

    CHALLENGED DECISION

25. In the decision dated 17 June 2015, the Comcare delegate considered the claim for the cost of the lumbar surgery performed on 5 June 2015 which was necessary in consequence of the fall.  The delegate referred to the report of Dr Lyon who noted that the applicant required hospitalisation and that radiological investigations “revealed a compression fracture of the superior aspect of the L3 vertebra”.  The delegate also noted that the MRI scan dated 23 January 2015 confirmed central disc protrusion at L2/L3 and a large Schmorl’s node at the superior end plate of L3.  The delegate noted that these injuries and conditions were consistent with the injury sustained in the fall.

26. The delegate found that compensation was not payable under section 16 of the SRC Act for the L2/L3 surgery, because the surgery was unrelated to the original injury sustained in 2004.

27. The 17 June 2015 determination was reconsidered and affirmed by a Review Officer on 11 November 2015. This is the decision under review.

    THE EVIDENCE

28. The applicant gave evidence at the hearing of her application.  The Tribunal noted that due to apparent pain, the applicant was required to stand for much of the hearing to obtain some pain relief.  During her testimony the applicant confirmed much of the history as is set out above.  It should be noted that the factual matters relied upon by the applicant are not in contest in these proceedings.  

29. Much of the hearing was occupied with medical evidence.  Medical evidence was provided by Dr Ralph Mobbs who provided numerous medical reports, Dr Peter Giblin, orthopaedic surgeon, who conducted a medico-legal examination and provided a report dated 26 May 2016, Dr Christopher Browne, rheumatologist, who also conducted a medico-legal examination of the applicant and provided a report dated 12 November 2016 and Associate Professor Neil W McGill, consultant rheumatologist who provided a report dated 16 August 2016 in respect of his medico-legal consultation.  The evidence of Associate Professor McGill and Dr Browne was provided by way of concurrent evidence. All other medical experts provided oral testimony separately.

    THE ISSUES FOR DETERMINATION

30. The issues for determination are:

    (a)Whether the medical treatment conducted by Dr Mobbs on 5 June 2015 was required in relation to an injury for which Comcare is liable (which could only be the 2004 injury) and if so, whether the medical treatment was reasonable for the applicant to obtain.

    (b)Whether the 2004 injury caused a weakness to the applicant’s lumbar spine, which has resulted in a need for surgery, hereafter referred to as “the adjacent segment issue”.

    (c)Whether Comcare, by meeting the costs of injections for the L2/L3 joint, have thereby tacitly accepted liability for continuous treatment (the “election issue”).

31. Although Comcare does not concede the fall, it leaves it to the Tribunal to determine the veracity of such event. Rather, the only issue concerns the medical diagnosis of her condition. It is agreed that the surgery performed by Dr Mobbs on 5 June 2015 (“the medical treatment”) was medical treatment as defined in section 4 of the SRC Act.

32. The respondent contends that if the applicant suffered the fall, that such fall was not attributable to injuries arising out of or in the course of employment, and further that any condition suffered by the applicant as a result of her fall did not arise out of or in the course of her employment.

33. The respondent contends that the L2/3 spinal surgery on 5 June 2015 was attributable to the effects of the fall.  Accordingly any requirement for the applicant to undergo such surgery was not attributable to the injury suffered by the applicant on 23 March 2004.  Further, the surgery performed on 5 June 2015 was not medical treatment obtained in relation to the injury. 

34. Comcare rejects the submission that any weakness resulted from the 2004 injury which extended to the L2/L3 joint, and also rejects the claim that it is, in effect, estopped from asserting that it is liable to meet the surgical costs to the L2/L3 joint just because it paid for injections to that location. Accordingly, Comcare contends that no liability arises to pay compensation under s 16 in respect of that medical treatment.

    CONSIDERATION

    Was the surgery in 2015 related to the 2004 injury?

35. As can be seen from the list of issues, the critical question is whether the fall was attributable to the applicant’s 2004 injury.  This question requires consideration of the medical issues sustained between 2004 and 2013 by the applicant.

