Hanh Bui and Linfox Australia Pty Ltd

[2015] AATA 301

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2013/0454

2013/1365

2014/4089

Re

Hanh Bui

APPLICANT

And

Linfox Australia Pty Ltd

RESPONDENT

DECISION

Tribunal
Regina Perton, Member

Date 6 May 2015

Place Melbourne
In 2013/0454, the Tribunal affirms the decision under review.

In 2013/1365 and 2014/4089, the Tribunal sets aside the decisions under review and substitutes decisions that the respondent remains liable to pay compensation at the present date for medical treatment and incapacity payments pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1986.

Pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1986, the Tribunal orders the respondent pay the costs incurred by the applicant in relation to 2013/1365 and 2014/4089.

............................[Sgd]......................................
Regina Perton, Member
CATCHWORDS
COMPENSATION – whether conditions caused or aggravated through employment – back condition – depression/anxiety – whether or when effects of aggravation ceased – whether secondary mental illness arising out of back condition
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 16, 19
REASONS FOR DECISION
Regina Perton, Member
6 May 2015

Hang Thanh Bui, also known as Victor Bui, who is now aged 52 years, started working for Linfox Australia Pty Ltd as a storeman in around 2001. In January 2007 he reported to his employer that he was suffering pain in his left lower leg. Mr Bui stated that the injury was caused by his work which included manual handling and pushing of trolleys. Linfox placed Mr Bui on light duties from 23 January 2007.
Mr Bui lodged a claim for compensation on 2 February 2007. Mr Bui’s doctors issued certificates over the next few months indicating he was fit for restricted hours and modified duties. On 18 April 2007 Linfox accepted liability for lower back strain. During 2007 and 2008 Mr Bui underwent a number of medical assessments and procedures with certificates being issued indicating he should remain on modified duties.
The diagnosis of Mr Bui’s back condition varied over the next few years. On 16 February 2011 Mr Bui lodged a claim for L5/S1 intervertebral disc degeneration and facet joint arthropathy with left side S1 nerve root compromise deemed to be sustained on 31 January 2011. Mr Bui stated that this was an aggravation of the 2007 injury. Linfox accepted the claim on 5 April 2011 and funded certain procedures including surgery during 2011 and 2012.
Following a medical recommendation that Mr Bui would benefit from resuming work for eight hours over 5 days, Linfox issued a determination on 18 November 2011 that he was deemed able to work for 8 hours over 5 days from 17 November 2011 and ongoing. On 8 June 2012, following specialists’ advice in late 2011 and early 2012 that Mr Bui would benefit from a spinal operation, Linfox revoked its previous determination that he could undertake work for a few hours per week. On 7 January 2013 Linfox determined that its liability for the aggravation of the spinal condition lodged in February 2011 should cease. After reconsideration and an affirmation of the initial decision, Mr Bui lodged an application to the Tribunal on 25 March 2013 (2013/1365).
On 15 June 2012, Mr Bui’s general practitioner diagnosed him as suffering from depression secondary to his back injury. He was referred for counselling and eventually referred to the respondent’s nominated psychiatrist who determined in late 2012 that Mr Bui was not suffering from a diagnosable mental disorder. On 24 October 2012 Linfox rejected liability for compensation in relation to a secondary condition of depression. After reconsideration on 24 December 2012 and an affirmation of the original rejection decision, Mr Bui applied to the Tribunal on 30 January 2013 (2013/0454).
On 2 June 2014 Linfox determined that it should cease liability for the applicant’s lower back strain lodged in February 2007 and stated that the effects of the compensable injury ceased on 1 April 2008. Following reconsideration on 29 July 2014 which affirmed the original decision, Mr Bui lodged an application with the Tribunal on 5 August 2014 (2014/4089).
The Tribunal is considering all three linked applications to determine when or if liability should have ceased for the back conditions and whether Mr Bui’s depression should have been accepted as a work injury.
LEGISLATION
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Act), as it was at the relevant dates, provides:
Compensation for injuries
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment
...
Section 5A of the Act states:
Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
…
Section 5B of the Act states:
Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act
significant degree means a degree that is substantially more than material
Section 4 of the Act defines aggravation as follows:
aggravation includes acceleration or recurrence.
Section 16 of the Act provides:
Compensation in respect of medical expenses etc.
(1) 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.
…
Section 19 of the Act provides for compensation where an employee is unable to work his usual hours due to the workplace injury.
MR BUI’S PERSONAL & EMPLOYMENT BACKGROUND
Mr Bui was born in Vietnam and educated to the equivalent of Year 10 level. He is fluent in Vietnamese and, in his written statement, indicated that he is able to read and speak simple English. He fled Vietnam in 1980 and, after spending seven months in Malaysia, was accepted as a refugee in Australia. Mr Bui has held truck, forklift and excavator licences. Mr Bui is married with two primary school age children as well as an adult child from a previous marriage.
In his oral evidence, Mr Bui described his employment history. Mr Bui’s first job in Australia was in the auto industry working for Nissan for about four years. He then became self-employed as a truck owner/driver for three or four years, working six days a week. Mr Bui said that he sold his truck as there was not enough work around. He worked for Ford for about five years as a forklift driver. He moved to the other side of Melbourne and worked for Mars confectionary for about two years as a machine operator. Mr Bui said that in around 1999 he began working for Mayne Nickless as a storeman. Linfox took over Mayne Nickless in 2001 and Mr Bui then worked for Linfox until he was injured. He has not undertaken work duties at Linfox since 2011. Linfox’s records show that Mr Bui started at Mayne Nickless and Linfox later than he remembered.
Mr Bui’s job at Linfox involved him picking and packing cigarette orders onto trolleys in a shelving area. He then pushed the trolley to an area where the orders were shrink wrapped. Mr Bui would subsequently load the orders into a van. Mr Bui described the van as very low inside. He told the Tribunal that he had to bend to stack items, sometimes on his knees. After his 2007 injury, his duties changed with the elimination of some activities such as loading the van because of his medical condition.
MR BUI’S MEDICAL CONDITIONS AND MEDICAL REPORTS
In his claim for compensation completed on 2 February 2007, Mr Bui stated that he had been diagnosed with left sciatica following the onset of the pain on 18 January 2007. He stated that he first sought medical treatment for his condition on 21 January 2007. In response to a prompt question as to whether he had any prior similar symptoms, injury or illness, he stated that he had pain in the back of the left leg and foot about June 2006. He stated that his only treatment for the condition for which he was claiming compensation had been on 21 January 2007. Answering a prompt question about what started the chain of events that led to his injury, Mr Bui stated that he was conducting normal duties picking stock pushing trolley. There was no specific event cited.
On 23 January 2007 Mr Bui’s general practitioner, Dr C K Siew issued a medical certificate stating that Mr Bui was suffering from pain in L heel and would be unfit for work that day and the next. He was told to avoid excessive walking.
On 2 February 2007 Dr L M O’Keefe, a doctor nominated by the employer based at Valewood Clinic , issued a Certificate of Capacity stating that Mr Bui should undertake modified duties from 2 February 2007 to 8 February 2007. The certificate stated that Mr Bui should be restricted to not lifting greater than three kilograms, no bending or twisting or working above shoulder height and should be given the opportunity to sit or stand.
On 7 February 2007 the results of a CT lumbar scan sent to Dr L M O’Keefe stated that:
Normal lumbar lordosis is maintained.
L1-2,L2-3 and L3-4: Invertebral disc, neural exit foramina and spinal canal are normal.
L4-5: There is a very minor broad based disc bulge in the midline which is contacting the anterior margin of the thecal sac with minimal displacement. Nerve roots exit freely. Facetal degenerative change is evident.
L5-S1: A disc extrusion is seen in the midline which is partly calcified. This is contacting and displacing the anterior margin of the thecal sac as the origin of the left S1 nerve root. The L5 nerve roots exit freely. Facetal degenerative change is evident. There is no destructive process. Pre and Paravertebral soft tissues are normal.
On 9 February 2007 a Certificate of Capacity in relation to L5 S1 disc prolapse was issued by Dr O’Keefe for the dates 9 February 2007 to 16 February 2007 with work restrictions stating no lifting or bending opportunity to sit/stand, no work above shoulder height.
On 15 February 2007 Dr Siew, Mr Bui’s regular general practitioner, issued a medical certificate stating that Mr Bui was suffering from illness and would be unfit for work on that day.
On 16 February 2007 a Return to Work (RTW) plan was prepared by Linfox to which Mr Bui agreed, for the period 19 February 2007 to 23 February 2007 incorporating no lifting greater than three kilograms, no bending or twisting or working above shoulder height, opportunity to sit or stand, no bending below knee height. The work was to be six hours per day with visits to a physiotherapist on 3 days. Mr Bui signed off on the RTW plan.
On 19 February 2007 Dr Siew issued a certificate that Mr Bui was unfit for work that day due to illness.
On 23 February 2007 Dr O’Keefe issued a Certificate of Capacity for 23 February 2007 to 1 March 2007 with the work restricted to four hours with the same restrictions as the earlier plan. A similar plan was endorsed for the following week.
On 8 March 2007 Linfox (through its insurance company, CGU) advised that it would pay compensation for lower back strain up to and including 30 April 2007. The decision maker, based on a report from Dr O’Keefe dated 1 March 2007, indicated that the diagnosis of L Sciatica was not accepted but that lower back strain was compensable.
Dr Lackner, at the same clinic as Dr O’Keefe, issued a Certificate of Capacity for the period 9 March 2007 to 23 March 2007 which incorporated four hours of work per day for two days a week and six hours for other days with similar restrictions to the previous weeks.
Dr Lackner referred Mr Bui to a neurosurgeon, Mr Chris Xenos. On 20 March 2007 Mr Xenos reported to Dr Lackner about his examination of Mr Bui, stating amongst other things:
… Interestingly enough, seven months ago the patient calls having an episode of back pain, which was worse with lifting, and was relieved with rest. It settled after a period of time, but he does recall having some occasional niggling pain down the left leg back then.
Currently, seven weeks ago he presented with worsening lower back pain as well as the slow onset of left leg pain. He gives a good description of sciatic type pain extending from the buttock, down the back of the thigh and calf with some pain and sensory disturbance extending into the sole of the left foot. The pain has improved somewhat with physiotherapy and rest, and to his credit he is still working but he’s on light duties.
…
I did review the CT examination of the lumbar spine. There is mild multi level degenerative changes,… I suspect that this patient’s had degeneration to the spine for a while, and more recently has had a further flare up creating nerve root compression.
He’s been symptomatic on this occasion for seven weeks, but the pain is still constant and he’s on light duties. There has been some minor improvement, but I’d like to think that over the next 4-6 weeks he will have a potential with rest, analgesic, heat and massage as well is some physiotherapy and hydrotherapy, for further improvement to occur…
On 21 March 2007 Mr Xenos sought approval from Linfox for Mr Bui to undergo an MRI examination of the lumbar spine to allow Mr Xenos to offer an opinion with regards to the need for surgery and to offer you a prognosis with regards to long term outcome.
On 23 March 2007 Dr Lackner issued a Certificate of Capacity for 23 March 2007 to 10 April 2007 for four hours per day for two days a week and six hours a day for the other days for the first week and six hours per day for the second week with similar restrictions on lifting, bending and work above shoulder height to previous certificates. The next certificate issued by Dr Lackner on 10 April 2007 for the following month also suggested six hours per day with similar movement restrictions to previous certificates.
On 3 May 2007 Dr Edward M Schutz, consultant surgeon, provided a report to Linfox’s insurers after a request made on 16 April 2007 to look at the extent of any liability and Mr Bui’s fitness for work and the nature of his work restrictions. He had examined Mr Bui on 23 April 2007. His opinion was as follows:
Mr Thang Bui is a 44 year old who was doing a relatively lighter job of store picking using a trolley and handling boxes which may be large but which were not heavy.
Gradually over time he developed symptoms in the left leg starting at the foot and increasing up the leg. It appears clear from the findings and the [sic] from the history that he has a disc prolapse causing left sciatica. I do not have the films or any medical information but the likelihood is that the disc prolapse is at the L5-S1 level.
Over the several months since he has continued to work within restrictions and the symptoms are improving gradually.
Note that in 90% to 95% of the population who experience disc prolapse and related sciatica, improvement occurs with conservative treatment including avoiding activities likely to cause aggravation in the first few months. Improvement appears to be occurring here.
Asked whether Mr Bui was ready to return to full duties, Dr Schutz was of the opinion that he was not yet ready but could probably increase his hours at work over the following two months.
Over the next 2 months it is likely that symptoms will improve further and he should be able to increase his manual handling capacity. Thus, by (say) 6 months pot-commencement of the condition, one would anticipate sufficient resolution to have occurred from him to handle the full range of duties as he had described them.
Asked about the prognosis for the condition, Dr Schutz responded:
Generally, the natural history for disc prolapse with sciatica is for resolution to occur in 90% to 95% of the population. Given appropriate treatment and restrictions to avoid aggravations recovery usually occurs. The disc becomes narrowed over time but this is also part of the normal degenerative process.
In a small number of cases there is a failure of the prolapse to resolve, in which case complications such as pain and neurological symptoms can develop and continue to cause symptoms and demand further treatment.
On the progress to date, I consider the latter possibility to be unlikely.
On 4 May 2007 a report on the outcome of the MRI was prepared by a specialist at Dandenong Hospital, Dr Douglas Anderson, and forwarded to Mr Xenos:
Routine imagine of the lumbosacral spine has been performed.
The images are mildly degraded by movement artefact.
Overall alignment is satisfactory.
Vertebral body heights are preserved.
There is established degenerative disease involving the discs at L4-L5 and L5-S1.
…
At L4-L5 there is a shallow broad based disc bulge together with facet arthropathy…
At L5-S1 there is an irregular disc bulge. This contacts and displaces the left S1 nerve root. This nerve root has a slightly swollen appearance. It is possible there is compression in the subarticular recess when the patient is in the erect position
…Conclusion:
There are diffuse mechanical changes within the facet joints as well as the lower lumbar discs.
The left S1 nerve root may well be compressed in the subarticular recess at L5-S1.
On 1 June 2007 Mr Xenos reported to Dr Lackner on his latest review of Mr Bui.
…
The patient’s clinical condition is improved. He describes only minor intermittent aching across his back. He does describe occasional discomfort in his left calf, but no severe shooting sciatica. He has a little bit of intermittent sensory disturbance in the sole of the left foot but most of that troubles him overnight. He’s regular with his physiotherapy, and to his credit he is continuing with six hours of work a day and coping quite well. It sounds as if he has most discomfort overnight, which is quite typical in cases of a degenerative spine.
The MRI examination indeed confirms that. L4-5 and l5/S1 are degenerate, there’ve got minor bulges, but certainly there is no significant stenosis or a huge disc prolapse…
…
Obviously if his left leg pain in particular worsens, I’m more than happy to see him again, we would then consider probably an epidural injection, and then hopefully surgery only as a last resort
Dr Lackner’s Certificate of Capacity for the period from 7 June 2007 to 29 June 2007 listed the work restrictions as follows:
For 2 weeks
6 hours per day for 3 days a week
8 hours a day for 2 days a week
For next week
3 days of 8 hours per day and rest 6 hours
No lifting or bending below knee ht
Opportunity to sit/stand, no work above shoulder height
No lifting more than 5 kg
Dr Lackner’s plan for 29 June 2007 to 27 July 2007 was:
No lifting or bending below knee ht
Opportunity to sit/stand, no work above shoulder height
No lifting more than 5 to 7.5 kg.

