Hewitt and Comcare (Compensation)

[2023] AATA 991

Hewitt and Comcare (Compensation) [2023] AATA 991 (2 May 2023)

Division:GENERAL DIVISION

File Number:          2020/0535

Re:Tara Hewitt

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:2 May 2023  

Place:Melbourne

The Tribunal affirms the reviewable decision.

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

R Cameron, Senior Member

Catchwords

WORKERS’ COMPENSATION – review of decision denying liability for medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 – injury to lower back – L4/5 disc replacement – left lumbar pain – full patient history not furnished to some medical experts – multilevel degenerative change of lumbar spine – disc aggravation occurred due to coughing incident in 2005 – long history of musculoskeletal complaints – alternative condition of hypermobility – Tribunal satisfied that L4/5 disc protrusion or aggravation was an injury – Tribunal not satisfied that injuries occurred in the course of applicant’s employment – allegations of failed disc replacement surgery or failed back surgery syndrome not established – chronic pain not contributed to a significant degree by applicant’s employment – decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act1988 (Cth)

Cases

Cash and Australian Postal Corporation [2021] AATA 3323

Comcare v Lofts [2013] FCA 1197

Comcare v PVYW (2013) 250 CLR 246

Dring v Telstra Corporation Ltd (2021) 172 ALD 305

Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468

Portors and Comcare (Compensation) [2017] AATA 2166

Portors v Comcare [2018] FCA 914

Telstra v Hannaford [2006] FCAFC 87

REASONS FOR DECISION

R Cameron, Senior Member

2 May 2023

INTRODUCTION

1. The applicant seeks a review of a decision made by the respondent on 6 January 2020 (“the reviewable decision”).[1] The reviewable decision was a reconsideration of a determination made on 17 April 2019 which found that the respondent had no present liability to the applicant for medical expenses under s 16 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (“the SRC Act”).[2]

   [1] The reviewable decision is document 7 in the Tribunal Book.

   [2] The decision of 17 April 2019 is document 5 in the Tribunal book. It should also be noted that in relation to the applicant's claim for a secondary condition of chronic pain syndrome, the respondent determined that because the compensable condition was no longer work related, consideration could not be given to any secondary condition that may have resulted from non-compensable circumstances or from a non-compensable condition.

   THE EVIDENCE BEFORE THE TRIBUNAL

2. There was both oral and documentary evidence before the Tribunal during the hearing of this application.

3. The following witnesses gave oral evidence:

   (a)the applicant;

   (b)Dr David Gorman, a Consultant General Physician, Pain Management Physician and Medical Oncologist;

   (c)Dr Simon Journeaux, a Consultant Orthopaedic Surgeon; and

   (d)Dr Loretta Reiter, a Consultant Rheumatologist.

4. The documentary evidence consisted of two volumes of a Tribunal book together with the T documents and the supplementary T documents.[3]

   [3] The Tribunal book consisted of approximately 2708 pages.

5. Additionally, both parties lodged and served written submissions after the conclusion of the evidence.

   BACKGROUND

   The 2018 claim

6. The factual matrix in this matter has a long history. However, the trigger to this application occurred on 26 July 2018 when the applicant lodged with the respondent a document entitled “Notification of a Newly Reported Condition” (“the 2018 notification”).[4] The 2018 notification form contained the endorsement that, “This form is only used where an employee develops a new condition that is caused by the effects of an existing compensable injury or illness.” The new condition identified in the 2018 notification for which a claim was made, was described by the applicant as, “chronic back pain/nerve pain – hyperaldynia [sic]”. When asked to describe how the new injury had been caused by her existing compensable condition the applicant stated, “Began with severe episode of L4/5 back pain in 2009.” In the 2018 notification, the applicant was also asked if she had ever experienced a similar injury, work-related or otherwise, to which she responded, “No”.

   [4] The 2018 notification is document 4 of the Tribunal book.

7. The applicant, however, acknowledged in her evidence to the Tribunal, in some documents and instructions she gave to various doctors and other health care practitioners, that approximately 15 years earlier she had hurt her back getting shopping out of the back of a car.[5] Indeed, in the original Claim for Workers’ Compensation signed by her on 27 July 2005, in response to question 13 which asked whether she ever had a similar symptom, injury or illness before, work-related or otherwise, the applicant responded, “Lower back, 12 years ago. Occurred when lifting shopping out of car.” Further, in one letter the applicant later wrote to Comcare on 14 July 2008, she recorded that she discussed with her treating general practitioner Dr Lovell the fact that the back injury sustained in 2005 was listed as an aggravation of a previous injury.[6] That previous injury being to her back which was hurt some 15 years before the 2018 claim.[7]

   [5] Transcript pages 45, lines 41-44 and 51, lines 32-36.

   [6] The letter to Comcare is document 18 of the Tribunal book.

   [7] This was also canvassed in cross-examination at Transcript pages 45-46 and 51.

8. Given that the 2018 notification was said by the applicant to have arisen when she had developed a new condition caused by the effects of an existing compensable injury or illness, it is appropriate to briefly outline the history of the earlier claim. It did assume some significance during the hearing of the current application before the Tribunal.

   The 2005 incident

9. In July 2005 the applicant was employed by the National Oceans Office (now absorbed into the Marine Division of the Department of the Environment and Heritage).

10. The applicant gave evidence at the hearing of the application that she initially experienced pain in her back, including sciatic pain when she attended an induction conducted by the People Management Branch of the Department of Environment and Heritage as the National Oceans Office was being merged into that department. There was some variation in the dates that she said this occurred. In an attachment to the Workplace Incident Report form of 26 July 2005, the applicant said the induction occurred on 8 or 9 July 2005.[8] In her oral evidence to the Tribunal, she said her pain started in or around 8 and 9 June 2005.[9] The induction session she says was conducted over one afternoon and into the following morning.

    [8] This date is referred to in the attachment to document number 1 of the Tribunal book.

    [9] Transcript page 6, lines 18-19.

11. The source of the applicant’s back difficulties she says were caused as a result of her sitting in what she described as, “non-ergonomic seating for the duration of both sessions.” This was because there were not enough seats for the number of participants in the induction sessions. As a consequence, as she put it, “a whole bunch of us were sitting on cupboards in the hallway and at the back of the room.” The cupboards were said by her to be approximately a “foot and a half” wide, obviously quite narrow. She described some of the cupboards as low and that she was sitting with her knees bent up. Her back started hurting immediately after that. She stated she didn’t really think much of it, as these things usually remedy themselves fairly quickly. She did not go and see a doctor about this pain.

12. The applicant stated that, following the induction session, her back did “bother” her. Various descriptors were adopted by her in her evidence to describe her symptoms during this time. They included that she was fidgeting, uncomfortable and experiencing constant niggling back pain. She described it as being quite tight but not obviously a full back spasm. It was said to be a constant effort to get comfortable in her seat because sitting at a desk for long periods hurt her back. She identified in the material several occasions in which she had to sit for prolonged periods in what she considered was inappropriate or non-ergonomic seating during which her back would hurt. These included a flight to Melbourne on 26 June 2005 and return on 1 July 2005. This flight was to undertake a course for two days, a one-day workshop on 6 July 2005, several long meetings and then a flight to Canberra on 19 July 2005 about which more will be said. In her oral evidence she said she was in quite a bit more pain after the flight and after her arrival in Canberra.

13. The purpose of the trip to Canberra on 19 July 2005 was described as a two-day divisional workshop with the applicant’s new colleagues in the Marine Division of the Department of Environment. The workshop was conducted in a conference room or conference facility at the Olims Hotel. This was also the venue where the applicant had a hotel room and stayed for the duration of her time in Canberra whilst undertaking the conference.

14. The applicant stated that, immediately after her arrival in Canberra, that she attended several meetings. She believes they were in the John Gorton Building. After her attendance at those meetings, she returned to the Olims Hotel and met up with several of her work colleagues. There was no dinner provided at the Olims Hotel, so in company with her work colleagues the applicant went to another venue for dinner.

15. At the conclusion of the dinner the applicant returned to the Olims Hotel. She stated that when she was on the stairs about to enter the door, she turned around to wave to her work colleagues and started coughing and her back seized up completely. She then said that she was at a bit of a loss as to what to do, but just had to get to her room somehow, so she “shuffled” to her room.

16. In her evidence to the Tribunal the applicant said that she didn’t sleep much that night, and the following day she was still in considerable pain and could not attend the workshop because she wasn’t able to sit. She consulted a Canberra doctor, Dr O’Neil, on 20 July 2005, who prescribed some anti-inflammatories. The applicant said she took a massage, bought some strong “Mersyndol” to help her sleep and stayed in her hotel room for the remainder of that day and the following day. She said she was just stuck there.

17. On 21 July 2005 the applicant took the return flight to Hobart. She described it as not easy. Her subsequent account was that she did return to work, although she is not certain if that was immediately upon her return from Canberra. She described spending a lot of time upon her return to work lying on the floor with an ice pack and/or a heat pack. Her manager apparently handed her a Workplace Incident Report Form, and the Workers’ Compensation Claim form, advising her to complete the documents, see a doctor and not return to work until she was better. That is what she says she did.

18. A Claim for Workers’ Compensation was completed and signed by the applicant on 27 July 2005. In the Claim for Workers’ Compensation, the applicant described the injury or illness diagnosed as, “L4 L5 disc protrusion”.[10] The parts of the body injured were described as, “Lower back, right leg (sciatica).” There was a question in the claim form that asked what action, exposure or event happened to cause the injury or illness, to which the applicant responded, “I coughed”.

    [10] The Claim for Workers Compensation is document 2 of the Tribunal book.

19. On 21 September 2005, in response to a request from Comcare, the applicant’s treating doctor, Dr Madeleine Lovell, reported that the applicant’s symptoms were typical of the compression of the sciatic nerve at lumbar level L4 and L5, with pain radiating down the right buttock, back of the knee and to the ankle. Further, in response to a specific question, “Did her “coughing” aggravate or exacerbate the condition?”, Dr Lovell stated, “The coughing precipitated (exacerbated) the condition.”[11]

    [11] The report from Dr Lovell responding to a request from Comcare for information is document 12 of the Tribunal book.

20. On 26 September 2005, the respondent accepted the applicant’s claim under s 14 of the SRC Act for “aggravation of displacement of intervertebral disc – lumbar” which was said to have occurred on 19 July 2005.[12]

    [12] The letter accepting the applicant's claim under s 14 of the SRC Act and attached Statement of Reasons is document 3 of the Tribunal book.

