Jenkins and Comcare (Compensation)
[2020] AATA 499
•12 March 2020
Jenkins and Comcare (Compensation) [2020] AATA 499 (12 March 2020)
Division:GENERAL DIVISION
File Number: 2018/1309
Re:Linda Jenkins
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:12 March 2020
Place:Perth
The Tribunal affirms the Reviewable Decision dated 23 February 2018.
.........................[sgd]...............................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
COMPENSATION – Workers’ Compensation – Commonwealth Employee – determination by Respondent of no present liability – medical expenses – incapacity payments – whether Applicant continues to suffer from an injury – accepted injury as described by Comcare not definitive – whether Applicant recovered from injury – whether an injury can continue after successful surgery – whether a new injury caused as a result of medical treatment – expert medical evidence – independence of experts when they have conferred – common law “but for” test does not apply to the Safety, Rehabilitation and Compensation Act 1988 – Reviewable Decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, 4(3), 5A(1), 5B, 14, 16, 19, 20, 24, 27
CASES
Comcare v Martin [2016] HCA 43
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Portors and Comcare [2017] AATA 2166
Prain and Comcare [2017] FCAFC 143
SECONDARY MATERIALS
Administrative Appeals Tribunal Person’s Giving Expert and Opinion Evidence Guideline, 30 June 2015
Federal Court of Australia, Expert Evidence Practice Note (GPN-EXPT) General Practice Note, Annexure A Harmonised Expert Witness Code of Conduct
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
12 March 2020
OVERVIEW
The Applicant is a 60 year old woman. She suffered an aggravation of a back condition in February and March 2007 whilst cleaning out and reorganising a storeroom during the course of her employment at the Department of Immigration and Citizenship
(the Department).
On 2 April 2007, the Applicant’s general practitioner, Dr Evan Jenkins, referred the Applicant for an MRI, which was carried out on 10 April 2007. The MRI results showed, amongst other things, “…degenerative changes within the mid and lower lumbar spine” and additionally, “a large right paracentral disc extrusion with superior extension at the L4/5 level” (T6, page 22).
On 13 April 2007 the Applicant underwent an “…L4/5 laminectomy and superior portion of L5 discectomy and right L4/5 nerve root decompression” (2007 surgery) which was performed by neurological surgeon Mr Neville Knuckey (T8, page 24).
On 8 May 2007 Dr Jenkins issued a Workers’ Compensation first medical certificate (T9, page 25), which stated a diagnosis of “acutely exacerbated chronic lumbosacral spondylosis/degenerative disc disease”. In this medical certificate, Dr Jenkins further stated that the Applicant had undergone a laminectomy, discectomy and nerve root decompression operation, stating that she has made an “excellent post-op recovery to date” and certifying her as fit to return to work on restricted duties.
The Applicant developed severe anal pain as a result of some of her pain medication, and underwent a lateral anal sphincterotomy which was performed by Mr David Cooke on
9 May 2007. His operation report stated, in part, “…she had been using a good deal of codeine for back pain. The latter [back pain] resolved completely after spinal surgery 3 weeks ago…” (Exhibit R14).
On 11 September 2007, Mr Knuckey wrote to Dr Jenkins and reported that (T10, page 26):
I reviewed Linda Jenkins today and she is doing well following lumbar decompression. She has no significant back or leg pain. She is undergoing a good exercise programme.
On examination her lumbar wound is well healed. I discussed with her the long-term care for her back. I have not made another appointment to see her. I am happy to review her as clinically indicated.
The Applicant made a claim for Worker’s compensation in a form dated
27 September 2007 (T11, page 35), although the Comcare claim form describes the date of receipt of this claim as 20 September 2007 (T11, page 37). In her claim form the Applicant described her injury as “prolapse disc” and the parts of her body affected as being “lower back + pain in left leg” (T11).
On 21 November 2007, Dr Jenkins wrote a consultation note which recorded the Applicant as saying, “My back’s fabulous” (which in his evidence he stated was a direct quote from the Applicant – see transcript, day 1, pages 44, 65). He also made the note “WC final cert [work cover final certificate] – disability now not related to back” (Exhibit R15).
Comcare arranged for the Applicant to be assessed by a consultant orthopaedic surgeon, Mr Dibyendu Gope on 27 November 2007. At the time of his assessment, Mr Gope reported, under the heading “Current Status” (T17, page 66):
With regard to lower back symptoms, Ms Jenkins reports a very satisfactory outcome following the L4/5 laminectomy. She does not have any discomfort at rest or during normal activities. There is discomfort however after long distance car travel or sitting for a prolonged period of time.
Mr Gope stated later in the “Summary and Assessment” section of his report that (T17, page 69):
[The Applicant] is a[n]… employee of the Department of Immigration and Citizenship who sustained a prolapse of the L4/5 disc during the earlier part of 2007. This resulted in an L4/5 discectomy and decompression of the nerve roots on the 13 April 2007. From the point of view of disc surgery she made a very satisfactory and uneventful recovery, however, there were post-operative complications of constipation which resulted in anal fissure.
After receiving Dr Gope’s report (T17), the Respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRCAct) for “aggravation of intervertebral disc disorder – lumbar region” by a determination dated 6 February 2008 (T18).
The determination dated 6 February 2008 stated that Comcare “will accept medical treatment and time off work claims resulting from this injury up to and including
21 November 2007 ONLY” (original emphasis) (T18, page 75). However, subsequent to this date Comcare accepted liability for medical expenses including:(a)An L4/5 removal of scar tissue and removal of some of the disc performed by consultant neurosurgeon Mr Francis Johnston on 10 December 2010 (T38); and
(b)A “two-level fusion at L3/4 and L4/5 with complete discectomy, decompression of the nerve roots and insertion of interbody cages and plates…” by consultant neurosurgeon Mr Paul Bannan on 16 June 2011 (T48).
Additionally, on 5 July 2012 the Applicant made a claim for permanent impairment (T53). The Respondent accepted liability under s 24 of the Act in a determination dated
27 July 2012 for a 23% degree of permanent impairment for the Applicant’s lumbar spine condition. The Applicant was awarded lump sum payments for both permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act (T56).
On 21 December 2016, while Christmas food shopping, the Applicant slipped over in the supermarket “onto the bottom of my back” (T104, page 288), which, she described, “exacerbated the pain in my lower back” (T100, page 281). She stated that the fall “shocked my system as well as experiencing extreme pain” (T95, p 272).
Mr Bannan, recommended in a letter dated 23 March 2017 that the Applicant undergo a “posterior lumbar interbody fusion to decompress the nerve roots and extend the fusion down to incorporate L5 / S1” (T97).
In a letter dated 7 April 2017, the Respondent denied liability to pay for the consultation with Mr Bannan, two CT scans and a bone scan/joint study, stating that the “treatments were required as a result of a fall you sustained on 21 December 2016 and not due to compensable circumstances” (T98).
In a further letter dated 20 April 2017, the Respondent denied liability to pay for the surgery recommended by Mr Bannan, which was described as “L5-S1 Posterior Lumbar Fusion Rhyolysis Roots Interbody Cages and Posterolat” (T102, page 284).
The Applicant underwent surgery on 22 May 2017, which was performed by Mr Bannan. The Applicant stated that this surgery was funded through her private health insurance (Exhibit A2, para [29]).
The Applicant requested a review of both these determinations (T103; T104, pages 287-291). However, a Review Officer of the Respondent affirmed the determination of
7 April 2017 on 9 May 2017 (T105, pages 292-294). Similarly, on 16 May 2017 the Review Officer affirmed the determination of 20 April 2017 (T106, pages 295-297).
The Applicant is not seeking to challenge those determinations.
On 19 July 2017, the Respondent advised the Applicant that it intended to issue a
“no present entitlement determination in 28 days” (T109, page 318).
On 25 January 2018, the Respondent determined that it had “no present liability” for medical expenses under s 16 of the Act, and incapacity payments under s 20 of the Act (T119, pages 335-336). The Respondent relied upon a medical report by
Dr Eugene Mattes, consultant occupational physician dated 28 June 2017 and to conclude that, “your current pain condition is psychosocial and not biological and that your current condition is not related to your employment” (T119, page 335).
The Applicant requested a review of the no present liability determination dated
25 January 2018 (T120).
However, on 23 February 2018, a Review Officer of the Respondent affirmed the no present liability determination (T2, pages 8-16; T122, pages 343-351), stating: “The evidence supports the original determination was correct and it has therefore been affirmed”. This is the Reviewable Decision currently before the Tribunal.
On 14 March 2018 the Applicant lodged an application seeking review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (the Tribunal).
THE PARTIES’ SUBMISSIONS
By way of summary, the Respondent’s case was that the Reviewable Decision should be affirmed for the following reasons (transcript, day 2, page 107; written closing submissions, paragraphs [16]-[18]):
(a)The Applicant’s injury to her lumbar spine resolved approximately six months after her 2007 surgery, and that any symptoms that she suffered following her surgery were the result of pre-existing conditions and other exacerbations and aggravations that she had experienced from time to time. The Respondent no longer relied on the opinion of Dr Mattes that the Applicant’s symptoms were psychosocial (see also transcript, day 1, page 4).
(b)In the alternative, the Respondent submitted that if the Tribunal were to find that the Applicant continues to suffer from the lumbar spine condition that it was no longer contributed to, to a significant degree, by her employment (and therefore the definition of an injury in s 5A of the SRC Act is not satisfied).
(c)Further in the alternative, the Respondent submitted that even if this causative threshold continued to be met, there was not enough evidence to satisfy the remaining statutory criteria in ss 16 and 20 of the SRC Act, specifically the “as a result of” and the “in relation to” tests, and therefore liability would not arise.
The Applicant’s position is that the Reviewable Decision should be set aside and substituted with a new decision that the Respondent continues to be liable to pay compensation to the Applicant for her 2007 work injury (written closing submissions, paragraph [18]). Specifically, the Applicant submitted that:
(a)She did not recover from her 2007 work injury, and that she continues to suffer from the injury.
(b)The fall in the supermarket on 21 December 2016 caused a separate injury which resolved.