The Certificate of Capacity for 27 July 2007 to 24 August 2007 was the same as the previous. The Tribunal notes that Mr Bui signed off on all of the plans and was examined by Dr Lackner on each occasion. In the early period following his claim, Mr Bui was undertaking weekly physiotherapy but by late July 2007 this changed to acupuncture.
On 7 September 2007 Mr Xenos reported to Dr Lackner in relation to his latest review of Mr Bui.
… His condition has stabilised, but he still has symptoms.
The patient has minor back pain, more of a tightness or an ache. However, he still has intermittent pain in his left leg. This occurs on a daily basis, will last for a short period of time and is related to exertion. Whilst it is not severe sciatica, most of his pain is in the sole of the left foot, as well as the lateral calf. There is associated intermittent paraesthesia as well.
The patient has had intensive physiotherapy, is still continuing to work as a storm on eight hours a day, but overall his situation has not improved any further.
…
On 10 September 2007 Mr Xenos sought Linfox’s approval for Mr Bui to undergo a CT-guided left L5/S1 epidural injection.
You will recall the patient has evidence of a minor disc bulge at that level, I do not deem it severe enough to warrant surgery but the patient is continuing to work but is still troubled with lower back and left leg pain. Conservative measures have been exhausted. I’m hopeful that the epidural injection will help, thus allowing me to avoid surgical intervention.
On 19 September 2007 Mr Xenos wrote to CGU Insurance in response to a message received two days earlier seeking further clarification of the request:
…
I must say categorically that even though the patient’s initial claim was documented as a “lower back strain”, I feel his current problem of lower back pain and stiffness, with intermittent pain down the left leg, are all related, and indeed part of the same problem.
It is important to note that whilst the back pain may be mechanical and muscular in nature, and non-specific in its presentation, the fact that there is intermittent pain down the left leg with some intermittent paraesthesia in the left foot, I’m concerned that the underlying injury sustained, not only has caused non-specific inflammation to the lower back and buttock area, but also nerve root inflammation with referred symptoms of pain and numbness down the left leg.
Thus it is for that reason that I am requesting the epidural injection…
…It has a reasonable chance of helping his symptoms, aiding his subsequent rehabilitation and recovery, and hopefully a subsequent formal and complete return to work program.
The Certificate of Capacity for 20 September 2007 to 19 October 2007 had the same restrictions as the two previous but with a note stating Mr Bui was seeing a physiotherapist weekly and that Mr Bui was to see Dr Xenos again for a possible epidural.
On 5 October 2007 Mr Bui saw one of his general practitioners, Dr Nguyen for an annual checkup. Dr Nguyen noted, amongst other things, that Mr Bui plays soccer once a week.
Dr Schutz saw Mr Bui again in September 2007 and provided a report to CGU on 1 October 2007. Dr Schutz’s opinion was:
Mr Bui remains a 44 year old with low back but mainly left leg symptoms. When seen in April 2007 I did not have the films but the findings were characteristic of symptoms typical of left S1 radiculopathy due to an L5-S1 disc prolapse. The investigations now available confirm this.
On the history and the current findings there has been some recent relatively minor deterioration.
There is now a request for an epidural injection which is clinically indicated.
In relation to a question asking about the type of duties Mr Bui could undertake, Dr Schutz stated:
Mr Bui is continuing to do his practical normal duties but with a lifting limit of 6 kg and the ability to take time out and sit down and do some other activities. He is working 8 hours x 5 days,
Note however that although he continues in this level of activity, left leg symptoms have shown some signs of deterioration.
Given these facts a lighter duties job seems likely to be necessary in this case.
Asked about the prognosis for Mr Bui, Dr Schutz stated:
Previously I gave the accepted likelihood resolution as 90% to 95% of the population with sciatica.
The recent history is of deterioration and left leg symptoms and there is now a decrease in the left ankle jerk. Given the evidence of deterioration, the likelihood of full recovery, as generally occurs in 90% to 95% of the population, is becoming less certain.
Nonetheless, an epidural injection can afford relief and may reverse deterioration.
The Certificate of Capacity issued by Dr Lackner for the period 22 October 2007 to 22 November 2007 noted that Mr Bui was still having physiotherapy weekly and was booked in for an epidural on 31 October 2007. The restrictions at this time were checking, splitting and picking and no lifting more than 5 to 7.5 kilograms. The next certificates covering the period from 22 November 2007 to 17 February 2008 were similarly worded.
On 15 February 2008 after examining Mr Bui, Dr Lackner declared that no further work restrictions were required. Mr Bui signed off on the declaration.
On 12 March 2008 Dr Siew issued a medical certificate that Mr Bui was unfit for work due to illness.
On 12 March 2008 Dr Felix Wilk of the same clinic as D O’Keefe and Dr Lackner issued a Certificate of Capacity for the period 12 March 2008 to 20 March 2008 with the following work restrictions:
2 hours per day, no lifting/bending/twisting/pushing/pulling
To change position frequently
Dr Lackner’s Certificate of Capacity issued on 20 March 2008 advised that Mr Bui should avoid lifting more than three kilograms, avoid frequent twisting and avoid bending below knee height until 31 March 2008. As from 1 April 2008, he was to be clear of work restrictions.
On 10 June 2008 Dr Lackner noted that Mr Bui had undertaken heavy lifting on 6 June 2008 which had impacted on him. The restrictions issued on 20 March 2008 were re-imposed.
On 13 June 2008 Mr Bui lodged an incident report with his employer that on 7 June 2008 he awoke with back pain. He stated that it was a recurrence of lower back pain.
On 16 June 2008 Dr Lackner issued work restrictions to apply from 17 June 2008 to 24 June 2008 as set out below. The same restrictions applied following Dr Lackner’s 24 June 2008 examination:
Avoid lifting more than 10 kg
Avoid freq twisting
Avoid bending below knee ht
Picking ok, max of 2 hours checking per day.
On 3 July 2008 Dr Lackner wrote to Mr Graham Read of CGU Self Insurance Services. He reported that:
Mr Bui has a history of left sciatica. This is due to L5-S1 bulge, which is compressing the S1 left side of nerve root. The initial flare of pain was in February 2007 where he states that while working at Linfox and picking stock he developed ongoing pain in his back down the left leg.
…Thang returned to his normal duties on the 15^thFebruary 2008.
However, in March 2008 Mr Bui returned to the clinic following a further flare of back pain due to lifting and picking a large quantity at work the week before presentation. Again he developed pain down his left leg and lumbar pain requiring anti-inflammatories, rest and physiotherapy…
Dr Lackner’s 21 July 2008 Certificate of Capacity added that Mr Bui should have no conveyor belt duties or loading of vans. He also recommended that Mr Bui should see Dr Xenos again regarding the epidural. Dr Lackner recommended that lumbar support might help Mr Bui. The next Certificate of Capacity issued on 21 August 2008 retained the restrictions set out in the 21 July 2008 certificate.
Dr Xenos reported to Dr Lackner on 24 July 2008 after seeing Mr Bui.
… I last reviewed the patient in September 2007 and organised Workcover approval for an epidural. He presented to the hospital, had a chat with the nurse who “scared me about the procedure”, and the patient decided against it. After that, he recovered to a degree with niggles of pain both in the back and down the left leg but was coping reasonably well.
Unfortunately four weeks ago he had a further flare up of pain in the back and intermittently in the left leg, and in particular in the left calf. He spent one week in bed off work, but thereafter has improved “back to his normal state”. He is now walking well, sitting nicely, has no distal weakness in the left leg and there is only occasional niggling of pain in the left calf. Unfortunately though the context of the flare up related to some heavy lifting at work, “because he felt so good”. This is a good lesson for him.
I do not think he needs an epidural now. I would keep that up our sleeve in the event of him having a flare up not improving with conservative measures. I recall his imaging demonstrated only mild left L5/S1 stenosis.
…
The patient needs to continue to be careful with bending and lifting at work, and needs to continue exercising. He' s holding his weight well. I leave him in your capable hands.
On 21 August 2008 a RTW plan was prepared by a rehabilitation company. The plan noted that Mr Bui’s back had been sore on 3 September 2007 and he had taken 4 and 5 September 2008 off. The medical guidelines were those issued by Dr Lackner concerning avoiding bending below knee height, avoiding frequent twisting, avoiding lifting more than 10 kilograms with additional advice that the checking Mr Bui did should be for no more than 30 minutes per day with a maximum of 2 hours. He was not to load vans nor undertake a variety of other activities set out in the document.
On 18 September 2008 a Certificate of Capacity reflected the restrictions set out in the RTW plan. On 6 October 2008 Dr Lackner certified that Mr Bui could return to normal duties with permanent restrictions.
In a report to Linfox’s Rehabilitation Manager, prepared on 19 February 2009, Dr David Ho, occupational health consultant, commented as follows:
Thank you for asking me to examine Mr Bui on 18 February 2009 for the purpose of assisting in management of the claim.