21. Following the acceptance of the applicant’s claim in September 2005, she consulted several medical practitioners prior to events that occurred in 2009. Those practitioners included Dr David Humphries, a sports medicine physician, Dr Gajinder Oberoi, a pain physician, and her general practitioner, Dr Lovell. Various reports from those medical practitioners over that period were in evidence before the Tribunal.[13] Dr Oberoi described the source of the applicant’s pain as being from the left sacroiliac joint. He administered a left sacroiliac joint injection to the applicant. He stated that she had short-term relief from such injection. He observed in a report of 4 March 2009 that the applicant continued to experience sacroiliac joint symptoms affecting her sitting and driving.[14]

    [13] Documents 14 to 25 of the Tribunal book are referred to.

    [14] Dr Oberoi's report is document 25 of the Tribunal book.

22. Reference was made in Dr Reiter’s report of 10 September 2022 that the applicant experienced “another flareup of her lower back pain when she bent over in her bathroom at home to pick up a piece of clothing”, around Easter 2008.[15] Dr Reiter recorded that, following this incident, the applicant had three weeks off work and was given diazepam. This incident was not referred to by any other specialists who gave evidence to the Tribunal, namely, Dr Gorman and Dr Journeaux. It was not referred to in any claim form completed by the applicant. It was touched on briefly in her evidence, but she did not specify the date of the incident.[16] Given the length of time at the applicant had off work, the fact that this incident did not feature in the evidence before the Tribunal is surprising. It is also surprising that the applicant did not provide this aspect of her patient history to other specialists that she consulted.

    [15] Document 116 in the Tribunal book at page 466.

    [16] Transcript page 69, lines 7-10.

    The 2009 incident

23. It should be repeated that in the 2018 notification to the respondent, the applicant stated that her new injury or illness had begun with a severe episode of L4/5 back pain in 2009.

24. The applicant gave evidence that this episode occurred after she had been transferred to the Australian Antarctic Division. She was sitting at her desk and progressively felt nauseous and uncomfortable. This went on for several days. She then went home due to the pain in her back and rested for what she described as a couple of days. Her general practitioner was consulted and advised her to rest. She was however warned not to lie around for too long. Following that advice, she stepped outside her front door to retrieve her mail and as she described it, “landed on the floor in a screaming heap of pain basically.” In another passage of her evidence, she described it as, “a really horrific episode.”

25. When asked in cross-examination to describe the pain she experienced in this episode, the applicant stated that it was all across her lower back. As it improved, she described it is centralising. However, she also described it as a whole other level of pain. The pain was, in her description, from her ribs down, across her glutes, in her legs and essentially “everywhere”. The pain did settle to some extent but continued to be experienced by her more on the left side. At one point in her evidence, she even went so far as to say that she was 99.9% confident that the left-sided pain started at that time.

26. The Tribunal should observe that the applicant’s evidence concerning where she experienced her pain and that it was more on the left side is somewhat inconsistent with at least one medical report that was in evidence before it. A report dated 1 July 2009 from Dr Humphries records that the applicant saw him on that day.[17] Dr Humphries noted in his report that she did so for a second opinion about her episodic low back pain. She stated that she was not visiting him for any treatment or for a consultation concerning her back pain. Dr Humphries also stated in that report, “Episodically she gets something that is much more like an acute disc problem with right-sided sciatica. She is known to have a significant disc protrusion at L4/5, and it seems that this is the culprit that drives these intermittent episodes.”

    [17] The report from Dr Humphries of 1 July 2009 is document 100 of the Tribunal book.

27. It appears that the applicant did not inform Dr Humphries of the 2009 incident, which is surprising given the acute pain that she suffered in that episode. Also, it is surprising that the doctor refers to right-sided sciatica and makes no reference to the left side as the applicant did in her evidence to the Tribunal. The Tribunal considers that the applicant’s evidence concerning the 2009 incident was particularly strong. One would have expected her, having undergone an experience like that, to have raised it when she saw Dr Humphries, especially as the consultation was for a second opinion. This omission to mention left-sided pain to the doctor is also puzzling given the applicant’s evidence that she was, “99.9 percent confident” that her left-sided pain started in 2009 in what she also described as, “a really horrific episode”.

28. The applicant, in her evidence, described the 2009 incident as a particularly horrible episode that was way worse than it was before. Additionally, she said that it took her approximately 12 months to be able to return to full-time work. That was how long it took for the pain to, “centralise back down”. It was, in her words, a massive amount of pain. Indeed, she stated, “You can’t distinguish one pain from another when you’re, you know, kind of screaming on the floor.”[18]

    [18] Transcript page 60, lines 34-35. In her submissions in reply at Part 3, “Day to day life/other impacts, page 13, although not evidence, the applicant described the incident in 2009 as, "The most severe episode".

29. Further details will be furnished later in these reasons, but the Tribunal observes that in several instances, the applicant did not share her experience in 2009 with the doctors who undertook examinations of her, including to Dr Gorman whom the applicant called to give oral evidence at the hearing. Given the severity of the experience that the applicant suffered in the 2009 incident, this is very surprising indeed. It does limit the use of, or the weight that the Tribunal can place on such reports, due to the failure of those medical specialists to be provided with a complete and accurate patient history.

    Events after the 2009 incident and the applicant’s L4/5 disc replacement surgery

30. Following the 2009 incident the applicant, in addition to regularly seeing her general practitioner, did consult with a specialist Dr Paul Thompson. Several reports from Dr Thompson were in evidence.[19] In a report to Comcare of 8 July 2013, Dr Thompson stated that he had recommended to the applicant that she consider surgery. He opined that the best operation in the circumstances would be an L4/5 disc replacement using the M6L disc arthroplasty device. He requested on behalf of the applicant that there be funding for such surgery. In another letter to Dr Lovell of the same day, Dr Thompson repeated that he felt the applicant had really got to the point where she was seriously considering surgical intervention. He stated that she would require an anterior approach and opined that the best procedure would be a disc replacement (M6L) device.

    [19] Documents 28, 30, 35, 37, 40 and 41 of the Tribunal book. These reports from Dr Thompson are dated between September 2009 and July 2013.

1. Funding for L4/5-disc replacement surgery was approved. Such surgery took place on 14 August 2013 and was performed by Dr Andrew Hunn. Dr Thompson reviewed the applicant on 11 November 2013 following such surgery and observed that the applicant was progressing well on that day, he reported to Dr Lovell.[20] He recorded that the applicant stated to him that she had no significant ongoing back pain or leg pain. Additionally, it was noted that the applicant had returned to work. On examination she had a full range of spinal movements. Neurological examination of the lower limbs was normal. Finally, he stated that the applicant had an excellent range of movement with the device working normally. He expressed the opinion that she was fit for full-time duties, recommending a review in February 2014 with further x-rays.

   [20] The report from Dr Thompson to Dr Lovell of 11 November 2013 is document 44 of the Tribunal book.

2. Dr Thompson conducted a review in February 2014. A report of 17 February 2014 written following a review conducted by him on that day was in evidence before the Tribunal.[21] In that report, he recorded that since the surgery the applicant had been progressing reasonably well. Reference was made to some niggling left-sided lower lumbar/sacroiliac joint area discomfort, which the applicant was said to be coping well with. He did also record that on that day the applicant still experienced left-sided lower lumbar to sacroiliac joint pain and lateral buttock pain extending to the region of the left greater trochanter. On examination she had localised left sacroiliac joint tenderness. Dr Thompson examined x-rays which were performed on 6 February 2014. He observed that they recorded a well-positioned device at the L4/5 level which moved well between flexion and extension and lateral bending to the left and right. He stated there was no obvious complication related to the device or to other levels. Therefore, he expressed the opinion that it was difficult to know exactly what the cause of the applicant’s increase in pain was, but he felt that it was most likely, “soft tissue related”.

   [21] Document 46 of the Tribunal book.

3. Following receipt of a report from Dr Lovell on 6 March 2014, the respondent made a determination under s 16 of the SRC Act that compensation was accepted up to and including 31 March 2014 for payment of consultations with the applicant’s treating medical practitioner, pharmaceuticals related to the applicant’s condition and, only if required, physiotherapy for one session per week.[22]

   [22] A copy of the letter of determination of 6 March 2014 is document 49 of the Tribunal book.

4. Comcare made a further determination on 11 April 2014, under s 16 of the SRC Act for further payment of, GP consultations, related medications, review by a specialist, physiotherapy for flareup sessions (5 sessions only) and x-ray of lumbar spine.[23] This further determination was made following receipt of a medical certificate completed by Dr Lovell after she had conducted an examination of the applicant on 26 March 2014.[24]

   [23] The further determination made by Comcare 11 April 2014 is document 51 of the Tribunal book.

   [24] The medical certificate signed by Dr Lovell is document 50 of the Tribunal book.

5. Dr Thompson conducted another review of the applicant on 4 August 2014. Following that review he forwarded a report to Dr Lovell on the same day.[25] In that report, Dr Thompson stated that the applicant was progressing well. He further observed that in general the applicant’s back felt good and stronger and that she was more confident in it. It was reported that the applicant did not have any right leg or left leg pain. On examination Dr Thompson reported that the applicant had an excellent range of movements in all directions. Amongst other things, he also observed that there had been a significant improvement in her pain levels compared to her preoperative condition. On the same day, Dr Thompson completed a Medical Certificate for Compensation to Comcare.[26] Following receipt of Dr Thompson’s medical certificate, on 30 August 2014 Comcare made a further determination under s 16 of the SRC Act for payment of related consultations with the applicant’s general practitioner and related prescribed pharmaceuticals.[27]

   [25] The report from Dr Thompson to Dr Lovell of 4 August 2014 is document 55 of the Tribunal book.

   [26] Document 56 of the Tribunal book.

   [27] The Comcare determination of 30 August 2014 is document 57 of the Tribunal book.

6. On 2 February 2015 Comcare made a further determination under s 16 of the SRC Act for payment of 6 physiotherapy consultations from 2 February 2015 to 2 September 2015.[28]

   [28] The Comcare determination of 2 February 2015 is document 58 of the Tribunal book.

7. Dr Thompson reviewed the applicant again on 3 August 2015. On the same day he sent a report concerning that review to Dr Lovell.[29] As part of his review, he examined an updated x-ray of the applicant’s lumbar spine performed on 14 July 2015. The x-ray revealed a well-positioned and fully functional M6L device at the L4/5 level. Disc height above and below were well-maintained. Amongst other things, in his report Dr Thompson observed that the applicant had recently travelled to Africa without significant problems. She reported to him that her back was pretty good with no severe episodes of pain, only occasional niggles. He recorded that the applicant had no sciatica or sensory disturbance in the lower limbs. Finally, he expressed the opinion that overall, he thought the applicant was significantly improved following surgery.