(c)
The Applicant has a continuing need for medical treatment and incapacity for work caused by the 2007 work injury. The submission was that the “but for” test of causation (March v E & MH Stramare Pty Ltd (1991) 171 CLR 506) applied.
The consequence, according to the Applicant, was that there was no need to satisfy the remaining criteria in ss 16 and 20 of the Act, (the “as a result of” and the
“in relation to” tests). In summary, the Applicant’s submission was that Comcare is liable to pay compensation for an injury if it results in incapacity, which is “a straight causal enquiry” (transcript, day 1, page 12) and that, “the evidence suggests that the applicant would not be in the position she is in now were it not for the incidents at work in early 2007” (Exhibit A1, paragraph [11]).
ISSUES
As foreshadowed by the differing approaches in the submissions of the parties outlined above, the parties also disagreed on the precise formulation of the issues before the Tribunal.
The Applicant stated the issues as being (written closing submissions, paragraph [3];
see also transcript, day 1, pages 11-12):
3. The applicant and the respondent agree that the first issue is whether the applicant continues to suffer from “aggravation of intervertebral disc disorder – lumbar region”.
4.The applicant also agrees that it is appropriate for the Tribunal to consider at the same time whether as at 25 January 2018 there was a need for medical treatment or an incapacity for work caused by the injury (for if not, the Tribunal would simply be making an empty declaration).
5. The applicant does not agree that the Tribunal, having found that the applicant continues to suffer from the accepted condition, needs to make a further enquiry as to whether that continuing accepted condition is contributed to, to a requisite degree by her employment. The respondent has suggested that the case of Prain v Comcare mandates such an enquiry.
In the Respondent’s closing submissions, the Respondent stated the issues to be (paragraph [7]):
The issues to be determined by the Tribunal in this manner are as follows:
a. Whether the Applicant continues to suffer from the Injury?
b. If so, does it continue to be contributed to, to the requisite degree, by her employment with the Commonwealth?
c. Whether, as at 25 January 2018 and to the present date, the Injury gave rise to a need for medical treatment or results in earning capacity for work such that the Applicant has a present entitlement to compensation under ss 16 and 19* of the SRC Act?
[* the Tribunal notes that this should be s 20 of the Act as per the Reviewable Decision. See also Respondent’s oral submissions which refer to s 20 – transcript, day 1, page 56]
Taking into account the submissions of the parties regarding the issues, the Tribunal’s opinion is that the most accurate formulation of the issues is that submitted by the Respondent. To clarify, the Tribunal will now make some observations about the issues.
The first issue for the Tribunal to determine is whether the Applicant continues to suffer from a physical injury, ailment or aggravation of an ailment (as defined by ss 5A and 5B of the SRC Act). If the Applicant has recovered, the Tribunal’s enquiry ends there, and it does not need to proceed to determine the remaining issues.
If the Applicant has not recovered, the Tribunal is next required to consider whether the physical injury, ailment or aggravation of an ailment continues to be contributed to, to the requisite degree, by the Applicant’s employment with the Commonwealth. Put simply, it is an element of the definition of an “injury” in ss 5A and 5B of the SRC Act that the requisite degree of contribution by employment is met otherwise there will be no “injury”. To give a practical example, an Applicant may still suffer from a physical injury which was initially contributed to, to the requisite degree, by the Applicant’s employment with the Commonwealth. However at the time of the reviewable decision, this may no longer be the case. After the passage of time other causative factors not related to employment may outweigh the employment related factors.
The case of Prain and Comcare [2017] FCAFC 143 (Prain FC) illustrates this point. In Prain FC, Comcare accepted liability for Mrs Prain’s adjustment disorder in 2011, but subsequently (in 2012) denied liability for her claim for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act. In a separate decision in 2015, Comcare made a decision that it had “no present entitlement” to pay Mrs Prain compensation under ss 16 and 19 of the SRC Act. The Tribunal affirmed the decisions, holding that at the time of the reviewable decision in 2015,
Mrs Prain’s employment was no longer a significant contributor to her adjustment disorder and that other non-work related factors “were having the effect of pushing the employment factor further and further into the background” (cited at [85]). Mrs Prain’s subsequent appeal to the Full Court of the Federal Court from the Tribunal’s decision was dismissed.
Further, as noted in the Respondent’s closing submissions (paragraphs [12] and [13])
ss 16 and 19, refer to “an injury” and “the injury”. This shows that there is an ongoing need for an injury in order for Comcare to be liable to pay medical expenses or compensation under the SRC Act. Specifically, s 16(1) commences: “Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury…” Subsection 20(1) of the SRC Act commences: “Compensation is payable to an employee who is incapacitated for work as a result of an injury…” (Emphasis added.)
As noted above, Counsel for the Applicant phrased the first issue as follows:
“The applicant and the respondent agree that the first issue is whether the applicant continues to suffer from “aggravation of intervertebral disc disorder – lumbar region””.
In written closing submissions the Respondent referred to “the Injury”. It is unclear whether this is a reference to the specific injury accepted by Comcare, being “aggravation of intervertebral disc disorder – lumbar region” or an injury in a broader sense. The Tribunal suggests that “an Injury” (Emphasis added) may be a more accurate application of the SRC Act.
This is because the SRC Act does not refer to, or limit a claimant to, claiming medical expenses or incapacity payments, with respect to an “accepted condition” or an “accepted injury”. It simply refers to the employee being able to make such a claim if the employee has suffered an injury attributable (to the requisite degree) to their employment with the Commonwealth (regardless of how the injury is named by the Respondent). Reference to an “accepted injury” or “accepted condition” may have the unfortunate result of denying a legitimate claim subsequently made by an Applicant after the initial acceptance of liability if it does not fall within that precise definition. Thus, some caution should be exercised with respect to terminology.
With respect to the construction of ss 16 and 20 of the SRC Act,
and whether the “but for” test applies, counsel for the Respondent submitted that
the Applicant’s assertion that common law principles apply to the characterisation of these sections was not correct, and referred to the High Court’s decision in Comcare v Martin [2016] HCA 43 (Martin) as authority. The Tribunal notes the following statement from the High Court in Martin at [42]:
Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any “common sense” approach to causation which can provide a useful, still less universal, legal norm.
(Footnotes omitted.)
The Tribunal agrees with this submission, noting that the SRC Act is a separate statutory scheme which sets out its own tests for causation, as is evident from the words “arising out of, or in the course of” in s 5A(1)(b); “contributed to, to a significant degree” in s 5B(1); “as a result of” in the context of reasonable administrative action in s 5A(1); “in relation to” in s 16(1); and “as a result of” in ss 19 and 20.
As will become evident from the analysis below, it is unnecessary for the Tribunal to elaborate further about the requisite test for causation to be applied in this matter, or to elaborate regarding the construction of ss 16 and 20. This is because after a consideration of the first issue, the Tribunal concludes that the Applicant does not continue to suffer from her 2007 work injury, and it is therefore unnecessary for the Tribunal to consider the remaining issues.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 18 and 19 September 2019.
Mr Bruns appeared as counsel for the Applicant, assisted by his instructing solicitor,
Mr Radich.
Ms Slack appeared as counsel for Comcare, assisted by her instructing solicitor
Mr Burgess.
On Day 1 of the hearing the Applicant gave evidence in person and was cross-examined. The Applicant also called her general practitioner, Dr Jenkins, who gave evidence in person and was cross-examined.
On Day 1, the Respondent called consultant neurologist and rehabilitation physician,
Dr Lodewicus du Plessis who gave evidence by telephone, and was cross-examined.
On Day 2 the Respondent called consultant orthopaedic surgeon Mr Fredrick Phillips who gave evidence in person and was cross-examined.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 3 May 2019 (Exhibit A1);
(b)Witness Statement of the Applicant dated 12 September 2018 (Exhibit A2);
(c)Letter from Mr Bannan dated 6 July 2017 (Exhibit A3);
(d)Letter from Mr Bannan dated 24 November 2017 (Exhibit A4);
(e)Briefing Letter to Dr Lawrence Blumberg dated 5 November 2018 and corresponding Report of Dr Blumberg dated 28 November 2018 (Exhibit A5);
(f)Briefing Letter to Dr Jenkins dated 5 November 2018 and corresponding report of Dr Jenkins dated 9 November 2018 (Exhibit A6);
(g)Briefing Letter to Mr Bannan dated 5 November 2018 and corresponding report of Mr Bannan dated 8 November 2018 (Exhibit A7);
(h)Curriculum vitae of Dr Jenkins (Exhibit A8);
(i)
SKG Radiology Report dated 10 April 2007 from page 890 of Exhibit R2
(Exhibit A9);
(j)Section 37 (T-Documents) numbered T1 to T130 comprising 549 pages (includes emails dated 19 September 2017 and 4 December 2017 attaching clearer copies of documents at pages 331 and 354 of T-documents) (Exhibit R1);
(k)
Bundle titled “Records Produced under Summons” comprising 947 pages
(Exhibit R2);
(l)Respondent’s SFIC dated 5 July 2019 (Exhibit R3);
(m)Respondent’s Statement of Issues dated 1 May 2018 (Exhibit R4);
(n)Briefing letters to Dr du Plessis dated 16 November 2018, 23 November 2018 and 6 December 2018 and corresponding Report of Dr du Plessis dated 19 December 2018 (Exhibit R5);
(o)Briefing letter to Dr du Plessis dated 27 June 2019 and corresponding Supplementary Report of Dr du Plessis dated 3 July 2019 (Exhibit R6);
(p)Briefing letters to Mr Phillips dated 16 November 2018, 23 November 2018 and 6 December 2018 and Report of Mr Phillips dated 19 December 2019 (Exhibit R7);
(q)
Briefing letter to Mr Phillips dated 27 June 2019 and Supplementary Report of
Mr Phillips dated 1 July 2019 (Exhibit R8);
(r)Medical Reports of Gloucestershire Hospitals (34 pages) attached to a letter dated 8 August 2018 (Exhibit R9);
(s)Letter to Dr C A Jenner (Clinical Director of London Pain Clinic) dated 18 June 2018 (Exhibit R10);
(t)
Medical Records from London Pain Clinic (65 pages) attached to an email dated
9 July 2018 (Exhibit R11);
(u)
Records of Mr Francis Johnston attached to an email dated 28 June 2018
(Exhibit R12);
(v)Documents produced under summons by Mr David Cooke (Exhibit R13);
(w)Operation Report from Mr Cooke dated 9 May 2007 from page 348 of Exhibit R2 (Exhibit R14);
(x)Surgery Consultation Records of Dr Jenkins from page 387 through to 390 of Exhibit R2 (Exhibit R15);
(y)St John of God Murdoch – Emergency Department Nursing Assessment notes dated 9 April 2007 from page 743 of Exhibit R2 (Exhibit R16); and
(z)
St John of God Murdoch – Emergency Department Assessment notes dated
9 April 2007 from page 689 of Exhibit R2 (Exhibit R17).
There was some discussion at the commencement of the hearing regarding the extent of the documentation that should be put into evidence (transcript, day 1, pages 4-6).