…
Mr Bui spoke English reasonably well.
…
According to the history I believe Mr Bui, 46 year old store person had sustained an L5S1 disc prolapse or lesion against a background of reportedly degenerative disc and osteoarthritis changes in his lower back, in the course of his employment. This first presented two years ago.
The reported repeated fast twisting when working on the conveyor belt and the constant bending under the low roofline exacerbated by his tallness when loading vans, have contributed to his sustaining the above injury.
Mr Bui has not taken any time off work but did reduce his hours at one stage. He has continued working on selected normal duties without working on the belt or loading vans.
In time and with the appropriate treatment his symptoms have abated or resolved well.
Currently he has residual tightness in his left calf and soreness under his left foot. He has intermittent lower back pain.
Clinical examination today revealed a full range of painfree movements in his lower back with tightness into the left leg on full flexion. There is a reduced sensation in his left foot in the distribution of the S1 nerve root.
Thus clinically I believe Mr Bui currently has a genuine mildly symptomatic disc lesion in his lower back which is work related.
In view of his persisting disc lesion in his lower back I do not believe Mr Bui is fit to resume unrestricted normal duties...
In my opinion if suitable duties are available he should be able to work full time.
In view of the physical requirements of the job on the conveyor belt and when loading vans I do not believe that Mr Bui will be able to resume these duties in the long term.
…
With his good progress to date I do not believe Mr Bui required further physical therapy. Indeed he is reportedly currently not on any treatment. However I would suggest that he continues with regular self managed exercises to maintain his general physical fitness, his flexibility and core strength in his lower back.
His prognosis is one of ongoing pain or symptoms in his lower back and left leg with intermittent exacerbation in particularly with change in weather or with certain activities.
In 2010 Mr Bui decided he would work four days instead of five days. Later in that same year, he decided to reduce his working hours to three days.
On 18 August 2010 Mr Bui saw a general practitioner, Dr Le, who noted that Mr Bui’s back pain had flared up that morning after a car accident on the way home from work the previous evening. He had also seen other doctors at that practice during July 2010 in relation to his back pain and in February 2011 due to back pain.
On 16 February 2011 Mr Bui lodged another workers compensation claim. He stated that he suffered a disc prolapse which affected his left leg, lower back. He stated that he first noticed the injury on 31 January 2011. He stated that he had previously received treatment for a similar injury in 2007. Mr Bui stated that he had been doing the same thing for so long and that he had been pushing a heavy trolley and loading boxes when the injury first occurred in 2007.
On 21 February 2011, Mr Bui’s supervisor, Josian Felix, provided a statement about the claim:
…
Mr Victor Bui the injured person in this claim sustained an injury of his back in 2007. The injured person reported and stated that the pain of his back is a recurring pain from the previous injury of 2007.
Victor has been permanently on restriction duties sine his injury of 2007. He has been working part time since his 2007 injury. His working hours are from 10.00 am til 6.06 pm with 30 minutes lunch break and 20 minutes afternoon break.
He picks cartons not exceeding 1 kg per carton and wheels a trolley on which the cartons are placed. He walks to pick cartons and stands for some checking task.
There was no actual incident that triggered the pain on reporting day of 09.02.2011.
On 15 March 2011 Mr Xenos wrote to Linfox seeking approval for Mr Bui to undergo an MRI of his lumbar spine noting that he last reviewed Mr Bui in 2008. He then stated:
Please note that at that time he refused to have an epidural injection, so things were managed conservatively. He informs me thought that he has never been painfree ever since, and he now presents with another recurrence of lower back and left leg pain.
An MRI scan will allow me to offer an opinion as to whether his L5/S1 disc prolapse has worsened, and as to whether he needs surgery or not.
On 30 March 2011 Dr Anthony Cairns, orthopaedic surgeon, prepared a report at the request of Linfox’s insurers. He responded to prompt questions asking about the nature of Mr Bui’s current condition as follows:
In my opinion, on the balance of probabilities as distinct from possibilities, the condition currently suffered by Mr Bui is related to:
a)His employment with Linfox, specifically the original incident of 2007, and the more recent provocation and aggravation suffered on 16 January 2011
b)A constitutional, underlying condition of age-related multisegmental intervertebral disc degeneration and facet arthropathy
d) Aggravation and recurrence of the designated pre-existing condition, the effects of which have not yet ceased
e) on the basis of the history provided by the worker, the effects of the work-related incident are of a permanent nature, in that symptoms have continued since the original injury in 2007, forcing a reduction in his work commitment, and further aggravated by the 16/01/2011 incident.
…
There were no aspects of the clinical examination which tend to suggest that he is ...voluntarily exaggerating his symptoms…
…
At this point, Mr Bui currently does not have a capacity to engage in work at the same level at which he was engaged by Linfox as a picker immediately before the injury. Following the original injury in 2007, he was progressively caused to reduce his work commitment, initially to four days and ultimately to three days per week. Following this most recent aggravation, he remains unfit to resume his more recent pre-injury activities.
…
He remains unfit to undertake any work duties.
On 5 April 2011 Linfox accepted Mr Bui’s claim for compensation in relation to the L5/S1 intervertebral disc degeneration and facet joint arthropathy with left side S1 nerve root compromise sustained on 31 January 2011 on the basis of Dr Cairns’ report. Mr Bui was advised that the compensation would be paid up to 18 April 2011 but if he wished to claim beyond that date, he was required to produce further medical evidence.
On 7 June 2011 Mr Xenos wrote to Linfox seeking approval for Mr Bui to undergo a CT guided epidural injection as an outpatient. He stated that Mr Bui was still troubled with lower back and left leg pain with numbness in the sole of the left foot. He went on to state:
Unfortunately the patient has exhausted conservative measures, and even though we’ve previously had a discussion with regards to the possibility of surgical decompression, the patient is wanting to exhaust all other measures.
That being the case, for both diagnostic and therapeutic purposes, I seek approval for the epidural injection, to alleviate some of his pain, to hopefully allow other therapies, such as physiotherapy and hydrotherapy to subsequently work. If unfortunately this is not successful, surgical intervention is the only last resort.
On 6 September 2011 Dr Michael Bloom, occupational and environmental physician, examined Mr Bui and provided a report to Linfox to assist it to manage Mr Bui’s rehabilitation. He recommended that a return to work program be devised urgently:
Ideally all stakeholders would support such a return to work programme, and this would include his treating medical practitioners. This is because it is a very well recognised fact that prolonged workplace disability represents a very serious risk factor for adverse outcome regarding health and wellbeing. The longer this man remains away from work, the greater the risk to his health and wellbeing, and the less chance there is of any form of rehabilitation. Therefore it is not helpful for him to be away from work whilst suitable duties can be offered.
…
Dr Bloom prepared a further report for Linfox on 20 October 2011. He stated that he had conducted a work site visit that day. He noted that Mr Bui declined an invitation to attend and it was not clear why he had done so. He noted that Mr Bui faced physical and motivational barriers in relation to returning to work. He identified suitable physically light duties with the help of Mr Bui’s supervisor and the site manager. Dr Bloom suggested a part-time return to work with rest periods and other considerations taking into account Mr Bui’s physical condition.
On 18 November 2011 Linfox determined that Mr Bui was no longer entitled to incapacity payments as from 17 November 2011 as he was capable of earning his normal weekly earnings from that date as set out in s 19(4) of the Act. The decision maker set out the terms of Dr Bloom’s RTW program stating that Mr Bui was to commence with one four-hour day the first week, two four hour days the next week and so on undertaking suitable light duties.
On 29 November 2011 Dr Tang, Mr Bui’s general practitioner, prepared a Certificate of Capacity which stated that Mr Bui was fit for modified duties with restrictions including no lifting of greater than 5 kilograms, no repetitive bending or twisting, frequent rest breaks, no prolonged sitting/standing/static posture for three days per week.
On 14 December 2011 Mr Xenos sought funding to operate on Mr Bui.
This is a formal note seeking approval for Mr…Bui …to undergo a left L5/S1 discectomy and spinal rhizolysis.
Mr Bui has been troubled with lower back and left leg pain for a prolonged period of time and I feel we have exhausted conservative measures. We have also performed a left L5/S1 epidural injection with only short term relief. Recently, only after a two day return to work program, the patient had a flare p of more back and leg pain with numbness and weakness to the foot. Surgery is now indicated.

