Holding and Comcare (Compensation) - [2024] AATA 3025

Holding and Comcare (Compensation) [2024] AATA 3025 (29 August 2024)
Division:GENERAL DIVISION
File Number(s): 2022/5376, 2022/10476 & 2022/10691
Re:Robert Holding
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:29 August 2024
Place:Sydney

In accordance with subsection 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decisions dated 12 November 2021, 3 November 2022 and 24 November 2022 are affirmed.
.................................[SGD].......................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – whether Comcare is liable to pay compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether accident aggravated the pre-existing condition – whether aggravation ceased – whether need for surgery arose in relation to the compensable condition – whether workplace incident was ‘crowded out’ by other factors – decisions under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Prain v Comcare (2017) 256 FCR 65
SECONDARY MATERIALS
N/A
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
29 August 2024
INTRODUCTION

Mr Robert Holding (the applicant) was employed as a storeman by the Department of Defence from 2007. In these consolidated proceedings, he seeks review of three reviewable decisions made by Comcare (the respondent) under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
·On 12 November 2021, Comcare affirmed a determination made on 24 June 2021 denying liability to pay compensation under section 16 of the SRC Act for specific surgery (L5/S1 Posterior Interbody Fusion with level 3 Instrumentation) relating to the applicant’s compensable condition. On 29 June 2022, the applicant applied to the Tribunal for review of this decision.[1]
·On 3 November 2022, Comcare affirmed a determination made on 18 August 2022 that the applicant was no longer suffering from the effects of a compensable condition, and declining liability to pay for medical treatment and incapacity benefits under sections 16 and 19 of the SRC Act. On 21 December 2022, the applicant applied for review against the reviewable decision dated 3 November 2022.[2]
·On 24 November 2022, Comcare affirmed a determination made on 20 September 2022 that the applicant was no longer suffering from the effects of the compensable condition, and declining liability to pay for medical treatment under section 16 of the SRC Act.[3] On 21 December 2022, the applicant applied for review against the reviewable decision dated 24 November 2022.
[1] R14, 360 (T154).
[2] R15, 251 (T68).
[3] T-documents, T69, 256.
THE HEARING
These consolidated applications were heard on 8, 9 and 30 April 2024. The applicant was represented by Mr L. Grey of counsel, instructed by Mr P. Quinn. The respondent was represented by Ms S. Wright of the Australian Government Solicitor’s office, instructed by Ms B. Audsley.
The parties filed an indexed Joint Hearing Bundle (JHB). The Index contains the applicant’s materials (marked A1-A12), and the respondent’s materials (marked R1-R13).[4] The respondent lodged two sets of section 37 documents (the T documents): one for matter 2022/5376, the other for matters 2022/10476 & 2022/10691.[5] At Ms Wright’s request, and for ease of reference, the former was marked R14, and the latter R15.[6]
[4] See Appendix.
[5] Lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
[6] Documents included in R14 and R15 are referred to principally by page number, with the associated T document number in brackets.
I also note the applicant’s Statement of Issues dated 20 October 2022,[7] and Statement of Facts, Issues and Contentions (SFIC) dated 20 December 2023,[8] and the respondent’s SFIC dated 1 February 2024.[9]
[7] A11, 714-715.
[8] A12, 716-722.
[9] R13, 723-743.
The respondent’s SFIC refers to several medical reports in chronological order back to 2005,[10] providing either summaries or extracts.[11] It also references records of his rheumatologist,[12] and of the medical practice attended by the applicant,[13] produced under summons.
[10] R13, 732-734.
[11] R13, 735-740; see Appendix B below.
[12] Dr Harry Patapanian, rheumatologist: R13, 734.
[13] Rosemeadow Medical Practice: R13, 732-734.
Following a request made by Ms Wright on the last day of the hearing, the applicant provided a copy of his 2018 Disability Support Pension (DSP) claim form, together with a statutory declaration dated 26 April 2024. It is marked A13.
The Tribunal granted leave to the parties to provide post-hearing written submissions. They were provided by both parties and marked as follows:
(a)Applicant’s Outline of Submissions (dated 28 May 2024), marked A14;
(b)Respondent’s Closing Submission dated 11 June 2024, marked R16; and
(c)Applicant’s Outline of Submissions in Reply dated 16 June 2024, marked A15.
The Tribunal received two further communications from the respondent’s solicitor objecting to the applicant’s written submission of 16 June 2024 (A15), and they are marked as follows:
(a)Email dated 20 June 2024, marked R17; and
(b)Email dated 8 July 2024, marked R18.
BACKGROUND
The first accident (2013)
On 25 May 2016, the applicant lodged a claim for workers’ compensation in relation to an incident occurring two years and six months earlier on 23 November 2013.[14] The applicant described the incident in a claim form as follows:
The truck was being loaded with the last cage from the passenger side rear. I had already secured the rope on the passenger side and was waiting for the last cage to be loaded whilst standing on the driver’s side. When the last cage was loaded I didn't notice that the cage on the driver’s side had been pushed too far over by the forklift and the cage legs were just sitting on the tray.
As I pulled on the rope it pulled the cage towards me, which made the cage slip off the edge of the tray. The whole cage fell off the tray and landed on me.
As a result the cage hit my left shoulder as I landed on the floor hitting my right elbow the chairs hit my head. When I landed on the floor with the cage and chairs on top of me I twisted my lower back as I fell to the ground.[15]
[14] R15, 63 (T14).
[15] R15, 64-65 (T14).
The claim was accompanied by two witness statements. One witness provided a witness statement in 2016 confirming the incident, although he could not recall the specific nature of the injuries sustained by the applicant.[16] Another witness records the applicant saying that he hurt his back, but it was not serious enough to call an ambulance.[17]
[16] R15, 70 (T16).
[17] R15, 71 (T17).
A letter of support was also provided by the senior officer in the unit where the applicant was working at the time of the accident.
1. This statement is in respect of the subject claim and is based on statements made by two available witnesses (enclosed) and the claimant. I have no reason to dispute the claim. The claimant was working for 21 Construction Regiment at the time of the incident and that unit no longer exists. There are no supervisors from that time here or available so, as the senior ARA member of the unit in which the claimant now works, I am providing the employer’s statement. I have found no unit records relating to the incident. But that is not surprising given the disbanding of 21 Construction Regiment…
3. I have personally known the claimant since 2002 when he worked for me in another unit. I know Mr Robert Holding to be a reliable and hardworking employee who is dedicated and proud to provide a superior standard of work. I know this from direct observation of him performing his duties. Since joining this unit in Jan 15 I have noticed that the claimant has been carrying a debilitating injury to his lower back that does limit his ability to perform some tasks. Until I received this claim I was unaware it was from a workplace injury. He remains a trusted, reliable and dedicated employee.[18]
[18] R15, 72 (T18).
The incident is referred to in a medical file note dated 27 February 2014 by his GP, Dr Albert-Tuan Tran, of the Broadmeadow Medical Practice.[19]
[19] R12, 597, ER3.185, (1473)
On 1 August 2016, Comcare accepted liability under section 14 of the SRC Act for an aggravation of lower back strain sustained on 23 November 2013. The delegate was satisfied that the applicant had suffered from an injury that arose out of or in the course of his employment (it was treated as an injury other than a disease).[20] He was informed that he was entitled to ‘Reasonable medical treatment from 23 November 2013 up to and including 24 June 2016 in the form of: General Practitioner consultations, and pharmaceuticals related to your condition’.
[20] R15, 75 (T20).
On 27 September 2016, the applicant was examined by a consultant occupational physician, Dr Dwight Dowda, at the request of the respondent, for whom Dr Dowda prepared a report dated 7 October 2016.[21] At that point, the applicant’s lumbar spine pain was getting worse, and Dr Dowda recommended a continuation of sedentary duties without any lifting three days a week. He advised against him being required to drive in the course of his employment.[22]
[21] R15, 104 (T22) (687).
[22] R15, at 110.
The applicant had bilateral lumbar facet joint injections under computed tomography (CT) guidance on 10 November 2016.[23] On 16 November 2016, he had a whole-body bone scan with single photo emission computed tomography (SPECT) studies of the lumbar and cervical spine which showed that there was active discovertebral arthritis in the cervical spine and significant active facet joint arthritis at L5/S1 and L3/L4 bilaterally.[24]
[23] Dr Donellan: R14, 146 (T84).
[24] R14, 147, 148 (T85).
On 21 November 2016, Comcare referred the applicant to Dr Ross Gurgo, neurosurgeon, who provided a report dated 28 November 2016.[25] He reported that the applicant was working 24 hours per week (over 3 days).[26] He considered that the ‘effects of the work related incident would have resolved about twelve months after the date of the incident. Any ongoing, persisting symptomatology would be due to the pre-existing condition and not the work-related event’.[27]
[25] R14, 152 (T87).
[26] R14, 152, at 153 (T87).
[27] Dr Ross Gurgo: R14, 152, at 156 (T87).
On 28 February 2017, Comcare determined that the applicant had no present entitlement to compensation for incapacity or medical expenses under the SRC Act.[28] The delegate was satisfied that the applicant no longer suffered from the effects of his compensable condition of aggravation of lower back strain sustained on 23 November 2013, relying on Dr Gurgo’s report.