For example, Ms Slack stated that the Respondent did not intend to rely upon the
T-documents in their entirety. Specifically, Ms Slack referred to the report of Dr Mattes
(at T108) being irrelevant because the Respondent no longer sought to deny liability on the basis of psychosocial factors. The reliance of the Respondent on Dr Mattes’ report to deny liability had (as explained by Mr Bruns) prompted the Applicant to obtain the report from Dr Blumberg (Exhibit A5), which Ms Slack submitted was also not relevant.
For the avoidance of doubt, the Tribunal confirms that it has labelled all materials before it as Exhibits. However the Tribunal has relied upon the materials specifically brought to its attention by the parties in their written and oral submissions as being relevant.
LEGISLATIVE FRAMEWORK
Comcare’s liability to pay compensation is provided for in s 14(1) of the SRC Act:
14. Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
With respect to the payment of medical expenses, s 16(1) of the SRC Act states:
16. Compensation in respect of medical expenses etc
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
With respect to compensation for weekly earnings if an employee is incapacitated for work, s 19 of the SRC Act states:
19. Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula...
Similarly, s 20 of the SRC Act states:
20. Compensation for injuries resulting in incapacity where employee is in receipt of a superannuation pension
(1) Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:
(a) the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and
(b) the employee receives a pension under a superannuation scheme as a result of the employee's retirement.
(2) Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.
(3) The amount of compensation is the amount worked out using this formula…
An “injury” is defined in s 5A(1) of the SRC Act as follows:
Definition of injury
(1) In this Act:
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(Original emphasis.)
Section 5B of the SRC Act defines a “disease” as follows:
Definition of disease
(1) In this Act:
“disease” means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Section 4 of the SRC Act defines “ailment” as, “...any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Subsection 4(3) of the SRC Act provides for the situation where there is an injury as a result of medical treatment:
(3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.
DOES THE APPLICANT CONTINUE TO SUFFER FROM AN INJURY?
The Tribunal will now discuss the relevant evidence as to whether the Applicant continues to suffer from an injury sustained at work in 2007 or whether she recovered following the 2007 surgery.
The Applicant
The Applicant acknowledged in her evidence that, prior to February and March 2007 she “had some low back symptoms from time to time” which she had mentioned to Dr Jenkins on 19 May 2005 and 8 January 2007 (Exhibit A2, paragraph [1]). The Applicant was asked under cross-examination what she meant by this statement (transcript, day 1, page 19):
What I’m saying there is that maybe from my 20s, periodically, maybe five yearly or something I may have had back aches, which is fairly common when you’ve had two children and you’re keeping house and garden and working as well. But it was nothing like when I had the accident. I was on the floor and I couldn’t get up for about three days, and in the end my daughter took me to the hospital.
With respect to the “accident” referred to by the Applicant in the paragraph above,
her evidence was that in February and March 2007, “I suffered extreme back pain” after spending two weeks clearing out an office/store room at work, and also after moving boxes of photocopying paper. She stated that, “all of the carrying, twisting and placing them on the shelves added to my back pain” (Exhibit A2, paragraph [2]).
The Applicant described seeing Dr Jenkins on 2 April 2007, who referred her for an MRI which, as noted above, was carried out on 10 April 2007. The MRI showed “degenerative changes within the mid and lower lumbar spine” (T6, page 22). It also showed “a large right paracentral disc extrusion with superior extension at the L4/5 level” (T6, page 22).
The Applicant agreed under cross-examination that the symptoms she experienced when she visited Dr Jenkins in January 2007 were in the same areas of her body (being an ache in both her lower back and her right thigh) as those she experienced in April 2007 (transcript, day 1, page 24).
She described not being able to walk due to the pain, and her evidence was that she had to be taken to the hospital emergency department by her daughter. The Applicant was admitted to hospital by Mr Knuckey who requested an MRI, the results of which showed a disc prolapse (Exhibit A2, paragraph [4]). She described having the 2007 surgery (referred to above), which was carried out by Dr Knuckey on 13 April 2007 (Exhibit A2, paragraph [5]).
The Applicant’s evidence was that she was off work after the operation, but commenced a return to work program later in 2007, three days per week, three and a half hours per day. Dr Jenkins certified her as fit to work four days a week, but in January 2008, the Applicant described having a relapse (Exhibit A2, paragraphs [6]-[8]).
The Applicant stated that on 13 March 2008, Dr Jenkins provided her with a certificate certifying her as fit for work but requiring treatment (Exhibit A2, paragraph [9]). She described taking the medications Voltaren and Mobic and trying exercise and hydrotherapy, and that her pain was exacerbated by prolonged sitting and standing. However, the Applicant described managing to return to full-time work and managing the pain with Voltaren medication (Exhibit A2, paragraph [11]).
The Applicant relocated to London on a two year contract working for the Department, and began having gastric symptoms soon after her arrival. Her evidence was that she was hospitalised in March 2010, and underwent an endoscopy, after which she was diagnosed with oesophagitis and gastritis (Exhibit A2, paragraphs [12] – [13]).
Her evidence was that the advice she received from her gastroenterologist was that
“I mustn’t take Voltaren ever again”. However, without this medication, her back pain became “much worse” and she consulted a chiropractor on 30 March 2010 (Exhibit A2, paragraph [14]).
The Applicant stated that she saw a neurosurgeon, Mr Johnston on 20 May 2010. She further stated that, “I then had two sets of steroid injections from Dr Blackburn which led onto radio frequency denervation of my lumbar facet joints”. On 9 December 2010 the Applicant stated that “Mr Johnston performed an L4/5 discectomy but my pain was no better and I was mostly bedridden for a short time until I could return to Australia” (Exhibit A2, paragraphs [15]-[17]).
The Applicant stated that she sought advice on surgical intervention from neurosurgeon Mr George T Wong in May 2011 (see also T43, pages 119-120) and Mr Bannan in June 2011 after discussions with her case manager at Comcare. She stated that Comcare approved a two level (L3/4 and L4/5) fusion by Mr Bannan, which she underwent on 16 June 2011 (Exhibit A2, paragraphs [18]-[19]).
The Applicant stated that after this surgery (Exhibit A2, paragraph [20]):
Initially I experienced some improvement but my rehabilitation did not progress and I was declared totally and permanently incapacitated. I received a lump sum payment for permanent impairment in 2012, and continued receiving weekly benefits after that.
The Applicant stated that Dr Jenkins referred her to consultant psychiatrist Dr Lawrence Blumberg, whom she saw on 27 October 2015 (see also T81, page 236), and that
Dr Blumberg diagnosed her with secondary depression due to the pain she was experiencing (Exhibit A2, paragraph [22]).
Further, the Applicant stated that she started having issues with her medications (Exhibit A2, paragraph [23]):
In about April 2016 I suffered complications with the medications. I was taken off the antidepressants, Lyrica, and Cymbalta because I had developed serotonin syndrome. My pain levels increased due to this. I was only allowed to take occasional codeine tablets.
As stated above, the Applicant slipped and fell at the supermarket on 21 December 2016. Her evidence was that, “I jarred my back”. The Applicant stated that she was reviewed by Mr Bannan in January 2017, and that in March 2017 Mr Bannan recommended further surgery. As noted above, she stated that she underwent the surgery on 22 May 2017, paying for it herself because Comcare had declined to pay on the basis that the surgery was required due to the fall on 21 December 2016 (Exhibit A2, paragraphs [24]-[29]).
Regarding the impact of the fall in the supermarket, the Applicant stated (Exhibit A2, paragraph [31]): “After the fall my pain levels increased. With the aid of surgery, the level of symptoms eventually returned to their pre-December 2016 state.”
During her examination in chief, the Applicant was asked by counsel about whether she recovered after her 2007 surgery (transcript, day 1, pages16-17):
MR BRUNS: Now, if I can just raise a couple of matters, after the surgery on 13 April 2007, it’s now suggested by people that you recovered, did you? What have you got to say about that?
APPLICANT: I didn’t recover, I – I probably didn’t contact Comcare every time that I went to the doctors or went swimming or hydrotherapy. I just tried to get better myself, but I also went to Dr Eva[n] Jenkins and he was medicating – well, put me on medication, Voltaren 50 milligrams, and then Lyrica and Digesic for pain, so I was on medication from 2007 right through to 2010, and then when I – the Voltaren had burnt out my oesophagus and stomach I had to come off the Voltaren, and that’s when my back just completely collapsed. The Voltaren was disguising what was really going on, but it kept me working for another three years, which is what I had really wanted. I really thought – I was optimistic at the very beginning that it was going to improve, and then it would just end up being better but it didn’t, it just – I had – I had a moment – I went to the toilet, I sat down, and I felt this pop in my back and I fell on the floor, and that’s when I went back to see Dr Jenkins again.
During cross-examination, it was confirmed that this incident on the toilet occurred in January 2008, based on a consultation note made on 30 January 2008 (Exhibit R2, page 388). Under cross-examination the Applicant, in part, confirmed that she did not report any leg symptoms after the toilet incident on the basis that it was not recorded in the medical notes (transcript, day 1, page 33).