On 30 April 2012 Dr Cairns provided a report to Linfox in which he stated, amongst other things:
In summary therefore, this now 49 year old worker presents with ongoing, significant impairment consistent with L5/S1 intervertebral disc protrusion, facet arthropathy, and left S1 radiculopathy. I remain of the opinion that his presentation is consistent with the clinical findings apparent at the time of initial assessment on 24 March 2011, and as confirmed at the time of this review.
…
Prognosis: I concur with Dr Xenos’s advice that the worker should undergo L5/S1 discectomy and rhizolysis. Given a successful technical and functional outcome, Mr Bui should enjoy a fair to good prognosis. However, given the chronicity of his pathology and confirmed nerve root compromise approaching five years duration, some reservation is held in this regard.
…
Mr Bui does not currently have a capacity to engage in work as a Pick and Pack Operator at the same level at which he was engaged by Linfox as immediately before the injury.
…
He remains unfit to undertake any work duties
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The worker presents as a candidate for surgical intervention. He is likely to be absented from work for at least 6-12 weeks post-operatively, during which time he may require assistance with rehabilitation prior to commencement of a graduated return to work program.
…
I consider the surgical treatment recommended by Dr Xenos to be appropriate to the worker’s current conditions.
On 8 June 2012 Linfox revoked its determination of 18 November 2011 and later decisions in which it deemed that Mr Bui was able to earn particular amounts as part of the RTW plan. The reconsideration officer conceded that there was no evidence that Mr Bui had ceased to suffer from his accepted injury and that his ability to earn for the periods nominated by Linfox was nil.
One of Mr Bui’s general practitioners determined in June 2012 that he was suffering from depression. Those aspects of Mr Bui’s medical history are dealt with later in these Reasons for Decision.
On 10 July 2012 Mr Xenos wrote to Dr Tang following the operation which took place on 4 June 2012:
…
As far as the surgery is concerned, the patient no longer describes left leg pain, he has no paraesthesia in his left foot, and he’s walking short distances.
The patient does mention some occasional tightness in the left calf….
However, the biggest complaint by far is the patient’s tentative walk, his inability to sit or stand for a long period of time, and complaining of back pain and stiffness which sounds mechanical and muscular in nature.
From my perspective, it concerns me that he still is on Endone, and he’s only walking short distances because of a gastric upset.
I am keen for him to commence the use of heat, massage and acupuncture to soften his lower back, a referral for some physiotherapy and in particular hydrotherapy, focusing on strengthening his lumbar spine, and for him to wean himself off the Endone and to replace it with either some Voltaren and/or Panadol on a regular basis. I think overall things will improve further.
…
On 13 August 2012 Mr Xenos corresponded with Linfox’s insurer setting out the advice he had given to Dr Tang on 10 July 2012. He went on to state:
From my perspective, it will depend on the success or otherwise of his outpatient rehabilitation program….as to how soon the patient will be fit to return to work, be it on reduced hours and light duties. However, at the time of my last review, he is not fit for any duties. You may want to consider liaising with the patient and the referring doctor, such that if his progress has stalled, ensure that a formal pain management and rehabilitation program referral has gone into Vic Rehab. Only after that is instituted can we consider a return to work program, which I expect will require a six week transition period of initially reduced hours and light duties, with a graduated increase in his employment. Whilst I am optimistic that he will return to his pre-injury employment, at this point in time, I foresee that his recovery will be quite slow, taking into account his immediate post-op clinical condition…
On 2 October 2012 Mr Bui’s general practitioner Dr Tang responded to a request from Linfox for a medical report. Dr Tang was of the view that Mr Bui’s injury was the result of his lifting duties at work and that there was no other plausible cause. Dr Tang stated that Mr Bui’s leg symptoms had lessened since surgery but that he still suffered significant lumbar back pain. Dr Tang stated that:
..Mr Bui continues to walk with a limp, favouring his left leg. He has to keep changing his positon. He cannot tolerate sitting or standing more than a few minutes. He has difficulty getting up after sitting. When he walks, he only takes small, tentative steps…
On 11 October 2012 Dr Xenos wrote a follow up note to Dr Tang with a copy to Linfox. Dr Xenos stated:
I fear that Mr Bui’s condition has stagnated. He’s not improving any further. He tells me he’s only working [sic] ten minutes twice a day. He does physiotherapy twice a week and he also sees a chiropractor.
Clinically, he mentions that he has had improvement in his left leg pain and no longer has any paraesthesia. However it is the back pain and stiffness that is his biggest problem. He also does look somewhat anxious and depressed with his lack of improvement.
I did intimate previously that if things are stagnating, we can take the matter further via a Vic Rehab pain management and rehabilitation program. From my perspective, I strongly recommend we go to that at this stage, because I fear from here on, his situation has stagnated with regards to chronic back pain, which is mechanical and muscular in nature. I have no other neurological concerns, but essentially I’m asking you to increase the level of his post-op rehabilitation.
On 5 December 2012 Professor Frederick Ehrlich provided a report to CGU. Excerpts are as follows:
PHYSICAL EXAMINATION
Findings – Mr Bui arrived walking very slowly and leaning heavily on a stick. He was wearing a lumbar girdle and his dressing and undressing process was very slow.
His voice was very low and there was a look of abject suffering about him throughout.
Formal examination revealed substantial inconsistencies. He was unable to do any bending at all and straight leg raising was immediately resisted on both sides. He also did not permit any knee flexion on either side.
He was unable to sit upright on the couch with straight knees but when sitting with his knees over the side of the examination couch to have his tendon jerks tested, he permitted knee extension through the full range.
Both knee jerks are normal but the left ankle jerk, whilst present, is depressed by comparison to the right. There was no sensory loss demonstrable but he reported bluntening of light touch sensation along the lateral aspect of his left lower leg.
…
SUMMARY AND ASSESSMENT:
Opinion – Mr Bui developed left lower limb pain in 2007, symptoms were severe enough for him for require an operation and there is a depressed left ankle jerk suggesting there is indeed some left nerve root pathology, attributable to disk abnormality.
There was no specific incident of injury in the workplace and there is every possibility that the condition developed spontaneously and would have done so even if he had not been at work.
Be that as it may, his presentation now involves substantial inconsistencies. He presents as a man in agony but there are inconsistencies in the clinical signs and the overall impression gained was that he had developed a substantial degree of abnormal illness behaviour.
The true extent of his capacities would be more appropriately assessed outside the clinical situation.
On 17 December 2012 Linfox advised Mr Bui of Professor Ehrlich’s opinion and advised that in relation to his claim made in early 2011:
...
Your claim recently underwent a review and you were referred to Professor Frederick Ehrlich on 04/12/2012. The report dated 05/12/2012 reveals in part that your current symptoms are no longer related to your compensable condition, rather factors unrelated to work and underlying pathology.
Therefore, based on the report by Professor Ehrlich it would appear that you have no entitlement to worker’s compensation benefits under sections 16 medical treatment and section 19 incapacity payments, of the SRC Act.
Please note that prior to making a final decision on your claim, I am providing you with a fair opportunity to present further evidence by 31/12/2012 in support of your claim…
On 18 December 2012 Dr Bloom prepared a report for Linfox after examining Mr Bui that day. Excerpts from his report are as follows:
SUMMARY OF HISTORY AND PRESENTATION
This man first developed low back pain in 2007. This was of gradual and spontaneous onset and gradually worsened. He also developed radicular symptoms into the left leg and foot, and ceased all work by January 2011.
All conservative treatment failed to improve his condition or to forward his rehabilitation process. He underwent surgery to his low back in June of this year, the nature of which I am uncertain. Although this did result in resolution of his left leg symptoms, he said that his persisting low back pain rates are constant 10/10 on a VAS, he experiences insomnia, and he is of very depressed and pessimistic mood and outlook. He reported difficulty with his personal care activities.
There are considerable non-organic behavioural signs consistent with fear and pain avoidance behaviour.
…
2. The medical diagnosis and prognosis?
This man suffered prolapse intervertebral disc with left radiculopathy that failed to respond to all my galaxies of conservative treatment, and was ultimately operated on in June of this year.
His current condition can be regarded as a failed back surgery syndrome, with chronic low back pain and referred symptoms, with evidence of left-sided radiculopathy.
This man has now been suffering with chronic low back pain since 2007, and he appears to have developed depressed mood. There are considerable signs of fear and pain avoidance behaviour. For this reason his prognosis must be considered particularly poor.
3. Treatment goals and recovery time frames?
Treatment should focus on function. The only treatment option that could possibl[y] help this man would be referral to a multidisciplinary functional restoration programme that focused on cognitive therapy and function. However, based upon this man’s history I would not be optimistic of outcome even in such an appropriate programme.
Normally as part of his management programme I would recommend a return to work programme.. I think this man is extremely unlikely to sustain any form of return to work programme on suitable duties. I think that he would have to respond favourably to functional restoration and cognitive therapy before any hope of success with any return to work programme.
…
CONCLUSIONS AND FURTHER COMMENTS
Since I last examined this man over a year ago his condition has worsened. This is despite a great deal of conservative treatment as well is a more recent surgical intervention. Today he presents with invalid status, being unable to move his back to any degree, and by all accounts his level of function is extremely low.
This man is suffering with a chronic pain syndrome or failed back surgery syndrome, with considerable psychosocial contributing factors, although there is absolutely no evidence that this is anything to do with a voluntary response. This inappropriate emotional response is involuntary, and that is why his condition is so difficult to manage successfully.
…
Realistically speaking, taking into consideration his age, his lack of transferable skills, and his current physical and emotional status, I would say that he does not now have meaningful work capacity.
I note your request to conduct the work site assessment with the aim of forwarding this man’s rehabilitation into the workplace. As suggested above, I think it unrealistic to expect progress with return to work until he has undergone an intensive multidisciplinary rehabilitation program at a reputable centre with at least some success.
…
On 21 December 2012 Mr Bui’s solicitors noted that Linfox’s letter dated 17 December 2012 was received by Mr Bui on 19 December 2012. The solicitors asked whether the reports from Dr Tang and Mr Xenos had also been taken into account. They also stated that Mr Bui is unable to meet the cost of obtaining further reports from those doctors.
On 7 January 2013 Mr Bui was sent a decision that there was no further liability to pay compensation in relation to the injury sustained on 31 January 2011. The decision maker indicated that she had relied on Professor Ehrlich’s report in making her decision. On 24 January 2013 Mr Bui’s solicitors sought reconsideration but did not submit any further medical reports.
On 4 March 2013 a reconsideration officer affirmed the decision made on 7 January 2013 stating amongst other things:
30. There is no dispute that Mr Bui is suffering from pathology. However, I accept the opinions of Professor Ehrlich; specifically, that Mr Bui’s injury was not the result of a specific incident, rather, a progressive aggravation of pre-existing degenerative symptoms, which could no longer be attributed to work. Pursuant to section 5B of the SRC Act, Mr Bui’s employment with Linfox has not contributed to his injury “to a significant degree,” (a degree that is substantially more than material) as required by the provisions of the Act.
…
On 27 August 2013 Mr Xenos provided a report to Mr Bui’s solicitors at their request. Mr Xenos noted that:
… I did not see this patient for the explicit purposes of providing a medical report and have not engaged in a detailed assessment of his impairment (in percentage terms). I have not performed a detailed investigation of the circumstances of the injury from the point of view of litigation but only with respect to the clinical relevance.
Mr Xenos provided a comprehensive history of his examinations of Mr Bui since the referral by Dr Lackner. He went on to state:
…
My most recent review of the patient was on 11/10/12. The patient’s condition was static. He was only walking for short distances every day, having physiotherapy twice a week as well as visiting a chiropractor. The patient informed me that whilst he had improvement of his left leg pain, with no longer any paraesthesia in the left leg, back pain and stiffness were his biggest problem and he had features of anxiety and depression noted because of his lack of any further improvement. I strongly felt that the patient be referred to Vic Rehab for a multi disciplinary pain management and rehabilitation program. This was my most recent review of the patient. I have not received any further feedback with regards to the success or otherwise of those treatments, and any information about any more recent clinical changes.
…
… The patient’s diagnosis can be summarised as a left L5/S1 disc prolapse. The patient’s presentation, the clinical features all correlated with the radiology, as well as the injury sustained. I am of the opinion that the patient’s employment has been a significant contributing factor to the development and/or aggravation of this injury…
…
From my perspective, at the time of my last review he was not working. I think the likelihood of him being able to return to his pre-injury employment is small, but depending on the success of the natural history of further healing, as well as the specific pain management and rehabilitation program treatment instituted, he may have some potential to return to modified duties, avoiding prolonged sitting and any repetitive bending and lifting and twisting of his spine. His prognosis is thus somewhat guarded, but I expect he will continue to have chronic back pain.
On 13 September 2013 Dr Peter Kudelka provided a report to Mr Bui’s solicitors after examining him three days earlier. Extracts from the report are as follows:
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I questioned the patient about previous medical problems, and he said that he had no history of accidents, injuries, illnesses or operations beyond his back injury in 2007, with an aggravation in 2011. His general health is good although he has had mild asthma in the past. He is married and his wife works. There are two children aged 6 and 4. He can drive his car about 10 minutes before he has to stop due to back pain and back weakness. His recreational pursuits which were previously gardening and fishing have ceased.
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In answer to your specific questions:
1.   This patient has back pain and left sciatica due to the mechanical injury to the lumbosacral disc, originally sustained by lifting and pulling trolleys in 2007and aggravated again by pushing and pulling trolleys in 2011, while working for Linfox.
2.   I believe his injury is work related.
3.   The patient was treated initially conservatively with physiotherapy and tablets, however he has had decompressive spinal surgery by Mr. Xenos, with incomplete relief of symptoms.
4.   Future medical treatment will be in the form of monthly General Practitioner visits for prescription of such analgesics and anti-inflammatory medication as may be required. He should continue with physiotherapy of the core strengthening type. There is no immediate prospect of a further spinal injection or any further spinal surgery.
5.   With respect to employment, the patient has limited mobility and cannot sit, stand, bend, stoop, lift, drive his car or sleep comfortably. Therefore he has no capacity for pre-injury employment as a Storeman.
…
In oral evidence, Dr Kudelka stated that he believed Mr Bui’s injury was a workplace injury because it occurred at work. Under cross examination he was told of doctors’ notes concerning back pain arising out of visits to medical practitioners between 1998 and 2006. Dr Kudelka said that even if there was a slowly degenerating back, Mr Bui continued his employment. He said that the nature of Mr Bui’s work made things worse and aggravated his condition. Dr Kudelka did not change his view of Mr Bui’s condition as a result of his questioning under cross examination.
On 4 December 2013 Dr Tang provided a report to Mr Bui’s solicitors at their request. He indicated that Mr Bui continued to rely on multiple medications for pain. Dr Tang maintained his view that Mr Bui had no current work capacity. Dr Tang also provided a copy of a letter from the Victorian Rehabilitation Centre dated 29 August 2013 which indicated that CGU had approved Mr Bui being assessed for his suitability for a pain management program.
On 19 March 2014 Professor Ehrlich prepared a supplementary report for Linfox’s solicitors following the presentation of a surveillance DVD taken between 21 October 2013 and 27 November 2013. Professor Ehrlich stated that the surveillance confirmed to him that Mr Bui’s presentation to him was not genuine. He was of the view that Mr Bui had exaggerated the severity of his symptoms. Professor Ehrlich stated that he believed Mr Bui was capable of engaging in a return to work program.
On 2 June 2014 Linfox determined that Mr Bui did not have an entitlement to the payment of ongoing compensation for medical treatment and expenses and incapacity payments as from 30 January 2009. The decision maker noted that Mr Bui’s claim file had been closed on 30 January 2009 as Mr Bui had returned to full hours and had ceased all medical treatment. On 29 July 2014 following a request for reconsideration the decision was varied so that the determined condition was altered from ‘low back strain’ to ‘aggravation of L5-S1 disc prolapse causing an acute episode with increase symptoms’. The reconsideration further stated that Mr Bui ceased to suffer the effects of the compensable injury on 1 April 2008.
IF OR WHEN SHOULD COMPENSATION FOR MR BUI’S BACK CONDITION CEASE?
The medical reports set out above from a large number of specialists and general practitioners indicate the difficult task which faces the Tribunal in determining if or when compensation should have ceased in relation to Mr Bui’s back and leg condition. There is also the issue of whether work was a significant factor in the symptoms experienced by Mr Bui since 2007. There is also the suggestion by one of the specialists, whose opinion Linfox sought, that Mr Bui exaggerated his symptoms.