   [29] The report of Dr Thompson to Dr Lovell of 3 August 2015 is document 60 of the Tribunal book.

8. Comcare retained Dr Peter Dodd, an orthopaedic surgeon to conduct a clinical examination of the applicant which he did on 25 September 2015. He prepared a report of the same date which was in evidence before the Tribunal.[30] Dr Dodd observed that the applicant stated to him that she had made a dramatic improvement since the disc replacement in 2013. He recorded her identifying pain felt in the region of the lower left rib cage and left buttock. She reported to Dr Dodd that the pain was aggravated by sitting, particularly on an uncomfortable or non-ergonomic chair. He described the prognosis for her condition as excellent. Several other observations were made by him in the report. He considered that on the balance of probabilities it would appear that the incident of 19 July 2005 led to an aggravation of a previous back injury, being disc degeneration at L4/5. He also concluded that one must assume that there had been a significant pre-existing pathology at L4/5 although he had no definite radiological evidence to establish this. Finally, he did not think that the applicant’s employment continued to contribute to her condition as such condition had been treated satisfactorily. Further, he said he did not think the applicant required any further treatment at that time, even though her treating doctor had suggested monthly physiotherapy.

   [30] The report of Dr Dodd to Comcare of 25 September 2015 is document 61 of the Tribunal book.

9. Following the receipt of Dr Dodd’s report, on 9 November 2015 Comcare made a determination of compensation in favour of the applicant under ss 24 and 27 of the SRC Act.[31]

   [31] The determination made by Comcare on 9 November 2015 is document 63 of the Tribunal book.

10. Dr Thompson reviewed the applicant on 11 July 2016. Following that review on the same day he sent a report to Dr Lovell.[32] He reported that this was a three-year follow-up. He observed that the applicant appeared to be progressing well, she reported no back pain, no lower limb pain, sensory disturbance or weakness. Dr Thompson also recorded that the applicant did not require any regular medication. On examination the applicant displayed an excellent range of movement of lumbar spine in all directions. He also stated, “I think she has had an excellent outcome from surgery.”

    [32] The report from Dr Thompson to Dr Lovell of 11 July 2016 is document 104 of the Tribunal book.

11. Dr Lovell sent a referral to Dr Humphries on 25 August 2016.[33] The referral thanked him for seeing the applicant concerning her “hypermobility.” She has also stated in the referral that the applicant had undergone the disc replacement and achieved a good result. However, she noted that hypermobility continued to give her problems especially of her shoulders, hips, SIJs and knees.

    [33] The referral from Dr Lovell to Dr Humphries of 25 August 2016 is document 105 of the Tribunal book.

12. A general practitioner, Dr Shelley Gray, who the applicant consulted after she moved to Victoria, wrote a referral to Dr Bruce Mitchell on 29 June 2017.[34] In that referral, Dr Gray stated that the applicant had issues with hypermobility, as part of Ehlers-Danlos syndrome connective tissue variant. She also observed that the applicant experienced significant pain issues, especially pelvic, and there was likely a progesterone linked component to the pain cycle.

    [34] The referral from Dr Gray to Dr Mitchell of 29 June 2017 is document 106 of the Tribunal book.

13. There was a report from Dr Mitchell of 10 July 2017 written after he had examined the applicant.[35] It appears from the report that Dr Mitchell is a pain physician or specialist from the “Metro Pain Group”. The applicant was referred to Dr Mitchell by her general practitioner shortly after she moved to Melbourne. He reported that the applicant presented with Joint Hypermobility Syndrome with the stigmata of low blood pressure and joint hypermobility. He described the applicant as having pain in her “TMJs, knees and thoracic spine but her most intrusive issue is pelvic girdle pain and pelvic instability, worse on the left side.”

    [35] The report from Dr Mitchell of 10 July 2017 is document 66 of the Tribunal book.

14. There is in evidence, a letter to Dr Gray of 31 July 2017 from Mr Hunn, the neurosurgeon who carried out the disc replacement surgery on the applicant in August 2013.[36] The letter was written by Mr Hunn following a review of the applicant that he had conducted on the same day. It is a very short letter, but it did record that the applicant was doing well. Further, the letter reported that the applicant was working full-time without restrictions and had no particular issues with her back at that time and has not since surgery. It is surprising in the circumstances that there was no reference in that letter to the applicant experiencing any pain from her lumbar region, or for that matter any other regions. Had the applicant complained of such symptoms one would have expected them to have been recorded in such a letter.

    [36] The letter from Dr Humm to Dr Grey of 31 July 2017 is page 2050 of the Tribunal book.

15. Apparently, Dr Mitchell conducted prolotherapy on or about 4 September 2017. In a report to Dr Gray of 12 December 2017 following an examination he recorded several observations.[37] They were that the applicant had very stiff lumbar movements with flexion, to the point where he was not sure that there was any lumbar movement at all. He questioned whether there was an underlying inflammatory arthritis occurring there.

    [37] The report from Dr Mitchell to Dr Gray of 13 December 2017 is document 67 of the Tribunal book.

    The December 2017 incident

16. There have been several versions of this incident.

17. Dr Thompson in a letter of 25 June 2018 to Dr Gray stated that the applicant had been stable until mid-December 2017.[38] He then recorded, presumably having taken a history from the applicant, that she had a flare of pain which was localised to the thoracolumbar junction area radiating to the lower lumbar area bilaterally. This occurred without apparent cause. Then he recorded that on 19 December 2017, the applicant squatted down to remove a roast chicken from the oven and had acute pain and spasm in the upper to mid lumbar area. This was severe and slow to recover. It was not associated with radicular pain.

    [38] The letter from Dr Thompson to Dr Gray of 25 June 2018 is document 72 of the Tribunal book.

18. In an email that the applicant sent to Comcare on 21 July 2018, a different version was given.[39] The account of events that she gave in that email covered the days of 17 to 19 December 2017. She described having a massive hyperallodynia flare encompassing her back and down her legs and that she felt very unstable. On that Friday, she recorded having a bone scan which took approximately one hour.[40] After the bone scan, she described being barely able to walk. Following that procedure due to her instability she commenced wearing a back brace. These symptoms continued into the next day which was a Saturday. On the Sunday she stated feeling the same and continue wearing a back brace. She experienced a back spasm taking a chicken out of the oven. She then attended the Royal Melbourne Hospital.

    [39] The email from the applicant to Comcare of 21 July 2018 is document 73 of the Tribunal book.

    [40] The results of the bone scan are contained in a letter from Dr Lee to Dr Mitchell dated 15 December 2017. This report is document 68 of the Tribunal book. The contents of the report are referred to in their entirety. The radiologist concluded that there was negative study for active inflammatory arthropathy. He also observed that in the lumbar spine, there were not significant focal inflammatory arthritic changes. Minimal symmetrical increased uptake at the bilateral L4/5 facet joints. The sacroiliac joints were normal.

19. In a report prepared by Dr Gorman dated 21 September 2020 in a section headed, “Subsequent Progress/Specialist Management”, he recorded that Dr Mitchell had arranged for the applicant to undergo a bone scan in late 2017.[41] During such bone scan, she was required to lie flat which she knew flared up her symptoms. He stated that unfortunately after the bone scan her symptoms did worsen and became considerably worse on 19 December 2017. In particular, the applicant experienced “acute pain” while at home after squatting down to remove a roast chicken from the oven.

    [41] Dr Gorman's report of 21 September 2020 is document 87 of the Tribunal book.

20. Dr Reiter in her report of 10 September 2020 also recorded that Dr Mitchell had referred the applicant for a bone scan.[42] In undertaking the bone scan the applicant was required to lie on her back for one hour, which led to another severe flareup of lower back pain. According to the applicant, the flareup was followed a few days later by her experiencing severe pain and associated muscle spasm when she squatted down to get a roast chicken out of the oven on 19 December 2017. It also noted that she attended the Emergency Department rooms and obtained some painkillers.

    [42] Dr Reiter’s report of 10 September 2020 is document 116 of the Tribunal book.

21. The applicant’s oral evidence concerning the December 2017 incident largely accorded with the version that she gave Comcare in her email of 21 July 2018. For instance, in one passage of her evidence-in-chief, she described being referred for a bone scan by Dr Mitchell. In undertaking the bone scan, she was required to lie on her back completely flat and still for an hour, which caused her pain to flareup. She described the incident of getting a chicken out of the oven a couple of days later which caused her back to spasm. She attended the Emergency Department of the Royal Melbourne Hospital. The Discharge Summary from that hospital was in evidence before the Tribunal.[43] The Discharge Summary recorded a principal diagnosis of “Acute exacerbation of chronic back pain”. It observed also that the applicant had comorbidities of chronic back pain and a previous disc replacement at L4/5. Consequently, she then made a claim for what she described as the “secondary condition”.[44]

    [43] The Discharge Summary is document 108 of the Tribunal book.

    [44] Transcript page 10, lines 28-36.

22. In another passage of her evidence-in-chief, the applicant described a point after her surgery where she no longer had any pain and that then suddenly there was this new pain in 2017.[45] A further description was given where she described a major flareup of pain which occurred around about 17 December 2017. She described the “chicken incident” as getting a chicken out of the oven.[46] The Tribunal observes that in the versions of the flareup, or “chicken incident” that were given by the applicant from the witness box, she did not state that she squatted down to remove the roast chicken from the oven.

    [45] Transcript page 18, lines 23-24.

    [46] Transcript page 26, lines 39-45.

    Some events following the December 2017 incident

23. Dr Mitchell prepared a report to Dr Gray of 28 December 2017.[47] In that report Dr Mitchell noted that the applicant had experienced a flare of severe spasms in the mid lumbar area. He stated that he was waiting for the applicant to get over the flareup and then proposed to place her on a 5–7-day course of Prednisolone.

    [47] The report from Dr Mitchell to Dr Gray of 28 December 2017 is document 69 of the Tribunal book.

24. The applicant was referred to Dr Brendan O’Brien, a neurosurgeon and complex spinal surgeon. Two short reports from him dated 3 April 2018 and 2 May 2018 were in evidence before the Tribunal.[48] In the report of 3 April 2018 Dr O’Brien recorded that the applicant had an artificial disc inserted. He commented, “This has been doing quite well. She has hypermobility symptoms throughout her body and just before Christmas, she got the onset of new low back pain.” Additionally, he noted that an MRI scan of the lumbar spine demonstrated no clear-cut cause for the lumbar pain. He also stated that the lumbar disc prosthesis looked well sighted and there was no significant evidence of adjacent segment disease.

    [48] The reports from Dr O’Brien to Dr Gray of 3 April and 2 May 2018, respectively, are documents 109 and 110 of the Tribunal book.

