Graham and Comcare (Compensation) - [2025] ARTA 579

Graham and Comcare (Compensation) [2025] ARTA 579 (11 April 2025)
Applicant/s:  Glenn Graham
Respondent:  Comcare
Tribunal Numbers:              2023/3104
2020/6254
2021/8134
2021/9475

Tribunal:Senior Member S Webb
Place:Canberra
Date:11 April 2025
Decision:
1.The reviewable decision in application 2023/3104 is set aside and in substitution the Tribunal decides:
a.the nature and conditions of Mr Graham’s Australian Federal Police employment significantly contributed to aggravation of his degenerative lumbar spine ailment;
b.the aggravation is an ‘injury’ for the purposes of s 5A(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act);
c.the ‘injury’ is concomitant with the ‘injury’ for which Comcare accepted liability on 27 September 2013 (collectively, Back Injury);
d.the date of the ‘injury’ is 31 July 2013; and
e.Comcare is liable to pay compensation in respect of the Back Injury under s 14 of the SRC Act.

2.The reviewable decision in application 2020/6254 is set aside and in substitution the Tribunal decides:
a.Mr Graham is entitled to compensation for permanent impairment under s 24 and non-economic loss under s 27 of the SRC Act in respect of the Back Injury.

3.The reviewable decision in application 2021/8134 is set aside and in substitution the Tribunal decides Comcare is liable to pay compensation in respect of spinal fusion surgery performed by Dr Ow-Yang on 7 July 2015 and reasonably obtained by Mr Graham in relation to the Back Injury.
4.The reviewable decision in application 2021/9475 is set aside and in substitution the Tribunal decides Comcare is liable to pay compensation in respect of aggravation of adjustment disorder/depression significantly contributed to by employment-related pain stemming from the Back Injury.
5.Within 14 days, the parties have liberty to lodge submissions in respect of orders for costs under s 67(8) of the SRC Act. Should no submissions be lodged, the Tribunal intends to order Comcare to pay Mr Graham’s reasonable costs as agreed or taxed in each application.

Statement made on 11 April 2025 at 12:00pm
Catchwords
WORKERS’ COMPENSATION – lumbar spine ailment – incidents in employment – nature and duties of employment – pre-existing degenerative ailment – vulnerability to aggravation – susceptibility to injury – cumulative load of employment duties – increased risk of and susceptibility to injury – expert witness evidence – attribution of weight to detailed reasoning – employment contribution to a significant degree – injury – surgical treatment reasonably obtained in relation to injury – permanent impairment resulting from injury – depression significantly contributed to by employment – decisions set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988 s 4, 5A, 5B, 7, 14, 16, 19, 24, 27, 67
Cases
Australian Postal Corporation v Burch [1998] FCA 944
Australian Securities and Investments Commission v Hutchison [2020] FCA 978
Canute v Comcare [2006] HCA 47
Comcare v Lofts [2013] FCA 1197
Comcare Australia v Rope [2004] FCA 540
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Kennedy v Cordia (Services) LLP
[2016] UKSC 6

Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA 352
Davie v Magistrates of Edinburgh 1953 SC 34
Dingley v Chief Constable, Strathclyde Police 1998 SC 548
Health Insurance Commission v Van Reesch [1996] FCA 1118
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
McNickle v Huntsman Chemical Company Australia Pty Ltd (Initial Trial) [2024] FCA 807
National Justice Compania Naviera SA v Prudential Assurance Co Ltd (“The Ikarian Reefer”) [1993] 2 Lloyd’s Rep 68
PMT Partners Pty Limited (in Liquidation) v Australian National Parks and Wildlife Service [1995] HCA 36
Woodhouse v Comcare [2021] FCAFC 95
Statement of Reasons

Glenn Graham was employed by the Australian Federal Police. In this employment, he sustained a lower back injury. He claimed and was paid compensation. Comcare approved spinal fusion surgery and compensation for permanent impairment. Subsequently, Comcare reconsidered and decided to revoke these decisions. Mr Graham claimed compensation for further injuries to his lower back attributed to incidents in and the nature and conditions of his employment. He claimed compensation in respect of a related psychological condition. Comcare decided to refuse these claims.
Mr Graham lodged 7 applications for review of these decisions by the Tribunal:
(a)Application 2020/6254 is for review of Comcare’s reconsideration decision[1] to revoke a determination Mr Graham was entitled to compensation for a 23 percent permanent impairment under s 24 of the SRC Act and related non-economic loss under s 27 as a result of an injury on 31 July 2013.[2]
(b)Application 2021/8134 is for review of Comcare reconsideration decision[3] refusing previously accepted compensation for spinal fusion surgery.[4]
(c)Application 2021/8135 is for review of Comcare reconsideration[5] decision refusing to accept liability for Mr Graham’s claimed failed back syndrome.[6] This application was resolved by agreement in the course of the proceedings: the reconsideration decision was affirmed by consent during the proceedings.
(d)Application 2021/9474 is for review of Comcare’s reconsideration decision[7] to refuse liability for Mr Graham’s 10 November 2020 claim in respect of a psychological injury on 8 February 2018.[8] This application was resolved by agreement in the course of the proceedings: the reconsideration decision was set aside and substituted with a decision Mr Graham suffered a temporary exacerbation of an adjustment disorder with mixed anxiety and depressed mood secondary to back pain in respect of which Comcare was liable to pay compensation under s 14 of the SRC Act from 8 February 2018 to 22 March 2023, and on 23 March 2023 the ailment did not meet the threshold of a ‘disease’ under s 5B of the SRC Act and it did not result in impairment or incapacity for work.
(e)Application 2021/9475 is for review of Comcare’s reconsideration decision[9] to refuse liability for Mr Graham’s 10 November 2020 claim[10] in respect of a psychological injury, “depression caused by severe back pain”,[11] for which he first sought treatment on 3 August 2016.
(f)Application 2023/0596 is for review of Comcare’s reconsideration decision[12] affirming a determination that Comcare had no present liability on 22 November 2022 under s 16 and s 19 of the SRC Act in respect of Mr Graham’s accepted low back injury on 8 February 2018.[13] This application was resolved by agreement in the course of the proceedings and a consent decision was issued on 18 July 2024:[14] the reconsideration decision was set aside and substituted with a decision Mr Graham suffered an aggravation of a lumbar sprain on 8 February 2018 in respect of which Comcare is liable to pay compensation under s 14 of the SRC Act.
(g)Application 2023/3104 is for review of Comcare’s reconsideration decision[15] refusing Mr Graham’s claim in respect of a low back injury attributable to the nature and conditions of his AFP employment from 2001.[16]
[1] Exhibit 1, O62.
[2] Ibid, O28, O60.
[3] Ibid, O66.
[4] Ibid, O55.
[5] Ibid, O67.
[6] Ibid, O41.
[7] Ibid, O75.
[8] Ibid, Bundle of Claim For Compensation, Tab 6.
[9] Ibid, O75.
[10] Ibid, Bundle of Claim for Compensation, 43-47.
[11] Ibid, 44.
[12] Ibid, O80.
[13] Ibid, O78.
[14] Note corrigenda on 9 August 2024 and 26 September 2024.
[15] Exhibit 1, O84.
[16] Ibid, Bundle of Claim for Compensation, Tab 7.
The applications for review were lodged under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed and the Administrative Tribunal Act 2024 (ART Act) came into effect on 14 October 2024, establishing the Administrative Review Tribunal (Tribunal). Under the transitional provisions set out in Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, the Tribunal has jurisdiction to conduct these reviews.
Applications 2020/6254, 2021/8134, 2021/9475 and 2023/3104 proceeded to hearing. These applications are the subject of this decision.
There is some complexity to the issues raised in these cases. Unfortunately, counsel for Mr Graham, Mr Leo Grey, was unable to provide oral submissions during the hearing for health reasons. In order to ensure fairness to each party, time was allowed for closing submissions to be made. The time allowed was extended. Ultimately, each party lodged closing submissions. Some of the submissions contain factual errors or a lack clarity. Without occasioning further delays, I will make the best of them and attempt to address the salient issues raised.
FACTS
In these circumstances and in order to fully comprehend and squarely address the issues in these applications, it is necessary to set out the historical facts and related contemporaneous records in some detail, even though this substantially increases the length of the reasons for decision. I am satisfied the following facts are supported by the materials and evidence before the Tribunal.
Mr Graham was born in 1956. He is 68 years old.
In 1972, he commenced work with his father as an industrial painter. At the age of 16, he fell from a roof and hurt his back.[17]
[17] Ibid, 1347.
From November 1973 to November 1982, he served in the RAAF, working as an airframe fitter. He played rugby during his service.
In 1990, Mr Graham was employed as a sales representative. He experienced low back pain which he attributed to sitting on a wallet in his back pocket. On 6, 13 and 23 July 1990, he obtained physiotherapy treatment from Jac Cousins, a physiotherapist, who noted “P↑ R L4/5 Region only”.[18] The notes of the Queanbeyan GP Super Clinic record “L5S1 lesion shown in 1990”.[19] No documentation of a radiological investigation of Mr Graham’s lumbar spine in 1990 has been given to the Tribunal. With treatment, his low back symptoms settled.
[18] Ibid, 1301.
[19] Ibid, 920.
Mr Graham obtained further treatment from Mr Cousins in 1993 and 1999.[20] On 27 October 1999, Mr Cousins noted a two-week history of low back pain which was “severe”.[21]
[20] Ibid, 1302.
[21] Ibid, 826.
On 8 June 2001, Mr Graham disclosed in an Australian Protective Service (APS) Intake Checklist he had previously suffered from “back or neck pain or injury” and “joint pain or injury”.[22]
[22] Ibid, 615-624.
On 11 September 2001, Mr Graham commenced employment with the Australian Federal Police (AFP). He was assigned to the APS Diplomatic Protection Unit.
On 9 January 2002, he consulted Dr Donald Bradfield, a general practitioner, in respect of low back pain.[23] The doctor prescribed Panadeine Forte and Voltaren and noted:
Ongoing back pain in left side Sacroiliac area Previous! Disc lesion on this side.
Currently working for Aust Protective services[24]
The circumstances in which the low back pain symptoms arose is not evident on the available materials.
[23] Ibid, 69, 908.
[24] Ibid, 1035.
On 8 April 2002, Mr Graham attended The Canberra Hospital in respect of thoracic and right upper limb pain. Among other things, the Hospital notes record a history of “sciatica L leg – nil recent problems”.[25]
[25] Ibid, 834.
On 6 August 2004, Mr Cousins noted Mr Graham was using “inversion boots for LSp”.[26]
[26] Ibid, 1305.
On 26 October 2004, Mr Graham consulted Dr Bradfield in respect of a recurrence of mid-lumbar pain and left S1 pain “since working on a rowing machine yesterday”.[27] The doctor noted Mr Graham “Has Pan forte and voltaren”, which had been prescribed on 16 and 25 October 2004.
[27] Ibid, 70, 1037.
In 2006, Mr Graham consulted Dr J Brown in respect of “back pain”.[28] On the available materials, it is not possible to determine the location, nature and duration of the pain, or the circumstances in which it arose.
[28] R5, 385.
On 18 January 2011, Mr Graham consulted Dr Kamath, a general practitioner, who noted:
History:
H/o c/c low back ache – tried traction by hanging upside down – has been doing this for many years. Whilst doing it yesterday hurt back…[29]
[29] Ibid, 945.
On 26 January 2011, Mr Graham presented with lumbar back pain at the Emergency Department of The Canberra Hospital.[30] The nursing clinical notes include:
Longstanding back pain, self treats with stretching, started 2/52 ago, nil injury, worsening…[31]
Pt. admitted to Acute 3. Presents ϖ severe lumbar back pain after injury @ age 16. Has had recurrent issues ϖ back pain since then… Pt states he normally takes Celebrax and Panadiene when he has “flare ups”…[32]
[30] Ibid, 804-824.
[31] Ibid, 812.
[32] Ibid, 823-824.
In the Hospital, Mr Graham was assessed by a physiotherapist who noted:
SHx works in AFP, 12 hr shifts, denies lifting, sitting a lot, wears gun belt, normally active, does kick boxing, was walking dog last night… pain most likely associated with musculoskeletal cause, unlikely neurological…[33]
[33] Ibid, 816-817.
He was discharged the following day. The Hospital noted:
[Mr Graham] has suffered back pain for 20 years and has had a recent exacerbation which brought him to the ED. He was given morphine and paracetamol analgesia, bringing his pain slowly under control. His lumbro-sacral x-ray was normal. He is discharged on PRN endone and advised to follow up with a physiotherapist for pain management options.[34]
[34] Ibid, 630.
On 31 January 2011, Mr Graham consulted Dr Bradfield, who noted “severe lumbar back pain without radiation. Pain about L34 facet joint pain”.[35] He was referred for a CT scan that day and Dr Kenning, a radiologist, reported:
Multilevel facet joint degenerative changes are seen, which radiographically appear most pronounced at L4/5. There are multilevel degenerative disc changes also there is potential compromise of the exiting left L5 nerve root.[36]
[35] Ibid, 946
[36] Ibid, 978-979.
On 1 February 2011, Mr Graham consulted Dr Bradfield in respect of back pain. The doctor referred him to Mr Cousins for physiotherapy treatment.[37]
[37] Ibid, 71, 920.
On 9 February 2011, Mr Cousins noted:
Continues to use inversion boots – eases… 3-4/52 grad ↑ sore L/S grad spread → both Sis/ICs – eased with Endone. 2/52 ago walked 3km→ next AM p++ L/S→tried boots→↑p++→TCH[38]
[38] Ibid, 830.
On 24 March 2011, Mr Cousins reported to Dr Bradfield:
Usually keeps his back pain under control with exercise and using inversion boots. Early this year his low back pain worsened and spread across both buttocks and lateral hips. It flared up severely after a long walk followed by inversion. Valium, Endone and Panadol Osteo gradually improve the pain but sitting, standing and many activities were all restricted. On examination, his lumbar movements were all painful at 40-50%. SLR was 70° bilaterally. His lumbar spine was not tender on palpation. I feel he has a mainly neuropathic low back pain. I explained this, gave treatment of mobilisation and traction and revised his exercises. After two treatments over one week, his pain has eased well and I ceased treatment.[39]
[39] R6, 449.
On 24 May 2011, Mr Graham consulted Dr Bradfield in respect of right groin pain after kicking with his right leg while kick boxing.[40]
[40] Ibid, 946-947.
On 16 April 2012, Mr Graham consulted Dr Bradfield, who noted “Hurt back yesterday putting roof on sheds. Pain lower back at present”.[41] The doctor prescribed Panadeine Forte and Endone (which had previously been prescribed up to 8 September 2011). Further prescriptions of Panadeine Forte were issued on 13 July 2012, 26 October 2012 and 4 January 2013.
[41] A12, 75, 948.
On 22 February 2013, Mr Graham consulted Dr Jill Brown, a general practitioner, complaining of low back pain.[42] The doctor issued a further prescription for Panadeine Forte.
[42] Ibid, 951.
On 29 May 2013, Mr Graham consulted Dr Bradfield who noted “Back pain ongoing” and prescribed Panadeine Forte and Celebrex (a non-steroidal anti-inflammatory medication).[43] In a further consultation on 17 July 2013, Dr Bradfield noted that prescriptions for Endone and Panadeine Forte ceased.
[43] Ibid.
At or about 4.30am on 31 July 2013, in the course of his employment duties, Mr Graham experienced a sudden increase of low back pain while wearing an accoutrement belt when seated in a patrol car he had refuelled: he twisted to place a fuel card on the passenger seat and felt a ‘click’ in his lower back associated with sudden onset low back pain (fuel card incident).
Mr Graham gave evidence he experienced symptoms of low back pain continuously, to varying degrees, after the fuel card incident. On his evidence, the symptoms he experienced on and after 31 July 2013 were more severe than previous episodes of low back pain he had experienced, which were not associated with clicking or stinging sensations.