36. Dr Mobbs provided both oral and written testimony.  In his report dated 29 July 2015 Dr Mobbs stated: “Her L2/3 problem is more related to her original back injury rather than to the fall and back fracture.”

37. In his report dated 27 February 2014, Dr Mobbs advised the Comcare delegate:

    “The pathology sustained with her recent injury is a superior endplate fracture of L3. It could be argued that as she has had a previous fusion at L4/5 then this may have added some additional stress to the L3 level during her fall and may have increased the likelihood of an endplate fracture, however her pattern of fracture is multi-factorial due to impact, osteoporosis and, to a lesser degree, perhaps her previous L4/5 fusion therefore authoring the biomechanics of her low back.”

38. Associate Professor McGill was asked whether the 2004 injury and subsequent treatment could have caused the development of bilateral leg weakness.  He testified that:

    “I think the - the answer, in terms of “could” is yes.  I think the documentation fairly clearly indicates that she didn’t have a focal neurological deficit following the – the problems that she experienced in 2004.  You know, for example Dr Mobbs in 2010 provided examination findings of normal sensation, normal reflexes, and I’ll just quote exactly what he said about the weakness, but it was global type weakness rather than – “decreased power throughout” were his words.  So a sort of a deconditioning type weakness.  So I think someone with chronic pain would do less activity, and by doing less activity would become deconditioned at a faster rate than they might otherwise.”  (Transcript p 56.27-.36)

39. Dr Browne testified that:

    “Look, I think a weakness resulted from the process that was going on at – at the original surgery site, but without sort of a clear cut sort of one-sided radicular pain problem, but she did proceed to have a series of surgeries, one initially in March 2006 which was an L4-5 decompression from which she didn’t gain any significant relief.  And then a second procedure which was a fusion at L4-5 and disc concerted December 2006.  She felt some initial improvement, was still experiencing bilateral leg pain of – she described of electrical quality, suggesting potential radicular symptoms.  And then her left leg pain became worse in March 2007 and she had a – a further procedure in November 2007, revision surgery, decompression again of the L4 and L5 nerve roots.  There was some correction of a – of a pedicle screw that was not in the right position.  She again felt there was no significant improvement, continued to have low back bilateral leg pain, right leg pain becoming more severe in her view.  So there’s – that was the situation leading up to her visit to Iran, the first visit, and she sought further opinions.  A couple of very well-known neurosurgeons who both declined to have further surgery – to offer further surgery and then – until she saw Dr Mobbs.  And then he then removed some pedicle screws in April 2011.  This helped her back pain to a degree.  She then went on to visit Iran.  She did comment that prior to the trip to Iran in 2013 she was experiencing fairly severe left thigh and back pain, tendency for her legs to give way.  She’d had several falls at home, was using a walking stick, and on 18 August 2013 while in Iran she actually – the leg gave way, she fell.  As a result of the fall she sustained a fracture of the L3 vertebra which was documented, and then subsequently went on to have the L2-3 surgical fusion with decompression of the nerves at that level and – and a fusion of that segment.  But – so I think the – it was – she – she was – I think she was at some reasonable support for the fact that she may have had leg weakness leading up to the L2-3 procedure and the tendency for falls at home prior to the visit to Iran suggests that that leg weakness was potentially significant.  I believe that that’s resulted from the – the pathological process going on at the lower levels, the subsequent multiple surgeries which haven’t been very satisfactory left her with some residual weakness which may have predisposed her to the fall in 2013 and the events that followed from there.  I think in my – in my view there is a connection, in the sense that she was predisposed, that she had some leg weakness which led to potential falls, and that’s what may have happened on that occasion.”  (Transcript p 56.42-57.31)