25. In his report of 2 May 2018, Dr O’Brien repeated that the applicant was experiencing ongoing discogenic pain in the lumbar spine. He also recorded that her pain is acute and chronic in the lumbar region. He observed that plain films of the lumbar spine performed several weeks previously had demonstrated that the applicant’s artificial disc at L4/5 was well-positioned with alignment maintained during flexion and extension.

26. Dr Mitchell wrote to Comcare on 25 May 2018.[49] In that letter he stated the applicant has “Failed Back Surgery Syndrome” following her L4/5 surgery and has marked neuropathic pain throughout her back and legs. She requires a trial of spinal cord stimulation.” He sought that Comcare accept liability for this treatment.

    [49] The letter from Dr Mitchell to Comcare of 25 May 2018 is document 71 of the Tribunal book.

27. As noted above, the applicant saw Dr Thompson on 25 June 2018 who prepared a report to Dr Gray on the same day. He recorded the details of the flareup leading to and including the chicken incident on 19 December 2017. He observed that at the time of the report, the applicant had pain in a similar area, but it was not as intense as it had been in December 2017. Importantly, he stated that it was difficult to say exactly what had been the driver for the increased levels of pain that the applicant had experienced since December 2017. He also observed that the only MRI change was a small sub ligamentous disc protrusion at the L2/3 level, but it was difficult to say when this occurred and whether it was the driver of the problems that the applicant was then experiencing. Also, he stated that the applicant’s descriptions of pain certainly did have a neuropathic element with “hyperaldynia [sic] and trigger points.” The pain he observed had a constant element that did not respond to postural change.

    THE MEDICAL EVIDENCE FROM THE WITNESSES WHO GAVE ORAL EVIDENCE

    Dr Gorman

28. Dr Gorman assessed the applicant on 4 August 2020 at the request of the respondent’s lawyers and prepared a report dated 21 September 2020. As noted above he gave oral evidence at the hearing of this application.[50]

    [50] Dr Gorman's report of 21 September 2020 is document 87 of the Tribunal book.

1. Dr Gorman was briefed with an array of documentary material under cover of a letter from the respondent’s lawyers dated 30 July 2020. Included with this material were computerised tomography (CT) scans, a bone scan and an MRI.

2. A patient history was recorded by Dr Gorman. In a section relating to the “Onset of Symptoms (or Illness)/Sequence of Events”, he briefly outlined the circumstances as conveyed to him by the applicant of the July 2005 incident. Brief reference was made to the “Initial/Early Treatment Received”. Surprisingly, there was no reference by him to the 2009 incident. It was then recorded that on 14 August 2013, the applicant underwent an L4/5 disc arthroplasty (replacement). He then recorded that the applicant informed him that after the disc arthroplasty, she improved. However, notwithstanding such improvement, the applicant still noted some left-sided lumbar pain.

3. The next event in the patient history recorded by Dr Gorman concerned the applicant attending a bone scan in late 2017 which was arranged by Dr Mitchell. He noted that during the bone scan the applicant was required to lie flat which she knew flared up her symptoms. He then recorded that the applicant experienced “acute pain” while at home after squatting down to remove a roast chicken from the oven.

4. Dr Gorman opined that his assessment conducted on the applicant did not indicate any extensive spread of pain and he believes the history and examination was consistent with the symptoms which would follow an L4/5 disc arthroplasty.

5. In response to a question requesting his diagnosis of the applicant’s 2005 condition, Dr Gorman expressed the opinion that he believed the applicant had musculoligamentous strain of the lumbar spine with probable L4/5 disc injury. He also expressed the opinion that the coughing incident experienced by the applicant on 19 July 2005 was the cause of her L4/5 disc protrusion.

6. Dr Gorman recorded that there was no history of any pre-existing lumbar spinal condition. This of course is different to the disclosure made by the applicant in the 2018 notification to Comcare that approximately 15 years earlier she had hurt her back getting shopping out of the back of a car. It is surprising that the history of this previous incident was not provided by the applicant to Dr Gorman at the time that he conducted his assessment of her.

7. Dr Gorman was asked to state whether, after his examination of the applicant, the 2005 condition had resolved. In response to this question Dr Gorman stated that the sequence of events which he obtained was that the applicant had experienced lumbar pain from 2005 which continued, with exacerbations and remissions. These symptoms required extensive treatment by various medical practitioners in Tasmania which led up to the disc replacement surgery in 2013. He recorded that the disc replacement surgery improved the applicant’s symptoms although she was still seeing doctors in Tasmania for ongoing pain. She was referred to doctors in Melbourne when she moved there. He recorded that the applicant’s symptoms have continued since. Given that sequence of events, he concluded that he did not believe that one could say that the 2005 condition had resolved.

8. Dr Gorman was also asked to opine if the 2005 condition had not resolved, whether he believed the workplace events in 2005 continued to contribute to that condition to a material degree. He repeated that the sequence of events was such that he believed that the 2005 incident did materially contribute to the applicant’s current condition. This opinion was expressed as subject to a proviso, or caveat, that the applicant had undergone extensive treatment and some of her continuing symptoms were certainly due to the effects of the surgery rather than any direct effect of pathology arising in 2005. He also stated that similarly, with such an extensive number of radiofrequency lesions both to the nerves to the facet joints and to the sacroiliac joints, one might wonder whether some of the applicant’s ongoing symptoms might have been secondary to neuropathy following such procedures. Finally, in response to this question, he stated even with such qualifications, all of the procedures, including the disc replacement surgery, occurred following the pain after the 2005 incident and therefore could be considered as arising from the 2005 incident in his opinion.

9. He was also requested to provide his diagnosis of the cause of the applicant’s so-called “2018 condition”. In response he opined that this condition was best described as “lumbar pain post disc replacement surgery.”

10. Further, Dr Gorman was requested to provide an opinion on whether the 2018 condition (if applicable) was caused by an identifiable physiological change in the applicant’s lumbar spine. His response to this question was that his diagnosis above was general. He stated he did not believe that it was possible at that stage to be definite about the “pain generator”. Dr Gorman’s view was that it is unlikely the source of the pain was a sacroiliac joint problem based both upon his examination and also the fact that the applicant had numerous attempts at blocking nerves to these joints. However, he considered there may be an element of cluneal nerve compression, particularly with the applicant’s hypersensitivity over the lumbar spine. As well, some of the pain may be coming from the facet joints above and below the side of the arthroplasty.

11. Dr Gorman expressed the opinion that whilst one could not be certain of what the physiological changes were, there was no doubt having an artificial disc in place does cause some physiological and mechanical changes (scarring; mechanical changes due to the positioning of the artificial disc etc). Those changes in physiology, Dr Gorman said, can cause pain.

12. Dr Gorman was also requested to provide his opinion regarding the factors that may have contributed to the applicant’s 2018 condition, and whether or not the current condition was contributed to, to a significant degree, by the applicant’s employment taking into account several factors. His response was that he considered the 2018 condition was caused by factors related to the 2013 disc replacement which may include facet joint strain and above and below the side of the disc replacement and/or discogenic pain above and below the side of the disc replacement and/or bilateral cluneal nerve compression and/or scarring related to the disc surgery and/or mechanical factors related to the positioning of the disc.

13. On the basis that the disc replacement occurred after the 2005 employment related injury, he expressed the opinion that the current condition was contributed to, to a significant degree, by the employee’s employment by the respondent.

14. In the witness box, Dr Gorman adopted the contents of his report of 21 September 2020.

15. When asked a question in the witness box as to whether the applicant’s ongoing pain could also be attributed to her disc replacement surgery, Dr Gorman agreed it was most likely to be the case. He stated that the pain was most likely related to the disc replacement surgery because there are a number of effects from not only the fairly extensive surgery required to undertake a disc replacement, but also, having the disc replacement in situ and its change in the mechanics of the lumbar spine. He stated that all those things can cause quite widespread symptoms in the lumbar spine and groin. He felt the applicant had some groin pain, so he believed those matters were related to the extensive surgery and the mechanical effects of having the disc, being an artificial disc, in place.

16. Dr Gorman repeated on several occasions that the applicant’s ongoing back pain, in his opinion, was caused by the 2005 incident. He also stated that he did not believe the applicant’s ongoing pain was as a result of a degenerative condition of her spine.

17. In cross-examination, Dr Gorman was asked what other alternative explanations there would be for the applicant’s complaints of pain if it were the case that the applicant’s condition was not contributed to by the surgery. In response, he stated by way of alternatives that lumbar spinal pain can come from disc injuries, from facet joint injuries, and strain from nerve compression in the lumbar spine. So, all those things could be the cause of the pain.

18. To his credit, Dr Gorman readily conceded that an underlying degenerative condition could explain the pain from which the applicant complains of. However, he reiterated that in his opinion there was no doubt that the surgery was responsible for the pain experienced by the applicant which also may have been arising from other sites in the spine. Dr Gorman further explained that he was certain that wherever the pain generator was, the applicant’s pain was aggravated by the change in mechanics, and the change in physiology and the lumbar spine that arose as a result of the disc replacement surgery.

19. Dr Gorman consistently during cross-examination maintained that the disc replacement surgery that the applicant underwent did not cure her condition. Following the surgery, the applicant still experienced pain and was still consulting the same doctors. He contended that the pain may well have changed and probably did so because of the change in the applicant’s anatomy that resulted from the surgery. All nerves that were cut, that were necessary to access the discs, and groin pain she experienced with the anterior surgery were reasons why the pain that the applicant experienced may have changed after such surgery.

20. During one passage in cross-examination, Dr Gorman stated he guessed that the only support for his conclusion that the applicant experienced pain symptoms after the disc replacement surgery is that the pain was provoked by subsequent movement, be it during the bone scan, or picking up the chicken in December 2017, and that provocation was caused by the abnormal anatomy secondary to the disc replacement. It was suggested to him that this response was speculation, because there was evidence of an underlying degenerative condition and evidence of hypermobility which were other explanations for the pain in 2017. It was put to him that it was just speculation that there was some movement which somehow related to the operation and would somehow have caused the pain in 2017 when the applicant was reaching for the chicken. He responded, “Yes, it is speculation, yes.”

    Dr Journeaux

21. Dr Journeaux assessed the applicant on 9 April 2021 at the request of the respondent’s lawyers and prepared a report dated 14 May 2021.[51] As noted above, he also gave oral evidence at the hearing of this application.

    [51] The report of Dr Journeaux is document 117 in the Tribunal book.