Mr Graham also gave evidence his low back pain was gradually becoming worse over a long period prior to the fuel card incident.[44]
[44] Ibid, 76.
On 2 August 2013, Mr Graham consulted Dr Bradfield. The doctor issued a medical certificate in which he diagnosed “left sided lumbosacral back strain aggravation of pre existent degenerative changes” caused by “twisting back in car whilst at Shell Servo Manuka, wearing gun belt at time”.[45] Dr Bradfield noted:
Twisted in car several nights ago. Low back pain.
Was in Manuka at the time refilling at the Shell garage.
Turned in car and developed back pain after a click
Pain worst on left lower lumbro-sacral area
Some tenderness
Sugges analgesia may need physio ‘Back exercise sheets
Blaming the car because igt is 90000km and due for lease change.[46]
[45] Ibid, 1001.
[46] Ibid, 952.
On 8 August 2013, Dr Bradfield noted “some back pain persists” and on 15 August 2013 he noted “Back improving at present due bak next thudsday”.[47] On 21 August 2013, Dr Bradfield referred Mr Graham for a CT scan of his lumbar spine and noted:
sudden exacerbation of pain since Friday problem with physiotherapy , Pain just in lower back . Chewing panadeine needing Valium…[48]
[47] Ibid; see medical certificates at 1002 and 1003.
[48] Ibid.
On 21 August 2013, a CT scan of Mr Graham’s lumbar spine was reported to show:
There is mild right curvature scoliosis of the lumbar spine convex to the left. There is also a minor degenerative retrolisthesis at the L3-L4 level.
Established spondylotic changes are seen throughout the lumbosacral spine, associated with variable disc space narrowing, multilevel disc bulges and marginal osteophytes. There are also widespread changes of facet joint osteoarthritis, which are particularly severe at the L4-L5 level.
…
… It appears that the sciatica is not a current issue. Mr Graham currently localises his pain to the left lower paralumbar region at approximately L3-4 and L4-5 level. I have suggested that we perform a CT-guided left-sided L4-5 facet joint injection with steroid and local anaesthetic initially and assess for response. If no improvement, suggests we move to performing a left L3-4 facet injection.[49]
[49] Ibid, 1107-1108.
On 22 August 2013, Mr Graham underwent the recommended L4-5 CT-guided left facet joint injection, in which he experienced a transient exacerbation of pain and subsequent improvement.[50] Thereafter, on 30 August 2013, Dr Bradfield issued a medical certificate in which he stated “At review on 21 August has had a severe exacerbation of pain and is unfit for work from 21 August to 28 August may have provisional return to work from 2 September 2013”.[51]
[50] Ibid, 953, 1109.
[51] Ibid, 1004.
On 6 September 2013, Dr Bradfield noted “still ongoing pain Has part time work”[52] and issued a medical certificate stating:
At review on 6 September continues to have some pain especially using vehicle. He would be better positioned in an office position or in a guard position with no driving and limited to walking eg security of the Lodge.
Improvement with facet joint injection to left.[53]
[52] Ibid, 953.
[53] Ibid, 1005.

On 9 September 2013, Mr Graham signed a Claim for Workers’ Compensation form in respect of a “Lumbosacral back strain, bulging discs” injury on 31 July 2013 which Mr Graham described in the following terms:[54]
[54] Ibid, 635-636.

23. … Location:

Seated in my patrol car after refuelling

24. What were you doing at the time you were injured or contracted your illness?

Seated in my patrol car I twisted to place something on passenger seat

26. What actually injured you, or made you ill?

An immediate sharp pain in lower back which increased

On 27 September 2013, Comcare accepted liability for “aggravation of intervertebral disc disorder – lumbar region (left)” and related medical treatment up to 5 October 2013 and incapacity for work up to 28 August 2013.[55]
[55] Ibid, 1533.
On 19 September 2013, Dr Bradfield noted “back improving able top flex. Fed up with sittig in office”.[56]
[56] Ibid, 953.
In October 2013, Mr Graham was reportedly “able to return to pre-injury hours and duties with the [AFP]”.[57] On 9 October 2013, Dr Bradfield recommended transfer of Mr Graham to a guard position at the Lodge.[58]
[57] Ibid, 652.
[58] Ibid.
It is Mr Graham’s evidence he continued to experience low back pain even though he returned to work in October 2013, undertaking full hours and duties. By his own account, he undertook and passed his annual Operational Safety Assessment in or about October 2013 “going through the motions, slowly”.
There is no reference to low back pain in consultations with Dr Bradfield on 9 October 2013 and 21 October 2013, and no further prescriptions of analgesic medications were recorded at that time.[59] This notwithstanding, Mr Graham consulted Mr Cousins on 16 October 2013 who noted:
Facet joint injection Aug 22 – pain settled after a few days. Movement still tentative. Sitting ~30min feels back ache. Currently full hours full duties. Celebrex 2/day. Panadeine Forte 1-2 intermittently.[60]
[59] Ibid.
[60] Ibid, 1309.
On 25 October 2013, Mr Cousins noted:
Some days good, some bad. Not as acute as it was. Still waiting on work transfer. Stiffness after work/driving >30min
Restless legs at night, settles with Cymbalta.
O/E: Range good, nil acute, slow movement
...[61]
[61] Ibid.
On 5 November 2013, Mr Graham consulted Mr Cousins, who noted “[b]ack feels good… has episodes of restless legs since last Rv”.[62] On 12 November 2013, Mr Cousins noted that Mr Graham was “going well – no work since past week. Since agg by driving”.[63]
[62] Ibid, 1310.
[63] Ibid.
On 18 November 2013, Mr Cousins noted “↑ work over weekend 4 days in a row, lots of time in car – slight ache after a bit settled” and he noted on 28 November 2013 “Agg’d by ↑ walking yesterday at High Court. Driving to Brisbane on Monday”.[64]
[64] Ibid.
On or about 2 December 2013, Mr Graham drove 1400 kilometres to visit family members in Queensland. He explained he and his wife drove from Canberra to Queensland in a day and, on the return journey, they took an overnight break in Dubbo. I accept his evidence that they shared the driving and took short breaks. In a subsequent consultation with Mr Cousins on 6 December 2013,[65] Mr Graham did not recall informing Mr Cousins that his “back felt good” after the drive.
[65] Ibid, 1311.
In a further consultation with Mr Graham on 11 December 2013, Mr Cousins noted “Slashing over weekend – bumpy and sitting posture P++”.[66]
[66] Ibid.
On 16 December 2013, Dr Bradfield noted “back pain again moderate pain. conmtinuing back pain with pain lumbar areas on right”.[67] As can be seen, the locus of Mr Graham’s pain symptoms was reportedly on the right, whereas the previously symptoms he experienced after 31 July 2013 were reported predominantly on the left side of his lower back.
[67] Ibid, 954.
On 18 December 2013, Mr Cousins noted “… Friday – sitting++ →P Sat and Sunday – unable to work. Central LBP”.[68]
[68] Ibid, 1312.
Mr Graham is reported to have “noticed his symptoms significantly increased in early January 2014”.[69] This is supported by Dr Bradfield’s 16 January 2014 note of “continuing back pain unchanged from previously” and Mr Cousins’ clinical note on 23 January 2014 which refers to:
Long shift in cars – ache immediately after. GP yesterday - Panadeine forte and anti-inflammatories. Low back R + L …[70]
[69] Ibid, 652.
[70] Ibid, 1312.
I accept that Mr Graham was certified unfit for one week and he “returned to work in late January/early February 2014 performing desk based duties, however continued to experience constant pain in his lower back”.[71]
[71] Ibid.
On 29 January 2014, Dr Bradfield noted “continuing back pain”,[72] and on 5 February 2014, the doctor noted “continues to have pain in cars and neeing certi extension low back pain persists”.[73] It appears Mr Graham sought a change to the medical certificate Dr Bradfield issued – “He is hoping you can revise and stat “limited driving” instead of’no driving’”.[74]
[72] Ibid, 954.
[73] Ibid, 955.
[74] Ibid.
Mr Graham is reported to have given a history of “an episode of severe low back pain whilst standing up after sitting on the toilet at home” in February 2014.[75] On 24 February 2014, Dr Bradfield referred Mr Graham to Dr Ow-Yang, an orthopaedic surgeon, and noted:
severe pain with pain at base of spine numbness of left htigh
sudden episode of pain on Saturday
some preious improvement from CT guided injection suggest repeat[76]
[75] Ibid, 485.
[76] Ibid.
On 25 February 2014, a CT scan was taken of Mr Graham’s lumbar spine. [77] The report of this scan noted “[I]nitial improvement in symptoms but recent sudden deterioration”. Comparison of the scan with the previous CT scan taken on 21 August 2013 was reported to reveal “[e]ssentially no change in the appearance of the lumbosacral spine” and, in response to “the recent acute onset of left sided sciatica” Mr Graham was referred for CT-guided left L5 peri-neural and left L4-5 facet joint injections with steroid and local anaesthetic.[78] It is difficult to know what to make of the report of “a broad left-sided transverse process forming a pseudo-articulation with the left sacral ala” which is not reported in other scans or subsequent MRI investigations. The finding of “complete obliteration of the fat plane surrounding the emerging L5 nerve root and likely impingement on the descending left S1 nerve root”[79] suggests physiological changes at the L5/S1 level. The finding the L4-5 disc protrusion “is contacting the emerging right L4 nerve root (asymptomatic side)” is largely consistent with the CT scan on 31 January 2011, which is reported to show “facet joint material contacting but not clearly compressing the exiting L4 nerve root”,[80] and the CT scan on 21 August 2013, which is reported to show the disc protrusion at the L4-5 level was “not impinging on the emerging right L4 nerve root”.[81]
[77] Ibid, 641, 1110.
[78] Ibid, 1111.
[79] Ibid, 1111.
[80] Ibid, 1106.
[81] Ibid, 1108.
On 26 February 2014, CT-guided left L5 perineural and left L4-5 facet joint injections were administered.[82]
[82] Ibid, 643.
On 3 March 2014, Mr Graham presented to the Emergency Department of the Queanbeyan District Hospital with low back pain. The Hospital records state:
Presents with low back pain.
Worse since this morning. Woke up with it. Unable to stand due to pain.
work place injury july 2013 with background of facet joint degenerative disease at multiple levels
…
In significant pain- spasmodic, low back, paraspinala rea L3-5.
…”[83]
[83] Ibid, 1113.
On 4 March 2014, an MRI scan of Mr Graham’s lumbar spine was taken. This was reported to show:
1. L5/S1 desiccating disc; mildly narrowed left neural foramen; left facet joint degenerative changes.
2. L4/5 bilateral facet joint degeneration and shallow right lateral disc protrusion.[84]
[84] Ibid, 1114.
On 5 March 2014, Mr Graham consulted Dr Michael Ow-Yang, a neurosurgeon. On 6 March 2014, Dr Ow-Yang reported the following history to Dr Bradfield:
His current injury dates back to July 2013 when he was at work. He claims that he was sitting in a car after refuelling the car and then when he twisted towards the right side he suffered back pain. He had a period off work in August last year but then returned to light duties. An initial series of steroid injections gave some relief of pain and he was able to continue with physiotherapy. However, in January this year pain began to return and he underwent a 2^nd set of steroid injections. These injections were only done a week ago. On Monday this week he had a severe exacerbation of pain that has resulted in the need for hospitalisation at the Queanbeyan Hospital. Since then he has needed Morphine and Endone to manage the pain. He also gets some parasthaesia in the anterior aspect of the left thigh. There is a history of a previous episode of back pain in 2011…
…
The working diagnosis is one of an acute exacerbation of low back pain.[85]
[85] Ibid, 78.
On 11 March 2014, a further MRI scan was taken of Mr Graham’s lumbar spine. This was reported to show degenerative changes throughout Mr Graham’s lumbosacral spine, including:
L4/5: There is a right posterolateral annular tear and small broadbased disc bulge… There is mild narrowing of the right sided neural exit foramen.
L5/S1: There is an eccentric left posterolateral disc protrusion with mild narrowing of the left sided neural exit foramen…[86]
The report of an annular tear at the L4/5 level suggests a physiological change in the disc at that level which was not previously apparent. The 4 March 2014 MRI scan is reported to show a “shallow right lateral disc protrusion” which “flattens the anterior theca [and] extends into the neural foramen which is narrowed but traversing right L4 nerve root appears unimpinged”.[87]
[86] Ibid, 647.
[87] Ibid, 1114.
On 13 March 2014, a Bone Scan Whole Body with Spect/CT scan was taken. This was reported to show:
Moderately active bilateral L4/5 facet joint arthritis, prominent on the left. No features suggestive of an infection at this site.
There was no evidence of osteomyelitis or discitis of the lumbosacral spine elsewhere.[88]
[88] Ibid, 649.
On 19 March 2014, Dr Geoffrey Speldewinde, a rehabilitation, pain and musculoskeletal medicine consultant, reported the following diagnoses:
- Severe intrusive subacute on chronic left lumbrosacral vertebral dysfunction which may be related to zygapophysial joint arthropathy…
- Probable left L1 sensory radiculopathy secondary to the left-sided paracentral disc protrusion at T12/L1.[89]
[89] Ibid, 79.
On 21 March 2014, Dr Ow-Yang reviewed Mr Graham and subsequently reported to Dr Bradfield:
He is still in significant pain but at least he is managing to live independently at home. He continues to take Targin, Endone and Lyrica to manage pain. The pain continues to affect the lower lumbar spine region towards the left side at a focal point that does correlate well with the L4/5 facet joint and the previous region where the steroid injection was placed. Infection has been excluded…
I expect he has had an acute exacerbation of low back pain secondary to the steroid injection whether it be due to bruising or a reaction to the injection itself…[90]
[90] Ibid, 81.
On 4 April 2014, an Initial Rehabilitation Assessment Review Report was produced for Mr Graham’s rehabilitation case manager, Ms Kaelly Tse, in which it is stated:
Mr Graham was able to return to pre-injury hours and duties with the Australian Federal Police (AFP) in October 2013. At the time of the closure, Mr Graham was awaiting approval regarding the transfer to the Prime Minister’s lodge for a guard position following the recommendation made by Mr Graham’s nominated treating doctor (HTD), Dr Bradfield on 9/10/2013.
Mr Graham stated that he continued patrolling in the car and avoided prolonged sitting by getting out of the car as frequently as he could as it would re-aggravate the symptoms in his lower back. Mr Graham reported he would manage the pain with physiotherapy treatment and medication.
Mr Graham reported that he noticed his symptoms significantly increased in early January 2014…[91]
[91] Ibid, 652.
In a further report dated 22 April 2014, Dr Ow-Yang stated Mr Graham “still has significant pain in the low back region that prevents him from returning to work” and suggested bilateral L4/5 and L5/S1 facet radiofrequency ablations even though he rated the chance of improving pain was 50 percent and noted the effect may be temporary.[92]
[92] Ibid, 82.
On 10 June 2014, Dr Ow-Yang performed bilateral L4/5 and L5/S1 facet radiofrequency denervation on Mr Graham.[93] Following post-surgical review on 2 July 2014, Dr Ow-Yang reported “the procedure has had a significant positive effect on managing pain” and:
He has had significant improvement in pain where some days he has rated the pain as 0/5. In the last few days he has had some return of pain mainly in the right side towards the upper low back area and I suspect this is muscular secondary to a recent return to more physical activity.[94]
[93] Ibid, 658-659.
[94] Ibid, 83.
On 16 July 2014, Dr Bradfield noted Mr Graham had “improved following procedure on 10 June”,[95] and certified he was fit to attend Operation Safety Training, to undertake Operational Safety Assessment and to undertake Operational Field Duties.[96]
[95] Ibid, 958.
[96] Ibid, 453-454.
On 20 August 2014, Dr Bradfield noted:
still moderate back pain . Has been off for about a week since last thyursday.[97]
[97] Ibid.
On or about 1 September 2014, Mr Graham commenced a graduated return to work with restrictions.[98] He took two weeks’ annual leave and returned to work on 8 October 2014.[99]
[98] Ibid, 660-665.
[99] Ibid, 473.
On 15 October 2014, Dr Ow-Yang reported to Dr Bradfield:
He has had some return of pain particularly after standing for long periods. He also finds that standing and sitting for long periods quite painful. He returned to work 7 hours per day in office work. He has had a significant deterioration in his quality of life where his usual daily activities such as bending or twisting have deteriorated. That said, however, he is in far less pain than when we first met where he was bedbound due to severe pain. At this stage, I would like to hold off further intervention…[100]
[100] Ibid, 84.
On the same day, Dr Bradfield certified Mr Graham was fit to attend Operation Safety Training, to undertake Operational Safety Assessment and to undertake Operational Field Duties.[101]
[101] Ibid, 475-476.
On 21 October 2014, Dr Sara Souter, an occupational medicine specialist, examined and assessed Mr Graham. The doctor certified Mr Graham was fit to attend Operation Safety Training, to undertake Operational Safety Assessment and to undertake Operational Field Duties.[102] On 30 October 2014, Dr Souter produced a report for Ms Tse in which she set out her diagnoses and discussed the history of Mr Graham’s back condition and his fitness to undertake duties in employment, including:
He has had resolution of symptoms to a degree but still reports taking regular opioid-based analgesia. He is avoidant of aggravating or what he perceives to be likely aggravating physical tasks, but has had significant improvement in physical function in the last few months. He is due to commence physical retraining the week of this assessment, with a view to return to operational duties in the near future in an alternate work location which he believes will be physically suitable for him.
… diagnosis…
1. Multilevel degenerative lumbar disc and facet joint pathology.
2. Aggravation of the above likely secondary to specific event 31 July 2013, with slow pain resolution and initial failed return to work.
…
… In my opinion, providing that he is able to meet the requirements of his upcoming physical training, then he is likely to be fit to return to his full unrestricted duties within the next 3-4 weeks.
…
In my opinion, self-directed variation in postures between sit, stand and walk when required for comfort are likely to be the most sustainable for Mr Graham. This would be a permanent recommendation, as the underlying condition is a long standing and degenerative one, and further intermittent recurrences of low back pain are likely to recur…[103]
[102] Ibid, 458-459.
[103] Ibid, 466-467.
On 30 October 2014, Mr Graham discussed progress with his rehabilitation provider, Rehab Management, and is reported to have disclosed:
… he aggravated his lower back symptoms following rowing and bike exercises two nights prior. He advised that the pain symptoms have alleviated slightly since the aggravation, however he is continuing to experience pain symptoms and tightness in his lower back.
… Mr Graham also completed the OSA assessments with the Australian Federal Police and reported he had no difficulty with the movements required.[104]
[104] Ibid, 473.
On 19 November 2014, Mr Graham consulted Dr Bradfield who noted “coping on present work at the moment” and certified Mr Graham fit to work with restrictions:
Suggest 8 hours per day 5 days per week from 20 11 2014 to 7 1 2015 on OFFICE DUTIES but may also perform GUARD DUTIES.[105]
[105] Ibid, 1217.
On 20 November 2014, Mr Graham presented to the Emergency Department of The Canberra Hospital with low back pain. The Hospital records include the following account of an incident in a shopping centre (shopping centre incident):
[Mr Graham] presented to the emergency department after an exacerbation in his chronic low back pain. He felt a “pop” in his lower back while sitting and bending forwards several days ago. He had been managing the pain with oxycodone and paracetamol, and now has difficulty mobilising because of the pain.
He has had chronic back pain since July 2013, which had gradually worsened over time…[106]
[106] Ibid, 666.
On 26 November 2014, Dr Ow-Yang reviewed Mr Graham and reported:
He had reached a point where he had almost returned to his usual duties at work and he was able to wear a gun vest. However, last Wednesday, he had a significant setback when he was in a shopping centre and he suddenly felt a popping sensation in his back and then suffered severe back pain…. The main pain involves the lower lumbar spine region and does not radiate into the lower limbs.
…In light of the fact that he has episodes of severe disabling pain, the most likely source of pain are the lumbar discs and there are significant abnormalities involving the L4/5 and L5/S1 disc including posterior annular tears which may relate to his pain.[107]
[107] Ibid, 85.
On 5 December 2014, an MRI scan of Mr Graham’s lumbar spine was taken. Subsequently, this was reported to show:
Degenerative changes identified in the lumbar spine with multilevel disc desiccation. Changes are concerning for exiting and traversing nerve root irritation on the left side at L5/S1 – L5 and S1 nerve roots. Further the appearance is concerning for exiting right L4 and L5 nerve root irritation.[108]
[108] Ibid, 667-668.
On 9 December 2014, following further examination of Mr Graham, Dr Ow-Yang reported to Dr Bradfield:
He has had a recent MRI of the lumbar spine which does not show any significant changes since his previous MRI in March 2014. There are multilevel disc changes involving desiccation of disc, loss of disc height and posterior disc bulging at the L2/3, L3/4, L4/5 and L5/S1 levels. There is a posterior annular tear at the L4/5 level.
…
… In light of the fact of the previous significant improvement after facet denervations, I have offered a further set of the same treatment… If he has further bouts of significant pain then he may have to look at a more definitive option involving a lumbar fusion surgery. Prior to offering the lumbar fusion surgery I would need to verify the anatomical disc that is causing the pain with a lumbar discogram.[109]
[109] Ibid, 86.
On 18 December 2014, Dr Bradfield issued a medical certificate stating: “In view of exacerbation of pain is currently unfit 20-November 2014 to 28 January 2015”.[110]
[110] Ibid 1218.
On 20 January 2015, Dr Ow-Yang provided a report to Comcare in which he stated:
…
2. The aggravation and discomfort is related to the incident where he felt a popping sensation in the lumbar spine as per my report dated 27 November 2014.
3. The current pain is related to the accepted condition of a lumbar discogenic pain.
… [111]
[111] Ibid, 87.