40. Associate Professor McGill then testified:

    “…if you – if you assume that the 2013 fall occurred in circumstances where she wasn’t doing anything and her leg gave way then I’d be looking for a reason why one leg would give way.  I don’t – you know, we don’t have a neurological examination documented to explain why that would happen but I don’t have another explanation why a leg would suddenly give way, so it’s – it’s a reasonable assumption, but that’s based on the – the premise, as you put it, that the fall was not caused by a trip or people falling – people fall for a whole range of reasons, but you’ve specifically asked me to answer on the basis that the fall occurred because her leg gave way.  So if that was the case, then I think it’s reasonable to associate it with having had the back problem since 2004.”  (Transcript p 57.45-58.8)

1. Dr Browne responded:

   “Yes, I – I think the events of 2004, which was the primary – subsequent longstanding lower limb pain and associated weakness which has been transferring from one side to the other actually historically, and then the subsequent surgery which – much of which has failed really predisposed her to the situation where she might be more prone to having a fall.”  (Transcript p 58.12-.16)

2. Dr Browne and Associate Professor McGill were extensively cross-examined.  In substance, their opinions as expressed above did not change.  Both agreed that but for the fall, there would have been no need for the L2/L3 surgery to have been performed.

3. In a report dated 26 May 2016, Dr Giblin said:

   “It is my opinion that if it had not been for the injury 23 March 2004, causing the subsequent fall 18 August 2013, then surgery at L2/3 would not have been likely to have occurred.”

4. Dr Mobbs was questioned concerning scans.  He had read a 2011 scan but agreed he had seen no scan of the applicant’s lumbar spine performed in Iran.  However, he had the benefit of a scan from January 2015.  He described a disc bulge at L2/3 on the 2011 scan.  However, the size of the disc herniation had increased significantly by the time of the 2015 scan.  As to whether such increase was due to degenerative changes, Dr Mobbs said that it was impossible to know.  He said:

   “I mean, the – on the balance of probabilities the event in 2013 would have attributed to some worsening of that disc.  I mean, we know that the patient has had a – had a loading injury to the spine and – and in some way that disc would have been impacted negatively.  However, if the disc bulge wasn’t there in the first place would that injury have caused that – that disc herniation?  And I – I think no.  So there is the pre – there is the pre-existing disc bulge that we can identify in 2013 that potentially maybe – you know, who knows what percentage by, was worsened by the event of 2013 resulting in the radiological findings dated 2015.”  (Transcript p 46.26-.35)

5. Dr Mobbs was questioned concerning the opinion he expressed in his report of 29 July 2015 that the L2/3 problem resulted from the 2004 injury.  He readily acknowledged that, in making such finding, he relied upon the applicant’s history, but he remained of the view that the L2/3 surgery was required because of the L4/5 disc injury.  He said: “…would she be in the same situation if she didn’t have the L4-5 disc injury initially?  And I – I don’t think so.”  (Transcript p 47.16-.17)

6. Dr Mobbs was asked whether, but for the 2013 fall and fracture, the applicant would be in the same position, i.e. requiring surgery.  Dr Mobbs replied:

   “It’s a combination of, you know, known injury L4-5, you know, additional impact 2013.  You know, progressive, degenerative change that, you know, happens.  A combination of all of the above three.”  (Transcript p 47.25-.28)

   Did the 2004 injury cause weakness in the applicant’s lumbar spine?

7. Dr Browne and Associate Professor McGill were asked:

   “We’ve heard some evidence this morning about adjacent segment issues.  Now, the theory’s been suggested that because there was surgery in 2004 to 2006 that, in effect, that has caused her to deteriorate more quickly because of the way she’s had, on the evidence, constant bouts of pain thereafter.  What do you say about whether that 2004 episode and the consequent treatment has resulted in, shall I say accelerated deterioration to L2-3?” (Transcript p 66.22-.28)

8. Dr Browne replied:

   “Look, I think probably not a great deal because the – that’s two levels above the previous surgery site.  L3-4 you expect to be – because sometimes there’s what’s called a domino effect following spinal fusion surgery where adjacent segments become more susceptible to degenerative change, and then a fusion may need to be extended to that level.  But this is two levels above, it’s – it’s not the expected level which would have been associated with the L4-5 pathology.” (Transcript p 66.30-.36)