22. Dr Journeaux prepared a quite extensive report that occupies 27 pages. He was briefed with an array of documentation that included the T documents, a variety of documents that had been summoned from various healthcare practitioners who had treated the applicant, together with the report of Dr Reiter of 10 September 2020 and the report of Dr Gorman dated 21 September 2020.[52] Included in the material accompanying the instructions to him were a significant number of various forms of medical images of the applicant that were taken between the dates of 11 April 2006 and 26 October 2020.

    [52] Precise details of the documents that were furnished to Dr Journeaux at the time he was retained to conduct the assessment of the applicant on behalf of the respondent can be found in his report under the heading "Documentation Reviewed".

23. The Tribunal should observe that an impressive feature of Dr Journeaux’s report was the very comprehensive review of the reports and notes that were provided to him with the letter of instruction. This review not only recounted the key features of each of those reports and notes but also reflected the fact that the contents had been explored by him when he assessed the applicant and, in doing so, he probed her to obtain her instructions and views on their contents. He then expressed, where appropriate, his opinion on any relevant matter arising from the contents of such reports and notes after reviewing them and taking instructions from the applicant as required.

24. He took a history from the applicant including details of the injury and the onset of her symptoms and conditions. After taking this history from the applicant, he also took a case history and details of the treatment of her injuries and symptoms. The details of the patient history with respect to these topics need not be repeated for the purposes of these reasons.

25. With respect to the applicant’s current symptomology, Dr Journeaux recorded that the applicant primarily described herself as experiencing left-sided lumbar pain affecting the whole of the lumbar region from approximately L1 to L5. Additionally, she stated to him that there was some radiation of pain across to the right side at the L4/5 level. Such pain was described by the applicant to Dr Journeaux as a constant sharp “nervy pain” with a deep muscular type ache. Concerning the strength of the pain experienced by the applicant, she stated that it varied between 5/10 to 7/10 on the visual analogue scale and was aggravated by prolonged standing (more than two minutes) or by prolonged walking (more than five minutes). Dr Journeaux in his report also recorded the applicant as informing him that she found there was nothing that really relieved the pain apart from avoiding these aggravating activities.

26. In the section of his report entitled “Summary and Assessment”, Dr Journeaux opined that the applicant on the medical evidence before him had what he regarded as no significant injury in the course of her employment circa July 2005 that explained her current presentation. He then expressed the view that the objective pathology, however noted, contemporaneously would be that of an L4/5 disc protrusion. It was his view that the 2005 coughing incident aggravated such constitutional degenerative condition from a pathological and symptomatic perspective.

27. Dr Journeaux further observed that there appeared to have been some improvement following the applicant undergoing the disc arthroplasty. However, he then recorded that the L4/5-disc pathology is not the only abnormality from a pathological basis in the lumbosacral spine. He further opined that in essence, the applicant has multilevel degenerative change at the lumbar spine level, with likely multiple nociceptive sources of pain that emanate from the lumbar which have been recalcitrant to treatment.

28. A series of specific questions concerning what were described as the “2005 condition”, and the “2018 condition”, were then contained in the letter of instruction to Dr Journeaux to which he provided answers in Part 5 of his report. They were as follows:

    (a)In response to a question requesting his diagnosis of the applicant’s 2005 condition, Dr Journeaux opined that it represented the natural history of L4/5 disc degeneration and an acute presentation following a coughing incident whilst at work.

    (b)With respect to the history of the 2005 condition, he stated that there was no significant work mechanism of injury that had contributed to the applicant’s condition. Further, he stated the underlying condition is constitutional and degenerative. In support of this conclusion, he enclosed a paper that referenced the aetiology and pathogenesis of lumbar disc pathology.

    (c)Concerning any relevant past medical history, including any pre-existing pathology or conditions, which contributed towards the 2005 condition, he repeated that the underlying condition is degenerative and there is no causal relationship to work other than the fact that the symptoms appeared to have arisen whilst the applicant was at work.

    (d)Dr Journeaux was asked whether the 2005 condition had resolved and, if so, when. His response was that the applicant’s condition at that time represented a natural history of constitutional L4/5 disc pathology which never resolved. He further stated that the fact that the disc pathology did not resolve represented the natural history of the constitutional condition.

    (e)He was also asked if the 2005 condition had not resolved, whether the workplace events of 2005 continued to contribute to such condition, to a material degree. Dr Journeaux’s response to this question was that in his opinion the workplace events of 2005 did not contribute to a material degree to that condition nor to the ensuing events.

    (f)Dr Journeaux was requested to express an opinion on what reasonable medical care (if any) the applicant requires in respect of the 2005 condition. His response was that the applicant has had all reasonable treatment for such condition but in essence would not appear to have had a long-lasting result in terms of pain or the effects on functional capacity.

    (g)With respect to a question concerning the applicant’s current and future work capacity insofar as it was impacted by her 2005 condition, Dr Journeaux expressed the opinion that it would appear the applicant is able to work in a sedentary role without significant restrictions putting up with symptoms.

    (h)He was requested to provide his diagnosis of the cause of the applicant’s 2018 condition. In response he agreed that the applicant does have chronic back pain. He stated that he would not label her pain as nerve pain, nor did he believe that she has hyper-allodynia. Additionally, he stated there is an indirect relationship to the 2005 condition insofar as a consequence of the onset of the 2005 condition and the treatment for this 2005 condition, she has developed essentially chronic pain.

    (i)Dr Journeaux was asked to state the date on which the 2018 condition arose. He responded that it is impossible to actually give a definitive date as to when the 2018 condition arose. Further, he stated that in essence the applicant has had chronic pain ever since the initial onset of symptoms of variable degree.

    (j)He was asked whether the 2018 condition was caused by an identifiable physiological change in the applicant’s lumbar spine. His response was that, given the rather vague diagnosis of chronic back pain, nerve pain and hyper-allodynia, there is no identifiable physiological change in the applicant’s lumbar spine. He did say that there would undoubtedly be progressive constitutional degenerative changes, however.

    (k)Dr Journeaux’s opinion was sought regarding the factors that may have contributed to the applicant’s 2018 condition and specifically whether or not such condition was contributed to, to a significant degree, by her employment, taking into account several identified factors. His response was that he had noted all the relevant factors, and that there was no significant employment factor in his view that had contributed to the 2018 condition.

    (l)He also expressed the opinion that the reasonable care that the applicant has had in respect of the 2018 condition has been offered and provided to her.

    (m)With respect to any comments in relation to the applicant’s current and future work capacity insofar as it is impacted by her 2018 condition, he responded that the applicant has demonstrated capacity to work in her usual capacity and he did not anticipate any ongoing issues in the future.

29. In the witness box, Dr Journeaux adopted the contents of his report of 14 May 2021 and to a large degree repeated its essential elements. It is worthwhile for the purposes of these reasons to briefly recount some of the evidence he gave from the witness box.

30. With respect to the July 2005 coughing incident, Dr Journeaux stated that it appeared to be a significant event that occurred on that date, in which the applicant suffered, in his view, discogenic back pain that would have been in the context of a pre-existing degenerative L4/5 disc. In terms of the actual pain in the lower spine at the L4/5 level, at the time of the applicant’s coughing, he was asked to give a version of the way the pathology at that level worked. He explained that on the balance of probability, the annulus fibrosus, which is the circular fibrous tissue around the main part of the nucleus pulposus which is the jellylike material inside, would have been degenerative and there would have most likely been some fissures, or weakening, of the collagen fibres. That, together with the coughing incident, would have caused the inside internal component of the disc to protrude through that weakness. It was, he stated, similar to an inner tube of a car tyre, popping out through a weakness in the tyre.

1. Dr Journeaux was asked a question concerning the pain that the applicant complained of in her back following the December 2017 incident when she removed a chicken from the oven. He was asked whether he saw any evidence contained in either the medical reports or the medical images of the applicant’s spine to suggest that the disc replacement treatment had caused the pain which the applicant complained about following the December 2017 incident. He stated that in his view he did not.

2. Dr Journeaux was asked why he was not able to relate causally the July 2005 incident with what he understood happened in terms of the L4/5 disc and what the applicant was currently presenting. He responded that in 2005 the applicant presented with symptomatic L4/5 disc pathology, which troubled her thereafter on an ongoing chronic relapsing basis. Ultimately, it was deemed appropriate to perform an L4/5 discectomy. Based on the medical evidence and in particular, the post-operative records at that time, up to and including at least four years after the surgery, there appeared to Dr Journeaux to have been a good result from such surgery in terms of resolution of pain and presumably, functional capacity.

3. In response to another question about the applicant’s condition, Dr Journeaux explained the prevalence of back pain in the general population as well as constitutional degenerative changes, even in patients in their 20s and 30s. A higher proportion of the population are affected as people get older. There are also ageing and genetic effects. So, in the applicant’s case, he did not believe there was a significant causal relationship to work, only that the incident occurred whilst she was at work in terms of coughing.

4. Dr Journeaux repeated that he did not think one could relate the events of 2005 and ultimately the surgery for the L4/5 disc as being causative at a pathological level in terms of the current symptoms.

5. He concluded that the applicant had a diagnosis of multilevel degenerative change of the lumbar spine.

   Dr Reiter

6. Dr Reiter assessed the applicant on 11 August 2020 at the request of the respondent’s lawyers and prepared a report dated 10 September 2020.[53] As noted above she also gave oral evidence at the hearing of this application.

   [53] The report of Dr Reiter is document 116 in the Tribunal book.

7. Dr Reiter was instructed with an array of material that included amongst other things, CT scans, bone scans, MRI scans and x-rays of the applicant’s lumbar spine.

8. Dr Reiter in her report in the section headed “Diagnosis” observed that the applicant had an L4/5 intervertebral disc injury to her lumbar spine, occurring on 19 July 2005, when she was in Canberra for a conference, when she coughed, with resultant severe low back pain and muscle spasm. She stated that it would be considered an aggravation, as the applicant previously had injured her lumbar spine, more than likely an intervertebral disc injury from which she recovered when she was in her mid-20s and was lifting groceries out of the back of her car.

9. She recorded that the applicant had experienced chronic low back pain that has fluctuated in intensity at times requiring her to have time off work with treatment by multiple physicians, including sports physicians and pain specialists. Additionally, she recorded that the applicant had a significant but not complete improvement in her low back pain following an L4/5 intervertebral disc replacement.

10. Dr Reiter then expressed the opinion that in view of the nature of the applicant’s lower back pain post-surgery being very different from her pre-surgery pain, she would consider that the surgery had been successful. She also concluded that from an examination of the applicant’s medical records that there is documentation of her lower back pain being on the right side with referred pain to her right and lower limb. The applicant, she recorded, is now reporting that her right-sided lower back pain occurs occasionally as a twinge, with her current pain now being localised to her left lumbar area, so it is not due to the original cause of her lower back pain from 2005.