Between 15 September 2013 and 27 November 2013 PJS Investigations Pty Ltd undertook surveillance of Mr Bui at the request of Linfox’s solicitors. The Tribunal viewed the DVD which ran for 54 minutes and has been presented with a report dated 28 November 2013. The surveillance was not continuous and on several dates chosen by the investigators Mr Bui was not seen during the period of surveillance.
On 21 October 2013 Mr Bui caught a taxi from his home to a medical appointment. On 10 November 2013 Mr Bui drove his daughters to a church leaving at 9.37am. He took his elder daughter to a building which she entered with other children. Mr Bui stayed in his car with his younger daughter for a period. He bought some food from a stall at the front of the church and stood around for a while chatting with others. Eventually his elder daughter came back and they headed home.
On 15 November 2013 Mr Bui was observed taking his child to school. He then went to a nearby shopping centre, went to a medical centre, then drove to a different shopping, parked and went to a florist’s shop and a clothing store. He had coffee with some other males at a nearby café. Mr Bui crossed the road and the observer lost sight of him. Mr Bui returned to his car about two hours later and headed home.
On 27 November 2013 Mr Bui went to a nearby suburb where he picked up his wife and daughter. They went home. Mr Bui then drove to pick up his elder daughter from school buying some fruit in a nearby supermarket first. He and his daughter then headed home.
The investigators’ comments, with which the Tribunal agrees based on its viewing of the DVD, were as follows:
As can be seen in the activities section of our report the subject was seen to attend his medical appointment in Glen Waverley via a Taxi, he was seen to drive his daughter to ‘Sunday School’ at a Church in Keysborough and was seen to visit shops in Springvale including a Medical Centre. The subject appeared happy and relaxed whilst seated at a Café in Springvale with two other males. When observed the subject was seen to move in a normal and unrestricted manner, however he was not seen to perform any strenuous activities.
Notwithstanding Mr Bui’s failure to recall earlier problems with his back in his 2007 worker’s compensation claim form, his doctors’ records show that Mr Bui had, in fact, sought medical attention many years earlier than 2007.
Medical records obtained on summons indicated that Mr Bui had attended his then general practitioner, Dr Nguyen, on several occasions in relation to back pain or ache. These included 3 February 1998, 1 March 1999, 2 March 1999 and 26 July 1999.
Medical records obtained from Dr Siew’s clinic, which are very difficult to decipher, indicate that on 25 June 2004, Mr Bui complained of back pain since early June.
In oral evidence, Mr Bui said that he could not remember the earlier medical consultations relating to back pain nor exactly what happened on the day of the January 2007 injury. He said that when he was put on light duties after the February 2007 claim, he was initially unpacking cartons and preparing small boxes for vending machines. He said that he then returned to some of his former duties but was no longer loading the vans. Mr Bui clarified that it was he who sought to reduce the number of days he worked from five to four and then four to three.
Asked about the impact of a car accident on his existing condition in August 2010, Mr Bui said that a car had run into the back of his. Mr Bui said that he had a tow bar and did not need to get his car fixed. He said that he felt some pain in his neck but had not claimed anything on insurance or through the Transport Accident Commission.
Questioned as to whether he had returned to work since 2011, Mr Bui said he had not. He told the Tribunal that a lack of sleep and the impact of his medicine meant that he was falling asleep. He said that he could not remember if he had tried to return to work at Linfox after January 2011. Prompted by his counsel about his return for two days in November 2011, he said that he cannot remember. He said that he and his wife, from whom he had separated for a time, had reconciled. Mr Bui said that he sleeps only about four hours a night and during the day he watches television, rests, sometimes has coffee with friends, takes his children to school and church and does small bits of shopping. Mr Bui said that he used to play soccer once a week with friends before his injury in 2007 but has not done so since.
Mr Bui was asked what he could do in terms of work. He said that he is not sure how much he can do or if he could resume work as a storeman. He said that he cannot lift heavy weights, cannot twist his body and cannot push or pull a heavy weight. He said that he is prevented from doing such things because of the pain he experiences. He said he does not know if he could do lighter duties as he had tried and failed on a previous occasion.
Under cross examination, Mr Bui confirmed that he may have some of his dates wrong. Linfox’s counsel said that he had joined Mayne Nickless in 2001 not 1999 and that the takeover by Linfox had been in 2003. Mr Bui was asked whether he remembered going to see Dr Kudelka but he responded not really. He did recall telling various doctors that he was well until 2007. Mr Bui said that he could not remember seeing Dr Nguyen in 1998 and telling him he was undertaking heavy lifting and heard a click. Told of various other occasions when he sought medical attention during 1999 to 2004 for back pain, Mr Bui said that he could not recall any of the cited events. He did recall a visit in 2006 with back pain after gardening. To the suggestion by counsel that it was wrong to tell doctors that there was nothing wrong before 2007, Mr Bui responded that he could not recall those visits and that everyone has back pain. He said that when he first reported pain in his heel in January 2007, he thought it was due to his work boots. He said that when he was sent for a scan by the facility doctors, he thought that too much walking had led to the pain in his left leg. Mr Bui said that he had felt some symptoms prior to January 2007 but he kept on going. Linfox’s counsel raised inconsistencies concerning dates and previous flare ups that Mr Bui had told to various doctors. Mr Bui said that the pain can suddenly worsen considerably even after a gentle movement.
Mr Bui confirmed that he has a family trust with a number of properties, namely 13 units, one shop and four offices. He denied retiring because of the size of his investment portfolio. He told his counsel that the value of the properties was around $5 million but he owed $3 million. Mr Bui said he has sold off some of his properties in recent years. He said that he has not retired and is still employed by Linfox.
The report of Professor Ehrlich casts doubt on the genuineness of Mr Bui’s claims and suggests that Mr Bui exaggerated his disabilities when he was examined. In oral evidence Professor Ehrlich said that while the chronology of earlier visits changes his perspective on Mr Bui, it does not change his opinion that Mr Bui’s condition is degenerative. Professor Ehrlich said that the surveillance demonstrated that Mr Bui was not as disabled as he had made out during his examination. Under cross examination, Professor Ehrlich conceded that as the surveillance was almost twelve months later than when he had examined him, which was six months after the operation, there could well have been improvement in Mr Bui’s condition. To the suggestion that heavy work could exacerbate a condition without a particular incident, Professor Ehrlich responded that heavy work does not cause the pathology. Professor Ehrlich said that Mr Bui has disc degeneration and when he does heavy work it can cause pain. He said that if you do heavy work with a back in the condition that Mr Bui’s is, you get symptoms.
Mr Bui may well have exaggerated his condition to Professor Ehrlich for reasons unknown. If he did so, it was ill-advised. While Dr Ehrlich doubted Mr Bui’s truthfulness, other practitioners expressed the opposite view.
Most of the numerous reports from treating doctors and medico-legal specialists express the opinion that Mr Bui’s injury or aggravation results from the nature of his work and his underlying vulnerability. The evidence supporting Mr Bui is not just from the medico-legal opinions sought by his solicitors but also from some of the specialists engaged by Linfox and its insurers such as Dr Cairns and Mr Bloom. The general practitioners at the employer auspiced medical practices such as Dr Lackner also accepted that Mr Bui’s work had either caused or aggravated his back and sciatic problems. The sciatica appears to have diminished following Mr Bui’s operation although the back pain remains.
Mr Xenos, the neurosurgeon to whom Mr Bui was referred by Dr Lackner, has examined Mr Bui on many occasions. Mr Bui first saw Mr Xenos in March 2007. In June 2007 Mr Xenos’s view was that Mr Bui was improving. He noted that Mr Bui was working reduced hours, attending physiotherapy but that his discomfort was overnight. By September 2007 Mr Xenos noted the condition has stabilised but the symptoms remained. In July 2008 Mr Xenos noted another flare up of pain when doing some lifting at work. In March 2011 there had been another flare up by which time Mr Bui was only working three days a week on light duties. By June 2011 an operation appeared the only option to try and eliminate Mr Bui’s pain. In August 2012 Mr Xenos commented that Mr Bui’s progress was slow and that he was unfit for any work. In October 2012 Mr Xenos noted that Mr Bui’s condition had stagnated and his back symptoms remained. In a report prepared in August 2013 Mr Xenos remained of the view that …the patient’s employment has been a significant contributing factor to the development and/or aggravation of this injury.
Dr Schutz, who undertook examinations of Mr Bui at Linfox’s request, first saw him in May 2007 and was optimistic about his progress. By September 2007 with symptoms continuing, he was less certain about a quick recovery.
Dr Lackner examined Mr Bui regularly and was of the opinion that Mr Bui continued to suffer from physical problems, directing work restrictions on nearly every occasion. By July 2008 he stated that there should be no loading of the vans or conveyor belt activity as well as no frequent twisting or heavy lifting.