9. Dr Mobbs opined:

   “In this instance I was of the opinion that the L2-3 – the necessity for the L2-3 surgery is related to adjacent segments degenerative disc changes which is more related to the fact that she’s had previous L4-5 surgeries that translates the stresses elsewhere and therefore the necessity of the surgery.”  (Transcript p 39.17-.21)

10. Specifically in relation to adjacent segment involvement, Dr Mobbs confirmed that the L2/L3 was not directly adjacent to the L4/L5 joint.  Dr Mobbs was then asked:

    “In your opinion is it possible to have an issue – an adjacent segment issue if you like at L2-3 referable to an initial problem at L4-5 without there necessarily being an issue at L3-4?” (Transcript p 39.38-.40)

11. Dr Mobbs responded: “Well she does in fact have some degenerative change at L3-4.  So I’m more of the opinion that she has multi-level adjacent segment degeneration.”  (Transcript p 39.40-.42)

12. He continued:

    “So my opinion is that she has adjacent segment degenerative changes at the two levels above her L4-5 surgery.  So that is at L3-4 and L2-3.  As far as the presentations with the most symptomatic level, that was at L2-3 and that was – and therefore the focus of the surgery.”  (Transcript p 40.6-.9)

13. As to the proximity of the fracture, Dr Mobbs was questioned concerning the relationship between the L2/3 symptomatic level, which he described as the focus of the surgery, and the 2004 injury.  Dr Mobbs said:

    “So the adjacent segment issues do not need to be at the immediate level only.  They can be at the immediate level or beyond. … So the L4-5 surgery in 2004 has set in train a sequence of mechanical issues higher up in the spine, therefore effecting [sic] the level above which she does have some degree of L3-4 degenerative change but more so at the L2-3 level.”  (Transcript p 40.12-.21)

14. Dr Mobbs expressed the opinion that the applicant had a genuine basis for her pain.  He said: “I’m in no doubt that there was an absolutely genuine basis for the fact that she has back, buttock and leg pain.”  (Transcript p 42.30-.32)

15. A nerve conduction study had been performed in December 2010 which indicated a history of nerve compression.  Dr Mobbs acknowledged that there was no report by the applicant of any falls.

16. In response to cross-examination suggesting that it was unusual for the applicant to travel to Iran for advice, Dr Mobbs said:

    “I think that’s very fair that patients take their medical matters into their own hands and pursue whatever, you know, diagnosis or treatment that they – I mean that – I don’t see an issue with that.”  (Transcript  p 43.35-.37)

17. Dr Mobbs agreed that it was difficult to determine “exactly where the precise pain generators were”, and the best management strategy for the applicant.  He said:

    “With any chronic pain disorder, there is no doubt that there is a degree of psychological overlay but in Fereshteh’s case, I believe that there is, you know, a biological basis of her pain, perhaps with a degree of psychological overlay.”  (Transcript p 44.11-.14)

    Election

18. The applicant’s claim that Comcare elected to accept the applicant’s L2/3 injury arises from its payment for injections for that region of her lumbar spine.  Comcare rejects such claim, and relies upon the fact that the documentation relates to its acceptance of the costs of injections for the applicant’s sciatica.  Accordingly, it is necessary to consider the evidence.

19. Dr Mobbs was asked:

    “You’ll recall that in March 2015 you performed some bilateral facet block injections or arranged to be performed some bilateral facet block injections at L2-3.  Were those injections to treat the same problem at L2-3 that you treated subsequently by way of surgery?” (Transcript p 39.23-.26)

20. Dr Mobbs responded:

    “Yes.  So in short, yes.  The more detailed answer is that the injections are used as part of the multidisciplinary pain management approach that we institute for, you know, for spinal issues causing pain and disability.  It was hoped that the injections would temporise her pain problem and that she would get benefit with a multidisciplinary approach but unfortunately that was not the case so it’s – so that’s the reason of why we proceeded with the L2-3 surgery.”  (Transcript p 39.26-.32)

    FINDINGS

21. The applicant testified on oath that her legs had been unstable, resulting from pain from the 2004 injury.  Because of the instability, she fell in 2013, resulting in the need for surgery at L2/3.  The Tribunal accepts the applicant’s evidence that she experienced instability issues, which led to her fall in 2013.  It is correct that her general practitioner, Dr Zahedi, did not record such instability, but this is not determinative.  Dr Zahedi explained that his notes were “concise”.  Dr Zahedi stated that the applicant was a very “legitimate case”.  Little weight can be given to such a general observation, without other medical evidence.