11. Dr Reiter also opined that the applicant is suffering from chronic lower back pain, but she does not have nerve pain, as she has no pain radiating into her lower limbs and there was no evidence on the imaging that she examined, in particular the applicant’s last MRI of her lumbar spine dated 21 March 2018, that showed evidence of nerve root impingement. In regard to allodynia, she stated that this is hypersensitivity to light touch, which was not present when she examined the applicant.

12. Therefore, Dr Reiter stated given the applicant has undergone successful surgery (which she noted throughout the applicant’s medical file had been recorded by several medical practitioners), then in her opinion, the applicant’s Ehlers-Danlos Syndrome, which makes the applicant extremely hypermobile, is the cause of her current lower back pain.

13. Several other specific questions were put to Dr Reiter to which she responded in her report of 10 September 2020, some of which should be referred to by way of completeness. Dr Reiter expressed the opinion that the applicant did not require any treatment for her 2005 condition.

14. With respect to the 2018 flareup of pain which followed the applicant lifting a roast chicken out of the oven when she squatted down to do so, Dr Reiter expressed the opinion that it was most likely due to the applicant being hypermobile (her congenital condition of Ehlers-Danlos Syndrome). Dr Reiter opined that the elasticity of the applicant’s collagen allows increased movement, stress through the SI joints, with her placing mechanical stress on her SI joints when she squatted, which then caused her pain. Dr Reiter emphasised that it bears no relationship to her original L4/L5 injury.

15. In the witness box Dr Reiter adopted the contents of her report of 10 September 2020 and to a large degree repeated the substance of the opinions expressed by her in that report. It is worthwhile for the purposes of these reasons to briefly recount some of the evidence she gave from the witness box.

16. Dr Reiter was asked to express certain opinions with respect to the report of Dr Gorman. She stated that she did agree that it is very difficult to be absolutely certain of the source of the applicant’s pain. However, she observed that the main crux of the applicant’s pain was right-sided, which in her opinion completely resolved with the L4/5 disc implant. That in her opinion indicated that the surgery was successful in resolving that pain.

17. Dr Reiter was also asked to comment on Dr Gorman’s evidence that the relationship between the post-operative situation and the generator of the pain from which the applicant complained is all speculative. She stated that she would completely agree that ultimately it is all speculative. Medical practitioners make their best judgement diagnosis based on the combination of history, examination and imaging findings.

18. Specific portions of Dr Gorman’s report were put to Dr Reiter. In particular, that section of Dr Gorman’s report where he expressed the opinion that the applicant’s 2018 condition was caused by factors arising as a result of the 2013 disc replacement. Dr Reiter was asked whether the disc replacement in 2013 played a part. Her response was that she would call it facet joint degenerative disease just above and below, which may have been to some degree contributed to by the L4/5 disc implant. However, she qualified this observation that if there was scarring related to disc surgery, then that usually would lend itself to things like arachnoiditis, which is scarring inflammation around the nerve roots, and the presentation would be very different to the applicant’s current presentation.

19. Significantly, Dr Reiter also stated that mechanical factors related to the position of the disc should have been immediate. As the applicant was significantly better following her surgery, in her opinion, that indicated such surgery was successful. This was except for the left-sided pain, which was pre-existing, and which, in her opinion, did not bear any relationship to the L4/5 disc level and the replacement.

20. Another aspect of Dr Reiter’s evidence is worthwhile reproducing concerning the disc replacement surgery. She was asked about Dr Gorman’s conclusion that the 2017 incident involving the chicken must have been caused by something happening in the applicant’s spine which related to the disc replacement surgery she underwent. Dr Reiter repeated that once again, it is speculation and that it would be expected, if the pain originated from her L4 or L5 disc, and the pain had not completely resolved, that she would then experience a recurrence of the same pain she had prior to having her L4 or L5 arthroplasty, which is not what happened. Therefore, she disagreed with Dr Gorman’s opinion.

21. Dr Reiter was shown several letters or reports concerning the applicant and a condition known as “hypermobility”. There was the letter from Dr Lovell, the applicant’s general practitioner, to Dr Humphries of 25 August 2016,[54] a letter from Dr Gray to Dr Mitchell of 29 June 2017,[55] and a letter from Dr O’Brien to Dr Gray of 3 April 2018.[56] A passage in the letter from Dr O’Brien to Dr Gray was read to Dr Reiter and she was asked what she understood by that section.[57] Her response was that the origin was different to her original L4, L5. She further opined that what those reports were proposing is that the applicant’s lower back pain is originating from being hypermobile. She stated that it is not uncommon to see. In fact, she opined that it is common in these patients to see sacroiliac joint pain because of sacroiliac joint dysfunction.

    [54] The letter from Dr Lovell to Dr Humphries of 25 August 2016 is document 105 of the Tribunal book.

    [55] The letter from Dr Gray to Dr Mitchell of 29 June 2017 is document 106 of the Tribunal book.

    [56] The letter from Dr O’Brien to Dr Gray of 3 April 2018 is document 109 in the Tribunal book.

    [57] The passage from the report of Dr O'Brien read as follows: "She had an artificial disc inserted four years ago. She has hypermobility symptoms through her body, and just before Christmas she got an onset of a new lower back pain."

22. Also, whilst in the witness box, Dr Reiter was shown a report prepared by Dr Farshad Ghazanfari, a Consultant Physician in Acute Care & General Medicine and Musculoskeletal Physician, dated 24 June 2019 addressed to Dr Gray.[58] In that report Dr Ghazanfari refers to the applicant having a background of hypermobility syndrome and previous subluxation. Dr Reiter was then asked what that terminology meant, to which she responded, that the applicant definitely has hypermobility syndrome. She explained that subluxation usually means that a joint is partially dislocated but not fully. That is because the collagen allows so much movement. She described it as quite a significant movement to have subluxation in a joint, which indicates quite lax collagen not holding that joint as it should do. This phenomenon or syndrome lends itself to, and might well have done in this case, significant capsular tears.

    [58] The report from Dr Ghazanfari to Dr Gray of 24 June 2019 is document 113 of the Tribunal book.

23. Dr Reiter was shown a further report written by Dr Ghazanfari on 11 November 2019 to Dr Gray which referred to, amongst other things, problems including, “possible sacroiliitis.”[59] The report also refers to the applicant complaining of intermittent severe pain around L2-L3. Dr Reiter was asked if the pain experienced by the applicant was coming from that level and if, for any reason, it was connected with the disc replacement surgery. Dr Reiter reiterated that, as Dr Gorman had done, that it was speculative as to where the applicant’s pain was originating from. She also stated that it came potentially from her disc bulging and certainly her being hypermobile which suggests that her discs would be more likely to bulge. Further, in response to this question, she stated that if that was where the applicant’s pain originated, she would consider that it was not at all related to her L4/5 disc implant. She opined that it was a separate issue or condition occurring as a degenerative condition in her spine.

    [59] The report from Dr Ghazanfari to Dr Gray of 11 November 2019 is document 114 of the Tribunal book.

24. A short report from Dr O’Brien to Dr Gray dated 2 May 2018 was then shown to Dr Reiter.[60] A passage from that report was read to her.[61] Dr Reiter stated that epidurals are used for a prolapsed disc that is causing the spinal canal to be much smaller. She described it as basically bunching up on those nerve roots. Then she stated it would follow that the applicant could have pain emanating from the L2/3 level. This would not be as a result of any changes due to the insertion of the artificial discs at a higher level, namely L4/5.

    [60] The report from Dr O’Brien to Dr Gray of 2 May 2018 is document 110 of the Tribunal book.

    [61] The passage concerned was as follows: "She has ongoing discogenic pain in the lumbar spine. I have arranged for a CT guided lumbar epidural at L2/3. I think she is getting discogenic pain from this region."

    Conclusions on the medical evidence

25. The applicant contends that the evidence before the Tribunal, and the diagnoses made by the medical practitioners who gave evidence are all speculative. She further submits that without additional testing and what she describes as “invasive procedures”, which the experts who have examined her are unable to carry out, they are unable to state for certain what her exact pain drivers might be.[62] The Tribunal cannot agree. There was a significant body of evidence before it from both the reports and the doctors who did give evidence in the witness box which enables the Tribunal to reach a conclusion on the preponderance of such evidence.

    [62] Part 2 of the applicant's submissions in reply, "History of the matter", are referred to. In particular at page 9.

26. Overall, the Tribunal prefers the evidence given by Dr Journeaux. It does so for several reasons. Largely his evidence was consistent in that he expressed the opinion that there was a degenerative change or condition occurring in the applicant’s lumbar spine. Whilst he agreed to some extent with Dr Gorman’s candid concession that there was some level of speculation, he rationally explained why he reached the conclusions that he did. Additionally, this conclusion expressed by him was consistent with the opinions expressed in several other reports that were in evidence before the Tribunal prepared by other specialists who did not give oral evidence at the hearing. In particular there were the reports of Mr Max Wearne, Dr Caroline Tan and Dr Peter Dodd, all of which referred to a prognosis of disc degeneration in some shape or form, which are summarised later in these Reasons for Decision.

27. Additionally, the opinions expressed by Dr Journeaux are consistent with the applicant’s patient history of previous back problems. That history was identified in a letter from Ms Kristen Hannan to Dr Lovell of 29 July 2005,[63] and was admitted by the applicant in the witness box. Ms Hannan is an osteopath that the applicant consulted on 25 July 2005, shortly after her trip to Canberra. It is apparent that this full patient history, including the 2009 incident, was not furnished to Dr Gorman. Had the full patient history been given to him as outlined in evidence before the Tribunal, he could have been requested to provide a further opinion. The benefit of such a further opinion unfortunately has not been forthcoming. It is another reason why the Tribunal prefers the evidence given by Dr Journeaux and Dr Reiter.

    [63] The letter from Ms Hannan to Dr Lovell is page 1282 of the Tribunal book.

28. Therefore, by reason of the foregoing considerations, the Tribunal concludes that the applicant suffers from, and has suffered from a multilevel degenerative change of her lumbar spine. It also finds that this condition was suffered by her at the time of the July 2005 coughing incident, the 2009 incident and the 2017 incident.

29. In conclusion with respect to this section of the reasons, reference should also be made to another submission made by the applicant which she stated could be contributing to her pain both current and past.[64] It was a suggestion of cluneal nerve irritation. The only doctor who seriously suggested that this was a possibility was Dr Gorman.[65] He did not go so far as to definitively state that it was a cause of the pain the applicant has and currently experiences. He said it could have been caused by the disc replacement surgery. As noted above and, elsewhere in these reasons, he decided that the primary reason for the applicant experiencing the pain she had was due to the disc replacement surgery.