Dr Cairns, in March 2011, who examined Mr Bui at Linfox’s request, accepted on the balance of probabilities that Mr Bui’s current condition was related to his employment and the effects of the pre-existing disc degeneration that was aggravated by work had not yet ceased. He specifically stated that there were no aspects of the clinical examination which suggested that Mr Bui was voluntarily exaggerating his symptoms. Dr Cairns was of the view that Mr Bui remained unfit for work at that time. In April 2012 Dr Cairns stated that Mr Bui was still unfit to undertake any work duties and would have at least six to 12 weeks before he could start a graduated return to work program.
Dr Kudelka, examining Mr Bui at his solicitors’ request on 13 September 2013, was of the view that Mr Bui’s condition was work related and that he was still suffering from the injury or aggravation. There were also reports to the same effect from Dr Tang and other general practitioners.
Mr Bui’s counsel urged the Tribunal to consider him as a witness of truth. She stated, and the Tribunal agrees, that his memory is not perfect; in fact it could better be described as poor. Most of the medical practitioners who examined Mr Bui found he was truthful. The visit to Professor Ehrlich and Mr Bui’s presentation there is troubling. Overall, however, on the balance of probabilities, the Tribunal accepts that Mr Bui has not exaggerated his symptoms.
The Tribunal accepts that Mr Bui was still suffering from symptoms with his back long after 1 April 2008 and 7 January 2013, the dates on which Linfox determined that liability for the back condition should cease. However, the impact of the injury appears to wax and wane. Mr Bui certainly appeared able to stand, sit and walk in the surveillance DVD taken in late 2013. However, as was commented by those doing the surveillance, Mr Bui was not seen undertaking any strenuous activities during their observations.
The Tribunal is particularly swayed by Mr Xenos’s evidence supplemented by that of Dr Cairns, Dr Lackner, Dr Bloom and Dr Tang. Their opinions, based on their examinations of Mr Bui are preferred in this matter to those of Professor Ehrlich who had a very different presentation by Mr Bui for unknown reasons.
The Tribunal is concerned that Mr Bui has not tried to undertake any return to work program in recent years. Linfox appears to have been a responsible employer in preparing return to work programs for Mr Bui which he has only attempted for a very short time before giving up. Nonetheless, the Tribunal is not satisfied that the dates chosen for the end of Linfox’s liability are appropriate.
The Tribunal notes that the definition of aggravation in the Act includes recurrence of a condition. The Tribunal finds that Mr Bui’s injury is readily classified as recurring in light of the medical evidence before it. The Tribunal is also satisfied that Mr Bui continues to be unable to work.
The Tribunal finds that liability for Mr Bui’s spinal injury had not ceased on the dates determined by Linfox and still continues.
The Tribunal therefore sets aside the two decisions concerning cessation of liability for Mr Bui’s spinal condition and substitutes a decision that liability still continues.
DEPRESSION
On 15 June 2012 Dr Chi-Lye Tang referred Mr Bui to a psychologist, Miss Khai Wong, as follows:
Mr Hanh Viet Bui is suffering depression. I believe it is secondary to his chronic pain and disability from his work injuries to his lumbar spine and intervertebral disc. I believe he would benefit from counselling.
Linfox’s insurer referred Mr Bui to Associate Professor George Mendelson for assessment. Professor Mendelson’s opinion, as set out in his report dated 9 October 2012 is partly reproduced below:
…Mr Bui...told me that he initially developed low back pain and symptoms affecting the left leg during 2007.
He told me that because of persistent symptoms he eventually stopped work in February 2011, and in June of this year he had low back surgery.
…
He is currently being prescribed three different types of opiate analgesics, and told me that he attends for physiotherapy twice per week and also now has been seeing a psychologist weekly for the past six or seven weeks.
…
While Mr Bui describes some manifestations of anxiousness …in my opinion there is no indication that he has any diagnosable mental disorder. It is also my opinion that there is no indication of any loss of work capacity due to a psychiatric illness or psychiatric impairment. Mr Bui’s overall prognosis is that of his physical condition, and there is no psychiatric contra-indication to his commencing a return-to-work program undertaking duties within the limitations of his physical conditions.
…
...The manifestations of anxiousness that he describes are due to an understandable psychological reaction to his physical complaints and to his current situation…
I have stated that I agree with the recommendation by Mr Xenos that Mr Bui be referred to a reputable pain management centre for a time-limited pain management and rehabilitation programme. Such programmes include sessions, either individual or group, with a suitably qualified and experienced clinical psychologist. In my opinion there is no indication that attending a psychologist outside of such a structured programme has been of any significant benefit to Mr Bui.
…
On 24 October 2012 Linfox’s insurers rejected liability under s 14 of the Act for the secondary condition of depression. On 21 November 2012 Mr Bui’s solicitors lodged an application for reconsideration in which they stated, amongst other things:
…
Our client seeks funding for treatment from a Psychologist, Khai Lan Wong who he has seen so far on six occasions since July, 2012 at a cost varying from $80 to $120 per consultation. The consultations have been paid by our client…
We do not propose to submit any medical reports as we would expect that CGU have already obtained reports from the treating Psychologist and treating GP relevant to this issue so that it was in a position to issue its determination based on all available relevant information…
In its reconsideration decision, Linfox’s review officer indicated that that:
25. I have taken into account all the medical material in this matter including the most recent report of Dr Chi-Lye Tang dated 2 October 2012. I have taken particular note of the opinions of Dr Xenos’ who recommends formal rehabilitation program. However, Mr Bui has declined an occupation rehabilitation program as offered by Linfox (Return to Work/Rehabilitation Team) pursuant to Section 37 of the Act. In the interim, Dr Tang continues to provide unfit certifications. As a result of Dr Tang’s unfit certifications, Mr Bui has essentially denied Linfox the opportunity to continue with rehabilitation and to provide Mr Bui with suitable employment.
26. Associate Professor Mendelson stated that “While Mr Bui describes some manifestations of anxiousness, as noted above, in my opinion there is no indication that he has any diagnosable mental disorder”. Thus, I am satisfied that with respect to the secondary condition of “depression”, whilst Mr Bui may be suffering from an ailment, such an aliment has not been contributed to, to a significant degree, by Mr Bui’s employment with Linfox. For Mr Bui to be entitled to compensation in accordance with section 5B of the SRC Act, Mr Bui’s ailment must have been contributed to a significant degree, by his employment with Linfox. As this is not the case, Mr Bui has no entitlement to compensation.
27. In assessing all of the evidence, I favour the opinion of the specialist Associate Professor Mendelson, over the opinion of Dr Tang, a General Practitioner.
The records of the Springvale South Medical Centre were obtained via summons at the request of Linfox’s solicitors. Those notes indicate that on 12 June 2012, Mr Bui separated from his wife. There had been a domestic argument soon after that which a neighbour reported to police and Mr Bui was asked to leave the home and stayed with friends. The applicant reported that he was very stressed due to his homelessness. In his evidence to the Tribunal, Mr Bui said that he and his wife had reconciled since that time. However, these incidents occurred at about the time of Dr Tang’s referral of Mr Bui to Miss Tang. These tend to lean towards a finding that there were other serious factors at play which would be expected to affect Mr Bui’s mood.
Mr Bui’s solicitors referred him to Dr Nigel Strauss, consultant and occupational psychiatrist, who prepared a report dated 2 April 2014. This was some 18 months after Professor Mendelson’s report. His opinion included the following:
There appears to be little doubt that this man is suffering from a work related physical condition and I note that he has had surgery but unfortunately has been left with significant pain.
Predominantly therefore this man’s incapacity which appears to be total, is due to his orthopaedic condition. Mr Bui has only ever done physically demanding work, he has chronic pain, he has language limitations and limited past experience and the chances of him finding work in the future are very small.
From a psychiatric point of view because of his circumstances, he has developed significant anxiety and depression, and in my opinion, on the basis that his physical condition is work related, he has a work related chronic adjustment disorder with mixed anxiety and depressed mood, and I believe that the diagnostic criteria in the DSM $ in relation to that condition, has been met.
I believe this man would respond to a pain management program involving psychological treatment if an interpreter was present. He does need at least 10 visits to a psychologist either independently or as part of a pain management program and his wife should be included in some of the treatment because there are significant strains upon their relationship.
In the mean time he should continue taking therapeutic dosages of antidepressants into the foreseeable future.
…
In conclusion, if this man is suffering from a work related physical condition he has a moderately severe work related psychiatric condition. No other factors appear to be relevant. His prognosis must be guarded.
…