[28] R14, 166 (T91).
This determination was affirmed by Comcare. The applicant filed an application for review with the Tribunal but withdrew it on 9 November 2017.[29]
[29] R15, 135 (T30).
The applicant continued to experience back pain which he managed with strong pain killers.
On 13 November 2019, the applicant’s neurosurgeon, Dr Donnellan, dictated a letter ‘to whom it may concern’ in support of a disability support pension.[30] The letter states:
Robert Holding has been known to me since my first review of him on the 16 April 2013. When he presented to me he had had a previous laminectomy at 2-levels and was taking corticosteroids and Enbrel for psoriatic arthritis.
While he has been under my care he has had issues with severe spinal canal stenosis in the neck at C5/6 which required surgery. He still has mild canal stenosis at the level above and below this fusion, which may need further surgery in the future. Because of a worsening degenerative scoliosis, he has also undergone a spinal fusion from L3 to S1 under my care. There is a high risk that he will suffer adjacent level disease at the high levels and need further surgery to his lumbar spine over the coming years.
Mr Holding has been working in a physical job, and it is likely that the wear and tear associated with that job is going to exacerbate his psoriatic arthritis as well as future adjacent level disease significantly, both in his cervical and lumbar spine. If he remains in the workforce it will not only be cruel because of his increasing chronic pain associated with these conditions but also significantly increase the chance of him needing further expensive spinal surgeries. This would be a drain on him as well as the health services.
It would be my recommendation that he is given a disability pension in order that he can modulate his activity sufficiently in order to reduce the chance of needing further surgery in the upcoming decades. (Emphasis added)
[30] R14, 104 (T105).
On 6 March 2020, the applicant applied (unsuccessfully)[31] for DSP.[32] The following conditions were listed as significantly affecting his ability to work.[33]
[31] Dr Truan medical records indicate that his DSP application was rejected on income grounds: R10, 327 (1203)
[32] A13, 32.
[33] A13, 27.
1. Chronic lower back pain
2. Depression
3. Multiple back surgeries
2010 – L4/5 Laminectomy
2013 C5/6 anterior cervical discectomy and fusion
2013 L2/ 3 Fusion
2016 L4/5 and L5S1 Disc stabilisers
4. C6/7 Nerve root compression and radiculopathy
5. Psoriatic arthritis
6. High Blood Pressure
He answered the question “Are you expecting to have future treatment for your disability or medical condition?” in the affirmative. He stated:
“Further surgeries. Adjacent level disease of the higher levels to lumbar spine. Over coming years.” [34]
[34] A13, 29.
The second accident
On 2 July 2020, the applicant was driving a forklift which collided with a steel bollard. Until then he was working full time (35 hours per week). After the accident he took sick leave and did not thereafter resume full time employment.[35] The official report for the Department of Defence states:
Description of Event
The member was traveling on a forklift carrying a pallet and collided with the steel pole at the end of building K139. The forklift came to a sudden stop forcing the member forward, the seat belt stopped his forward movement.[36]
[35] Transcript, 8 April 2024, 14.
[36] Event Investigation Report, 30 July 2020: R14, 190 (T111).
The report contains photographs of the pump showing impact damage.[37]
[37] R14, 197 (T111).
The applicant described the incident six weeks later in an employee statement:
On 2 Jul 2020 I was operating the unit forklift, I was moving a pallet with a water pump on it to workshops they are directly across the road from 5 Engineer Regiment. I dropped the pallet at workshops, it was in the wrong place. I was asked to relocate it. As I was driving around to the other side of the building I collided with one of the building corner safety posts. This pushed me forward on the forklift, I was jolted forward in the seatbelt, which prevented me going any further. Resulting in back pain.[38]
[38] Employee Statement made on 18 August 2020: R14, 228 (T120).
On 3 July 2020, Dr Tor, a GP from the Broadmeadow Medical Practice, records ‘Ongoing chronic severe back pain, on Palexia SR 200mg bd, Lyrica, 150mg, 1 capsule, for review of management was operating forklift yesterday, when it accidentally hit a pole at 5 kph’.[39] Dr Tor recommended that the applicant ‘continue Palexia SR at present dose, with Lyrica for neuropathic pain’.
[39] R12, 670 (ER3.258).
Claim for workers’ compensation
On 21 July 2020, the applicant applied for workers’ compensation in relation to the accident of 2 July 2020.[40] On 22 September 2020, his claim was rejected.[41] Comcare recognised that he had suffered an injury but considered that it did not arise out of or in the course of his employment.[42] On 6 October 2020, he provided more information to Comcare, including his treatment file and a report from Dr Donnellan, dated 17 September 2020.[43] The report stated:
The compensable injury was on the 23/11/2013 when a crate fell from the back of the truck and knocked him to the ground. This exacerbated his previous condition. He has had an exacerbation of his original injury by a forklift accident in late May 2020. This occurred at work.[44]
[40] R14, 200-206 (T114).
[41] R14, 239 (T124).
[42] R14, 239 (T124).
[43] R14, 254 (T127).
[44] R14, 237 at 238 (T123.1).
On 30 October 2020, his claim was approved.[45] Comcare was satisfied, based on the clinical notes and medical report from Dr Donnellan, that compensation was payable from 2 July 2020 for ‘Aggravation of L5/S1 disc herniation and bilateral L5/S1 facet arthropathy’ dated 2 July 2020.[46]
[45] R14, 504 (T182).
[46] R14, 254-256 (T127).
In relation to his cervical spine, a separate letter advised that he was entitled to reasonable expenses for a left C6/7 facet joint injection. The letter stated:
Left C6/7 Facet Joint Injection - Please note the compensable condition is Aggravation of L5/S1 disc lamination a bilateral L5/S1 facet and andropathy, however noting the incident which occurred at work the injections for Left C6/7 is approved in goodwill once off any further treatment for Left C6/7 disc prolapse is not part of the compensable condition as per the clinical findings from Dr Michael Donnellan.[47]
[47] Letter dated 30 October 2020: R14, 299 (T140.5).
First reviewable decision – the request for surgery (‘PLIF’)
On 27 January 2021, Dr Donnellan wrote to Comcare seeking approval to undertake surgery, being ‘L5/S1 Posterior Interbody Fusion (‘PLIF’) with level 3 Instrumentation’ for the applicant’s compensable condition of ‘aggravation of L5/S1 disc herniation and bilateral L5/S1 facet arthropathy’.[48] On 24 June 2021, a delegate of Comcare declined the request under section 16 of the SRC Act on the ground that there was ‘insufficient information’ to establish a significant contribution from the compensable condition to the requested surgical procedure.[49]
[48] R14, 314 (T142).
[49] Ibid.
On 13 September 2021, Dr Scott Campbell, neurologist, interviewed the applicant at the request of Comcare, and subsequently provided two reports, dated 27 September 2021[50] and 18 October 2021.[51] Dr Campbell examined the applicant by videoconference (telehealth).
[50] R14, 334-339 (T148).
[51] R14, 343-350 (T151) (misdated 27 September 2021).
Dr Campbell opined as follows:
2. In your opinion, what is the current diagnosis of Mr Holding’s spinal condition/s? Please detail:
a) The clinical signs, symptoms and diagnostic evidence that supports your conclusion
The diagnosis is that of aggravation of a pre-existing lower back complaint.
Mr Holding has persisting daily lower back pain and bilateral sciatica. Examination revealed a restricted range of movement of the lumbar spine with regional tenderness/guarding.
b) Your prognosis for Mr Holding’s condition.
At 14 months post work injury, Mr Holding’s condition has stabilised and reached maximum medical improvement. The prognosis is for persisting lower back pain in the future.
3. Based on your clinical opinion and the information made available to you, does Mr Holding’s aggravation of L5/S1 disc herniation and bilateral L5/S1 facet arthropathy continue to be contributed to, to a significant degree, by employment? Please detail your rationale.
Yes, Mr Holding’s persisting lower back complaint has been caused by the most recent work injury dated 02 July 2020. Employment remains an ongoing contributing factor.
4. In your clinical opinion, is the mechanism of injury reported being jolted forward in a forklift, consistent with the medical imaging, reports and pathology for Mr Holding’s spinal condition. Please provide your clinical justification.
Yes, the mechanism involved in which Mr Holding jarred his torso awkwardly whilst operating a forklift was consistent with causing his current lower back injury. The subsequent imaging showed evidence of pre-existing pathology.
5. In your opinion would Mr Holding suffer from the claimed condition(s) irrespective of his Commonwealth employment? Please provide a detailed clinical rationale to support your opinion.
Mr Holding had a pre-existing lower back complaint which has predisposed him to injury. Nonetheless, had the subject work injury not occurred, it is likely he would have remained in his current position indefinitely. He may have required the occasional day off work here and there with any acute exacerbations.
…
8. Dr Donnellan (Neurosurgeon) has requested approval of ‘L5/S1 Posterior Interbody Fusion with level 3 instrumentation to treat Mr Holding’s current condition. In your clinical opinion and on the balance of medical probability as opposed to possibility:
Is the surgery reasonably required to treat Mr Holding’s compensable condition?