During cross-examination, several medical notes were put to the Applicant that indicated she may have recovered following the 2007 surgery carried out by Mr Knuckey on
13 April 2007. These included the statement by Dr Jenkins in the Workers’ compensation first medical certificate, “excellent post-op recovery to date” (T9, page 25). The following exchange is relevant (transcript, day 1, page 25):
MS SLACK: So at that point in time your – it’s accurate to say that your post-op recovery was excellent?
APPLICANT: I wouldn’t say excellent. I would say it was improving. I don’t know if you’ve ever had anything like that done before, but it takes more than a few weeks to just get over it. And I think I was on medication then.
Counsel for the Respondent also brought to the Applicant’s attention an operation report from Mr Cooke dated 9 May 2007 (Exhibit R14) who undertook surgery on the Applicant for issues relating to anal fissures. The first paragraph of this operation report stated:
This lady was referred with a recurrence of severe anal pain triggered prior to and lasting for hours after defecation which had failed to resolve with rectogesic or proctosedyl. She had a similar problem in 2004 which settled after lateral anal sphincterotomy. On this occasion she had been using a good deal of codeine for back pain. The latter resolved completely after spinal surgery 3 weeks ago but the fissure pain, although improved transiently in hospital, then deteriorated markedly.
(Emphasis added.)
Specifically, counsel for the Respondent referred to the reference to the Applicant’s back pain having “resolved completely after spinal surgery three weeks ago”. The Applicant disagreed with this assessment, as is shown in the following exchange (transcript, day 1, page 27):
MS SLACK:…That is an accurate note taken there by your treating surgeon that your back pain had resolved completely after the spinal surgery?
SENIOR MEMBER: I’m not sure that she can attest to the accuracy of something that someone else wrote?
MS SLACK:No, I … No, but she – well, in your opinion was your back pain resolved completely three weeks after spinal surgery?
APPLICANT: No, it wasn’t.
MS SLACK: So your operating surgeon in this report must be wrong?
APPLICANT: Yes, he would have been wrong because I – it was the anaesthetics and the codeine that made me have constipation and I couldn’t go to the toilet, and in the end I split my anal muscle.
Counsel for the Respondent also put to the Applicant a consultation note from Dr Jenkins dated 21 November 2007 (Exhibit R15), in which he recorded “Bottom/perineal pain worse if doesn’t take lyrica”. He then recorded, “My back’s fabulous” in inverted commas. In this same entry, Dr Jenkins also noted, “WC final cert [work cover final certificate] – disability now not related to back”. The following exchange is relevant (transcript, day 1, page 30):
MS SLACK:And in any event, you – the only pain that you describe on this occasion, whether you were taking Lyrica or not, was your bottom/perineal pain, not any back pain?
APPLICANT: Well, I was – I was going to Evan [Dr Jenkins] for that problem as well.
MS SLACK: Yes. And rather than you describing back pain, you say,
My back is fabulous
APPLICANT: Okay. So my back is fabulous, I’ve been taking Lyrica and Voltaren, which is an anti-inflammatory, and that was the only thing that helped me with my back. So by November I was probably feeling very optimistic and hopefully at that point in time I would have been looking forward thinking that I would never have all these problems that I’ve had now. In hindsight maybe I wouldn’t have said, “I’m feeling fabulous” because if I had known what was coming.
MS SLACK:So are you suggesting that if you were taking – if we ignore the note, “If doesn’t take Lyrica”, if you were taking your medication at that point in time, that it was capable of masking your back symptoms?
APPLICANT: Yes.
MS SLACK: But not capable of masking your bottom/perineal symptoms?
APPLICANT: Yes. It wasn’t – it took the edge of it, it wasn’t masking it. I didn’t – it wasn’t as if I felt like I had a good back, it just always took the edge of it, so it was – - –
MS SLACK:Well, that’s the complete opposite to saying, “My back is fabulous”, isn’t it?
APPLICANT: My – my personality is very – was very bubbly and with
Dr Jenkins I used to say that I was just being, you know, feeling fabulous because he knew what I had been through. So any improvement to me, at that time, was lifting my spirits because I was starting to think I was coming back to normal.
The Tribunal regarded the Applicant to be an honest witness who gave evidence to the best of her recollection, with occasional difficulties in recollecting dates due to the passage of time. The Tribunal accepts that it is the honest belief of the Applicant that, at the time of the hearing, she continued to suffer from the 2007 work injury and that the medications she was taking for her anal/ perineal issues were masking the pain, and therefore the ongoing injury in her back.
However, as is evident from the Applicant’s evidence, the Applicant’s medical history is complicated by factors including her underlying degenerative back condition, the toilet incident, the 2016 supermarket fall and the surgeries she underwent in 2007, 2011 and 2017.
Consequently, in order to reach a conclusion as to whether the Applicant recovered from the 2007 work injury, the Tribunal must also assess the other medical evidence before it. This includes the medical records which refer to the surgery by Mr Knuckey, and the evidence of Dr Jenkins, Mr Bannan, Dr Phillips and Dr du Plessis.
Mr Bannan
Mr Bannan is a consultant neurosurgeon. His qualifications are a Bachelor of Medicine Bachelor of Surgery (MBBS) and he is a Fellow of the Royal Australasian College of Surgeons (FRACS).
He was not called to give evidence at the Tribunal hearing after a discussion between Counsel where it was determined that the Respondent did not seek to cross-examine him (transcript day 1, page 2).
As the Applicant’s treating surgeon over a number of years, there are numerous letters from Mr Bannan in the T-documents (T44, T48, T61, T63, T91, T97 and T115).
As noted above, Mr Bannan performed the L5/S1 fusion surgery on the Applicant on
22 May 2017 following her fall in the supermarket. In a letter dated 6 July 2017 Mr Bannan stated that the Applicant “did have a chronic degenerative condition at L5/S1 but she ruptured the disc when she fell” and that “[t]he ruptured disc was the cause of the need for surgery” (Exhibit A3). In this letter Mr Bannan wrote that the Applicant was “recovering well” from her L5/S1 fusion operation (Exhibit A3).
In a subsequent letter dated 24 November 2017, Mr Bannan also said that the Applicant “is doing well” following her L5/S1 fusion (Exhibit A4). He noted that:
Clinically, she feels the operation has helped her. She still has pain from her upper levels. She had a 2 level ALIF back in June 2011.
Mr Bannan also wrote a report regarding the Applicant dated 8 November 2018 (Exhibit A7).
Mr Bannan confirmed that the Applicant’s “current complaints are mechanical back pain and bilateral leg pain”. His opinion was that the Applicant was unfit for work since her surgery in June 2011, and that she continued to be totally and permanently incapacitated for work (Exhibit A7, pages 1-2 of Mr Bannan’s report).
Mr Bannan stated on page 2 of his report that:
In 2007, Linda was working at Perth airport cleaning out an office and she suffered an injury to her low back. I understand the patient had an L4/5 discectomy done by Dr Neville Knuckey and she recovered from this operation. She continued to work up until 2011 when she had a 2 level spinal fusion of L3/4 and L4/5 ALIF done by myself in June 2011. Between 2011 and the accident at Coles in 2016, she was not working. She tried to return to work program but that did not help, so she has not effectively worked since 2011, therefore the incapacity is ongoing from the accident in 2007.
(Emphasis added.)
This statement is somewhat equivocal because Mr Bannan first stated that the Applicant recovered from the operation performed by Mr Knuckey, and yet in the final sentence he stated that the Applicant’s “incapacity is ongoing from the accident in 2007”. It is unclear whether Mr Bannan was referring to the Applicant’s incapacity in a general sense, given that she had a succession of back complaints from 2007 onwards, or whether he believed that she continued to suffer from the 2007 work injury despite his prior statement that the Applicant had “recovered”.
Further, Mr Bannan stated on page 2 of his report that the ongoing treatment required by the Applicant is an “ongoing need for analgesia”. However, in the next paragraph in his report Mr Bannan commented that, “it is difficult to say whether the ongoing need for the analgesic is related to the accident in 2007, or post diffusion in June 2011, or the more recent accident at Coles on 21/12/16”.
Thus, it is difficult for the Tribunal to draw any definitive conclusions from Mr Bannan’s report. As discussed above, his conclusions are somewhat contradictory. This is further exacerbated by his comments about it being difficult to pinpoint which incident the ongoing treatment relates to. Even if the Tribunal accepts his conclusion that the Applicant’s “incapacity is ongoing from the accident in 2007”, the basis for this conclusion is not apparent.
What is clearer from the evidence above is Mr Bannan’s view that the Applicant was recovering well following the L5/S1 fusion surgery he performed on 22 May 2017 due to her fall in the shopping centre. This supports the Applicant’s submission that she recovered from the ruptured disc which occurred as a result of the fall in the supermarket.
Dr Jenkins
Dr Jenkins has been the Applicant’s treating general practitioner for approximately
13 years (Exhibit A6). His qualifications include a Bachelor of Medicine, Bachelor of Surgery (MBBS) from the University of Western Australia. He is a fellow of the Royal Australian College of General Practitioners (FRACGP) and a WorkCover Western Australia Approved Medical Specialist (AMS) (Exhibit A8).
Dr Jenkins wrote several reports regarding the Applicant, with the most recent dated
9 November 2018 (Exhibit A6).
Dr Jenkins’ first report was written on 5 November 2007 (T16, page 57) and stated a diagnosis for the Applicant as “severe acute L4/5 lumbosacral disc bulge with right leg sciatica and central canal stenosis at the level of L4” (page 59). In this report Dr Jenkins gave the opinion that the Applicant’s condition was caused by the work-related lifting and bending undertaken by the Applicant in early 2007. He noted that the Applicant had a “pre-existing lumbosacral degenerative disc disease” which was “a pre-disposing factor for the development of an acute lumbosacral disc bulge” (see pages 60-61 of the report).