In oral evidence Dr Strauss said that he had seen Mr Bui in the presence of an interpreter. He said that he had made his diagnosis on the basis of the physical injury being work related and ongoing. Told of stressors involving domestic circumstances, Dr Strauss said it was difficult to divide up what was pain related and what was due to other factors. Dr Strauss said it was not unusual to have marital discord in circumstances such as those being experienced by Mr Bui.
Professor Mendelson prepared a further report on 17 April 2014 addressed to Linfox’s solicitors after watching the surveillance DVD of Mr Bui’s movements in October and November 2013. He stated that a Vietnamese interpreter was present.
…
I note that you have asked whether at the time that he attended for consultation with me on 3 October 2012 Mr Bui’s presentation with respect to his “conduct” and “manner” has been the same or different from those depicted in the surveillance video.
I have reviewed my handwritten notes and report and as indicated in my previous report under the heading Interview Behaviour and Mental Status Examination there had been no abnormality of gait or anything unusual about Mr Bui’s presentation on which I would have commented in my report.
You have also asked whether there are “any significant differences in terms of Mr Bui’s presentation” when I examined him “and his reported symptoms and functional difficulties to that documented in the surveillance report and footage”.
As stated in my report dated 9 October 2012, at the time of the examination Mr Bui complained of constant low back pain. When I asked about his usual daily activities he said that he walked for five to ten minutes twice per day, and perhaps three times per week visited a nearby shopping centre.
He said that he avoided driving for longer than ten minutes because doing so exacerbated the low back pain.
Given that the surveillance video was filmed about 12 months after I examined Mr Bui, and I would have expected improvement in his physical condition following the surgery in June 2012, in my view the observation on the surveillance video are consistent with such improvement having occurred.
…
In oral evidence, Professor Mendelson confirmed that it was his opinion at the time of the report that Mr Bui was not mentally ill. He said that in his opinion the symptoms described did not warrant diagnosis at that time.
Professor Mendelson said that Mr Bui described anxiousness and concerns about the future. Professor Mendelson did not think that they were out of proportion to the situation. He also stated that he did not believe Mr Bui would meet the requirements of DSM5.
Professor Mendelson said that the evidence indicated that on 12 May 2012, Mr Bui had a loud argument with his wife, police were called, an intervention order was taken out and that Mr Bui was stressed by this. Professor Mendelson repeated that he did not think Mr Bui was depressed when he examined him.
Under cross-examination, Professor Mendelson confirmed that he did not have an interpreter present when interviewing Mr Bui. He said that if there had been any difficulties in communicating with Mr Bui, he would have written that down. Professor Mendelson said that he was aware Mr Bui had arrived in Australia in 1980 when he was seventeen or eighteen years old.
Miss Wong’s notes were singled out as indicating that Mr Bui’s wife had to stop work to care for him. Professor Mendelson said that this was not relevant in relation to the diagnosis but rather indicated another stressor. Professor Mendelson said that he found manifestations of anxiousness which was an understandable reaction but not to the extent of Mr Bui being mentally ill. Mr Bui had undergone spinal surgery, was taking three opiate based drugs and was feeling residual pain.
When it was pointed out that when Dr Strauss saw Mr Bui two years later, he had still not returned to work, Professor Mendelson said that it was possible that Mr Bui’s condition had worsened. He confirmed that he agreed with Dr Strauss that a pain management program might be helpful but visits to a psychologist for counselling outside that context might not be of particular assistance.
Both Professor Mendelson and Dr Strauss are experienced and knowledgeable psychiatrists whose expertise has been provided to the Tribunal in a range of matters. In this instance, the Tribunal prefers the opinion of Professor Mendelson who examined Mr Bui in late 2012, only three months after Dr Tang referred Mr Bui to a psychologist for counselling. Dr Strauss examined Mr Bui more than a year and a half later than Professor Mendelson. The Tribunal notes that Dr Tang did not refer Mr Bui to a psychiatrist.
The Tribunal accepts Professor Mendelson’s opinion that Mr Bui was exhibiting an understandable psychological reaction to his situation but was not suffering a diagnosable mental disorder. The Tribunal also accepts his opinion that there was no indication of any psychiatric illness that was preventing Mr Bui from working.
The Tribunal therefore affirms the decision to refuse compensation for Mr Bui on the basis of depression or anxiety as a secondary condition arising out of a workplace injury.
DECISIONS
141. In 2013/0454, the Tribunal affirms the decision under review.