Dr Bradfield issued further medical certificates on 29 January 2015, 23 February 2015 and 23 March 2015, setting out work restrictions on Mr Graham’s employment duties and hours.[112]
[112] Ibid, 1220-1225.
On 9 February 2015, Dr Ow-Yang performed another bilateral L4/5 and L5/S1 facet denervation.[113]
[113] Ibid, 669-670.
On 6 March 2015, Dr Ow-Yang reported to Dr Bradfield that Mr Graham’s “progress has been suboptimal” and stated:
I think it is very unlikely that he will return to pre injury duties as an operational police officer due to the fact that he will have to carry a gun belt and there is a risk that occasionally he will have an altercation. This puts him at high risk of further exacerbation of back pain…
I have had a preliminary discussion with regards to a more permanent surgical option involving a lumbar fusion surgery…[114]
[114] Ibid, 88.
On 1 May 2015, Dr Ow-Yang reported to Dr Bradfield that Mr Graham “has failed all conservative treatment options” and recommended he undergo a lumbar discogram before deciding on lumbar fusion surgery.[115]
[115] Ibid, 89.
Mr Graham underwent a lumbar discogram and a CT scan of his lumbar spine on 19 May 2015.[116] These were reported to show:
Spondylosis and facet joint OA from L2/3 to L5/S1. Left foraminal narrowing at L5/S1 where there might be slight impingement of the left L5 nerve root. Up to 5/10 discogenic pain at L5/S1. However, none of the pain elicited during the discogram corresponded in location to his usual back pain.[117]
[116] Ibid, 684.
[117] Ibid, 685.
Following further review on 20 May 2015, Dr Ow-Yang reported to Dr Bradfield that Mr Graham continued to have “significant low back pain mainly around the paravertebral region in the region of the L4/5 facet”.[118] Dr Ow-Yang considered the “sharp stabbing pain that usually affects him particularly when he tries to twist or bend” was consistent with a “facet joint source of pain”.[119] The doctor offered lumbar fusion surgery, including L4/5 and L5/S1 laminectomy, rhizolysis, posterior interbody fusion, pedicle screw internal fixation and posterolateral fusion plus harvest of bone graft.
[118] Ibid, 90.
[119] Ibid.
On 11 June 2015, Comcare determined to accept liability for the lumbar fusion surgery.[120]
[120] Ibid, 1408-1409.
On 3 July 2015, Liesl Meyer, an occupational therapist, produced an Activities of Daily Living Assessment Report.[121] Ms Meyer assessed Mr Graham’s reported difficulties with activities of daily living[122] and provided recommendations to assist with his “significant difficulty performing movements associated with reaching below knee, as well as having difficulty with squatting and bending forward”.[123]
[121] Ibid, 695-708.
[122] Ibid, 703-705.
[123] Ibid 707.
On 7 July 2015, Mr Graham underwent the lumbar fusion surgery Dr Ow-Yang recommended. During the surgical procedure, the “L4/5/S1 nerve roots decompressed” and “Severe facet arthropathy at both levels with surrounding facet cysts adherent to dura on right side” was reported.[124]
[124] Ibid, 710.
On 21 August 2015, Dr Ow-Yang reported Mr Graham had made satisfactory progress after the lumbar fusion surgery and “The stabbing back pain has now resolved but he has the typical ache associated with muscle dissection”.[125] On 2 October 2015, following a CT scan of Mr Graham’s lumbar spine on 23 September 2015, the doctor reported Mr Graham continued to improve and “There has been a significant reduction in opiate requirements but he still takes some Targin and Endone occasionally”.[126] Dr Ow-Yang considered that Mr Graham was able to commence a graduated return to work.
[125] Ibid, 92.
[126] Ibid, 93.
On 16 October 2015, a rehabilitation plan for Mr Graham’s graduated return to work commenced, setting out suitable duties and incremental restrictions.[127] Mr Graham progressed satisfactorily and on 30 November 2015 “he was coping with the 3 full work days per week, however felt fatigued by the end of the working week”.[128] He upgraded his hours of work on 14 March 2016 and 4 May 2016, at which point he was working “7.5 hours per day, 4 days per week and an additional 4 hours per day on a Wednesday”.[129]
[127] Ibid, 717-721.
[128] Ibid, 726.
[129] Ibid, 732.
On 9 May 2016, Mr Graham advised “he had aggravated his back pain symptoms at the workplace on 4 May 2016”: “he had sat down into his chair which dropped down; jarring his back and resulting in exacerbated pain symptoms”.[130] On 5 May 2016, Mr Graham consulted Dr Bradfield who certified he was unfit for work until 6 May 2016.[131] On 12 May 2016, Dr Ow-Yang reported Mr Graham was making “steady progress”.[132] On 26 May 2016, Mr Graham returned to “full pre-injury hours”.[133]
[130] Ibid, 731.
[131] Ibid, 967.
[132] Ibid, 95.
[133] Ibid, 764.
On 1 July 2016, Dr Garth Eaton, an occupational physician, produced a report for Mr Graham’s legal representatives addressing a permanent impairment assessment. In Dr Eaton’s assessment, Mr Graham sustained a 23 percent whole person impairment under the Comcare Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 “due to the complete loss of a motion segment L4/5 and L5/S1 due to the successful attempt of surgical arthrodesis/fusion”.[134]
[134] Ibid, 104.
On 21 July 2016, Mr Graham consulted Dr Sandeep Rajagopal, a general practitioner, who noted “recurrence of back pain- no neurology”.[135] The doctor’s notes from consultations on 3 August 2016, 16 August 2016, 2 September 2016 refer to back pain, for which he prescribed Targin. The precise location and nature of the back pain is not recorded.
[135] Ibid, 968.
On 18 August 2016, Mr Graham lodged a compensation claim for permanent impairment and non-economic loss in respect of his accepted low back injury.[136]
[136] Ibid, 734-762.
On 8 September 2016, Carl Hynes, an exercise physiologist employed by Rehab Management, produced a Case Closure Report in which he stated:
Mr Graham has reached his maximum achievable capacity. Mr Graham has successfully transferred into a new job role and maintained his hours in this role for the past 16 weeks.[137]
[137] Ibid, 764.
On 19 September 2016, Dr Rajagopal noted “back pain – since yesterday- night unable to sleep – came back from work”.[138] The doctor prescribed Endone. On 4 October 2016, Dr Rajagopal noted the reason for Mr Graham’s visit was “Bilateral l45 and l5s1 facet joint denervations”.[139]
[138] Ibid, 970.
[139] Ibid.
On 21 October 2016, Mr Graham was assessed by Dr Robert Still, a consultant sports and exercise medicine physician. On 25 October 2016, the doctor produced a report for Comcare in which he stated:
…
Mr Graham stated he had experienced intermittent low back pain for many years from the early 2000s. He reported that the low back pain was aggravated by getting in and out of a patrol car, the poor quality of patrol car seats and by wearing a gun belt…[140]
[140] Ibid, 484.
In my opinion, Mr Graham currently suffers from the following conditions:
1.    Multilevel lumbar spondylosis.
2.    Spinal fusion surgery at the L4/5 and L5/S1 levels.[141]
[141] Ibid, 489.
…
Mr Graham’s current condition is likely to slowly deteriorate with the passage of time and is likely to be marked by intermittent acute exacerbations and subsequent remissions.
…
In my opinion, the condition currently suffered by Mr Graham is unrelated to his employment as a Police Officer as the acute exacerbation sustained on 31 July 2013 at work occurred following a minor twist.[142]
…
An acute exacerbation, such as occurred following the injury of 31 July 2013, normally returns to the pre-injury status within a period of a few weeks to a few months with conservative treatment. [143]
…
Mr Graham has undergone successful fusion of two lumbar spine motion segments, L4/5 and L5/S1.
-    He has loss of two motion segments, each of which qualified for a rating of 23% WPI.
-    Using the Combined values chart on Page 264 of the Guide (Edition 2.1) results in a combined value of 41% WPI.[144]
…
[142] Ibid, 490.
[143] Ibid, 491.
[144] Ibid, 493.
It was Dr Still’s assessment Mr Graham’s impairment was due to his pre-existing condition, or the natural progression of that condition, and for this reason his “permanent impairment due to the claimed condition is nil”.[145]
[145] Ibid, 494.
On 4 November 2016, Stuart Stokoe, an exercise physiologist employed by the Canberra Injury Management Centre, reported Mr Graham had completed his Exercise Rehabilitation Program and “no further sessions are required”.[146]
[146] Ibid, 768.
On 24 November 2016, Mr Graham consulted Dr Rajagopal who noted:
had a fall escaping snake bite on Sunday
since Tuesday exacerbation of the back pain –
has enough pain killers[147]
[147] Ibid, 971.
On 28 November 2016, Comcare notified Mr Graham it intended to determine he had no present entitlement to compensation.[148] On 6 February 2017, Comcare issued a determination that Mr Graham had no present entitlement to compensation under s 16 and s 19 of the SRC Act in respect of the 31 July 2013 injury.[149] On 3 March 2017, Comcare issued a reconsideration decision to affirm the determination.[150] Mr Graham lodged an application for review of this decision by the Tribunal (application 2017/1415).[151]
[148] Ibid, 769-772.
[149] Ibid, 1410-1411.
[150] Ibid, 1414-1416.
[151] Ibid, 1418-1422.
On 17 May 2017, Mr Graham lodged an Incident Details form in respect of an ‘incident’ at 10:00am on 31 January 2011 which he described as “Lower lumbar damage to my back due to gun belts and damaged car seats. Gradual deteriation of lower lumbar region”.[152]
[152] Ibid, 773-774.
On 8 June 2017, Dr Ow-Yang reviewed Mr Graham and reported:
[Mr Graham] now reports that the worker’s compensation claim has been denied, and the insurer is seeking replacement for treatment…
[He] still has some ongoing low back pain, but he is significantly better than prior to the lumbar fusion surgery. Most ongoing pain is related to muscular pain, that fluctuates with cold weather… He did not want any further treatment for his low back pain symptoms.[153]
[153] Ibid, 96.
On 4 July 2017, Mr Graham was reviewed by Dr Eaton, who produced a report for Mr Graham’s lawyer. Dr Eaton reported:
Diagnosis is chronic spinal pain, aggravation of multilevel degenerative spinal disease, aggravation of degenerative disc disease and degenerative facet joint and nerve root irritation/compromise.
…