The Tribunal also notes a report written by Dr Jenkins dated 3 September 2009 (T21, pages 90-94). In this report Dr Jenkins stated that the Applicant “has never been pain-free since the work injury which originally occurred on 19 April 2007”. Dr Jenkins further stated:
Given the continuity of her symptoms since the work injury, I feel that her recent symptoms represent an aggravation of a pre-existing or underlying condition.
The underlying condition is lumbosacral spondylosis (degenerative disc disease).
(Original emphasis.)
Further, he stated his opinion that, “it is still the same injury and she has had a recent aggravation” (T21, page 93).
Dr Jenkins wrote a further report regarding the Applicant dated 11 February 2015 (T71, page 199). In this report he stated that:
In my opinion that Mrs Jenkins did sustain an acute injury in the workplace on or around 19/04/2007 and if she had not been injured in the workplace she would not have required urgent neurosurgery when she did, nor developed to the subsequent problems requiring lumbosacral fusion. While it can be speculated that she would have developed chronic mechanical lumbosacral pain with the need for surgery regardless of the work injury, this is not what actually occurred and on that basis I consider her chronic low back condition requiring surgery resulted directly from a work injury of 19/04/2007 (or thereabouts).
Dr Jenkins wrote another report dated 28 July 2017 (T113, page 323). This report was sought in response to a report written by occupational physician, Dr Mattes, which was dated 28 June 2017. As noted above, Dr Mattes was of the opinion that the Applicant’s symptoms were psychosocial rather than physical. As noted above, at the hearing, the Respondent did not seek to rely on the report of Dr Mattes as the basis for denying liability. However, the following comment supports the Applicant’s evidence that she was trying to be positive about her recovery when she stated “My back’s fabulous” (T113, page 325):
Mrs Jenkins has never, in my years of knowing her, had ‘disproportionate… thoughts about the seriousness of her symptoms’. She has tended to minimise and often try to laugh off her at times quite disabling chronic back problems, and attempt rather stoically to continue working despite high levels of pain and incapacity. She has tended to only attend when she was seriously impaired by her low back condition.
The most recent report is the report dated 9 November 2018 (Exhibit A6). Like
Mr Bannan, Dr Jenkins’ opinion in this report was that the Applicant was completely unfit for work of any kind for the remainder of her life (pages 3 and 6 of Dr Jenkins’ report).
The following opinions stated by Dr Jenkins in his report of 9 November 2018 indicate his view that, at the time of his report, the Applicant had not recovered from her 2007 workplace injury:
… on balance in my opinion your client’s permanent incapacity for work is attributable to the original injury in 2007. She suffered a significant exacerbation of her lumbosacral condition in a fall at Coles on 21/12/2016 which resulted in lumbosacral fusion at L5/S1, however following that her chronic low back symptoms are returned to their pre-Coles injury level…
Accordingly, your client’s need for ongoing medical treatment is primarily attributable to the original injury in 2007. She had a very severe chronic back condition well before the fall at Coles on 21/12/2016…
Ms Jenkins’s level of low back symptomatology and incapacity attributable to her low back condition has largely been unchanged over the past 12 months. The prognosis remains very poor.
Dr Jenkins was also able to distinguish between CT scan results in January 2007 and April 2007, which in his opinion showed “more dramatic changes” (transcript, day 1, page 52). Thus, in his opinion, the history given to him by the Applicant of repetitive lifting at work in February and March 2007 was the cause of the injury (see also transcript, day 1, page 48).
During his examination in chief at the Tribunal hearing, Dr Jenkins was taken to several of the materials before the Tribunal to clarify his opinion regarding whether the Applicant had recovered from her 2007 surgery. These included:
(a)his notes in a workers compensation first medical certificate for the Applicant that she had made an “excellent post-op recovery to date” (T9, page 25); and
(b)a note in his report of 5 November 2007 that “I reviewed her on 8 May 2007 and noted that she was making an excellent recovery following her spinal surgery” (T16, page 58).
The following exchange is relevant to these two records (transcript, day 1, page 40):
MR BRUNS:So back to page 25 in the big book, T9; in the middle of that page appear the words, “Excellent post-op recovery to date.” Did you mean to convey by that that she had recovered?
DR JENKINS: Well, no, because it’s only three weeks after the operation.
MR BRUNS: All right, thank you.
SENIOR MEMBER: So what did you mean by that?
DR JENKINS: Exactly what it says, that she had an excellent post-operative recovery to date to that point. Many things can happen in the post-operative period. You might have an early good recovery and then things go bad, or you might have a stormy course after the operation and then things go well. At three weeks after the operation she was going well.
MR BRUNS: And then T16 at page 57, and turning over to page 58, a similar question, but at the bottom line; you noted she was making an excellent recovery finding her spinal surgery.
Did you mean to convey that she had actually recovered?
DR JENKINS: No. That report’s written looking at my notes which were taken at the time, so at three weeks post-operative it’s just that she is making a recovery, not that she has made an excellent recovery.
Dr Jenkins also answered “yes” to the question, “In your opinion, do you consider that there is any permanent effect or permanent damage caused by Ms Jenkins’s condition?” in his report dated 5 November 2007 (T16, page 61). When asked about this during the examination in chief Dr Jenkins explained:
MR BRUNS:And on page 61 there’s an expert question 7; you answer yes to the question of whether there’s a permanent effect or damage caused by her condition?
DR JENKINS: Clearly - - -
MR BRUNS: What did you have in mind when saying “Yes”?
DR JENKINS: So having – having experienced what I believed was an injury to two of her lumbosacral discs, she then had an operation which involved removal of part of her L4-5 disc, which is a permanent anatomical derangement. She’s – she’s had a part of her disc removed. That disc will never be normal again and there is a significant risk of exacerbation and requirement for further surgery in these – in these subjects. So having an operation to decompress spinal nerve roots in no way returns the back to its pre-injury state. Discs are like cartilage, they don’t heal, they don’t recover fully, so once part of a disc is damaged it’s always damaged. They can have a scar in the annulus, which is the ring like strong structure around the outside of the disc, but there’s always a weakness there, which is why there’s a significant recurrence rate of re-bulging, or the disc can continue to hurt, as it has with this lady. And that’s why perhaps 20 per cent of these people need a fusion at some point in the future, because they just have intractable pain and it’s the disc itself that’s causing the pain. People that have had discectomies don’t have a normal back.
During the examination in chief Dr Jenkins was asked to clarify the following statement in his report of 3 September 2009 (T21, page 90):
I reviewed Ms Jenkins on 21st November 2007 when she reported that she had recently moved house. She had been experiencing a severe degree of anal and perineal pain which was relieved to some extent by taking Lyrica. On this occasion she reported “my back is fabulous” however she was feeling “shattered” and tired all the time. She specifically denied low mood.
On this occasion after a period of counselling and discussion, I provided her with a final workers compensation certificate because at that time, in my view, she had no residual disability related to her lumbar spine. At that time she was only able to work 3 days a week due to reported tiredness and fatigue. Again note that she had significant non-back related medical issues affecting her at this time.
(Emphasis added.)
Dr Jenkins response is set out in the following exchange (transcript, day 1, page 41):
MR BRUNS:…you said she had no residual disability related to her lumbar spine. Were you intending to convey by that that she had recovered from her injury?
DR JENKINS: Well, that’s an interesting question, isn’t it. At that point her back was not appreciably affecting her work capacity, but as I’ve outlined, her back is by no means normal and it remains vulnerable to re injury, and – well, just exacerbation. So it’s not the same as saying that she’s completely recovered. The issuance of a workers compensation final certificate occurs for a variety of reasons in the workers compensation environment. In this case I was satisfied that her back wasn’t affecting her work capacity, and sometimes people just want to get on with their life. At the time I don’t remember what the discussion was but we agreed to have a final certificate. Every situation is different. Some people are very optimistic and just want to get on with it. I can’t remember the detail with Linda, but I know that Linda’s a very positive person and she probably said, “I’m all right and I just want to get on with it.” I don’t know, I can’t remember - - -
Under cross-examination, Dr Jenkins confirmed that the Applicant’s statement, “My back’s fabulous”, recorded in his notes, was a direct quote (transcript, day 1, page 44).
The following exchange under cross-examination is also relevant with respect to whether the Applicant recovered following her 2007 surgery (transcript, day 1, pages 45-46):
MS SLACK:Yes, because the surgery, to the best of your recollection, while it has left her with a fused spine, and of course that has changed the makeup of her back, it did resolve the actual symptoms that she was experiencing as a result of the incident in April 2007. She was, for at least a period, and particularly the period before the loo incident which happens in January 2008, she isn’t reporting any back symptoms. She says her back’s fabulous, and she isn’t reporting any right leg symptoms, which is where the referred pain is going into. That’s right, isn’t it?
DR JENKINS: It looks to be, yes.
MS SLACK:And so when you are saying the disability is continued, it’s the disability that arises from the surgery?
DR JENKINS: An injury itself which injured the disc.
MS SLACK:Well, that was the thing that required the surgery, but the injury resolved when she stopped reporting symptoms. She no longer - - -?
DR JENKINS: Is that a legal – are you saying that in a legal sense or in an actual sense?
MS SLACK: In an actual sense?
DR JENKINS: That’s not – that’s not – I don’t agree with that.
MS SLACK:Okay. You do agree though that she did report a significant improvement in her symptoms?
DR JENKINS: Which is the goal of surgery.
MS SLACK: Absolutely. So surgery was a success?
DR JENKINS: Certainly. You have to understand that with an injury like this the disc is damaged inside, part of its contents bulge through the annulus. That disc will never be normal again, and nibble away the bit that’s pressing on the nerve, but what’s left of the disc is not a normal disc, and they can lose 25 per cent of the volume of the disc. It’s the injury that does that. So in the sense that they can become asymptomatic for a variable length of time after the operation, hopefully forever, but as I said a lot of them don’t. It’s not true to say that there is no residual effect of that injury or that surgery; a person has a permanent problem with their disc.
MS SLACK:So you see no distinction between the injury and the surgery?
DR JENKINS: Well, of course there’s a distinction. The injury was what occurred when they injure themselves and the surgery was what was done to try to fix the – the nerve compression.
MS SLACK:That’s right, and the nerve compression was resulting in the referred pain to the leg?