Is the surgery reasonably required to treat a condition caused by employment?
Where applicable, please appropriate the need for the requested surgery between compensable and non-comp previous spinal surgeries, prior to the date of claim.
I have advised Mr Holding that in my experience fusion surgery generally has poor outcomes and would be best avoided, especially with compensable cases. I indicated that there was a very high chance his condition would be made worse with surgery with time. Nonetheless, opinions within my profession vary widely regarding the indications for surgery and the treating surgeon’s opinion would fall within the normal range of opinions and therefore, should Mr Holding wish to proceed with surgery, having a clear indication of the outcomes of surgery and potential complications of surgery as discussed with his treating surgeon, then this would be reasonable. (Emphasis added)

In his later report dated 18 October 2021, Dr Campbell clarified his response to question 4 above. He opined:
4. [T]he mechanism involved in which Mr Holding jarred his torso awkwardly whilst operating a forklift was consistent with contributing to his current lower back injury (30%) and aggravating a pre-existing lower back complaint (70%).
The mechanism of injury did not cause the pre-existing degenerative disc disease but has contributed to the aggravation. The subsequent imaging showed evidence of pre-existing pathology.
Mr Holding’s current state is due to a combination of pre-existing pathology (70%) and the subject work injury (30%).[52]
[52] R14, 348 (T151).
On 12 November 2021, Comcare affirmed the determination made on 24 June 2021 to deny liability to pay compensation under section 16 of the SRC Act for specific surgery (L5/S1 Posterior Interbody Fusion with level 3 Instrumentation) relating to the compensable condition.[53] The decision of 12 November 2021 states:
In reviewing the information provided, I note that Dr Donnellan was treating your ongoing spinal conditions prior to the workplace incident. I note you previously sustained injuries to your spine which resulted in L3-S1 spinal stabilizers being inserted. I further note that a L5/S1 fusion surgery was previously considered, however, it was decided at that time to continue with conservative treatment. It was identified that in the future you would likely require further surgical intervention related to previous fusions and significant degeneration and instability.
Additionally, Dr Campbell opined that whilst there was some contribution to your condition which related to the workplace incident on 2 July 2020, the pre-existing degeneration was the significant reason for surgery now being required. This was considered to be 70% related to your underlying condition. Dr Campbell indicated that although 30% of your current presentation is attributable to the employment incident, this is based on your self-report of an ongoing increase in symptoms since 2 July 2020.
In reviewing the available medical information, I note that no evidence has been provided to demonstrate that the incident of 2 July 2020 caused a pathophysiological change, worsening or acceleration of your underlying conditions.
Whilst I acknowledge that there has been some contribution by your employment to your current symptomology, I do not find that the requested surgery, L5/S1 Posterior Interbody Fusion with level 3 Instrumentation, is reasonable to obtain in the circumstances.
I have considered your extensive history of pre-existing conditions, fusion surgeries at multiple levels, in addition to the lack of demonstrated pathophysiological change arising from the 2 July 2020 incident. I also note Dr Campbell’s observation of generally poor outcomes associated with multiple level fusions.[54]
[53] R14, 360 (T154).
[54] R14, 360-362 (T154) (incorrectly indexed in the JHB as T153).
On 29 June 2022, the applicant applied to the Tribunal for review of this decision.[55] This application, designated 2022/5376, is the first of three reviewable decisions in respect of which the applicant seeks merits review. The ‘T documents’ relevant to this application are designated R14, following by a page number.
[55] R14, 1 at 4 (T1).
Second and third reviewable decisions
In May 2022 and 2023, the respondent sought medico-legal reports from a consultant neurosurgeon, Dr Casikar,[56] and an orthopaedic surgeon, Dr Page.[57] They were provided with the same extensive medical records going back to 2005.[58]
[56] Letter dated 12 May 2023: R2, 58-74.
[57] Letter dated 12 May 2023: R1, 39-57.
[58] Additional information was sent to each of them on 18 May 2022: R3, 75; R4, 77.
Each provided two reports. Dr Casikar’s reports are dated 16 May 2022,[59] and 22 June 2023;[60] Dr Page’s reports are dated 24 May 2023,[61] and 19 July 2023.[62]
[59] R14, 402-412 (T166).
[60] R8, 108.
[61] R5, 79-93.
[62] R9, 121-126.
In his report dated 16 May 2022, Dr Casikar opined that he was unable to find any work-related pathology which would create a degenerative disease.[63] Dr Page was provided with Dr Casikar’s report and expressly disagreed with it.[64]
[63] R14, 408 (T166).
[64] R5, 86.
In follow up letters, the respondent provided Dr Casikar and Dr Page with attendance records for the applicant from the Broadmeadow Medical Practice for the period 2005 to 2016, obtained under summons.[65]
[65] R3, 75 (Dr Page); R4, 77 (Dr Casikar).
On 16 June 2023, Dr Page was provided with file notes from the Broadmeadow Medical Practice for the period 20 April 2005 - 21 February 2023.[66]
[66] R7, 96 at 102.
Comcare invited Dr Casikar to respond to Dr Page’s report.[67] Dr Casikar reiterated his opinion in his first report of 16 May 2022, that is, that the applicant ‘probably suffered an aggravation of a pre-existing degenerative disease in July 2020 and that… this aggravation has ceased’.[68]
[67] R6, 94.
[68] R8, 108 at 114.
On 19 July 2023, Dr Page fell into line with Dr Casikar’s opinion.[69] He ‘recanted’ to use an expression applied by the respondent’s solicitor.[70] This volte face was the subject of extensive cross-examination by Mr Grey at the hearing.[71] I note that Ms Grey contends that Dr Page’s change of opinion was simply the result of being provided with more comprehensive information.
[69] Report dated 19 July 2023: R9, 121-126 at 125.
[70] A4.
[71] Transcript, 9 April 2024, 130.
On 3 November 2022, relying on Dr Casikar’s report, Comcare affirmed a determination made on 18 August 2022 that he was no longer suffering from the effects of the compensable condition, and declining liability to pay for medical treatment and incapacity benefits under sections 16 and 19 of the SRC Act. The Comcare decision of 3 November 2022 states:
The medical opinion detailed above shows that you experience significant degenerative constitutional change, which has required a number of surgeries prior to your accident in July 2020. The reports detailed above do not establish that any of the changes which may have developed over time on your imaging are due to the forklift accident.
Taking into consideration the significance of your pre-existing condition, I prefer the evidence of Dr Casikar. I find that the accident in July 2020 did not permanently aggravated your constitutional back condition and that you do not continue to experience the effects of your compensable conditions.
Whether you continue to require medical treatment in relation to or experience an incapacity as a result of your compensable conditions
As I have found that you no longer experience the effects of your compensable conditions, I therefore find that you no longer require medical treatment in relation to or experience an incapacity as a result of your compensable conditions.
Decision
I have decided to affirm the determination dated 18 August 2022 and decline present liability for medical treatment and incapacity payments under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).[72]
[72] R15, 251 at 253 (T68).
This is the second of the reviewable decisions in respect of which the applicant seeks merits review: 2022/10476.
Finally, on 24 November 2022, Comcare affirmed a determination made on 20 September 2022 that he was no longer suffering from the effects of the compensable condition, and declining liability to pay for medical treatment under section 16 of the SRC Act. The Comcare decision of 24 November 2021 states:
I find you no longer experience the effects of your compensable condition as advised to you in the reviewable decision dated 3 November 2022.
I note that this decision was based on the opinion of Dr Vidyasagar Casikar (consultant neurosurgeon), who in his report dated 16 May 2022 states that he was unable to identify any work-related pathology for your current condition and the main basis for your pain is constitutional degenerative disease of lumbar spine and the multiple surgeries which you have undertaken to address your pre-existing degenerative disease.
Whether the treatment is reasonable for you to obtain in your circumstances
As I find you no longer experience the effects of your compensable conditions, it follows that you do not require medical treatment in relation to your compensable conditions.[73]
[73] R15, 256 at 257 (T69).
This is the third of the reviewable decisions in respect of which the applicant seeks merits review: 2022/10691.
THE MEDICAL EVIDENCE
The salient medical reports of independent consultants are listed below in chronological order.
(i)Dr Campbell, neurosurgeon, reports dated 27 September 2021,[74] and 18 October 2021;[75]
[74] R14, 334-339 (T148).
[75] R14, 343-350 (T151),(misdated 27 September 2021).
(ii)Dr Davies, neurosurgeon, report dated 25 March 2022;[76]
(iii)Dr Casikar, consultant neurosurgeon, report dated 16 May 2022;[77]
(iv)Dr Siu, consultant neurosurgeon, report dated 30 May 2022;[78]
(v)Dr Davies, report dated 29 August 2022;[79]
(vi)Dr Page, consultant orthopaedic surgeon, report dated 24 May 2023;[80]
(vii)Dr Casikar, second report dated 22 June 2023;[81]
(viii)Dr Davies, report dated 7 July 2023;[82]
(ix)Dr Page, supplementary report dated 19 July 2023;[83]
(x)Dr Davies, supplementary report dated 24 July 2023;[84]
(xi)Dr Davies, further supplementary report dated 6 March 2024.[85]
[76] R14, 391-400 (T164.1); R15, 141 (T34).