It is more probable than not that Mr Graham’s present condition was significantly contributed to by the injury on 31 July 2013.
I believe chronic spinal pain has developed following on from the initial injury and the fusion surgery. The results of spinal fusion surgery are not particularly good on worldwide evidence based medicine studies. It is common for chronic pain to continue. I note Comcare approved his claim and approved the surgery, consequently the development of chronic pain after the major treatment, viz. frusion surgery, should be considered related to his work related injury, the aggravation of degenerative spinal disease and be considered a complication of the surgery…
…
I note Mr Graham has had spinal fusion performed involving two levels, L4/5 and L5/S1. Consequently he qualified for 23% x 2, i.e. 46% whole person impairment. Using the combined values chart he has sustained 41% whole person impairment
…[154]
[154] Ibid, 108-110.
On 8 February 2018, Mr Graham was involved in an incident involving a lift at work (lift incident) which was witnessed by co-workers and is described in an Incident Details – Supervisor form in the following terms:
While entering lift No 10 I stepped into the lift. Because the lift floor level was below ground level I stepped down and jarred my back, which has a lower level lumbar multiple fusion.
I have had to immediately take 1 x Endone pain relief as it is getting painful already…[155]
[155] Ibid, 496.
On 19 February 2018, a CT scan of Mr Graham’s lumbar spine was taken. This was reported to show:
No acute findings when compared to previous external post operative CT (2015).[156]
[156] Ibid, 780.
On 26 February 2018, Mr Graham lodged a compensation claim form in respect of this injury.[157] On 20 March 2018, Comcare accepted the claim and liability for “aggravation of lumbar sprain (unspecified)”.[158]
[157] Ibid, 781-787.
[158] Ibid, 788.
On 5 April 2018, Dr Gautam Khurana, a brain and spine surgeon, conducted an independent medical examination of Mr Graham. On 26 April 2018, the doctor reported:
The diagnosis is multilevel lumbar spondylosis, constitutional pattern, long history of low back pain with clinical flare ups from 1990 onwards; evidence for congenital predisposition includes presence of Bertolotti structural anomaly at the lumbosacral junction, short lumbar pedicles, presence of scoliosis… The current presentation is that of ongoing lumbar spondylosis following beneficial surgical arthrodesis of a chronically and constitutionally diseased lumbar. The symptoms, clinical findings, and imaging are consistent with the diagnosis as mentioned. I note a similar pattern of constitutional disease in the cervical spine has been identified radiologically.
…
He is not suffering from an aggravation of the chronically symptomatic lumbar spine in terms of the expected temporary aggravation on 31 July 2013. Mr Graham was symptomatic in the years and even in the months leading up to that particular injury; there is no radiological evidence for acute structural worsening based on that relatively innocuous movement in the car at the petrol station…[159]
[159] Ibid, 529.
On 16 April 2018, Henry Johnson, a provisional psychologist employed by Interact Injury Management, reported a Recover at Work Assessment of Mr Graham. Mr Johnson reported “Mr Graham is currently able to perform all of his pre-injury duties, but often takes time off work due to his injury”[160] and:
Mr Graham reported that his current condition is a re-aggravation of an existing injury. He has reported that he first started experiencing back pain when working as a Protective Services Officer in approximately 2001. At that time, Mr Graham was spending long periods of time sitting in cars while wearing a gun belt. Mr Graham attributes the source of his injury to the gun belt constantly “digging in” to his lower back. In 2013, Mr Graham reported that as he was sitting in a work car with a gun belt on he heard something “pop”, which caused him immense pain. From that event until now, Mr Graham has had a number of day surgeries (five steroid injections), and also has had various tests that confirm his lower back has sustained significant “wear and tear”.[161]
[160] Ibid, 504.
[161] Ibid, 506.
On 23 May 2018, Mr Graham consulted Dr Ow-Yang. On 10 July 2018, Dr Ow-Yang performed bilateral L2/3 and L3/4 facet medial branch local anaesthetic blocks. The beneficial effect of this treatment was relatively brief.
On 23 July 2018, Dr Ron Brooder, a neurologist, assessed Mr Graham. On 28 July 2018, he produced a medico-legal report for Mr Graham’s lawyer.[162] The doctor reported:
Mr Graham’s current condition with intermittent and at times relatively constant although variable pain involving his back is consistent with the presence of multilevel degenerative changes involving his lumbosacral spine and the presence of a multilevel spinal fusion.
…
I would consider that it is more likely than not that Mr Graham’s present condition was significantly contributed to by his injury of 31 July 2013.
Although prior to his injury of 31 July 2013 Mr Graham had underlying pre-existing multilevel degenerative changes involving his lumbosacral spine and he had been subject to episodic low back pain, his previous episodes of low back pain had been generally less severe, were usually self limiting and had not been associated with the development of a persistent low back pain syndrome and an associated significant disability that had subsequently required a lumbosacral fusion procedure.
In addition, despite the pre-existing multilevel degenerative changes in his lumbosacral spine, prior to his injury on 31 July 2013 Mr Graham had been able to undertake full and unrestricted employment as a protection services officer. As a result of his injury of 31 July 2013 he had subsequently been unable to return to his previous full and unrestricted employment.
…
I would consider that the diagnosis of the injuries suffered by Mr Graham as a result of the subject incident on 31 July 2013 is consistent with aggravation of the pre-existing degenerative changes involving his lumbosacral spine at the L4-5 or the L5-S1 level.[163]
[162] Ibid, 128-141.
[163] Ibid, 138.
Mr Graham consulted Dr Ow-Yang on 7 November 2018 in respect of low back pain. On 3 December 2018, Dr Ow-Yang performed bilateral L2/3 and L3/4 lumbar facet radiofrequency denervation and steroid injections. This procedure provided Mr Graham with reduced pain symptoms in his lower back for several months, but the symptoms returned and he consulted Dr Ow-Yang again on 1 May 2019.
On 4 December 2018, Dr Mohan Mirpuri, a general practitioner, provided a report to Mr Graham’s lawyer in which he stated:
The specific diagnosis currently is that [Mr Graham] has an exacerbation of his facet joint arthropathy. This is on the background of the spinal fusion…
Mr Graham’s condition is permanent, as his facet joint arthropathy is a degenerative condition which may have been exacerbated by the spinal fusion. He will continue to have problems with these joints down the track…
The current injury is an aggravation of an underlying condition, which may have been exacerbated by the spinal fusion that was performed. I do not believe that Mr Graham still suffers from the original workplace injury.[164]
[164] Ibid, 143.
On 2 April 2019, an MRI scan of Mr Graham’s lumbosacral spine was taken and reported to show spinal canal stenosis at the L2-3 and L3-4 levels and right foraminal narrowing at the L3-4 level.[165]
[165] Ibid, 1546.
On 26 June 2019, Tribunal application 2017/1415 was resolved by agreement. The agreement was given effect in a Tribunal decision, the terms of which include:
1.    In the period from 6 February 2017 to 7 February 2018 inclusive, the Applicant continued to suffer from the effects of ‘aggravation of intervertebral disc disorder – lumbar region (left)’ (the accepted condition).
2.    Pursuant to sections 16 and 19 of the [SRC Act], and subject to the production of suitable receipts and evidence supportive of any individual claims, the Respondent is liable to pay compensation to the Applicant, in respect of his accepted condition, in the period from 6 February 2017 to 7 February 2018 inclusive.
3.    As at 8 February 2018, the Applicant ceased to suffer from the effects of his accepted condition. Accordingly, from 8 February 2018 to the date of this decision, the Respondent is not presently liable to pay compensation to the Applicant under the SRC Act in respect of the accepted condition.[166]
[166] Ibid, 790-791.
On 13 November 2019, Dr Ow-Yang reviewed Mr Graham and reported “In the last month there has been a return of low back pain symptoms to the point where he feels quite disabled by the pain” and observed “there are limited further management options for the disabling pain”.[167] Dr Ow-Yang considered “There may be some behavioural components to the pain”.[168]
[167] Ibid, 1547.
[168] Ibid.
On 11 December 2019, Mr Graham lodged a compensation claim for permanent impairment and non-economic loss.[169]
[169] Ibid, 147; Bundle of Claim for Compensation, 21-32.
On 20 February 2020, Dr Vidyasagar Casikar, a neurosurgeon, assessed Mr Graham. The doctor produced a report for Comcare on 3 March 2020. The doctor reported diagnoses of “Failed back syndrome” and “Left meralgia paraesthetica” and stated:
Mr Graham appears to have had a muscular injury, following an event on 31 July 2013 and it is difficult to accept that sitting in the back of the car and turning would have produced significant problems in his back. Again, when he was getting off a bench he developed back pain. These reports suggest a muscular pain. Mr Graham is significantly overweight and this would be the main reason for his susceptibility to recurrent attacks of back pain. The indication for spinal fusion by Dr Ow-Yang is difficult to explain. The spinal fusion has failed. He has now developed a well-established failed back syndrome. Following the surgery he has developed meralgia paraesthetica.
…
The diagnosis is failed back syndrome…
…
Mr Graham’s accepted claim for the aggravation of the lumbar spine, which occurred on 8 February 2018 appears to be a single simple muscular injury. The employment continues to contribute because he is complaining of back pain…
…
According to Comcare Guides Edition 2.1 Chapter 9.17, Table 9.17 his WPI is 23% because he has motion segment impairment because of the spinal fusion.
…[170]
[170] Ibid, 559-560.