DR JENKINS: Probably.
MS SLACK: Yes?
DR JENKINS: Yes.
MS SLACK:You are aware that Ms Jenkins also suffered from a history of degenerative spine disease?
DR JENKINS: Yes.
MS SLACK:And that was present apparently from X-rays that were undertaken in her 20s; we don’t have those X-rays but she reports?
DR JENKINS: Yes.
MS SLACK:And so you accept that prior to the April 2007 incident she had symptomology in her back? Well, from my records she didn’t have any back symptoms documented for about
18 months prior to that injury, so she was pretty good. And before that injury she was like a lot of people, she had back pain on and off. After this injury it was a completely different story, her back was much worse.
In summary, Dr Jenkins’ opinion was that degenerative changes in the Applicant’s spine were aggravated by her workplace lifting in February and March 2007. His opinion was that the Applicant continues to suffer from that injury and that she is incapacitated for work. Dr Jenkins did however concede that the Applicant’s 2007 surgery was a success. The basis for Dr Jenkins’ opinion that the Applicant continued to suffer from the 2007 work injury was that the 2007 surgery resulted in the structure of the Applicant’s spine being permanently altered.
Mr Phillips
Mr Phillips is a consultant orthopaedic surgeon. His qualifications are a Bachelor of Medicine (MB), Bachelor of Surgery (ChB). He is a Fellow of the Royal Australasian College of Surgeons (FRACS), a Fellow of the Royal College of Surgeons (FRCS), and a Fellow of the New Zealand Orthopaedic Association (FNZOA). Mr Phillips stated at the hearing that he has particular expertise with respect to the spine (transcript, day 2, page 86).
Mr Phillips was asked by the Respondent’s lawyers to prepare a report concerning the Applicant. The report stated that “we have also organised a multidisciplinary integrated assessment with Dr Lodewicus du Plessis, neurosurgeon…[w]e ask that you please consult with Dr du Plessis when drafting your report” (Exhibit R7). The conferral between these two experts will be examined in further detail in the following section concerning the evidence of Dr du Plessis. Mr Phillips was also provided with the Administrative Appeals Tribunal Guideline for Person’s Giving Expert and Opinion Evidence, and was asked to provide the declaration that (Exhibit R7, paragraph [2.4]):
I acknowledge that I have an overriding duty to provide impartial assistance to the Tribunal. No matters of significance have been withheld from the Tribunal.
Mr Phillips was also provided with a copy of the “Harmonised Expert Witness Code of Conduct”, being an extract from the Federal Court Rules. He was also asked to acknowledge in his report that he had read and agreed to be bound by these guidelines (Exhibit R7, paragraph [2.5]).
Mr Phillips examined the Applicant on 26 November 2018 and produced a report dated
19 December 2018 (Exhibit R7). He subsequently produced a supplementary report dated 1 July 2019 (Exhibit R8).
In his report of 19 December 2018, Mr Phillips agreed with the diagnosis of “acutely exacerbated chronic lumbosacral spondylosis/degenerative disc disease” given by
Dr Jenkins in his medical certificate of 8 May 2007 (T9, page 25; Exhibit R7, page 7).
He noted that “[t]he incident that required surgery was an acute disc extrusion right L4/5”.
Mr Phillips noted that the Applicant had a pre-existing degenerative disc disease.
He stated that (page 8 of report):
It would be my opinion that she would have developed [the] present spinal condition as a natural progression of the pre-existing condition irrespective of employment. Employment only appears to have contributed to the acute disc extrusion for which she had successful surgery.
Relevantly, Mr Phillips observed (page 9 of report):
1. The workplace incident [of 2007] appears to have been stressful on the low back and could have contributed to a disc extrusion occurring at that time.
2. The underlying degenerative condition predisposed [the Applicant] to an acute disc extrusion which would have caused leg pain. The underlying degenerative condition however is the main factor in long-standing pre-existing low back pain and progression of mechanical low back pain symptoms.
3. Surgical procedures: the discectomy in 2007 [the 2007 surgery] was simply removing disc material from pressing on a nerve. This appears to be very successful noting that the surgery in London [sic] little scarring was noted around the nerve root...
Mr Phillips was of the opinion that the Applicant’s employment contributed to her “acute disc extrusion”, however his opinion was that she recovered approximately six months after her 2007 surgery (pages 9 and 11 of report), “noting the good report of May” (being the medical certificate of Dr Jenkins of 8 May 2007). His opinion was that the Applicant’s “current incapacity relates to progression of the pre-existing underlying condition which is multilevel degenerative disc disease” (page 12 of report).
In his supplementary report of 1 July 2019 (Exhibit R8, page 2 of report), Mr Phillips further explained the natural progression of the Applicant’s pre-existing degenerative disc disease condition. In doing so Mr Phillips gave the opinion that the Applicant had recovered following the 2007 surgery, but that her degenerative disc disease had continued. He explained:
Degenerative discs do put at risk the spinal nerves and occasionally the spinal cord due to either rupture of the failed disc and material protruding and impacting either the nerve root or the cauda equina or the spinal cord.
There is also the problem of loss of height between the vertebrae, leading to secondary degenerative change in the associated joints which can also lead to compression of the spinal nerves at the outlet from the spine.
An acute disc protrusion may not be ever noticed as an acute episode, unless it is directed towards a particular neural structure.
In Ms Jenkins’ case, this occurred in 2007 at the L4/5 level.
This episode led to a different set of symptoms (leg dominant, as opposed to back dominant) which led to the acute surgery, i.e. she had developed a radiculopathy.
She fully recovered from this.
The progression of her degenerative disc disease has continued.
Indeed, that surgery and subsequent interventions directed not only at the L4/5 level but also L3/4 and subsequently L5/S1 have not alleviated her symptoms.
It would be on that basis that I consider the episode (at L4/5) in 2007 simply an episode within the natural history of the underlying condition.
Under cross-examination, Mr Bruns asked questions concerning the 2007 surgery, whether the Applicant recovered, and whether her back was permanently altered by the surgery (transcript, day 2, pages 91-95). The following exchange is relevant (transcript, day 2, page 91):
MR BRUNS:The kind of surgery that we’re talking about will never restore the back to its pre-extrusion state, will it?
MR PHILLIPS: No, a disc extrusion will impact on the nerve and the type of surgery undertaken was to take that pressure off the nerve. It doesn’t address back pain at all.
MR BRUNS:And in the process you’re removing bone and you’re removing disc?
MR PHILLIPS: You’re removing the disc that’s extruded, so a non-functioning disc.
MR BRUNS:But, well, you say yourself there’s a removal of some bone? A little bit of bone, yes.
MR BRUNS:So in a sense the architecture has been altered by that surgery, hasn’t it?
MR PHILLIPS: Yes, but not – the bit of bone that is removed is not structural. The weight bearing goes through the joint, which is out to the side. The bit of bone is like a – the nerves are going through a tunnel, it’s just you’re taking out a little bit of the top of the tunnel.
MR BRUNS:All right, you’re removing some bone and you’re removing some disc?
MR PHILLIPS: Well, the disc’s already been removed from its functional position by the fact that it was extruded, so you’re taking it out of the way and stopping it from pressing on the nerve.
MR BRUNS:So when you use the word “Recovery”, which you do in a couple of places, you’re certainly not saying the back is the same as it was before the extrusion because that can never be the case?
MR PHILLIPS: Well, the reason the disc extruded was because there was degeneration in the disc, so that’s not changed.
The following exchange is also relevant (transcript, day 2, pages 91-92):
MR BRUNS:Now, on page 11 at 3.14(a) you say that the effects of the disc extrusion ceased by about six months post the surgery. That’s an oversimplification, isn’t it, as we’ve discussed? Once you’ve had the disc extrusion things will never be the same again?
MR PHILLIPS: No, they can’t be the same again, you’ve lost something.
MR BRUNS:So the effects ceased what’s the basis for you saying the effects ceased by about six months?
MR PHILLIPS: The compression and irritation of the nerve root.
Further (transcript, day 2, pages 94-95):
MR BRUNS:Well, as a surgeon I believe you’ve done hip or knee replacements?
MR PHILLIPS: Yes.
MR BRUNS:Would you after you’d done a knee replacement would you use the same language that the patient has recovered?
MR PHILLIPS: Recovered from the surgery, yes.
MR BRUNS:All right. And so is that the sense in which you are talking about a recovery here, there’s been a recovery from the surgery?
MR PHILLIPS: No, I’m talking about a recovery of the nerve.
MR BRUNS:Is it possible that as a surgeon you have a philosophical approach that surgery provides a cure for conditions and that that might not be the way others see it?
MR PHILLIPS: I’m not quite sure what you mean by that.
MR BRUNS:Well, perhaps we were having our discussion earlier about she had recovered from her extrusion is your construction but at the same time you agree that her back hasn’t been restored to its former state, it’s different, and so other people might not use recovery in the same sense. Is that possible?
MR PHILLIPS: Yes, I can understand that.
The following exchange on redirect assists to clarify Mr Phillips’ opinion as to how and why the 2007 surgery was successful (transcript, day 2, pages 96-97):
MS SLACK:…you were referring in response to some questions by my learned friend about the impact on the nerve?
MR PHILLIPS: Yes.
MS SLACK: How is the nerve impacted?
MR PHILLIPS: The majority of disc protrusions and extrusions don’t impact the nerve and therefore it’s an event that takes place that quite often isn’t even noticed by the individual. But if it goes into a certain position where a nerve is squashed, then the individual notices pain down the leg, which is commonly called sciatica.
MS SLACK: And the surgery what was that aimed at fixing?
MR PHILLIPS: Taking the pressure off the nerve.
MS SLACK: And thus relieving the leg pain?
MR PHILLIPS: Yes.
MS SLACK:Is that right? Okay. So in having that – explaining that context now can you explain what you meant by recovered in your report?
MR PHILLIPS: The pressure had been taken off the nerve and the leg pain had been relieved.