[77] R14, 403-412 (T166).
[78] R15, 171 (T37).
[79] R15, 225-227 (T53).
[80] R5, 79-93.
[81] R8, 108-120.
[82] A3, 8-13.
[83] R9, 121-126.
[84] A5, 15-16.
[85] A9, 25-29.
(i) Dr Campbell’s reports (27 September 2021 and 18 October 2021)
As noted above, Dr Campbell interviewed the applicant by videoconference (telehealth) at the request of Comcare, and subsequently provided two reports, dated 27 September 2021[86] and 18 October 2021.[87] His reports are discussed above.
[86] R14, 334-339 (T148).
[87] R14, 343-350 (T151);(misdated 27 September 2021).
(ii) Dr Davies’s first report (25 March 2022)
Dr Davies provided five reports in these proceedings, namely, reports dated 25 March 2022,[88] 29 August 2022,[89] 7 July 2023,[90] 24 July 2023,[91] and 6 March 2024.[92] The first report was prepared at the request of the applicant’s solicitors following the adverse decision of 12 November 2021. His key finding was that:
His current symptoms are consistent with a combination of his long-standing pre-existing lumbar spine problems, together with aggravation of that pre-existing condition by the incident on 2 July 2020. Whilst the incident on 23 November 2013 probably caused some aggravation of his pre-existing condition, he was already booked to have L2/3 fusion surgery prior to that incident, so the incident in November 2013 was not a significant contributing factor to the need for treatment at that time.
As a result of his pre-existing condition and the need for surgery to treat that condition, Mr Holding developed adjacent segment problems, which lead to the need for further surgery in 2014 and again in 2016. That in turn has contributed to increased stress at the L5/S1 level and contributed to the need for surgery at that level. However, the incident on 2 July 2020 caused a significant aggravation to pre-existing changes at L5/S1 and has precipitated the need for surgery at that level.
Prior to the injury in July 2020, Mr Holding told me that he was managing full time suitable duties at work and had been able to manage those duties since recovering from his surgery in 2016. Assuming that is correct, I believe the incident on 2 July 2020 has been a significant contributing factor to the need for surgery at L5/S1 now.[93]
(iii) Dr Casikar’s first report (16 May 2022)
[88] R14, 391400(T164.1); R15, 141 (T34).
[89] R15, 225-227 (T53).
[90] A3, 8-13.
[91] A5, 15-16.
[92] A9, 25-29.
[93] R14, 391, 399 (T164.1).
As noted above, Dr Casikar’s provided two reports to Comcare. He was scheduled to give evidence but was prevented from doing so for health reasons.[94]
[94] Statement of respondent’s instructing solicitor, Ms B. Audsley, dated 5 April 2024.
Dr Casikar’s first report is dated 16 May 2022.[95] He reported as follows:
I believe the main basis of Mr Holding’s diagnosis of the lower back condition is constitutional degenerative disease of the lumbar spine. The multiple radiological studies from 2014 have merely indicated degenerative disease. I have not identified any work related component in this. The imaging investigations have merely shown evidence of degenerative disease in the disc and in the facet joint. There is no evidence of any other pathology. Mr Holding has constitutional degenerative disease of the lumbar spine. This is the main reason for his back pain. The multiple surgeries were mainly to address his degenerative disease. The indications for surgery are not in my opinion related to workplace injury. He probably had an aggravation on a preexisting degenerative disease, however, this aggravation would not have lasted for a long time.
5. Do you consider that Mr Holding’s workplace incident of 2 July 2020, continues to contribute to the primary lower back condition, to a significant degree? Please detail your reasoning and provider relevant medical evidence where appropriate to support your conclusion.
I do not believe that Mr Holding’s workplace incident on 2 July 2020 continues to contribute to the primary back condition. The back condition is a genetically determined constitutional degenerative disc disease.
6. Considering the normal clinical presentation and progression of the diagnoses you have stated in Question 1, do you consider it probable that Mr Holding’s condition(s) would have reached its current state irrespective of his Commonwealth employment? Please give a detailed explanation for your conclusion.
In my opinion, Mr Holding’s current state of his back, he would have reached this current state irrespective of his Commonwealth Employment. (Emphasis added)
[95] R14, 403-412 (T166).
Dr Casikar’s second report, dated 22 June 2023, is discussed below: see (vii).
(iv) Dr Siu’s report (30 May 2022)
Dr Siu assessed the applicant on 22 April 2022 at the request of the respondent and provided a report dated 30 May 2022.[96] His report states:
[96] R15, 171 (T37).
PAST HISTORY:
Mr Holding is a chronic low back pain sufferer and has an extensive history of lumbar spine surgeries.
He underwent an L2/3 laminectomy in 2010 for low back and leg pain (left according to his recollection).
He developed severe low back pain again after some initial remission and underwent an L2/3 fusion in 2013. He stated that this operation was immediately preceded by a workplace injury in which a metal crate loaded with plastic chairs, weighing about 200kg, fell on him.
He did not appear to suffer from any significant trauma and was able to continue to work the next day, although reportedly this had aggravated his back pain.
He developed further low back pain again after some initial remission and underwent an L4/5 laminectomy in 2014 followed by L4/5 fusion and L3/4 dynamic stabilisation in 2016. His condition improved after this and he was able to return to his normal physical work. However, he has remained on Palexia since.
He also attended a pain clinic and attended a pain management course at that time.
There is a past surgical history of C5/6 anterior cervical discectomy and fusion in 2013. He stated that he has recovered well following this and has encountered no long-term problems.
I have also noted his other past medical history of psoriatic arthropathy which was diagnosed about two decades ago. He has been on Cimzia and oral corticosteroid. He stated that corticosteroids have helped, in particular, the joint pain in his hands.
There is also a past medical history of asthma requiring the use of inhalers occasionally.
…
SUMMARY AND ASSESSMENT:
Mr Holding has been suffering from non-remitting low back and bilateral leg pain for the last two years since a workplace incident in July 2020. Whilst there is a clear mechanical flavour with his pain, there is also an inflammatory component with aggravation from being stationary in one position.
It is difficult to ascertain whether his leg pain reflects true radicular pain or somatic referred pain.
Whilst Mr Holding is a chronic low back pain sufferer with an extensive background surgical history, the clinical information provided indicates that the index incident in 2020 is a watershed moment, heralding the beginning of a protracted downturn in his spinal condition.
The clinical picture combined with the imaging findings from 2020 indicates that the deterioration at the L5/S1 motion segment, adjacent to his previous L2-5 fusion, is the most likely underlying pain generator. His previous L2-5 fusion appears stable.
Whilst it is impossible to determine how much the findings shown on the imaging, that is disc bulging and inflammatory changes at L5/S1, are directly caused by the index workplace accident, it is reasonable to conclude that the accident has nonetheless caused an exacerbation leading to his non-remitting symptoms…
In response to your specific questions:
Diagnosis
1. What is your diagnosis of Mr Holding’s medical condition/s?
The diagnosis is non-remitting lumbosacral spinal pain and bilateral referred leg pain secondary to L5/S1 motion segment degeneration.
Treatment
2. Is Mr Holding undergoing appropriate treatment/medication for the condition/s impacting on their work capacity?
Mr Holding is on long-term multiple analgesic agents though they are not sufficient in controlling his pain.
He has also undergone physiotherapy but that has only made his pain worse. Whilst these are appropriate first line measures, they have not been effective.
3. What additional treatment could the employee engage in which would assist in enabling them to commence a sustainable return to back to their assigned hours/duties or training (noting that Mr Holding does not wish to fund his surgery and it has not been approved by Comcare, and Mr Holding does not wish to participate in hydro therapy)?
Given the refractory nature of Mr Holding's spinal pain, further surgery to address his L5/S1 adjacent segment disease would be a reasonable last resort.
Alternative, non-operative treatment would include physical treatment (e.g. supervised physiotherapy), psychological treatment (e.g. cognitive behavioural therapy) and percutaneous ablative or modulation treatment (guided by a Pain Specialist). This can be provided through a chronic pain service, preferably in a multidisciplinary setting.
(v) Dr Davies’ second report (29 August 2022)
Dr Davies was invited by Comcare to respond to Dr Casikar’s report. He did so in his second report of 29 August 2022.[97] He disagreed with Dr Casikar’s claim that the aggravation did not last long, or that the applicant’s current symptoms related only to a pre-existing condition.[98]
He [Dr Casikar] provides a fairly brief history of the incident and Mr Holding’s subsequent treatment and progress. I note Dr Casikar only reviewed investigations performed between 19 September 2012 and 20 November 2014, so presumably he hasn’t seen any of the more recent investigations, including the Bone Scan in 2020 which shows changes that were not present prior to the incident in July 2020.
[97] R15, 225-227 (T53).
[98] See Respondent’s SFIC: R12, 723 at 737 [103].
Dr Davies noted the applicant was able to return to full time duties following his last surgery in 2016, until the work incident in July 2020. His reported symptoms were worse after that incident.