    [64] Specifically, Part 5.3 of her reply submissions, "Cluneal nerve irritation as a possible missed diagnosis that could be contributing to my pain (current and past)”.

    [65]

30. Additionally, in support of this contention the applicant referred to a significant number of passages from various reports of the medical specialists and other healthcare professionals that were in evidence.[66] An examination of the relevant passages of most of these reports does not reveal that those experts specifically suggest or express an opinion that cluneal nerve irritation is, or possibly is, a source of the applicant’s back pain. Most of those reports identify sacroiliac pain or pain associated with the sacroiliac joints. If those medical specialists had considered that cluneal nerve irritation was a source of the applicant’s back pain, one would have expected them to have said so in clear terms. Dr Reiter said there was a possibility, but it was speculative. As for the other experts, it was not even raised by them as a possibility.

    [66] These references are contained at pages 33 to 34 of the applicant’s reply submissions.

31. In cross-examination of the other doctors who gave evidence, the applicant suggested that cluneal nerve irritation was a possible cause of the pain she experienced. For various reasons those doctors rejected such a suggestion. The Tribunal has explained why it prefers the evidence of Dr Journeaux and Dr Reiter. Similarly, for those reasons it does not accept this contention.

    CONSIDERATION

32. The Tribunal considers that on the preponderance of the evidence before it the L4/L5 disc protrusion, or as it was referred to from time to time during the hearing of the application, the “disc aggravation” suffered by the applicant occurred because of the bout of coughing she experienced on 19 July 2005. There are several reasons why the Tribunal reaches this conclusion.

33. There are the contents of the Claim for Workers’ Compensation in which the applicant herself, when asked what action, exposure or event happened to cause her injury or illness responded with the words, “I coughed”. The applicant when in the witness box gave evidence to a similar effect. She stated that she coughed and her back seized up completely. It appears the coughing without any doubt caused her back to seize up as she said. Prior to that occasion, whilst she may well have experienced some back discomfort it does not appear that the disc protrusion or the disc aggravation, however it may be described, had manifested itself in the way it did after the 19 July 2005 coughing episode.

34. A similar consistent version of events with respect to the cough causing her lower back to seize upon 19 July 2005 was also attached to the Workplace Incident Report Form that was in evidence before the Tribunal.[67]

    [67] The Workplace Incident Report Form is document 1 of the Tribunal book.

35. In her own evidence during cross-examination, the applicant readily conceded that after her back really seized up on 19 July 2005 there was a major difference to what had been happening with her back previously. She even went so far as to say it was, “the increased massive spasm, I suppose you would call it, where you’re 10 out of 10 on the pain scale, versus 4 or 5 on the pain scale, which I probably was up until that point.”[68]

    [68] Transcript page 50, lines 26-28.

1. The applicant also relied upon the evidence of Dr Gorman both contained in his report and from the witness box, a summary of which has been outlined above. He readily conceded that the pain generator that the applicant experienced could not with certainty be diagnosed. However, he consistently maintained that wherever the pain generator or source of the pain was, it was aggravated by the change in mechanics and the change in physiology of the applicant’s lumbar spine occasioned by the disc replacement surgery. To his credit he readily conceded that not all of the effects of the surgery would cause the incident pain that the applicant experienced. Dr Gorman also conceded quite readily on several occasions that an assessment of the causes of pain experienced by the applicant was speculative. He also explained that by reason of the very nature of the surgery where nerves were cut to gain access to the discs to be replaced, there were many reasons why the pain might have changed following such surgery. Ultimately, therefore he concluded that the applicant’s symptoms were post-disc replacement.

2. Dr Journeaux was probed about the effect of the disc replacement surgery as a potential pain generator. The substance of his evidence has been outlined above. He consistently maintained that from his examination of the medical images that were furnished to him, and of course having conducted an examination of the applicant, there was nothing in his view to suggest that the spine had been destabilised so as to produce the symptomology that the applicant now complains of. He also gave evidence that from his examination of the post-operative records, including at least four years after such surgery, there appeared to him to have been a good result in terms of resolution of pain and functional capacity. He was cross-examined by the applicant and not really probed on this evidence. He consistently maintained that the applicant had a diagnosis of multilevel degenerative change of the lumbar spine.

3. Dr Reiter’s evidence has also been referred to above. She did express the opinion that it is difficult to be absolutely certain as to the source of the applicant’s pain presently. However, with respect to the disc replacement surgery, she expressed the opinion that because the main crux of the applicant’s pain was right-sided which completely resolved with the L4/5 disc replacement, it would indicate to her that the surgery was successful. She also expressed the opinion that the applicant was experiencing a degenerative spinal disease which is a slowly progressive condition. This opinion largely conforms with that of Dr Journeaux.

4. There was other medical evidence before the Tribunal by way of several reports prepared by medical practitioners who did not give evidence at the hearing of the application that should be referred to.

5. A report of 4 August 2014 from Dr Thompson to Dr Lovell was in evidence.[102] He reported that the applicant was progressing well, that in general her back felt good, was stronger and she was more confident in it, she did not have any right leg or left leg pain, and there was no sensory disturbance or weakness in the lower limbs. On examination, Dr Thompson reported that she had an excellent range of movements in all direction. He also recorded an “Oswestry” score of 2 compared to preoperative levels of 20 which indicated significant improvement in pain levels.

   [102] The report from Dr Thompson to Dr Lovell of 4 August 2014 is document 55 of the Tribunal book.

6. Another report from Dr Thompson to Dr Lovell of 3 August 2015 was in evidence.[103] That report recorded that the applicant had successfully travelled to Africa without significant problems. It should be noted that in her evidence the applicant agreed that she had travelled to Africa after the operation without any significant problems. Additionally, the report stated that the applicant instructed Dr Thompson that her back was, “pretty good with no severe episodes of pain, only occasional niggles. She had no sciatica or sensory disturbance in the lower limbs.” He concluded that overall, he considered the applicant was significantly improved following surgery.

   [103] The report from Dr Thompson to Dr Lovell of 3 August 2015 is document 60 of the Tribunal book.

7. Dr Dodd’s report of 25 September 2015 recorded that the applicant informed him, “that she had made a dramatic improvement since the disc replacement in 2013.” He noted that the applicant still had pain in the region of the lower left rib cage on the left buttock. Dr Dodd said that the pain did not interfere with most activities of daily living. She had no trouble in her household duties, such as making the beds, although she did notice some discomfort should she do some vacuuming. Dr Dodd concluded that the applicant’s prognosis for her condition was “excellent”.

8. Dr Hunn, the neurosurgeon who conducted the disc replacement arthroplasty in 2013, wrote to Dr Gray on 31 July 2017, having reviewed the applicant on the same day.[104] In that letter he stated that the applicant continued to do very well. He also recorded that her Ostwestry score was six and that x-rays showed a range of movement through the disc of 9° with preservation of the adjacent discs apparently unchanged from the preoperative x-ray appearances. Dr Hunn also wrote directly to the applicant on the same day in which he noted that she was, “doing so well.”[105]

   [104] The letter from Dr Hunn to Dr Gray of 31 July 2017 is page 2050 of the Tribunal book.

   [105] The letter from Dr Hunn to the applicant is document 107 of the Tribunal book.

9. In a report to Dr Gray of 25 June 2018, Dr Thompson made several observations.[106] Firstly, he stated that the applicant recovered well following the disc replacement surgery. He recorded brief details of the 19 December 2017 incident where the applicant squatted down to remove a roast chicken from the oven and had an acute pain and spasm in the upper to mid lumbar area. He also observed that the pain was severe and slow to recover. Her then current pain symptoms were in a similar area but not as intense as they were in December 2017. Dr Thompson then stated that unfortunately it was difficult to say exactly what had been the driver of the increased levels of pain that the applicant had experienced since December 2017. He observed that the only MRI change was a small sub ligamentous disc protrusion at the L2/3 level, but it was difficult to say when this occurred and whether it was the driver of the current problem.

   [106] The report from Dr Thompson to Dr Gray is document 72 of the Tribunal book.

10. In Dr O’Brien’s report dated 3 April 2018, Dr O’Brien recorded that the applicant had hypermobility symptoms throughout her body and that just before Christmas (2017) she experienced the onset of new low back pain.[107] It is evident from an examination of that report that he was not able to identify the cause of the applicant’s pain that she reported. He noted that an MRI scan of the lumbar spine demonstrated no clear-cut cause for her lumbar pain. He also recorded that the lumbar disc prosthesis looked well sighted and there was no significant evidence of adjacent segment disease. Dr O’Brien also recorded in that report that he had arranged for some further medical images to look at the current normal movements throughout the L4/5 disc as a matter of documentation of her current situation.

    [107] The report from Dr O’Brien of 3 April 2018 is document 109 of the Tribunal book.

11. Dr O’Brien further brief report of 2 May 2018 was obviously prompted by the receipt of further medical images that he arranged to have performed on the applicant’s lumbar spine.[108] He recorded that they demonstrated that the applicant’s artificial disc at L4/5 was well-positioned with alignment maintained during flexion and extension. It was also recorded in that report that he had further arranged for a CT-guided lumbar epidural at L2/3 as he considered that she was getting discogenic pain from that region.

    [108] The further report from Dr O’Brien of 2 May 2018 is document 110 of the Tribunal book.

12. In Dr Tan’s report dated 23 November 2018, Dr Tan expressed the opinion that the effects of the 19 July 2005 incident had resolved.[109] The applicant’s current symptoms, Dr Tan stated, related to an underlying central sensitisation syndrome. Additionally, she expressed the opinion that there was probably a significant pre-existing degeneration in the applicant’s disc at the time of the 19 July 2005 incident. Amongst the array of material that was furnished to Dr Tan prior to her examination of the applicant and preparation of her report, was a recent lumbar spine MRI. Dr Tan’s examination of that lumbar spine MRI showed a relatively flat back. She also observed a moderately severe L2/3 disc desiccation. Dr Tan concluded that the L4/5-disc arthroplasty had been and continued to be as successful as it could be. She disagreed with Dr Mitchell’s diagnosis of “failed back surgery syndrome.” She reiterated that the actual cause of the applicant’s various current pain was an underlying central sensitisation syndrome that pre-existed the 19 July 2005 incident.

    [109] The report from Dr Tran of 23 November 2018 is document 112 of the Tribunal book. The applicant in her reply submissions on page 8 resorted to some extremely harsh language to describe Dr Tan and the conclusions that she reached. She even went so far as to say that Dr Tan saw her as lying. This is not reflected in the contents of Dr Tan's report.