22. Dr Mobbs has been the applicant’s treating specialist since 2010.  The many reports from 2010 record the applicant’s lumbar spine issues.  Such records have assisted the Tribunal.

23. Dr Giblin and Dr Browne agreed that there was probably a link between the 2004 injury and the L2/3 condition.  Dr Mobbs was more definite that the L2/L3 condition could be linked to the 2004 injury.  Whilst he did not eliminate degenerative changes, he did not regard such circumstance as being a real factor.

24. In view of this expert medical evidence (which was not available to the decision-maker whose decision is under review), the Tribunal finds that, on the balance of probabilities, the 2004 injury, and subsequent destabilisation, resulted in the applicant’s fall in 2013, and that such fall necessitated the surgery to the L2/3 joint.

25. In view of such finding, it becomes unnecessary to determine the remaining two issues.  However, the Tribunal will give its reasons hereunder.

26. As to the adjacent segment issue, whilst there is some division of expert medical opinion, the Tribunal notes Dr Mobbs’ opinion of the association between the L4/5 and L2/3 joints.  However, the finding on this question would be, on the evidence, entirely speculative.  The Tribunal is not satisfied that the onus of proof on this issue has been discharged.

    Election

27. The remaining issue relates to the issue of approbation and reprobation; that is, whether Comcare, having met the cost of pain relieving injections to the applicant’s L2/3 joint, cannot deny that the surgical treatment must be treated, by such payment, as an acknowledgment of liability under s 16 of the SRC Act.

28. In Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570; 251 ALR 322, the High Court of Australia considered the doctrines of estoppel and waiver, and referred to the phrase “you may not both approbate and reprobate” (see [57]), which the Court described as a synonym for the doctrine of election. The Court described it as follows (at [58]): “If…something happens which gives rise to the existence of two alternative rights, and one of those rights is satisfied, the other is no longer available.”

29. At [59]-[63] the Court referred to the differences between election, waiver and estoppel.  For the reasons hereunder, it is not necessary to consider these differences.  The operation of the doctrine requires:

    (a)that the party, said to have elected, must have full knowledge of all the facts;

    (b)that the party have in mind the choice being made when the election is claimed to have occurred;

    (c)that both of the above were present in the mind of the alleged elector when he made the choice.

30. For relevant authorities, see: Spread v Morgan (1865) 11 HLC 588; 11 ER 1461; Dillon v Parker (1818) 1 Swans 359; 36 ER 422; In re Peacock, Long v Dow [1930] VLR 9 at 18; and O’Connor v S P Bray Ltd [1937] HCA 18; 56 CLR 464.

31. In the present instance there are no facts to establish that Comcare had any knowledge of the applicant’s need for any or all surgery.  Accordingly, the doctrine of waiver has no application since the party said to have waived its rights must be aware of them.

32. Accordingly, there is no scope for the application of the doctrine of election.

    DECISION

33. The correct and preferable decision is that:

    (a)The decision under review is set aside; and

    (b)In substitution, the Tribunal decides that the costs of surgical treatment to the L2/3 level of the applicant’s lumbar spine incurred by the applicant on 5 June 2015 is payable by Comcare under s 16 of the SRC Act.

I certify that the preceding 73 (seventy -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President

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

Associate

Dated: 21 March 2017

Date(s) of hearing:	14 December 2016 and 1 February 2017
Counsel for the Applicant:	A Coombes
Solicitors for the Applicant:	K Byrnes, Turner Freeman Lawyers
Counsel for the Respondent:	D Dinnen
Solicitors for the Respondent:	P Snell, Lehmann Snell Lawyers