(vi) Dr Page's first report, consultant orthopaedic surgeon (24 May 2023)
On 12 May 2023, the respondent wrote to Dr Page seeking a medico-legal report.[99] The letter included in Annexure A an extensive list of the applicant’s medical records, containing 142 entries.[100] The respondent provided a further letter on 18 May 2023,[101] with some additional information extracted from the records.[102]
[99] R1, 39.
[100] R1, 39 at A2-49.
[101] R3, 75
[102] R3, 75 at 76.

In his first report dated 24 May 2023, Dr Page stated:
Aggravation
l) For any condition identified above, if you consider the condition was an aggravation of a pre-existing condition please explain:
I consider that he had suffered an aggravation of pre-existing severe degenerative disc disease at L5/S1 below his lumbar spinal fusion.
- the date of onset of any aggravation
The date of aggravation is 2 July 2020 when he was on a forklift and hit a bollard.
- the evidence relied upon
The evidence for this is the acute onset of his low back pain and stiffness to the extent he could not continue working. His MRI scan and bone scan also gave reliable evidence to this level having been injured.
- the factors that contributed to the aggravation
The forklift injury suffered.
- whether the aggravation continues or whether the condition has reverted to its pre-aggravation state.
The aggravation caused by the forklift injury has never ceased and he has been left with severe ongoing low back pain and stiffness ever since, and before this work injury he was working quite well without any significant back pain.
Currently
m) Does the applicant continue to suffer from the effects of any such condition sustained on 2 July 2020? If the applicant no longer suffers from the effects of the condition, please specify when did the condition cease?
Yes. He does still suffer from the effects of his work injury on 2 July 2020 as I have shown above and through the body of the report.
Other Opinions
n) We refer to the opinion of Dr Vidyasagar Casikar, consultant neurosurgeon, in his report dated 16 May 2022 (see Tab 76). Dr Casikar states he was unable to identify a work-related pathology which would result in degenerative disease. He notes the main basis of the applicant’s pain is constitutional degenerative disease of the lumbar spine, and the multiple surgeries he has had to address the degenerative disease. Dr Casikar opined the applicant probably suffered an aggravation of a pre-existing degenerative disease in July 2020, but this aggravation would not have lasted for a long time. He did not consider the accident on 2 July 2020 continued to contribute to the primary back condition. Do you agree or disagree with this opinion?
I disagree with the report of Dr Casikar. Robert Holding had had an L2 to L5 or three level lumbar spinal fusion in 2013 for a work injury while employed by the Department of Defence. This had been successful. However, by not fusing the L5/S1 level at that time, he was more prone to developing degenerative disc disease at this level and suffering an injury to this level as well. The reason for this is that the three level fusion put increased strain through the L5/S1 level with day-to-day activity, as well as, in this case, when he suffered the work injury and hit the bollard while on the forklift on the 2 July 2020. This work injury aggravated underlying degenerative disc disease at L5/S1 where the aggravation has never ceased.
o) We refer to the opinion of Dr Michael Davies, neurosurgeon, who provided a report dated 25 March 2022 and 29 August 2022 (see Tabs 89 and 95). Dr Davies considered the applicant’s pre-existing lumbar spine condition and his previous surgical interventions contributed to his current state, with the incident of 2 July 2022 aggravating the pre-existing condition, with the onset of more severe symptoms precipitating the need for further surgery. Do you agree or disagree with this opinion?
I agree with the opinion of Dr Michael Davies.
p) We refer to the report of Dr Timothy Siu neurosurgeon dated 30 May 2022 x 2 (see Tab 92) Dr Siu diagnoses non-remitting lumbosacral spinal pain and bilateral referred leg pain secondary to L5/S1 motion segment degeneration. Dr Siu states:
The clinical picture combined with the imaging findings from 2020 indicates that the deterioration at the L5/S1 motion segment, adjacent to his previous L2-5 fusion, is the most likely underlying pain generator. His previous L2-5 fusion appears stable.
Whilst it is impossible to determine how much the findings shown on the imaging, that is disc bulging and inflammatory changes at L5/S1, are directly caused by the index workplace accident, it is reasonable to conclude that the accident has nonetheless caused an exacerbation leading to his non-remitting symptoms.
Do you agree or disagree with this opinion?
I agree with the opinion of Dr Timothy Siu.
Recommended Treatment
q) What treatment do you recommend as result of any condition sustained by the applicant on 2 July 2020?
I would now recommend that he be reviewed by Dr Donnellan, his treating neurosurgeon, who has done his previous surgery with the view to extending the lumbar spinal fusion from L5 to the sacrum.
r) It appears non-operative conservative treatment such as supervised physiotherapy, psychological treatment (e.g. cognitive behavioural therapy) and percutaneous ablative or modulation treatment (guided by a pain specialist experienced in chronic pain provided through a pain service in a multidisciplinary setting) has been recommended to the applicant. Has the applicant engaged with any of the above?
Unfortunately, over the last three years, he has become deconditioned and put on weight. He has general poor muscle tone and posture. He has a BMI of 34.9 that indicates he is morbidly obese. He would greatly benefit from the list of treatment you have noted with a view to improve his general mental and physical health so that any proposed surgery such as extending the fusion of L5/S1 would be more likely to be successful.
b)[sic] Dr Sean Low, occupational physician, noted the applicant did not appear motivated to participate in a rehabilitation program and appeared fixed on getting surgery (see his reports dated 4 May 2022 and 25 Mat 2022 (see Tabs 90 & 91). Do you agree or disagree with this observation?
I closely questioned Robert Holding as to ongoing management and treatment. He realises himself that he has become deconditioned, and he would like to reverse this. He is quite adamant now that his symptoms are severe enough that he needs the surgery as recommended by Dr Donnellan.
As I have pointed out earlier in my report, I think he needs a combination of rehabilitation and surgery. He needs to be in the best physical and mental condition pre-operatively so the planned surgery will be successful. He will need to go through a further post-operative rehabilitation program as well to ensure a good result.
a) From the records it appears the applicant was taking oxycontin 20mg from around 2010 to sometime in 2017/2018 (see Tab 134). Is this history relevant when assessing reports of pain and whether further surgery should be considered?
I am not a Pain Specialist; I am an Orthopaedic Surgeon. However, I would make the comment that a low dose of Oxycontin over a period of years is not likely to have had any significant impact on his condition.
b) The applicant is seeking to have Comcare pay for L5/S1 Posterior Interbody Fusion with level 3 Instrumentation surgery. Do you recommend this surgery? Do you consider it is required as a result of any compensable condition sustained on around 2 July 2020? Or is required as result of say previous lumbar surgery?
I recommend that this surgery now be undertaken due to the severity of his symptoms and the fact that his spinal complaint appears to be localised to the L5/S1 level.
I consider that the surgery is required as a consequence of his acute work injury on 2 July 2020 when he drove a forklift into a bollard and badly jarred his back. The fact he already had fusion of three levels above took all of the force of this simply through the L5/S1 level, aggravating the underlying degenerative disc disease where the aggravation has never ceased.
Overall, the requirement for surgery is due to the L5/S1 level becoming very symptomatic and part of the reason it became so symptomatic from this acute injury was the fact he already had the previous lumbar spinal fusion at the three levels above. This resulted in him taking all the force of the injury to the L5/S1 level.
Final Matters
c) Is there any evidence (documentary or otherwise) which you think we should obtain in order to assist you (and/or others) to better answer the questions above?
No, I do not consider he needs any other evidence.
d) Were there any aspects of the assessment which tended to suggest that the applicant was voluntarily exaggerating his symptoms and/or displaying symptoms and examination findings inconsistent with the claimed conditions?
I found that Robert Holding was straightforward in his answers both in the history taking and physical examination. There was no suggestion of any voluntary exaggeration.
e) Are there any further comments that you wish to make that you consider relevant to this claim?
Mr Holding appears to have deteriorated in the last few years to the extent that he has become very deconditioned and overweight. He is likely to have mental health issues but as this is outside my area of expertise, I will not comment any further. I think it was appropriate for him to describe himself as a “home hermit” as until now he has lived a very isolated restricted lifestyle because of the severity of his back condition. Without any treatment, he is likely to deteriorate further.[103] (Emphasis added)
[103] R5, 79, from 82 et seq.
Importantly, in this report, Dr Page agreed with the views expressed by Dr Davies and Dr Siu and disagrees with the views expressed by Dr Casikar.
(vii) Dr Casikar’s second report (22 June 2023)
Dr Casikar’s second report is dated 22 June 2023.[104] In this report the volume of documentation provided was substantially expanded. He was provided with extensive medical reports and records spanning 20 years. His report states:
[104] R8, 108-120.