13. Associate Professor Andrew Danks prepared a report of 7 January 2019 to Dr Gray.[110] In his report, he stated that the applicant seemed to have gained good, partial benefit from her L4/5 disc replacement. He also recorded that she was experiencing troublesome back pain, which was worst over the left SI joint, but also on the right at times. He observed that recent plain x-ray assessments of the lumbar disc prosthesis appeared to be well located and functioning well. A nuclear medicine bone scan did not show anything in particular.

    [110] The report from Associate Professor Danks to Dr Gray of 7 January 2019 is document 78 of the Tribunal book.

14. Some details of Dr Ghazanfari’s report of 24 June 2019 have been detailed above.[111] Those references are referred to and repeated. In this report there was a section entitled, “Problems”, one of which was identified as “Possible sacroiliitis.” He recorded in that report that the L4/5 artificial discectomy which the applicant had done, “went well.” Additionally, he recorded that the applicant’s other problem is SI joint pain in the background of hypermobility syndrome and previous subluxation. Reference is made in the report to medical images of the applicant’s spine which he stated showed evidence of L4/5 artificial disc being in a satisfactory position. Upon a physical examination, he also recorded some tenderness in L1/2. In a section headed, “Impression, Management and Plan”, he recorded amongst other things “Possible sacroiliitis”.

    [111] The report from Dr Ghazanfari of 24 June 2019 is document 113 of the Tribunal book.

15. In the further report from Dr Ghazanfari of 11 November 2019 to Dr Gray, Dr Ghazanfari identifies several problems including possible sacroiliitis, and amongst others, gluteal tendinosis and low back pain in background of L5 discectomy.[112] Further, in the report, he observed that the applicant’s main problem at that time was gluteal tendinosis and her lower back pain which he observed was around L2/3 in the context of her complaining of intermittent severe pain, cramps and spasm.

    [112] The report from Dr Ghazanfari to Dr Gray of 11 November 2019 is document 114 of the Tribunal book.

    Conclusions concerning allegations of failed disc replacement surgery

16. The Tribunal concludes that the allegations of failed disc replacement surgery, or as Dr Mitchell described it, “Failed Back Surgery Syndrome” have not been established. There are several reasons why the Tribunal reaches this conclusion.

17. There is firstly the preponderance of medical evidence before the Tribunal. Of the medical witnesses who gave evidence, it was only Dr Gorman who gave evidence that the disc replacement surgery might be a generator of the pain experienced by the applicant. Even Dr Gorman in his evidence, whilst maintaining that the pain experienced by the applicant was contributed to as a result of the disc replacement surgery, did not go so far as to say, either in his report or from the witness box that such surgery had failed, as contended for by the applicant or Dr Mitchell.[113] Indeed, Dr Mitchell’s conclusions, and the contents his report, as brief as it was, were not put to Dr Gorman.

    [113] There was of course the brief reference in the report of Dr Wong to Dr Gray of 27 February 2020 which referred to the failed back surgery syndrome.

18. Additionally, to his credit, Dr Gorman readily conceded in the witness box that it could not be stated for certain what was causing the applicant’s pain. It should be recalled that he, in his evidence on several occasions, stated that in reaching a conclusion that it involved a level of speculation, or it was speculative.

19. Another reason why the Tribunal prefers the evidence of the other medical witnesses who gave evidence is because the patient history furnished to Dr Gorman, and contained in his report, did not include any reference to the 2009 incident. Given that in particular, the pain experienced by the applicant was in a different location as a result of that incident, it is a matter that the Tribunal considers highly relevant to any medical expert conducting an assessment of the applicant and expressing an opinion as to the possible causes of the pain she experiences.

20. It should also be repeated, given the history outlined in this section of the several medical reports that have been provided from an array of specialists, that apart from Dr Gorman, Dr Mitchell and Dr Wong, none of those other medical practitioners expressed the opinion that the disc replacement surgery had failed. The Tribunal had the benefit of the evidence of Dr Journeaux and Dr Reiter from the witness box and preferred their opinions to those of Dr Gorman in particular because of the fact, as noted above, that Dr Gorman was not given a complete patient history and that he readily conceded an opinion reached was to some degree speculative. Both Dr Journeaux and Dr Reiter largely expressed similar opinions that the applicant had a multilevel degenerative change of the lumbar spine which is a slowly progressive condition. That there was a degenerative condition of the applicant’s spine, as contended by Dr Journeaux and Dr Reiter, is also corroborated by the contents of the letter of 29 July 2005 from Ms Hannan to Dr Lovell. That letter contained a history of previous lower back problems experienced by the applicant, which the applicant admitted in the witness box.

21. This conclusion is also fortified by the fact that several of the other doctors who examined the applicant including treating specialists identified disc protrusions at the L2/3 level and that discogenic pain was probably generated from that region. In particular, the reference to disc protrusion and pain being generated from the L2/3 level was referred to in the reports of Dr Thompson of 25 June 2018, Dr O’Brien of 2 May 2018, Dr Ghazanfari of 24 June 2019 and in particular Dr Tan of 23 November 2018, in which she observed a moderately severe L2/3 disc desiccation. These observations and opinions are also consistent with a finding, that is more probable than not, that the applicant’s spine was suffering from a multilevel degenerative condition.

22. Also, Dr Tan in her report categorically disagreed with Dr Mitchell’s diagnosis of failed back surgery syndrome and explained why she did so. Apart from the moderately severe L2/3 disc desiccation that she observed for the reasons explained in her report, she stated that the actual cause of the applicant’s pain was an underlying central sensitisation syndrome that pre-existed the 19 July 2005 incident. This explanation is consistent with that given by Dr Journeaux, both in his report and from the witness box.

23. Another reason why the Tribunal cannot conclude that the disc replacement surgery had failed is due to the preponderance of the medical evidence, expressed in various ways, as noted previously, that such surgery had been successful. As noted above, Dr Journeaux described it as achieving a “good result”. Dr Reiter described the applicant’s right-sided pain as having completely resolved and the surgery was successful. Dr Thompson reported the applicant as progressing well and pretty good. Dr Dodd recorded a dramatic improvement describing the applicant’s prognosis as excellent. Dr Hunn, the surgeon who performed the disc replacement, described her as doing very well. Dr Tan concluded that the surgery had been, and continued to be, as successful as it could be. Associate Professor Danks stated that the applicant had gained good, partial benefit from the surgery. Dr Ghazanfari stated that the surgery went well. These observations by an array of highly qualified and experienced medical specialists are completely inconsistent with a conclusion that the disc replacement surgery had failed. The Tribunal accepts this evidence.

24. To reach a conclusion that there has been failed disc replacement surgery as Dr Mitchell did in his report of 25 May 2018, is a significant opinion to express. As noted earlier, Dr Gorman in his evidence, whilst contending that the disc replacement surgery was a source of the pain experienced by the applicant, did not go that far. Tellingly, none of the other medical reports referred to in this section, several of which were authored by highly qualified and experienced medical specialists, reached this conclusion. One would have expected that, if those experts outlined in the preceding paragraph concluded that the disc replacement surgery that the applicant underwent had failed, they would have said so. Therefore, the preponderance of the evidence of these medical specialists is also another reason relied upon by the Tribunal in reaching this conclusion.

25. By reason of the foregoing matters, the Tribunal accepts the contention of the respondent that there is no continuing causal relationship between the disc aggravation or L4/5 disc protrusion experienced by the applicant since 2013 when the disc replacement surgery was undertaken. Similarly, for these reasons the Tribunal also concludes that there is no continuing causal connection between the disc aggravation of the L4/5-disc protrusion arising from the December 2017 incident and the commencement of the applicant’s claim for a chronic pain syndrome from that date.

26. Finally, with respect to the issue of the disc replacement surgery, the Tribunal accepts the respondent’s contention that such surgery was undertaken in respect of a non-compensable condition. The reasons outlined above are referred to and repeated that the July 2005 incident was not work-related, there is no claim for the 2009 incident and the 2017 incident was also not work-related. The Tribunal has found that the disc replacement surgery did not fail. The Tribunal concludes that the disc replacement surgery cannot be an injury for the purposes of the SRC Act in the absence of a work derived condition. In particular, the Tribunal refers to and applies the findings of Humphries DP in Portors and Comcare (Compensation).[114] This decision was upheld on appeal before Robertson J in the Federal Court of Australia.[115]

    [114] [2017] AATA 2166 at [64]. The contents of paragraphs 178 to 180 of the Respondent's Submissions of 24 November 2022 are referred to.

    [115] [2018] FCA 914 at [26].

    THE CHRONIC PAIN CLAIM

27. The applicant has also framed a claim for compensation under the SRC Act for chronic pain which is said to be secondary to an accepted condition of the disc aggravation or L4/5 disc protrusion.

28. The Tribunal finds that this claim has not been established by the applicant. There are several reasons for this.

1. As already has been noted in several parts of these reasons, the Tribunal has found that the 2005 incident was not work-related and is therefore non-compensable under the SRC Act. There is no claim for which the Tribunal has jurisdiction with respect to the 2009 incident. The applicant has not established that the disc replacement surgery failed, nor was such surgery caused by her employment. Additionally, the Tribunal is not satisfied on the preponderance of the evidence before it that the disc replacement surgery, in any event, has been the source of the pain currently experienced by the applicant. Finally, the 2017 incident when such chronic pain was said to have commenced was not workplace related.

2. An essential ingredient of any claim, such as the one made by the applicant, for chronic pain in this application, must have and continue to have the characteristic of having been contributed to, to a significant degree, by her employment.[116] Should the employment cease to contribute in a material degree to an ailment, it does not matter that it was the same ailment as that from which the applicant suffered earlier.

   [116] Cash and Australian Postal Corporation [2021] AATA 3323 at [202].

3. The Tribunal cannot find on the preponderance of the evidence before it that the chronic pain claim made by the applicant continues to have the characteristics of having been contributed to, to a significant degree, by her employment. In particular, the December 2017 incident when the applicant squatted down to remove the chicken from the oven was not work-related for the reasons already explained.

   CONCLUSION AND DECISION

4. By reason of the foregoing matters, the Tribunal concludes that the correct and preferable decision is to affirm the reviewable decision. Accordingly, the reviewable decision is affirmed.

I certify that the preceding 218 (two hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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

Associate

Dated: 2 May 2023

Date of hearing:

29 and 30 August and 5 September 2022

Applicant:

Counsel for the Respondent:

Solicitor for the Respondent:

Self-represented

Mr Joe Lenczner

Minter Ellison

At page 34 of her reply submissions, the applicant identified several passages of the transcript where

Dr Gorman gave evidence concerning this question.