On 6 April 2020, Dr Casikar provided Comcare a supplementary report[171] in which he reported Mr Graham’s “specific diagnosis is constitutional degenerative disease in the lumbar spine” and:
His sitting with a heavy belt for a long period of time could have produced soft tissue aggravation on the back. These kind of aggravations are usually short lived… I do not believe the employment continues to contribute to this condition…Mr Graham’s continued complaints of back pain and the need for spinal fusion and multiple radiofrequency lesions performed by Dr Ow-Yang were mainly to address problems related to degenerative disease.[172]
[171] Ibid, 182-187.
[172] Ibid, 565.
On 12 June 2020, Comcare determined to accept Mr Graham’s compensation claim for permanent impairment and non-economic loss. Comcare determined the degree of permanent impairment was 23 percent.[173] On 7 July 2020, Mr Graham requested reconsideration of this determination, arguing that the degree of permanent impairment should be 41 percent.[174] Comcare reconsidered the determination and, on 13 August 2020, decided to revoke it.[175] Mr Graham lodged an application for review of this decision by the Tribunal (application 2020/6254).[176]
[173] Ibid, 1424.
[174] Ibid, 1427-1429.
[175] Ibid, 1430-1433.
[176] Ibid, 1434-1438.
On 22 July 2020, Brittany Cattanach, a health psychology registrar, reported to Dr Romail Jain (a pain medicine physician Mr Graham consulted):
At the time of assessment, Mr Graham appears to be experiencing Major Depressive Disorder, but this should be considered as secondary to his persistent pain.[177]
[177] Ibid, 150.
On 4 October 2020, Mr Graham completed a compensation claim in respect of failed back syndrome, which he first noticed on 31 July 2013.[178]
[178] Ibid, 796-801.
On 10 November 2020, Mr Graham completed a compensation claim in respect of “Depression caused by severe back pain” for which he first sought treatment on 3 August 2016.[179]
[179] Ibid, Bundle of Claim for Compensation, 41-47.
On 16 November 2020, Mr Graham’s AFP employment ended.
On 18 March 2021, Comcare refused Mr Graham’s compensation claim in respect of failed back syndrome.[180] Comcare reconsidered this determination at Mr Graham’s request and, on 30 September 2021, decided to affirm the determination.[181] Mr Graham lodged an application in the Tribunal for review of this decision (application 2021/8135).[182]
[180] Ibid, 1439-1440.
[181] Ibid, 1446-1450.
[182] Ibid, 1457-1461.
On 13 July 2021, Associate Professor Abdul Khalid, a consultant psychiatrist, conducted a medico-legal examination of Mr Graham by telehealth.[183] On 20 July 2021, the doctor reported to Comcare:
I consider that Mr Graham’s diagnosis can best be explained as a chronic adjustment disorder with mixed anxiety and depressed mood secondary to his back pain…
…
… his adjustment disorder with mixed anxiety and depressed mood is currently in partial remission although he gets some aggravation when he experiences back pain.[184]
[183] Ibid, 569-577.
[184] Ibid, 574.
In a supplementary report, dated 12 August 2021, Associate Professor Khalid stated:
I consider that chronic pain following unsuccessful spine surgery on 7 July 2015 had significantly contributed to Mr Graham’s chronic adjustment disorder with mixed anxiety and depressed mood.
…
… I consider that Mr Graham had developed chronic adjustment disorder with mixed anxiety and depressed mood around 2016 and he probably experienced an aggravation after the frank injury on 08 February 2018. I would apportion 50% to his chronic pain in 2016, 25% to the frank injury on 08 February 2018 and 25% to his non-employment issues.[185]
[185] Ibid, 579.
On 30 September 2021, Comcare determined to refuse Mr Graham’s compensation claim in respect of depression.[186] Following Mr Graham’s request for reconsideration of this determination,[187] Comcare issued a reconsideration decision, affirming the determination.[188] On 4 December 2021, Mr Graham lodged an application for review of this decision by the Tribunal (application 2021/9475).[189]
[186] Ibid, 1451-1453.
[187] Ibid, 1467-1469.
[188] Ibid, 1473-1477.
[189] Ibid, 1483-1487.
On 30 September 2021, Comcare issued an ‘own motion’ reconsideration of the determination it made on 11 June 2015, which accepted liability for the fusion surgery performed by Dr Ow-Yang.[190] Comcare decided the determination should be set aside as the surgery was “carried out to treat your underlying degenerative disease and not any accepted condition”.[191] Mr Graham lodged an application for review of this decision by the Tribunal (application 2021/8134).[192]
[190] Ibid, 1442-1445.
[191] Ibid, 1444.
[192] Ibid, 1462-1466.
On 2 June 2022, Dr Stephen Allnutt, a forensic psychiatrist, produced a report for Mr Graham’s lawyer, following an audio-visual evaluation of Mr Graham on 12 April 2022.[193] The doctor reported:
[Mr Graham] has a persistent depressive disorder….
…
Based on the clinical information [Mr Graham] provided, his persistent depressive disorder likely onset after 2015. I would regard the condition as being outside the boundaries of normal mental functioning, with onset sometime between 2013 and 2015 and continues to date.[194]
[193] Ibid 1-16.
[194] Ibid, 8.
On 26 June 2022, Professor Robin Orr, a professor of physiotherapy at the Bond University, produced a statement for Mr Graham, citing a number of research reports in respect of the risk of back injury using tactical body armour, including accoutrement belts.[195]
[195] Ibid, 17-18.
On 22 November 2022, Comcare issued a determination of no present liability for medical treatment expenses and incapacity for work in respect of the lift incident injury.[196] Following a request for reconsideration of this determination by Mr Graham, on 25 January 2023, Comcare issued a reconsideration decision, affirming the determination.[197] Mr Graham lodged an application for review of this decision by the Tribunal (application 2023/0596).[198]
[196] Ibid, 1493-1496.
[197] Ibid, 1502-1506.
[198] Ibid, 1507-1511.
On 6 February 2023, Mr Graham completed a compensation claim in respect of a lumbar spine condition “caused or aggravated, exacerbated and accelerated degenerative disease in lumbar and lumbosacral spine, particularly the segments (L2/3 to L5/S1) and the facet joints in the back”.[199] On 15 March 2023, Comcare determined to refuse the claim.[200] Following a request for reconsideration by Mr Graham, Comcare decided to affirm the determination,[201] whereupon Mr Graham lodged an application for review with the Tribunal (application 2023/3104).[202]
[199] Ibid, 1513.
[200] Ibid, 1512-1518.
[201] Ibid, 1522-1527.
[202] Ibid, 1528-1532.
On 4 March 2023, Dr Ow-Yang produced a report for Mr Graham in which he set out a detailed history of his consultations with Mr Graham.[203] The doctor reported “components of pain that are related to a flare-up of facet arthritic or musculoligamentous pain” should be disentangled from “behavioural components of pain or pain arising from external psychosocial factors”.[204] He robustly disagreed with Dr Casikar’s diagnosis of a failed back syndrome. Dr Ow-Yang rejected Dr Casikar’s opinion Mr Graham’s pain was muscular, stating there is “clear evidence of structural injury to discs and facetson MRI’s, SPECT CT’s, discogram, multiple diagnostic procedures with facet blocks and denervations and proven response to surgery”.[205]
[203] Ibid, 19-32.
[204] Ibid, 28.
[205] Ibid, 31.
On 7 April 2023, Professor Orr, produced a report for Mr Graham’s lawyer, having conducted a telephone interview with Mr Graham on 20 March 2023.[206] The Professor reported:
… it is my professional opinion that the patient’s lower back injury and pain were ‘likely-high likely’ to have been significantly exacerbated by his occupation. This assertion is given in light of accoutrement belts, vehicle vibration and long sitting, and the nature of policing duties, all, and independently being associated with increased risk of musculoskeletal injury…
[206] Ibid, 34-49.
On 7 December 2023, Dr Khurana produced a supplementary report for Comcare,[207] in which he agreed with Dr Ow-Yang’s critique of Dr Casikar’s opinion and observed that the “surgery was technically sound, medically indicated, and has been of great ‘salvage’ benefit” to Mr Graham.[208] Dr Khurana reiterated his opinion that Mr Graham suffers from symptomatic lumbar spondylosis and probably symptomatic adjacent segment disease in which his employment is “relatively immaterial”.[209] The doctor reported that Mr Graham would have required the surgery carried out expertly by Dr Ow-Yang, regardless of the workplace incident, and regardless of wearing an accoutrement belt.[210]
[207] Ibid, 210-345.
[208] Ibid, 210.
[209] Ibid, 212.
[210] Ibid.
On 19 December 2023, Dr Casikar produced a supplementary report for Comcare,[211] in which he diagnosed “constitutional degenerative disease of the lumbar spine” and “degenerative chronic low back pain”.[212] The doctor reported “[t]he aggravation that occurred in 2013 was a minor soft tissue aggravation which in my opinion resolved within a short period, perhaps two to three months” and “[t]he incident in 2018 was not a major factor to his lumbar symptoms. It did not produce or accelerate degenerative disease”.[213] Dr Casikar reported that the lumbar fusion surgery on 7 July 2015 “was mainly to address the degenerative disease of the lumbar spine”, although he considered there was insufficient evidence of instability of the spine to justify the fusion surgery.[214]
[211] Ibid, 346-352.
[212] Ibid, 347.
[213] Ibid, 348.
[214] Ibid.
On 29 January 2024, Dr Leon Le Leu, a consultant occupational physician, produced a report for Comcare.[215] The doctor reported a diagnosis of “degenerative disease of the lumbar spine dating back before the 1990s with variable radicular symptoms over the years”. [216] Dr Le Leu reviewed extensive briefing materials referred to by Professor Orr and agreed with the Professor’s conclusion in respect of the risk of injury from wearing an accoutrement belt and sitting in patrol cars. This notwithstanding, Dr Le Leu reported that the nature and conditions of Mr Graham’s employment “did not contribute to the development of his lumbar back condition” and “[t]he accoutrement belt and the patrol car driving could well have temporarily exacerbated his situation, but so could the personal exacerbating factors”.[217] The doctor explained Mr Graham’s lumbar spine condition “is a multifactorial condition which includes a long-standing pre-existing condition, personal exacerbating factors and work-related factors”[218] and concluded:
The nature and conditions of Mr Graham’s employment may have contributed temporarily to the aggravation/exacerbation rather than the development of his condition. The aggravation does not continue. It has been eclipsed at some stage by the natural deterioration of the condition, however I cannot give a precise date.[219]
[215] Ibid, 374-448.
[216] Ibid, 386.
[217] Ibid, 394.
[218] Ibid, 395.
[219] Ibid, 396.
On 29 February 2024, Dr Ow-Yang produced a supplementary report for Mr Graham,[220] in which he reiterated his previously stated opinions and reported:
Regarding causality, both Dr Khurana and Dr Casikar opined that the cause of symptoms was an exacerbation of degenerative lumbar disease or a muscular pain. I continue to disagree with this stance as the presentation was typical of lumbar discogenic back pain arising from sitting for long periods in a car with an accoutrement belt...
In Mr Graham’s case, the discogenic pain was caused by his work activity.[221]
[220] Ibid, 56-59.
[221] Ibid, 58.
On 14 February 2024, Dr Brooder produced a supplementary report for Mr Graham.[222] The doctor disagreed with the opinions reported by Dr Khurana and Dr Casikar. He reiterated his previously reported opinion that Mr Graham’s “condition has been significantly contributed to by his workplace injury on 31 July 2013”.[223]
[222] Ibid, 50-52.
[223] Ibid, 52.
On 14 March 2024, Professor Orr produced a supplementary report for Mr Graham,[224] in which he responded to Dr Le Leu’s report. The Professor adhered to his previously reported opinion and stated:
… when all of these occupational factors are considered as a volume of evidence, my professional opinion stays extant in that the patient’s lower back injury and pain are “likely-highly likely” to have been significantly exacerbated by his employment.[225]
[224] Ibid, 64-68.
[225] Ibid, 66.
ISSUES
The issues in application 2020/6254 are:
(a)whether the 31 July 2013 ‘injury’ resulted in permanent impairment; and if so
(b)the degree of permanent impairment under the Guide to the Degree of Permanent Impairment (Guide); and
(c)the amount of compensation payable under s 24 and s 27 of the SRC Act in respect of permanent impairment and non-economic loss.
The issues in application 2021/8134 are:
(a)whether, for the purposes of s 16(1) of the SRC Act, the lumbar spine fusion surgery performed by Dr Ow-Yang on 7 July 2015 is ‘medical treatment’ obtained in relation to the ‘injury’ Mr Graham suffered on 31 July 2013; and if so
(b)whether it was reasonable for Mr Graham to obtain the treatment in the circumstances; and if so
(c)the amount of compensation Comcare is liable to pay in respect of the treatment.
The issues in application 2021/9475 are:
(a)whether Mr Graham suffered an ‘ailment’ in the form of “Depression caused by severe back pain”[226] which was significantly contributed to by his employment for the purposes of s 5B of the SRC Act; and if so
(b)whether this amounts to an ‘injury’ for the purposes of s 5A of the SRC Act; and if so
(c)whether the ‘injury’ results in impairment or incapacity for work for the purposes of determining Comcare’s liability under s 14 of the SRC Act.
[226] Ibid, Bundle of Claim for Compensation, Tab 6, 44.
The issues in application 2023/3104 are:
(a)whether Mr Graham’s employment “Caused, aggravated, exacerbated and accelerated degenerative disease in lumbar and lumbosacral spine from 2001 onwards”;[227] and if so
(b)whether this surpasses the threshold of ‘injury’ under s 5A of the SRC Act; and if so
(c)whether the ‘injury’ results in impairment or incapacity for work for the purposes of determining Comcare’s liability under s 14 of the SRC Act.
[227] Ibid, Tab 7, 53.
To assist understanding, it is convenient to address the issues in 2023/3104, relating to Mr Graham’s ‘nature and conditions’ claim, first.
2024/3104 – NATURE AND CONDITIONS CLAIM
At the heart of Mr Graham’s case is the proposition the nature and conditions of his AFP employment caused cumulative load and microtraumas in his lumbar spine which, when combined with the effects of specific incidents in his employment, accelerated or aggravated his underlying lumbar spine pathology. He argues the additional load of wearing accoutrement belts and vests for the duration of 12-hour shifts, including on foot patrols and when using patrol vehicles, as well as entering, exiting and sitting in patrol cars with low, poor or damaged seating for long periods, contributed to aggravate, accelerate or exacerbate his pre-existing lumbar spine pathology.
Mr Graham asserts relevant documents have not been produced by the AFP, including reports referred to in the ACT Policing Annual Report 2011-2012 addressing the risk of harm posed by wearing accoutrement belts. In his submission, without this material, his case cannot properly be assessed.
Mr Graham relies on and asserts the evidence of Professor Orr, Dr Brooder and Dr Ow-Yang should be preferred and given substantial weight. He asserts the Tribunal should disregard the medical opinion evidence of Dr Khurana, Dr Casikar and Dr Le Leu in respect of speculation that injuries he suffered in his AFP employment were temporary or were overtaken by other events or pushed into the background by progression of his underlying spinal disease. He contends Dr Khurana’s evidence that Mr Graham’s spinal disease is attributable to a ‘Bertolotti syndrome’ and congenital or genetic features, and Dr Casikar’s diagnosis of ‘failed back syndrome’, should be rejected. Conversely, Mr Graham argues the evidence of Dr Ow-Yang and Dr Brooder of the nature and persistence of symptoms and the extent of treatment he obtained after the fuel card incident demonstrates the significance of the injury and the probability it accelerated or aggravated his underlying spinal disease. This, he says, aligns with aspects of Dr Le Leu’s oral evidence on this point and it is supported by Professor Orr’s evidence of injury risk and probable work contribution.
In Mr Graham’s submission, the nature and conditions of his AFP employment, performing operational duties for 12 years, and incidents in his employment contributed materially and significantly to accelerate or aggravate his spinal condition, surpassing the applicable threshold of ‘disease’. In the alternative, Mr Graham contends the nature and conditions of his AFP employment and incidents in the course of his employment resulted in physiological changes in his lumbar spine which are consistent with an ‘injury (other than a disease)’ arising out of or in the course of his employment. In either case, he asserts the injury resulted in impairment and incapacity for work, and it required medical treatment, including surgical treatment in July 2015 which resulted in a permanent impairment.
Comcare submits Mr Graham’s ‘nature and conditions’ claim is directed to the ‘disease’ provisions in s 5B of the SRC Act, and the integers of his AFP employment must be considered with other relevant factors, including the nature of the underlying degenerative condition and other factors which predispose him to experience symptoms of the condition. Comcare argues the thresholds of employment contribution, a material degree and (from 13 April 2007) a significant degree, are not satisfied.
Comcare contends there is insufficient evidence to satisfy the Tribunal Mr Graham’s duties in his previous employment contributed to the requisite degree to the onset, aggravation or acceleration of his low back condition. Comcare argues Mr Graham’s low back condition was well established prior to his AFP employment in 2001 and the condition has the character of a degenerative ailment which, in the course of natural progression, is susceptible to temporary irritation with activity or symptom provocation.
In Comcare’s submission, Professor Orr’s evidence in respect of cumulative load theory, is no more than an unproved hypothesis that activity-related load results in microtraumas which, over time, increase the risk of injury from wearing accoutrement belts for long periods and sitting in patrol vehicles. Comcare argues there is a substantial step between the risk of injury, which is an abstraction influenced by multiple factors in the particular circumstances of each case, and the occurrence of an injury in fact. To find an injury has in fact occurred, so the argument goes, relevant evidence of probative value is required. Comcare asserts Professor Orr’s theory is derived from research findings which are substantially informed by the subjective perceptions of study participants, and this is not a reliable basis on which to determine liability under the SRC Act. Comcare contends the theory of gradual accumulation being causative of injury is not consistent with the facts of Mr Graham’s case or the contemporaneous medical records. Comcare asserts the theory is contraindicated by the expert opinions of Dr Khurana and Dr Casikar in respect of relevant research findings and the probable causes of the low back symptoms Mr Graham experienced.
Comcare accepts that Mr Graham experienced temporary exacerbations of symptoms in the fuel card incident and the lift incident which are compensable (liability has been positively determined) but maintains that these incidents did not have lasting effects, and they did not contribute to or cause acceleration of Mr Graham’s underlying degenerative spinal condition or increased susceptibility to aggravation episodes. The aggravations Mr Graham experienced, Comcare alleges, involved temporary exacerbation of symptoms which were not associated with physiological changes in his lumbosacral spine. Comcare draws authority from Woodhouse v Comcare[228] when arguing that liability for Mr Graham’s temporary aggravation injuries is confined to the period in which the contribution threshold is met and each aggravation injury results in incapacity for work or impairment.
[228] [2021] FCAFC 95.