I remain of the opinion that Mr Holding probably suffered an aggravation of a pre-existing degenerative disease in July 2020 and that in my opinion this aggravation has ceased. I do not consider that the accident that occurred on 2 July 2020 continued to contribute to his back condition. I remain of the same opinion. I have gone through the long history of his previous medical condition. He has been diagnosed to have psoriatic arthritis in 1999, that in 2003 the bone scan by Dr Fernandes had shown multiple areas of degenerative disease. Dr Lam in 2008 had said he has chronic relapsing back pain and psoriatic arthropathy. The bone scan on 25 July 2011 had shown degenerative changes at L3. Dr McKechnie in 2011 indicated that there was postoperative scarring. This, I believe was referred to the laminectomy he had in 2010. Dr Dubossarsky, the occupational physician, has indicated the diagnosis of failed back syndrome, opiate-related problem. Dr Patapanian has maintained that there is problem with his psoriatic arthritis. The last surgery he had by Dr Donnellan was in 2020.
Does the applicant’s Commonwealth employment, namely the forklift accident on 2 July 2020, continue to contribute to a significant degree to the applicant’s current presentation? Or has it been crowded out by other factors such as degenerative change and/or deterioration of the L5/S1 motion segment, adjacent to his previous L2- 5 fusion.
The description of the forklift accident on 2 July 2020, in my opinion has been crowded out by other factors such as degenerative disease and its natural progression. He has had a fusion L2 to S1. This is probably one of the factors for his continued back pain.
c. We refer to the radiology reports of the lumbar spine, before and after 2 July 2020, how do they describe the applicant’s lumbar spine condition? Are you able to identify a physiological change, which on the balance of probabilities, is attributable to the accident on 2 July 2020?
Mr Holding’s lumbar spine condition before 2020 indicates that he had chronic degenerative disease of the lumbar spine with psoriatic arthropathy. This was recognised as early in 1998 and this diagnosis was maintained by various specialists including multiple radiological findings and bone scan. Dr Patapanian has continuously maintained that he has degenerative disease. I cannot identify any physiological change on a balance of probability that is attributable to the accident on 2 July 2020. Any possible change in the radiology is due to the natural progression of the degenerative disease.
d. Has the applicant brought the Bone scan dated 20 July 2020? Please comment on this scan compared to the radiology prior to 2 July 2020.
Mr Holding did not bring any radiology investigations including the bone scan dated 20 July 2020. Therefore, I cannot comment on this. Perhaps the bone scan would show progression of the condition compared to the previous examination. This would be due to the natural progression of the degenerative disease. The injury would not cause a progression of a pre-existing degenerative disease.
e. Do you consider the forklift incident caused a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state or do you consider that the incident caused an injury over a longer period? Do you consider any change was instantaneous or did it take a period of time to develop?
I do not consider that the forklift incident caused sudden and ascertainable dramatic physiological changes in his condition. The causation was very minor and I do not believe this would have caused any major changes in the natural progression of the degenerative disease and the associated psoriatic arthropathy.
…
g. We refer to the report of Dr Timothy Siu neurosurgeon dated 30 May 2022 x 2 (see Tab 92) Dr Siu diagnoses non-remitting lumbosacral spinal pain and bilateral referred leg pain secondary to L5/S1 motion segment degeneration. Dr Siu states: The clinical picture combined with the imaging findings from 2020 indicates that the deterioration at the L5/S1 motion segment, adjacent to his previous L2- 5 fusion, is the most likely underlying pain generator. His previous L2-5 fusion appears stable.
Whilst it is impossible to determine how much the findings shown on the imaging, that is disc bulging and inflammatory changes at L5/S1, are directly caused by the index workplace accident, it is reasonable to conclude that the accident has nonetheless caused an exacerbation leading to his non-remitting symptoms.
Do you agree or disagree with this opinion?
Dr Siu refers to the possible adjacent segment disease. This is a common problem following a spinal fusion. Dr Siu indicates that it is impossible to determine such findings on the imaging. I beg to differ, if there is an adjacent segment disease, the bone scan will certainly show increased activities in the facets, joints and in the disc spaces. This is a fairly reliable index to indicate that there has been an adjacent segment problem because of the spinal fusion.
The injury causing exacerbation of his pre-existing problems is difficult to justify considering the fact that he has a constitutional degenerative disease of the lumbar and cervical spine. This is a genetically determined progress in a medical condition. The problem is further compounded by psoriatic arthritis.
These are the reasons for continued complaints of back pain and increased evidence of degenerative changes. The workplace injury has not, in my opinion, accelerated the natural speed of the degenerative disease.
d) The applicant is seeking to have Comcare pay for L5/S1 Posterior Interbody Fusion with level 3 Instrumentation surgery. Do you recommend this surgery? Do you consider it is required as a result of any compensable condition sustained on around 2 July 2020? Is it required as a result of the applicant’s previous back surgeries, if so, please provide details.
Further L5/S1 posterior interbody fusion with three-level instrumentation surgery is unlikely to have any benefit. Mr Holding already has a well-established failed back syndrome. Further surgery is not likely to make any difference either to his symptoms of pain or his capacity to any kind of work.
The further spinal fusions are mainly to manage the constitutional degenerative disease of the lumbar spine. I do not believe that this is as a result of any compensable condition sustained around 2 July 2020. It is probably required as a result of his previous surgeries as recorded by Dr Davies.
(viii) Dr Davies’ third report (7 July 2023)
On 3 July 2023, the applicant’s solicitor sought a further report from Dr Davies, referencing the reports of Dr Page dated 24 May 2023 and Dr Casikar dated 22 June 2023.[105] Dr Davies reported on 7 July 2023.[106]
[105] A2.
[106] A3, 8-13.
Dr Davies was asked to confirm that (i) the accident sustained on 2 July 2020 caused a significant aggravation to the applicant’s pre-existing changes at L5-S1 had (i) precipitated the need for the surgery recommended by Dr Donnellan; and (ii) confirm that the injury of 2 July 2020 continues to leave the applicant incapacitated for work. He responded:
I remain of the opinion that the accident sustained on 2 July 2020 has caused a significant aggravation to Mr Holdings pre-existing lumbar spine condition and has precipitated the need for the surgery recommended by Dr Donnellan.
Mr Holding remains incapacitated for any work as a consequence of the injury that occurred on 2 July 2022. I disagree with the opinion expressed by Dr Casikar in his report of May 2022 that Mr Holden would be capable of undertaking normal hours of work with a lifting restriction of 10 kg. He was already on long-term permanently restricted duties prior to the injury on July 2020, with a lower lifting restriction than Dr Casikar has recommended.
(ix) Dr Page’s supplementary report (19 July 2023)
By letter dated 16 June 2023, the Respondent’s solicitor wrote to Dr Page asking him to prepare a second report. The Letter of Instructions provided various radiology and operations reports going back to 2003, including records from the applicant’s general practitioner (Rosemeadow Medical Centre) and his treating rheumatologist, Dr Harry Patapanian, some of which were summarised in the letter. The letter asked specific questions arising from this material.
On 19 July 2023, Dr Page provided his supplementary report. I set out Dr Page’s supplementary report in full:
The following is a supplementary report on Robert Holding upon whom I previously did a report and assessment on 17 May 2023. Today’s report should be read in conjunction with my original report dated 24 May 2023.
In my original report, I noted that Robert Holding who is 57 years of age presented with severe low back pain and stiffness. This came on after a work injury on 2 July 2020 when he was on a forklift and hit a bollard. Prior to this, he had had a successful L2 to L5 lumbar spinal fusion and was back doing basically normal work. This previous surgery had been performed a few years earlier.
However, after this further injury in July 2020, he never improved and did not return to work and has not worked over the last three years. He has developed chronic low back pain and stiffness that resulted in a very restricted lifestyle and activity. He has put on weight and become deconditioned. His main problem is in the lower lumbar area and he gets only occasional sciatica or radicular pain down his left leg.
He has had x-rays and scans in 2020 that show he has very severe degenerative disc disease with facet joint arthritis and lateral canal stenosis at L5/S1 below the spinal fusion. A bone scan has also shown significant increased activity uptake at this level.
Overall I concluded that the source of his severe ongoing low back pain and shooting pain down his left leg was due to the active degenerative disc disease at L5/S1.
The documentation provided to me for this report relates to his past history of lumbar spine symptoms and lumbar spine surgery.
I note that he saw a neurosurgeon, Dr Simon McKechnie, initially on 30 July 2010. An MRI scan had shown a congenital lumbar canal stenosis maximal at L2/3. There was effacement of CSF around the cauda equina nerve roots indicating moderate to severe lumbar canal stenosis. Dr McKechnie suggested that his chronic low back pain could be improved by decompressive lumbar laminectomy. This surgery was recommended for back pain rather than any radicular leg pain. This is also indicated in Dr McKechnie’s report of 27 August 2010. It appears the surgery was undertaken in September 2010 and he was followed up on 25 October 2010 when he appeared to be making good progress after the surgery. However when reviewed in June 2011 he still had persistent low back pain and then further MRI scan was performed. An MRI scan in July 2011 showed evidence of a post-surgical decompression posterior to the L3 vertebrae and there was multi-level residual disc and bony disease demonstrated. There was moderate narrowing of the canal at L2/3.
A bone scan was performed in July 2011 that showed some increased uptake in the L3 vertebral body that could be due to degenerative arthritis or partial compression fracture.