In summary, the opinion of Mr Phillips was that although the Applicant’s employment contributed to her acute disc extrusion, she recovered following her 2007 surgery, approximately six months after the surgery. Mr Phillips’ opinion was that the Applicant’s continuing lower back pain symptoms were a result of her underlying degenerative condition.
He explained that the object of the 2007 surgery was to take pressure off the nerve and relieve the Applicant’s leg pain. It was his opinion that the surgery achieved this, and therefore that it had been successful. Although he acknowledged that the 2007 surgery had altered the Applicant’s spine because bone had been removed, it was his opinion that the surgery was nevertheless successful because the object of it had been achieved (namely that the nerve pressure had been relieved). Mr Phillips also noted that the 2007 surgery did not resolve the Applicant’s underlying degenerative condition which persisted after the surgery.
Dr du Plessis
Dr du Plessis, is a consultant neurologist and rehabilitation physician.
Dr du Plessis’ qualifications are a Bachelor of Medicine and Bachelor of Surgery
(MB ChB). He is a Fellow of the Royal Australasian College of Physicians (FRACP), Fellow of the Australasian Faculty of Rehabilitation Medicine (FAFRM), and Fellow College of Physicians (South Africa) (FCP(SA)).
Like Mr Phillips, Dr du Plessis was also asked by the Respondent’s lawyers to prepare a report concerning the Applicant as part of “a multidisciplinary integrated assessment with Dr Fredrick Phillips, orthopaedic surgeon…[w]e ask that you please consult with
Dr Phillips when drafting your report” (Exhibit R5).Dr du Plessis assessed the Applicant on 23 November 2018, and produced an initial report dated 19 December 2018 (Exhibit R5). He was subsequently asked by the Respondent’s lawyers to prepare a supplementary report. This supplementary report was dated 3 July 2019 (Exhibit R6).
Dr du Plessis was initially of the view that there was a “continuous link” between the workplace incident in April 2007 and the condition of the Applicant’s back at the time of his report (Exhibit R5, pages 25 and 28 of report). He explained (on page 27 of his report):
Her current incapacity is due to a combination of pathologies and the individual percentage contribution from each level of injury and each specific injury or treatment that was required cannot be determined.
The injury caused her acute symptoms and led to the initial surgery and then this led to the sequence of events that followed. The pre-existing episodic lower back symptoms, the underlying congenital changes, the development of degenerative changes in her lumbar spine, the acute injury that occurred in April 2007 followed by the subsequent surgery causing the potential to develop further degenerative changes, superimposed on the initial changes, then followed by further surgery and a greater potential to develop further degenerative changes culminating in what was the final surgical procedure at L5/S1, in an attempt to fuse her back in the hope of relieving her symptoms, are all interlinked
Unfortunately, the sequence of treatments does not appear to have ultimately led to full recovery and her ongoing symptoms are now in my opinion mainly mechanical in nature, but have the origin many years ago.
On page 28 of his report of 19 December 2018, Dr du Plessis expanded on this continuous link, and how the Applicant’s degenerative changes, disc prolapse from the 2007 work injury and surgery resulted in further surgeries and the Applicant’s ongoing chronic back pain:
… it has to be accepted that there is a continuous link between what happened in April 2017 [corrected by Dr du Plessis to 2007 in his evidence at the hearing, see transcript, day 1, page 71] up to today. I accept that her treatment for her lumbar spinal back pain, which she presented with in April 2007, was at least partly due to the underlying degenerative/and possible congenital changes, but then there was the superimposed acute disc prolapse that resulted in surgery. Unfortunately, it is well known and accepted that surgery at a particular level in the lumbar spine (and in the cervical spine for that matter) gives rise to the development of premature degenerative changes at the levels above and below the level of surgery.
In the case of Ms Jenkins there were already degenerative changes noted and the surgery would have undoubtedly hastened the degenerative processes. This resulted in her reporting recurrence of her symptoms about six months post initial surgery. This then led to further investigations, further attempts trying to get her pain to settle to ultimately culminating in her having the L5/S1 fusion with this now resulting in her lower back from L3 to S1 being solid. This is causing an ongoing mechanical backache…
I am of the opinion that unfortunately Ms Jenkins is going to continue to suffer ongoing chronic back pain mainly of mechanical type.
Mr Phillips and Dr du Plessis had a discussion during the course of preparing their initial reports. Dr du Plessis said of this discussion that, “[t]he only point on which we
[Dr du Plessis and Mr Phillips] differed was the influence of the acute disc prolapse in relation to her present status” (page 2 of the supplementary report). This is perhaps understating the extent of the disagreement in that Dr du Plessis’ opinion (as stated in the preceding paragraphs) was effectively that the Applicant continued to suffer as a result of her April 2007 injury, whereas Mr Phillips was of the opinion that the Applicant had recovered approximately six months after the 2007 surgery by Mr Knuckey.After each reviewing the initial report of the other and having a further discussion,
Dr du Plessis changed his opinion to agree with Mr Phillips. This change of opinion is outlined by Dr du Plessis in his supplementary report (Exhibit R6, page 2 of supplementary report):
I have reassessed my report and also the report of Mr Phillips and have had a further discussion with him. I acknowledge his opinion regarding the fact that
Ms Jenkins had underlying and long-standing back discomfort dating back to her early 20s and that at the time of her injury she already had significant degenerative changes. I had indicated that these degenerative changes had made her more vulnerable to develop the injury she did. It however remains Mr Phillips’ opinion, and after my discussion with him also now my opinion that the initial disc protrusion led to the first surgical procedure, but that following the surgery, which as he described in his report was the removal of the extruded disc material pressing on the nerve causing her pain, she recovered and that subsequent development of physical discomfort and the ongoing need for surgical procedures was primarily the result of the underlying pre-existing degenerative changes.
Dr du Plessis further explained that (Exhibit R6, page 4 of supplementary report):
I have to agree with my colleague, Mr Phillips that the workplace incident of 2007 no longer contributes to the ongoing physical problems and the spinal condition of Ms Jenkins.
It is important that I give some indication why I have changed my opinion in this regard. It relates to the discussion I had with Mr Phillips in which he pointed out that the procedure that was carried out following the acute disc prolapse in
Ms Jenkins was a relatively straightforward and easy procedure and this is evidenced by the fact that she reported improvement and appeared to have been much better and relatively pain-free very soon after the surgical procedure.
Mr Phillips considered this to have been the endpoint of the contribution made by the original injury of 2007 and that subsequent symptomatology was the result of the natural progression of the pre-existing underlying degenerative changes causing limitation, restriction and physical discomfort in the lumbar spinal area.
I thus have to agree that [sic] workplace incident of 2007 does not materially continue to contribute to Ms Jenkins’ present spinal condition. The further proof of this is the fact that she has suffered further injuries and has had a number of surgical procedures and other treatment procedures since, what was described as an improvement of her condition and recovery, following the initial surgical procedure on 13 April 2007.
At the end of his report Dr du Plessis made the following comment (Exhibit R6, page 4 of supplementary report):
Ms Jenkins’ long-standing history of lumbar spinal pathology and symptomatology may well have been the result of an inherent weakness in her bony structure of the lumbar spine area that made her more vulnerable to the initial injury sustained in April 2007. However the surgical procedure seemingly had treated the acute effect of this injury. This has left her with the ongoing progressive degenerative changes that started in her 20s to progress to a point where she currently continues to experience physical discomfort, limitations and an inability to return to work due to ongoing symptoms.
During cross-examination Dr du Plessis was questioned about his change of opinion.
He explained the basis for his change of opinion in the following exchange. In this exchange, Dr du Plessis also agreed that the 2007 surgery performed by Mr Knuckey (incorrectly referred to as “Mackie” in the transcript) permanently changed the Applicant’s spine (transcript, day 1, pages 74-75):
MR BRUNS:So, what extra information did you get from that discussion that you had not already taken into account, in your first report?
DR DU PLESSIS: Well, Mr Phillips’ view was, and he expressed it more, how should I say, firmly, or – indicating that the issue was that when you’ve had a back injury, you’ve had a disc extrusion, you’ve had it surgically treated; that treatment solved the problem that caused the symptoms. And therefore, he considered that that surgical procedure, carried out by Professor Mackie [sic] was the treatment for the acute injury, and what happened thereafter was not related to the original injury, but nor the surgery, because he pointed out that there was the (indistinct) recovery of her symptoms in between, and that whatever happened at a later stage which was mainly towards 2009, that that was a new pathology, in other words. There was something that had happened; whether it was just a progression of the degenerative changes, or whether there was some other physical event that then set the whole issue again in motion, to the point where it led to the subsequent surgical procedures.
MR BRUNS:So, am I right in saying, he gave you no new facts, but he gave you very forcefully, his own opinion on the existing factors?
DR DU PLESSIS: Yes. I have to acknowledge that I am not a surgeon, and I’m not an orthopaedic surgeon, but Mr Phillips was able to give me information which made me see where I had possibly, or probably either misjudged the effect of the surgical procedure. His opinion was that the surgery corrected the pathology. And now, when I look back at it, and after he discussed it with me, I could see that the disc extrusion was no longer there. That’s what caused her symptoms on 9 April. This was the disc which was pushing on the nerves, and causing her severe discomfort was cured by the surgical procedure of Professor Mackie and there is radiological evidence that this in fact occurred, that he did clear that disc fully. And therefore, his opinion, and subsequently my opinion was that was when the initial consequences of the injury of 9 April ceased, and what followed thereafter was not related to that original 7 April –
9 April incident.
MR BRUNS:So, you adhere to the view that what happened then, during the surgery, changed the architecture of Ms Jenkins’ spine?
DR DU PLESSIS: It does, yes. It did.
MR BRUNS:But you’re taking Dr Phillips’ interpretation of that as meaning it was still a cure?
DR DU PLESSIS: Yes. Correct. And I have subsequently looked at this, and spoken to other person who are involved in back surgery, and they have a similar view to what he gave me at that stage. Once the surgery is done, that’s the end of the pathology, according to the surgeon.
MR BRUNS:Yes. So you’re just talking about a kind of philosophy that’s shared by those people that when you do a surgery, that’s a cure?