In Comcare’s submission, the lumbar fusion surgery was not obtained in relation to the 31 July 2013 aggravation ‘injury’ and related expenses are not, therefore, compensable.
The expenses incurred in the fusion surgery Dr Ow-Yang carried out will be compensable if the threshold set out in s 16(1) of the SRC Act is met:
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.
‘Medical treatment’ is defined in s 4 of the SRC Act to mean:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) ...
As can be seen, essentially, for compensation to be payable, the decision-maker must be satisfied the ‘medical treatment’ was obtained ‘in relation to the injury’ and it was reasonable for the claimant to obtain the treatment in all the circumstances. For Comcare to determine the appropriate amount of compensation for specific and identifiable ‘medical treatment’, the specific cost of the medical treatment obtained ‘in relation to the injury’ must be established.[258]
[258] Comcare v Lofts [2013] FCA 1197, [14], [74].
Importantly, the compensation is payable in respect of ‘the injury’.[259] Use of the definite article in s 16 refers to the specific ‘injury’ in respect of which compensation is claimed. ‘Injury’ in this context is as defined in s 5A of the SRC Act. Three issues arise on the facts of the present case.
[259] Canute v Comcare [2006] HCA 47, [10].
The first is to determine the ‘injury’ for which Mr Graham claimed compensation under s 16 of the SRC Act. The second is to determine the ‘medical treatment’ Dr Ow-Yang provided on 7 July 2015. As the treatment was obtained to treat Mr Graham’s low back symptoms and related pathology at the time it was recommended by Dr Ow-Yang, the third issue is to determine the extent to which, if at all, the symptoms and pathology being treated were effects of the ‘injury’ and whether the medical treatment was obtained ‘in relation to’ the ‘injury’.
Injury
The ‘injury’ is the aggravation of Mr Graham’s degenerative lumbar spine ‘disease’ on 31 July 2013. The nature and contributory factors of the aggravation ‘injury’ are not confined to the factors Comcare considered in its primary and reconsideration decisions.
Medical treatment
The ‘medical treatment’ Mr Graham obtained from Dr Ow-Yang includes neurosurgical consultations before and after lumbar fusion surgery on 7 July 2015.
The surgical treatment Mr Graham obtained from Dr Ow-Yang on 7 July 2015 involved L4/5 and L5/S1 laminectomy, rhizolysis, L4-S1 pedicle screw internal fixation, posterior interbody fusion and posterolateral fusion (collectively, lumbar spine fusion surgery).
In relation to
Mr Graham was referred to Dr Ow-Yang by Dr Bradfield. The purpose of the referral is set out in the doctor’s referral letter dated 24 February 2014:
[Mr Graham] presents with chronic spinal pain with an associated comcare claim/ I attach Xr reports from last year at which time he had some benefit from facet joint injection. He has been coping at work on light duties. HE currently has a severe exacerbation and has been referred for a further injection, however the radiology is showing multifactorial canal stenosis with some disc bulge but also severe facet joint changes. Could you please offer opinion.[260]
[260] Exhibit 1, 1296.
As I comprehend this referral, ‘comcare claim’ refers to Mr Graham’s compensation claim in respect of the 31 July 2013 fuel card incident and, in all likelihood, the ‘severe exacerbation’ refers to a sudden episode of low back pain the previous Saturday.[261]
[261] Ibid, 955.
On Dr Ow-Yang’s evidence, the lumbar spine fusion surgery treatment was purposive: it was for the purpose of alleviating symptoms of pain Mr Graham was experiencing which had not been ameliorated by conservative treatment options, including CT-guided steroid injections, physiotherapy and analgesic medications. The doctor explained Mr Graham suffered “a back injury at work with correlating structural pain generators” which required surgery “as all reasonable conservative measures, had been attempted over two years, but failed to achieve an adequate outcome with respect to alleviating pain sufficiently to come off opiates and return to functional capacity”.[262] The pain was reported to be located “mainly around the left paravertebral region in the region of the L4/5 facet”.[263] The purpose is expressed in the pre-surgery report of Dr Ow-Yang on 22 May 2015:
[Mr Graham] continues to have significant levels of pain which he is not managing. He continues to take opiate analgesia to manage the pain. He would like a more definitive option and I have offered him a surgical intervention involving a lumbar fusion surgery… This gives a 50% chance of improving pain…[264]
[262] Ibid, 58.
[263] Ibid, 90.
[264] Ibid.
This is supported by and consistent with the weight of medical evidence at the time, including Dr Ow-Yang’s extensive consultation and progress reports from 6 March 2014.
I am satisfied the lumbar spine fusion surgery was for the purposes of treating Mr Graham’s discogenic and facet joint low back pain which was mainly located at the L4/5 and L5/S1 levels in the left paravertebral region of Mr Graham’s lower back. This is consistent with and supported by the evidence of Dr Brooder, Dr Khurana and Dr Bradfield, as well as physiological changes reported on radiological investigations.
There is no doubt Mr Graham experienced episodes of low back pain over many years, probably from 1972. The contemporaneous evidence clearly demonstrates episodic exacerbation of clinically significant low back symptoms over many years, the duration of which increased incrementally from January 2011.
The symptoms precipitated by the incident in January 2011 subsided after 3 months or so, whereas the symptoms precipitated by the incident in April 2012 likely persisted to varying degrees for several months, probably until Dr Bradfield ceased Mr Graham’s analgesic prescriptions in July 2013.
The incident on 31 July 2013 precipitated increased low back symptoms which remitted to some extent in October and November 2013, but did not completely resolve and were exacerbated by subsequent events, including in August 2013, October 2013, December 2013, January 2014, March 2014 and November 2014. This is supported by the contemporaneous notes of Dr Bradfield and Mr Cousins in the period from September 2013 to January 2014.
Even though Mr Graham returned to his full operational duties in October 2013, on Mr Cousin’s evidence he continued to experience low back symptoms which were not as acute as they had been but persisted and intensified with activity. These are noted on 16 October 2013, 25 October 2013, 5 November 2013, 18 November 2013, 11 December 2013, 18 December 2013, 16 January 2014, 23 January 2014, 29 January 2014 and 5 February 2014. On this evidence I am satisfied the effects of the 31 July 2013 aggravation injury had not resolved by October 2013. In the period from September 2013 to January 2014, Mr Graham was taking prescribed analgesic medications, including Panadeine Forte and he was obtaining treatment from Mr Cousins. He was adversely affected by persistent symptoms which limited his range of movement and caused stiffness and variable low back pain.
I am not persuaded, and the relevant evidence does not establish, that the symptoms Mr Graham experienced in October 2013 were solely attributable to his underlying and ongoing degenerative lumbar spine ailment and not to the injury he sustained on 31 July 2013. The contemporaneous medical records and the weight of expert medical evidence support a contrary conclusion.
The progression of physiological changes in Mr Graham’s degenerative lumbar spine ailment is exemplified by comparison of the CT scans taken on 31 January 2011, 21 August 2013 and 25 February 2014, and MRI scans taken on 4 March 2014, 11 March 2014, 4 December 2014 and 2 April 2019.
Without radiological imaging from the period immediately prior to 31 July 2013, it is not possible to be certain the physiological changes which are apparent from comparison of the January 2011 CT scan and the 21 August 2013 CT scan are attributable to or were significantly contributed to by the incident on 31 July 2013. The precise nature of the effect of the twisting action on Mr Graham’s degenerative lumbar spine ailment and any physiological changes (if any at all) cannot be seen and can only be drawn by reasonable inference.
Dr Brooder drew an inference from the nature and persistence of Mr Graham’s low back symptoms and related disability after the fuel card incident. On his evidence, the incident on 31 July 2013 probably caused a pathophysiological change in Mr Graham’s lumbar spine and irritated the left L4/5 facet joint which triggered a sudden exacerbation of persistent low back symptoms. This is consistent with Dr Bradfield’s contemporaneous clinical notes of Mr Graham’s low back symptoms and related treatments over subsequent months. It is also consistent with Dr Ow-Yang’s initial opinion and recommended treatments.
It is significant that CT guided steroidal injections into the L4/5 facet joints in August 2013 provided temporary but not enduring relief. This is illuminated by Mr Cousins’ contemporaneous notes. The persistence of symptoms is consistent with and explained by Dr Ow-Yang’s evidence of discogenic involvement in Mr Graham’s low back pain at the L4/5 and L5/S1 levels and the mechanism of discogenic low back pain he described.
Dr Brooder explained that the specific pathology of the exacerbation in July 2013 was likely an acute inflammation of the left L4-5 facet joint, which he likened to a cartilaginous finger joint. He explained this symptomatology was prolonged by aggravating movement and it persisted to varying degrees thereafter until it was treated by spinal fusion surgery performed by Dr Ow-Yang. Dr Brooder’s evidence is consistent with Dr Souter’s report of aggravation of Mr Graham’s degenerative lumbar disc and facet joint pathology, and Dr Speldewinde’s report of severe intrusive subacute on chronic left lumbosacral vertebral dysfunction.
Dr Brooder’s reasoning is substantially drawn from the reported effects of the fuel card incident which he considered to be more severe, persistent and disabling than previous episodes. Initially, the doctor did not have access to a full history of Mr Graham’s low back condition, symptoms, treatment and imaging, and he relied on the history Mr Graham provided and information he was given. When he was provided with a more complete history in cross-examination, Dr Brooder adhered to his original conclusion and the reasoning for it. The doctor agreed he was not aware Mr Graham was previously hospitalised in 2011 with low back pain following an incident involving rowing and bike exercises and traction, but Dr Brooder did not consider this was as significant as the fuel card incident which caused persistent symptoms. The doctor accepted that Mr Graham experienced low back symptoms for an extended period after the roofing incident in April 2012 but argued that the symptoms after the fuel card incident lasted for a longer time. Dr Brooder explained he was not aware Mr Graham had returned to full duties in October 2013 but that his return to work was despite persisting low back pain. It was Dr Brooder’s evidence that the exacerbations Mr Graham experienced after the fuel card incident, including the shopping centre incident in November 2014, were exacerbations of the exacerbation he experienced on 31 July 2013.
Dr Ow-Yang gave evidence he did not consider Mr Graham’s injury on 31 July 2013 was an exacerbation of degenerative lumbar disease or a muscular pain. On 22 April 2014, the doctor reported that Mr Graham’s pain from the twisting injury was reported to be located “mainly around the left paravertebral region in the region of the L4/5 facet” and, in August 2013, consistent with Dr Bradfield’s contemporaneous notes, this was treated with CT guided steroid injection to the L4/5 fact joints which gave some improvement.[265] There is clear radiological evidence on 11 March 2014 of an annular tear of the disc at the L4/5 level. In all likelihood, Dr Ow-Yang’s diagnostic conclusions evolved over time. On 26 November 2014, the doctor reported Mr Graham’s low back pain was likely discogenic.[266] On his 22 May 2015 report, the discogram results showed significant pain on provocation of the L4/5 and L5/S1 disc spaces, but there were “some inconsistencies with regards to the discogram and the region of pain that [Mr Graham] describes”.[267]
[265] Ibid, 82.
[266] Ibid, 85.
[267] Ibid, 90.
Dr Le Leu explained the occurrence of a ‘click’ in the fuel card incident may well have contributed to Mr Graham’s back “going south” more rapidly and, following the fuel card incident, it is probable his low back symptoms persisted even though he was cleared to return to work. Dr Le Leu did not accept that driving to Queensland suggests Mr Graham was free of persisting low back symptoms. In his opinion, Mr Graham’s low back symptoms increased after the fuel card incident and merged into the underlying condition at some later point. The doctor explained, by natural progression, Mr Graham’s degenerative lumbar ailment “would get to that level” and would have “eclipsed” the aggravation on 31 July 2013 at some stage, although determining when this might have occurred is a matter of speculation and guesswork.
Dr Eaton considered the ‘click’ Mr Graham experienced was significant. While I do not accept Dr Eaton’s evidence this signified an annular tear, it is probable the ‘click’ had a physiological cause which, on Dr Le Leu’s evidence, may well had been of enduring effect. It is likely the ‘click’ was associated with discogenic or facet joint pathology when Mr Graham twisted while sitting in the patrol car with his hips immobilised wearing an accoutrement belt.
In his first report on 3 March 2020, Dr Casikar’s reasoning for the opinion Mr Graham suffered no more than a “muscular injury” or “muscular pain” on 31 July 2013 initially proceeded on the basis that “his susceptibility to recurrent attacks of back pain” was attributable to him being “significantly overweight”.[268] In this opinion, the doctor did not refer to the extensive materials, including reports by Dr Ow-Yang, Dr Speldewinde, Dr Still, Dr Eaton, and radiological imaging in the period from February 2014 to 27 April 2019. The doctor’s conclusion in respect of “failed back syndrome” is reasoned on the basis of generalities such as “[f]ailed back syndrome normally occurs after spinal surgery” and “[i]t is generally due to inappropriate selection of patients” and “additional factors” including “obesity, pre-existing emotional issues”. This opinion stands alone and it is unpersuasive.
[268] Ibid, 559.
Dr Casikar explained the twisting injury was likely a muscular or minor soft tissue injury, but he did not give detailed evidence of the specific soft tissues he thought were affected or the mechanism by which pain was exacerbated or generated, consistent with the symptoms Mr Graham experienced. Consequently, Dr Casikar’s reasoning for his conclusion the exacerbation was temporary remains opaque and this reduces the weight it can be given. Nevertheless, his opinion of a soft tissue injury partially aligns with Dr Brooder’s oral evidence that the twisting action probably triggered an inflammatory process affecting soft tissues related to the left L4/5 facet joint.
Dr Khurana gave evidence the twisting injury on 31 July 2013 exacerbated symptoms of Mr Graham’s underlying degenerative spinal condition without causing “permanent physiological or structural change to [Mr Graham’s] spine and neurological system”.[269] Dr Khurana reported there is “no radiological evidence for acute structural worsening based on that relatively innocuous movement in the car at the petrol station [on 31 July 2013]”,[270] and that the findings reported in the CT scan on 25 February 2014 “indicate predominant constitutional disease” and “represent a combination of factors that would predictably predispose to biomechanical and clinical disturbance (low back pain, radiculopathy), even with innocuous events, and would also predictably foreshadow the need for surgery at some point”.[271] In Dr Khurana’s opinion, the fuel card incident was “aetiologically insignificant compared with the pre-existing pathology” and speculated there “may have been a structural or clinical worsening” in the months after the 31 July 2013 aggravation, or between “early October and the beginning of February” 2014, which was unlikely to be specifically work-related. Dr Khurana reported the aggravation was temporary “at most” and, on the evidence of Dr Souter, it objectively ceased by October 2014.[272] Despite the extensive journal articles Dr Khurana referred to, his precise reasoning for this conclusion on the facts of Mr Graham’s case is not entirely clear and this reduces the weight it can be given. Even so, his conclusion is consistent with the evidence of Dr Casikar and Dr Still.
[269] Ibid, 211.
[270] Ibid, 529.
[271] Ibid, 518.
[272] Ibid, 529.
On Dr Still’s report, the low back symptoms Mr Graham experienced on 31 July 2013 would have resolved within weeks or months.[273] He described these as an “acute exacerbation” and explained that “the natural progression of the underlying condition of multilevel spondylosis … is subject to acute exacerbations and remissions”.[274] As I comprehend Dr Still’s reasoning, Mr Graham’s acute exacerbation remitted by the time he returned to full duties in October 2013 even though he reported Mr Graham stated sitting in the patrol car aggravated the symptoms in his lower back and he managed the pain with physiotherapy and medication. As the doctor was not called to give oral evidence, the apparent inconsistency between remission of the acute exacerbation despite the reported persistence of symptoms remains unexplained. This reduces the weight given to Dr Still’s evidence.
[273] Ibid, 491.
[274] Ibid, 490.
Dr Souter was not provided with a full history of Mr Graham’s low back condition and related symptoms, treatments and imaging. The doctor reported Mr Graham’s account of a 60 percent reduction in his low back symptoms from a “peak in February 2014” and that “the underlying condition is a long standing and degenerative one, and further intermittent recurrences of low back pain are likely to recur”.[275] Dr Souter reported Mr Graham “had resolution of symptoms to a degree but still reports taking opiate-based analgesia” and considered that his condition was improving.[276] The doctor expected Mr Graham to return to his full unrestricted duties within “3-4 weeks” subject to him meeting training requirements (which I infer is the Operational Safety Assessment Dr Souter certified he was fit to undertake),[277] and to have returned to his usual role within 3 months.
[275] Ibid, 463, 467.
[276] Ibid, 466.
[277] Ibid, 458-459, 467.
I do not accept Dr Khurana’s opinion that Dr Souter’s report is objective evidence that the effects of the exacerbation on 31 July 2013 ceased by October 2014. Dr Souter reported no such conclusion.
Dr Khurana, Dr Casikar and Dr Still did not provide a detailed neurological or physiological explanation of the sudden onset low back pain Mr Graham experienced on 31 July 2013. Without a detailed explanation of the causal or contributory mechanisms posited, the rationale for attributing symptoms to soft tissue or muscular aggravation, or a temporary aggravation of Mr Graham’s degenerative lumbar spine ailment, remains opaque. Consequently, the reasoning underlying their opinions that the effect of the resulting injury was temporary is not entirely clear and the weight given to their opinions is reduced.