In his report of 27 July 2011, Dr McKechnie concluded that he still had some low back pain due to facet joint disease and that radicular leg pain had resolved since the surgery. The MRI scan that had been just undertaken showed some mild to moderate residual canal stenosis at the L4 level with some excessive scar tissue and mild degenerative changes. He thought CT guided cortisone injections for facet joint arthritis might be needed.
I note that the CT guided facet joint injections bilaterally at L5/S1 were performed in October 2012 under the direction of his rheumatologist, Dr Patapanian.
Specific Questions:
a. We refer to your report dated 24 May 2023 and note you state there is no evidence of any relevant developmental history before the applicant’s employment with the Department of Defence as a storeman in Holsworthy. We refer to the CT of the lumbar spine dated 26 September 2005. The clinical notes state ‘lower back pain’, as the reason for the referral for the scan. Does this scan detail any relevant developmental history?
The CT scan of the lumbar spine performed on the 26 September 2005 states there are congenitally short pedicles throughout the lumbar spine. At L2/3 there is moderate facet joint degenerative disease and calcification of the ligamentum flavum. With the combined effect of congenitally shorty pedicles, there is moderate canal stenosis.
This CT scan report does document relevant developmental changes in the lumbar spine with congenitally short pedicles. The short pedicles make the lumbar spine more prone to developing central canal stenosis.
b. Similarly, we also refer to the MRI of the lumbar spine dated 6 May 2010 and the MRI of the lumbar spine dated 19 September 2012, both reported on by Lynette Masters, which both pre-date the work injuries. They note previous L2/3 and L3/4 laminectomies. Do these scans show any developmental history?
As I have commented from the reports of Dr McKechnie, his neurosurgeon, there was evidence of a developmental and degenerative stenosis at L2/3, and he had a decompression surgery performed. The scans do show evidence of congenital short pedicles which is a developmental abnormality that can lead to increased risk of spinal stenosis.
c. In a report dated 17 June 2010, Dr Patapanian says the applicant’s spinal canal stenosis is due to a combination of congenital shortening of the pedicles and secondary superimposed spondylosis most severe at L2/3 but at levels below.
What is the impact of these conditions on the applicant’s lumbar spine Dr Patapanion as well as Dr McKechnie have commented on the findings in the lumbar spine from congenital narrowing and degenerative disc disease and I refer you to the quotes from Dr McKechnie that I have noted above. This seems appropriate that the spinal stenosis is a combination of the congenital shortening of the pedicles and secondary imposed spondylosis.
d. We refer to the MRI report dated 8 July 2011 of Dr Andrew Robinson. It notes ‘at L3/4 there has been previous posterior surgical decompression’ and at L2/3 ‘there has been previous posterior decompression posterior to the L3 vertebral body’. This scan pre-dates the applicant’s work injuries. What was the cause of the changes in the MRI scan and surgery as at that time?
I refer you to the reports of Dr McKechnie which I have commented on above. These findings are a consequence of a surgery undertaken by his neurosurgeon Dr McKechnie.
e. On 7 December 2013, the applicant underwent a L2/3 posterior lumbar interbody fusion with Dr Donnellan. This was planned and booked in prior to the work injury of November 2013 (see T30 and T31). If it is found that the spinal surgeries of 2010 and December 2013, were not work related, would this be relevant to your opinion?
In his report of 31 October 2013, Dr Michael Donnellan indicates that he plans to do an L2/3 posterior lumbar interbody fusion and due to a lot of low back pain this is the level that Dr McKechnie had done the decompression of the lumbar spine. It is likely that this level became unstable after the decompression surgery and now Dr Donnellan was planning to do a spinal fusion at L2/3 to stabilise this segment. He would have anticipated by doing this fusion and stabilisation any chronic low back pain experienced by Mr Holding would be significantly improved.
This was therefore a significant cause of his lumbar back pain prior to the work injury on 7 December 2013. It is therefore suggested the injury suffered on 23 November 2013 was aggravation of this pre-existent painful lumbar spine condition.
Therefore, as you have indicated the surgery of 2010 and December 2013 were not work related but are also relevant to my overall opinion, now I have had access to this further documentation.
f. In December 2014, the applicant underwent a L4/5 laminectomy for central canal stenosis (with Dr Donnellan). On the balance of probabilities, do you consider this surgery resulted from the applicant’s ‘aggravation lower back strain sustained on 23 November 2013’ or did it result from the applicant’s pre-existing degenerative disease? Please advise when answering this question what causes central canal stenosis?
It is likely that the L4/5 laminectomy for central canal stenosis performed in December 2014 is due to the pre-existent condition of the lumbar spine and not an aggravation of low back pain caused by his work injury on 23 November 2013. Central canal stenosis would be a long-standing condition related to degenerative disc disease or a congenital cause which could apply to this man’s case.
g. In your report dated 24 May 2023, you state prior to the injury of 2 July 2020, the applicant was working quite well without any significant back pain. We note the following attendances at the general practitioner just prior to the work injury:
• 10/1/18 – low back pain radiating to left leg
• 29/5/19 – chronic pain
• 20/8/19 – chronic pain
• 19/12/19 – home has fire around, unable to go home, info to patient to fill out disability pension – low back pain • 4/1/20 – paperwork for disability pension
• 1/5/20 – ongoing low back pain on palexia
• 6/5/20 – D/W centrelink (sic) not able to work
• 2/6/20 – DSP rejected due to income – low back pain radiating to left leg
• 25 /6/20 – chronic pain
From the records above the applicant was reporting low back pain radiating to the left leg prior 2 July 2020, and had applied for disability support pension. What new symptoms did he report after 2 July 2020, which are attributed to the injury of 2 July 2020?
The documentation provided in the list you have given accompanying this question indicates that he had a significant chronic lumbar back pain with which he could barely cope. He would only consider going on disability support pension if his chronic lumbar back pain was severe and long-standing. It is therefore likely that any aggravation caused on 2 July 2020, when he had the injury on the forklift, was only an increase in chronic low back pain from which he already suffered.
h. Finally, does any of the enclosed material cause you to change your opinion a previously expressed in your report dated 24 May 2023?
The documentation provided clearly shows he had a significant chronic lumbar back pain that pre-dated his work injury on 23 November 2013 and he had already had his surgery as noted.
It is also clear from the documentation that he had chronic lumbar back pain that was significantly affecting him before the injury on 2 July 2020.
I now consider that the aggravation to his chronic low back pain caused by the injury on the 2 July 2020, has ceased and he is really back to the level he was prior to that injury. He no longer suffers from the effects of that work injury on 2 July 2020.
However, it does not change my opinion that his present back complaint is due to the active degenerative disc disease at the L5/S1 level below his previous three level lumbar spine fusion. However, any surgery to this level is not a consequence of the injury suffered on the 2 July 2020 and is only due to the pre-existent surgery he had.
I would also add that the L2 to L5 three level lumbar spinal fusion performed in 2013 and revised in 2016 was done for his pre-existent lumbar spine condition that pre-dated the work injury on the 23 November 2013. The documentation you have now provided to me and which I have commented upon already clearly shows this.

The respondent made the fair point that an expert witness was obliged to respond to new and better evidence in making a professional judgment. However, it became apparent during Dr Page’s cross-examination, that the ‘new material’ went no further than the fact that the applicant had referred to back problems in a DSP application, and the quantity and nature of pain medication prescribed. This caused Dr Page to conclude that the applicant had given him the wrong information, despite the very substantial medical history provided to him in preparing his first report.
The applicant was adamant that the DSP application was recommended by his doctor as a coping mechanism for depression. He did not consider that he was disabled by reason of his back condition (at that time he was still working) and his counsel later suggested that information about his back was provided by way of completeness.[203] I also note the comments by Dr Donnellan referred to above as to the circumstances in which he penned a letter of support for the DSP application. I note that when cross-examined about this topic, Dr Donnellan said:
If you look at the patients that come through my office, you know there are lots of patients on disability pensions that … have a lot fewer and less significant issues than Robert. I mean the fact that Robert is so determined to keep working is a source of amazement to me, actually. But I definitely thought if he decided that he couldn't do it anymore and wanted a disability pension that he was entitled to it.[204]
[203] Transcript, 30 April 2024, 173.
[204] Transcript, 9 April 2024, 92.
Moreover, the medical records indicate the quantity of pain medication prescribed, but there is no evidence as to the precise quantity of medication consumed by the applicant daily. The applicant said merely that he was managing his pain with pills and took pain medication as required.
One obvious fact is that the PLIF remains undone. Dr Donnellan said in evidence that although he thought that the PLIF was necessary after the accident, he had been unable to perform the operation because of surgery restrictions imposed by the health authorities during the pandemic.[205] I put aside this consideration as relevant to whether the proposed surgery is in relation to the compensable condition.
[205] Transcript, 9 April 2024, 100.
The respondent contends that the requested approval for spinal surgery namely ‘L5/S1 Posterior Interbody Fusion with level 3 Instrumentation’, is unrelated to any compensable condition sustained around 2 July 2020, and that his current presentation is the result of ‘idiopathic degeneration for which the applicant has a constitutional predisposition as well as his previous various spinal surgeries over the years (all of which is unrelated to his employment)’.