In 2013/1365 and 2014/4089, the Tribunal sets aside the decisions under review and substitutes decisions that the respondent remains liable to pay compensation at the present date for medical treatment and incapacity payments pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1986.

Pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1986, the Tribunal orders the respondent pay the costs incurred by the applicant in relation to 2013/1365 and 2014/4089.

I certify that the preceding 141 (one hundred and forty -one) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
..................................[Sgd]..................................
Associate
Dated 6 May 2015

Date of hearing 18 and 19 November 2014

Counsel for the Applicant Ms J Frederico

Solicitors for the Applicant Galbally & O'Bryan

Counsel for the Respondent Ms E Ford

Solicitors for the Respondent Moray & Agnew Lawyers

[2015] AATA 301

6 May 2015

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Duty of Care

Negligence

Remedies

Costs

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2013/0454 2013/1365 2014/4089
Re	Hanh Bui
APPLICANT
And	Linfox Australia Pty Ltd
RESPONDENT

Tribunal	Regina Perton, Member
Date	6 May 2015
Place	Melbourne

Date of hearing	18 and 19 November 2014
Counsel for the Applicant	Ms J Frederico
Solicitors for the Applicant	Galbally & O'Bryan
Counsel for the Respondent	Ms E Ford
Solicitors for the Respondent	Moray & Agnew Lawyers