Weighing these opinions, I give the evidence of Dr Brooder and Dr Ow-Yang of the likely physiological processes and effects of the 31 July 2013 incident greater weight than the relevant evidence of Dr Khurana, Dr Casikar and Dr Still.
I am satisfied it is more probable than not that Mr Graham’s symptoms after 31 July 2013 were attributable to inflammatory processes involving his L4/5 facet joint as well as symptomatic discogenic changes at the L4/5 and L5/S1 levels. In relevant parts, the evidence given by Dr Eaton and Dr Le Leu lends support to this finding.
On the evidence of Dr Ow-Yang, Dr Le Leu, Dr Brooder, Dr Souter and Dr Bradfield, I am satisfied there is an unbroken relational link between the aggravation ‘injury’ on 31 July 2013 and the surgical treatment Mr Graham obtained from Dr Ow-Yang on 7 July 2015. The relational link is not broken by subsequent episodic aggravations, including the shopping centre incident on 28 November 2014. This is consistent with Dr Ow-Yang’s evidence of the ongoing discogenic nature of Mr Graham’s low back pain as a result of the employment-related aggravation of his degenerative lumbar spine ailment in the fuel card incident.
I am satisfied the effects of the aggravation injury on 31 July 2013 persisted, despite remission of symptoms sufficient to enable Mr Graham to return to his full operational duties in October 2013, and it was more than a temporary exacerbation. In all likelihood, the twisting action was a significant factor in the context of the employment-related aggravation of discogenic elements in Mr Graham’s degenerative lumbar spine ailment.
That being so, for the purposes of s 16(1) of the SRC Act, relation between the 31 July 2013 aggravation injury and the medical treatment Mr Graham obtained from Dr Ow-Yang on 7 July 2015 is made out. I find the surgical treatment Dr Ow-Yang provided on 7 July 2015 was ‘in relation to’ Mr Graham’s injury on 31 July 2013.
The question whether it was reasonable for Mr Graham to obtain the medical treatment from Dr Ow-Yang was not squarely argued. This question involves objective and subjective considerations, including the relative costs and benefits of the specific ‘medical treatment’ and alternatives to it in the particular circumstances of any case.[278]
[278] Comcare Australia v Rope [2004] FCA 540, [16]-[17].
I am satisfied it was reasonable for Mr Graham to obtain the treatment in the circumstances. It is perfectly clear Mr Graham relied on the medical opinion and the recommendations of his treating doctors, primarily Dr Ow-Yang and Dr Bradfield. He was experiencing significant and persistent disabling low back pain and, despite the risks and evidence of the likelihood of success, the lumbar fusion surgery was the recommended treatment for his symptoms.
Alternative treatments, including physiotherapy, CT guided steroid injections and analgesic medications had been obtained, with only temporary benefits. There is no evidence of other treatments which might have been considered or preferred in the evaluation of costs and benefits. Dr Casikar considered lumbar fusion surgery was not preferred and Mr Graham was not a suitable candidate. Dr Khurana disagreed and supported Dr Ow-Yang’s assessment of the appropriateness of the surgical procedure in the particular circumstances.
Approval was sought from and given by Comcare for the surgical procedure to be undertaken.
I am satisfied it was reasonable for Mr Graham to obtain the medical treatment from Dr Ow-Yang in those circumstances.
From this it follows the reviewable decision in application 2021/8134 must be set aside and substituted with a decision that Comcare is liable to pay compensation for the lumbar fusion surgery Dr Ow-Yang undertook on 7 July 2015.
The amount of the compensation is to be determined by Comcare on remittal.
2020/6254 – Permanent impairment
Mr Graham argues Comcare was wrong to revoke determinations which accepted the degree of permanent impairment he suffered after the spinal fusion surgery was in respect of his lower back injury. He asserts the injury he sustained on 31 July 2013 led to surgical treatment which left him with permanent impairment of his lumbar spine function. It is not entirely clear if Mr Graham is contending the compensable degree of impairment is greater than 23 percent. It is also not clear what Mr Graham posits for the purposes of calculating his non-economic loss under Division 2 of the Guide.
Comcare accepts the surgical treatment resulted in permanent impairment. Comcare informed me it accepts liability to pay compensation under s 24 and s 27 of the SRC Act if the spinal fusion surgery is found to have been in relation to Mr Graham’s 31 July 2013 ‘injury’.
Consequently, as I have made such a finding, Comcare’s concession is well made, and it can be accepted.
It follows the decision under review in application 2020/6254 must be set aside and substituted with a decision that Comcare is liable to pay Mr Graham compensation for permanent impairment under s 24 of the SRC Act and non-economic loss under s 27 of that Act. The degree of Mr Graham’s permanent impairment is to be worked out by applying the Guide approved by Comcare and in force when Mr Graham lodged his claim for permanent impairment compensation.
To the extent there is controversy over the degree of impairment under Table 9.17 of the Guide, as the parties have not been fully heard on this point, it is appropriate for this to be remitted to Comcare.
2021/9475 – Depression
Comcare informed me it accepts Mr Graham is entitled to compensation for an aggravation of adjustment disorder/depression and that the parties agree this is for a period conterminous with compensable back pain arising from the fuel card incident. Comcare asserts that this period ended in or about October 2013.
There is no dispute, correctly, that Mr Graham suffers from a pain-related psychological ailment which has been diagnosed as an adjustment disorder and as a depressive disorder. The diagnosis is not determinative of the employment contribution or the result. The ailment was significantly contributed to and aggravated by employment-related low back pain, and it is an ‘injury’ for the purposes of the SRC Act.
The factual basis of Comcare’s submission Mr Graham’s depressive ailment ended in October 2013 is not made out. I am satisfied he continued to experience low back pain and other symptoms despite returning to his full operational duties in October 2013, as reported by Mr Cousins, which are probably attributable to the 31 July 2013 incident.
In the result, the reviewable decision in application 2021/9475 must be set aside and substituted with a decision that Comcare is liable to pay compensation in respect of aggravation of adjustment disorder/depression which was significantly contributed to by pain stemming from the ‘injury’ on 31 July 2013 and related surgical treatment on 7 July 2015.
As I have found the effects of the employment-related aggravation of Mr Graham’s degenerative lumbar spine ailment persisted and the surgical treatment he obtained on 7 July 2015 was in relation to the aggravation, Comcare is liable to pay compensation during such period as the contribution element of a ‘disease’ is met and the compensable effects of the ‘injury’ persist.
As the parties have not been fully heard on this point, it is appropriate for this to be remitted to Comcare for determination of Mr Graham’s entitlement to compensation in respect of this ‘injury’.
CONCLUSION
The nature and conditions of Mr Graham’s AFP employment materially and significantly contributed to aggravate his degenerative lumbar spine ailment. The resulting ‘disease’ kind of ‘injury’ is concomitant with the injury for which Comcare accepted liability on 27 September 2013. Lest there be any doubt, under s 7(4) of the SRC Act, the date of the injury is deemed to be 31 July 2013.
The effects of the aggravation ‘injury’, including discogenic low back pain, persisted to varying degrees. The lumbar fusion surgery Dr Ow-Yang performed on 7 July 2015 was obtained in relation to the aggravation ‘injury’ and it was reasonable for Mr Graham to do so in the circumstances. Comcare is liable to pay compensation in respect of the surgical treatment Mr Graham obtained from Dr Ow-Yang.
The surgical procedure resulted in fusion of Mr Graham’s lumbar spine at the L4/5 and L5/S1 levels, with a resulting loss of motion segment integrity. This impairment is permanent and Comcare is liable to pay compensation under s 24 and s 27 of the SRC Act. The amount of compensation is to be determined on remittal.
Employment-related low back pain significantly contributed to aggravate Mr Graham’s psychological adjustment disorder or depressive disorder ailment. Comcare is liable to pay compensation in respect of this ‘injury’. The period in which compensation is payable and the amount of the compensation is to be determined on remittal.
The decisions in application 2023/3104, 2021/8134, 2021/9475 and 2020/6254 must be set aside and substituted. As the parties have not been heard as to orders for costs under s 67(8) of the SRC Act, each will have liberty to lodge submissions in respect of orders for costs within 14 days. Should no such submissions be lodged, the Tribunal intends to order Comcare to pay Mr Graham’s reasonable costs in each application, as agreed or taxed.

Date(s) of hearing:

Closing submissions:

28–30 October 2024

31 January 2025

Applicant:

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Glenn Graham

Mr L. Grey

Mr D. Prail, Prail Lawyers

Counsel for the Respondent:

Solicitors for the Respondent:

Mr J. Davidson

Ms S. Zvirgzdins,

Australian Government Solicitor

23. … Location:	Seated in my patrol car after refuelling
24. What were you doing at the time you were injured or contracted your illness?	Seated in my patrol car I twisted to place something on passenger seat
26. What actually injured you, or made you ill?	An immediate sharp pain in lower back which increased