It is axiomatic that the proposed treatment proposed by Dr Donnellan in January 2021 would not be ‘in relation to’ the compensable condition if the need for that treatment arose independently (in a causal sense) of the compensable injury sustained on 2 July 2020. The circumstances of the present case suggest that by reason of the applicant’s degenerative back disease, and the various surgical procedures taken to ameliorate his lower back pain, it was highly probable that at some point in the future he would need further back surgery. The existence of a degenerative disease with an unpredictable trajectory does not by itself defeat a claim for compensation based upon an aggravation of the underlying compensable condition. One indication that the proposed treatment arises in relation to the compensable condition is whether the accident has produced a new set of symptoms associated with some physiological change.
The respondent is especially critical of Dr Donnellan’s identification of pain associated with the S1 dermatome as a new symptom, pointing out that it had been identified on 23 June 2020 by the GP.
(18)e. The so-called “new symptom” was not recorded by Dr Donnellan in later consultations so it was only recorded once on 7 July based on a description by the applicant as a symptom he had suffered for 2-3 weeks (which is correct as it had been suffered since June, although Dr Donnellan mistakenly interpreted what he was told as being only after the 2 July incident, albeit that was only 5 days before the appointment). It is also clear from the GP records that the symptom was not new, it had been suffered from 2 June 2020: PDF1203/1619 and the GP had given the applicant a medical certificate for 9-10 June.
The respondent contends that a finding that the accident was the probable cause of an aggravation of his compensable condition based on different symptoms before and after the accident would be ‘perverse’.
7. A finding that there was an aggravation because of a difference in symptoms would be perverse and against the evidence. In Comcare’s submission, such a finding would be so unreasonable that it would be liable to be set aside for error. By the end of the hearing, the only remaining pinpointed ‘change in symptoms’ after 2 July 2020 was totally de-bunked. Dr Donnellan had thought that sciatica was a new symptom after 2 July 2020, but this was shown to be in error (see [916] below).[206]
…
16. There was no increase in symptoms after 2 July 2020, rather the applicant was likely affected by opioids in his coordination or concentration on the forklift and realized after 2 July 2020 that he could no longer hide both his symptoms and his opioid use from his employer. Instead of admitting that his symptoms were so much worse that he had been taking the opioid Endone on top of the opioid Palexia since 23 June 2020: PDF1204/1619, the applicant attempted to claim he suffered a new symptom caused by the minor incident on 2 July 2020. A finding of a new symptom may have been thought to assist him financially given he was no longer working, but makes no sense given the mechanical forces involved, and once regard is had to the summonsed records from his GP which show the applicant was experiencing the same problems in June 2020 before the incident.
[206] R16 at [7].
Another indication that treatment arises in relation to the compensable condition is whether the need for medical treatment has been triggered or brought forward in a non-trivial way. In his report dated 30 June 2022, Dr Siu stated:
Whilst Mr Holding is a chronic low back pain sufferer with an extensive background surgical history, the clinical information provided indicates that the index incident in 2020 is a watershed moment, heralding the beginning of a protracted downturn in his spinal condition. [207]
[207] R15, 171 at 175 (T37).
Dr Davies was quite certain that the need for the PLIF treatment had been brought forward by a significant period. In his first report of 25 March 2022, he states:
'.. It is clear that Mr Holding had significant pre-existing problems in the lumbar spine and had undergone multiple operations on the lumbar spine... the incident of 2 July 2020 ...has precipitated the need for surgery at an earlier time than would otherwise have been the case'.[208]
[208] R14, 400 (T164.1).
In his report dated 24 July 2023, Dr Davies reported as follows:
Thank you for your letter of 21 July 2023 and the accompanying report from Dr Hyde Page. I have read Dr Hyde Page's report. It does not cause me to alter my opinion. I remain of the opinion that the incident on 2 July 2020 caused a significant aggravation to pre-existing degenerative changes at L5-S1 and precipitated the need for surgery at that level. Whilst Mr Holding had ongoing low back pain following his early back problems, he was managing full-time suitable duties following his previous surgical procedures and prior to the incident in July 2020. I indicated in my report of 25 March 2022 that Mr Holding would probably have required similar surgery at L5-S1 at some stage in the future in the absence of the incident on 2 July 2020, but that incident had precipitated the need for surgery at an earlier time than would otherwise have been the case. [209]
[209] R14, 15-16 (A5).
CONCLUSION
I have carefully examined the expert reports, the medical records, and the oral evidence of the three doctors who gave evidence. As noted above, Dr Casikar was scheduled to give oral evidence but was not able to do so due to ill health. In his report of 16 May 2022, he was unable to identify a work-related pathology which would create a constitutional degenerative disease of the lumbar spine. He considered that this was the ‘main reason’ for his back pain.[210]
[210] R14, 408 (T166).
I note the views expressed by Dr Donnellan, Dr Campbell, Dr Siu, Dr Davies, and the first report of Dr Page. They did not have access to the GP notes from the Broadmeadow Medical Practice covering the period immediately before the accident. The respondent relies heavily on these file notes. They have been considered in some detail above. When Dr Page was presented with this material, prior to the hearing, he firmly changed his mind on the critical question of causation (significant contribution). Admittedly, neither Dr Donnellan nor Dr Davies were shaken from their view by this evidence.
The picture is undoubtedly not clear cut. The medical records show significant pain in the lumbar region both before and after the incident of 2 July 2020, and I have referred about to Dr Donnellan’s letter to the GP on 29 September 2020, in which the possibility of a return to work following a steroid injection is contemplated.[211]
[211] R14, 274 (T135.3); see paras [122]- [123] above.
Dr Davies is undoubtedly correct to say that even in the absence of the incident on 2 July the applicant would probably have required similar surgery at L5-S1 at some stage. He opined that the incident had precipitated the need for surgery at an earlier time than would otherwise have been the case.[212] This may be so, but begs the question - how much earlier?
[212] R14, 15-16 (A5).
Given the finely balanced nature of the evaluation required in this case, the Tribunal must choose between two sets of professional medical opinion. My conclusion is that the applicant suffered some discomfort and inflammation following the collision, but that the condition of his lumbar spine returned quickly to its pre-accident condition. The evidence in favour of a qualitative or physiological worsening of his underlying condition because of the accident of 2 July is tenuous. Any bringing forward of the timeframe for surgery was incidental in a causal sense. The medical evidence presented to the Tribunal in considerable detail is that the applicant suffers from a progressive degenerative disease in the lumbar spine. I accept the opinion expressed by Dr Casikar, ultimately shared by Dr Page, that the workplace injury has not accelerated the natural speed of the degenerative disease.
My overall conclusion is that the accident suffered by the applicant on 2 July 2020 is somewhat like a skiff on a breaking wave, causing minor ripples on the wave front, but neither subtracting nor adding to its forward momentum, and adding little to its relentless force. In the language that has gained acceptance, by the time Comcare made its determination on 18 August 2022, any contributing employment factors, including those involved in the accident of 2 July 2020, had been ‘crowded out’ by his underlying degenerative condition.[213]
[213] Prain v Comcare (2017) 256 FCR 65.
On balance, I am not satisfied that the PLIF treatment arises ‘in relation to’ the compensable condition.
I therefore affirm the decision made on 12 November 2021 by which Comcare affirmed the determination made on 24 June 2021 to deny liability to pay compensation under section 16 of the SRC Act for specific surgery (L5/S1 Posterior Interbody Fusion with level 3 Instrumentation).
The analysis of the medical evidence that has led me to this conclusion also brings me to conclude that the second and third decisions should be affirmed.
I therefore affirm the decisions of 3 November 2022 by which Comcare affirmed a determination made on 18 August 2022 that the applicant was no longer suffering from the effects of a compensable condition, and declining liability to pay for medical treatment and incapacity benefits under sections 16 and 19 of the SRC Act.
I also affirm the decision made on 24 November 2022, by which Comcare affirmed a determination made on 20 September 2022 that the applicant was no longer suffering from the effects of the compensable condition, and declining liability to pay for medical treatment under section 16 of the SRC Act.
DECISION
In accordance with subsection 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decisions dated 12 November 2021, 3 November 2022 and 24 November 2022 are affirmed.
APPENDIX

I certify that the preceding 155 (one hundred and fifty -five) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.................................[SGD].......................................
Associate
Dated: 29 August 2024

Date(s) of hearing: 8, 9, 30 April 2024

Date final submissions received: 17 June 2024

Counsel for the Applicant: Mr L Grey, Counsel

Solicitors for the Applicant: Mr P Quinn, KQ Lawyers

Counsel for the Respondent: Ms S Wright, Australian Government Solicitor

Solicitors for the Respondent: Ms B Audsley, Australian Government Solicitor

Date(s) of hearing:	8, 9, 30 April 2024
Date final submissions received:	17 June 2024
Counsel for the Applicant:	Mr L Grey, Counsel
Solicitors for the Applicant:	Mr P Quinn, KQ Lawyers
Counsel for the Respondent:	Ms S Wright, Australian Government Solicitor
Solicitors for the Respondent:	Ms B Audsley, Australian Government Solicitor