DR DU PLESSIS: Yes, correct. Well, yes, effectively, yes. It’s – yes, I accept that. I understand that it arranges the anatomy of the back, and it causes – it can cause mechanical changes afterwards, but the pathology which occurred, namely the disc extrusion, was cured, and that was confirmed in the later scan. That there was no further disc material that was causing symptoms at that level.
During the cross-examination of Mr Phillips he was asked if he had “forcefully put” his opinion to Dr du Plessis (transcript, day 2, page 94):
MR BRUNS:I think he agreed with the proposition that you forcefully put your opinion to him that there was no link between the current condition and the 2007 injury and you persuaded him to your way of thinking. Does that sound familiar?
MR PHILLIPS: I would find it very difficult to forcefully persuade
Dr du Plessis, anything on Dr du Plessis, he’s a very independent person.
In summary, Dr du Plessis’ final opinion after a second discussion with Mr Phillips, and after reviewing Mr Phillips’ initial report, was that although the workplace incident in April 2007 caused the Applicant’s injury, she recovered after the operation performed by
Mr Knuckey during which he removed the extruded disc material pressing on the nerve that was causing the Applicant pain. His opinion was that following her recovery from the 2007 surgery performed by Mr Knuckey, any symptoms that the Applicant continued to experience were as a result of the progression of degenerative changes in her spine, and not as a result of her 2007 work injury.
The Tribunal has considered whether there are any concerns over the independence of
Dr du Plessis with respect to his change of opinion; specifically whether his change of opinion was arrived at independently or whether the views of Mr Phillips were simply adopted by Dr du Plessis after being persuaded by Mr Phillips.
The Tribunal is of the view that Dr du Plessis understood his role as an independent expert whose duty was to assist the Tribunal. This is evident from Dr du Plessis including the relevant declaration from the AAT guidelines acknowledging his role as an impartial expert (who is not an advocate for a party to the proceedings, and whose overriding duty it is to provide impartial assistance to the Tribunal) in his first report. In this report,
Dr du Plessis also acknowledged, and agreed to be bound by, the Federal Court Code of Conduct (Exhibit R5, page 28 of report of 19 December 2018; see also transcript, day 1, page 79).
As outlined in the above excerpts from the supplementary report and from the hearing transcripts, Dr du Plessis was able to clearly articulate the basis for changing his opinion with reference to the relevant medical evidence, and after considering Mr Phillips’ clarification of the nature of the 2007 surgery based on his expertise as an orthopaedic surgeon. Thus Dr du Plessis changed his opinion because he believed that it was correct and appropriate to do so after a reassessment of the relevant medical evidence.
The Tribunal therefore accepts the opinion evidence of Dr du Plessis as being independent and impartial.
Consideration of the Medical and Expert Evidence
The Tribunal accepts that it is the Applicant’s honest belief that she continues to suffer from the effects of the 2007 work injury. However, as noted above, the Applicant’s medical history is complicated, and she sometimes had difficulty with her recollection due to the passage of time (transcript, day 1, pages 20, 28, 32). Thus, the medical records before the Tribunal, informed by the evidence of expert medical witnesses, are likely to provide a more accurate answer to the question of whether the Applicant continues to suffer from her 2007 work injury.
Some of the documentary medical evidence before the Tribunal which was outlined above suggests that the Applicant was recovering well, or had recovered, from her 2007 surgery. This evidence includes:
(a)
the workers’ compensation first medical certificate signed by Dr Jenkins dated
8 May 2007 which stated that the Applicant has made an “excellent post-op recovery to date” (T9, page 25);
(b)the operation report of Mr Cooke on 9 May 2007 which stated that the Applicant’s back pain “resolved completely after spinal surgery 3 weeks ago” (Exhibit R14);
(c)
Mr Knuckey’s letter to Dr Jenkins dated 11 September 2007 stating that the Applicant was “doing well following lumbar decompression”, “has no significant back or leg pain” and that “On examination her lumbar wound is well healed”
(T10, page 26);
(d)Dr Jenkins’ note in his report of 5 November 2007 that “I reviewed her
[the Applicant] on 8 May 2007 and noted that she was making an excellent recovery following her spinal surgery” (T16, page 58);(e)a consultation note from Dr Jenkins on 21 November 2007 (Exhibit R15) stating, “disability now not related to back”;
(f)
Mr Gope’s statement that at the time he assessed the Applicant on
27 November 2007 that, “[f]rom the point of view of disc surgery she made a very satisfactory and uneventful recovery” (T17, page 69);
(g)Mr Bannan’s statement in his report of 8 November 2018 that, “I understand the patient had an L4/5 discectomy done by Dr Neville Knuckey and she recovered from this operation”. However, as discussed above, Mr Bannan’s evidence is equivocal and his exact opinion was unclear to the Tribunal.
When the Tribunal compares the evidence of Dr du Plessis, Mr Phillips and Dr Jenkins, substantial points of agreement can be found. Each expert accepted that the:
(a)Applicant had pre-existing degenerative changes in her spine;
(b)injury she sustained at work in 2007 aggravated the Applicant’s pre-existing degenerative changes resulting in her acute disc extrusion and the need for the 2007 surgery;
(c)2007 surgery performed by Mr Knuckey was successful in relieving the compression of the Applicant’s nerve;
(d)architecture of the Applicant’s back was permanently altered by the 2007 surgery performed by Mr Knuckey; and
(e)Applicant continues to be permanently incapacitated for work.
Despite this substantial agreement, the point of difference between the experts was that
Dr Jenkins was of the opinion that the Applicant continues to suffer from the injury she sustained at work in 2007 because the operation by Mr Knuckey, although successful, permanently changed the architecture of the Applicant’s spine.
Thus, the Applicant relies on the evidence of Dr Jenkins to assert that because the surgery which was required to treat the injury caused a permanent change to the Applicant’s spine, the injury persists, despite the successful surgery.
However Mr Phillips and Dr du Plessis were of the opinion that the 2007 surgery was successful because the compression of the Applicant’s nerve had been relieved which was the object of the surgery. They were of the view that the Applicant had recovered from her 2007 work injury following the 2007 surgery. They agreed that the architecture of the Applicant’s spine had changed, but that this was a necessary part of the surgery. Their view was that the Applicant’s current back pain symptoms were the result of her underlying degenerative condition which persisted after the 2007 surgery.
In summary, the Respondent argued that the Applicant misconstrued the SRC Act
(written closing submissions, paragraphs [36]-[38]). The Respondent argued that “[l]iability for an injury does not endure through surgery in the SRC Act” and that liability for an injury that results from medical treatment, (including from surgery) is specifically provided for in s 4(3) of the SRC Act.
Accordingly, the Respondent submitted that an injury resulting from medical treatment for an injury should be viewed as a separate injury, which must be the subject of a separate claim, which the Applicant had not made. The Respondent referred to the following passage from Deputy President Humphries in Portors and Comcare [2017] AATA 2166 at [93]:
…the Tribunal accepts Comcare’s submission that an injury arising from medical treatment must be the subject of a separate s 14 determination of liability before compensation is payable. Such an injury is a separate and distinct injury to the injury from which it purportedly derives. That much is clear from the language of
s 4(3), which distinguishes an originating injury from a physical or mental injury or ailment arising from medical treatment of that originating injury. Since no claim for liability for that injury or ailment has been made by Mr Portors the Tribunal lacks jurisdiction to consider a claim in relation to the hernia repair condition
The Tribunal agrees with this characterisation of the SRC Act, and with the reasons expressed by Deputy President Humphries. It therefore follows that the view expressed by Mr Phillips and Dr du Plessis is the correct one in that it is more aligned with a proper characterisation of the SRC Act.
For the avoidance of any doubt, the Tribunal prefers the evidence of Mr Phillips and
Dr du Plessis. Although Dr Jenkins has a longitudinal perspective, having treated the Applicant over many years as her general practitioner, Mr Phillips as a consultant orthopaedic surgeon, and Dr du Plessis as a neurosurgeon, have specialist expertise that would make them more qualified to give an opinion on whether the Applicant had recovered from the injury she sustained at work in 2007.
The Tribunal therefore finds that the Applicant does not continue to suffer from the injury she sustained at work in 2007. The Tribunal accepts the evidence of Mr Phillips and
Dr du Plessis that the Applicant recovered from this incident approximately six months after the successful surgery performed by Mr Knuckey, and that her continuing back pain is the result of the ongoing degenerative changes in her back.
Although all the experts agreed that the Applicant’s spine was permanently altered as a result of the 2007 surgery and could not be restored to its pre-2007 state, the Tribunal finds that a proper construction of the SRC Act requires a separate claim to be made with respect to the permanent alteration to the Applicant’s spine from the 2007 surgery. Further, the Tribunal will not have jurisdiction until that claim and review process, as set out in the SRC Act, is complete.
The Tribunal has a great deal of sympathy for Ms Jenkins. She has had chronic back pain and mechanical issues with her spine spanning many years, and as a result experiences pain and discomfort and is unable to perform any kind of work. She was diagnosed with depression due to her pain, has endured several major surgeries, and multiple other medical treatment including steroid injections, and has had other serious medical complications arising from her pain medication which would have caused her substantial discomfort and distress.
Although it will likely provide little comfort to Ms Jenkins as a result of this application being unsuccessful, it remains open to her to make a new claim to compensate her for injury as a result of the 2007 surgery given that the surgery was for a work injury compensable under the SRC Act (see s 4(3) of the SRC Act).
CONCLUSION
As the Tribunal has found that the Applicant no longer suffers from an injury sustained at work in 2007, it is unnecessary for the Tribunal to proceed to consider the other issues.
The correct or preferable decision is to affirm the Reviewable Decision.
I certify that the preceding 157 (one hundred and fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
............................[sgd]............................................
Associate
Dated: 12 March 2020
Date(s) of hearing: 18 and 19 September 2019 Counsel for the Applicant: Mr D Bruns Solicitors for the Applicant: Mr Y Radich, Bradley Bayly Legal Counsel for the Respondent: Ms K Slack Solicitors for the Respondent: Mr A Burgess, Sparke Helmore Lawyers
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