JMLW and Comcare (Compensation) - [2020] AATA 4354

JMLW and Comcare (Compensation) [2020] AATA 4354 (2 November 2020)
Division:GENERAL DIVISION
File Number(s):2017/7733, 2017/4137, 2016/3682, 2018/6070
Re:JMLW
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Ms S Taglieri SC, Member
Dr R Walters, Member

Date:2 November 2020
Place:Hobart

The reviewable decisions made by the Respondent on 24 May 2016 and 13 December 2016 (application no. 2016/3682 and 2017/4137 respectively) are affirmed.
The reviewable decision made by the Respondent on 12 May 2017 (application no. 2017/7733) is affirmed.
The reviewable decision made by the Respondent on 6 September 2018 (application no. 2018/6070) is set aside and the determination remitted to the Respondent to give effect to the reasons at [178] to [179] of this decision.
................................[sgd]......................................
Ms S Taglieri SC, Member
COMPENSATION – whether the Applicant still suffers symptoms and/or effects from a compensable injury – whether liability exists for a new injury - no longer suffering the effects of the compensable injury - no liability for new injury - entitlement to payment of household services prior to date of reviewable decision
Legislation
Safety Rehabilitation and Compensation Act 1988
Cases
Comcare v Lofts [2013] FCA 119
Comcare v Nichols [1999] FCA 209
Commonwealth v Borg (1991) 20 AAR 299
Commonwealth of Australia v Muratore [1978] HCA 47
Flood v Comcare [2020] AATA 2152
Gallway and Australian Postal Corporation [2015] AATA 259
Hart v Comcare (2005) 145 FCR 29
Heales and Comcare [2020] AATA 810
Hopkins and Comcare [2016] AATA 742
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Manns v Comcare [2012] AATA 462
McDonald v Director-General of Social Security [1984] FCA 57
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Riddle v Telstra Corporation Ltd [2006] FCA 58
Telecommunications Commission v Barker [1990] FCA 489
REASONS FOR DECISION
Ms S Taglieri SC, Member
Dr R Walters, Member

The Tribunal has before it four applications for review. Two applications, 2016/3682 and 2017/4137, relate to whether the Applicant had a present entitlement to medical treatment and household services in 2016. Each in turn involved a question of whether the need for treatment and household services resulted from the condition for which the Respondent had accepted liability, being aggravation of disc degeneration L4-L5/L5/S1, suffered on 20 April 2004 (“the compensable injury”).[1]
[1] T7, T Documents of (2017/4137), pp 24-26.
Application 2017/7733 concerns the rejection of a claim made under section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”). The Applicant had lodged a claim for compensation on 24 October 2016,[2] claiming that on 26 September 2005, he suffered an aggravation of his previously compensable injury, while employed with the Department of Industry, Tourism and Resources (“the 2005 aggravation”).
[2] T6, T Documents (2017/7733), pp 16-22.
On 12 May 2017,[3] the Respondent determined to affirm its earlier decision denying liability for the 2005 aggravation. Liability was denied on the basis that the Respondent was not satisfied a new injury was suffered, or that if there was further aggravation of the accepted condition, the Applicant’s employment did not significantly contribute to the new injury/aggravation.[4]
[3] T21, T documents (2017/7733), pp 86-89.
[4] Ibid; T17 T documents (2018/6070) p 88.
The final application for review[5] concerned a decision by the Respondent of 6 September 2018 refusing claims for the cost of household services submitted by the Applicant, relating to the period 2013 to 2016. By the decision, the Respondent affirmed that it was not liable for payment of claims for household services incurred in the past but submitted by the Applicant in approximately March 2018.[6]
[5] Application number 2018/6070.
[6] T15, T documents (2018/6070), pp 82-85.
All four applications for review came before the Tribunal for hearing on 11 to 13 March 2020. Due to the multiple applications and complex facts and issues involved, the Tribunal was constituted by two members for the hearing, one of whom had qualifications and experience in medicine.
For the purposes of the hearing, the Respondent was represented by Counsel, Mr Ternes. The Applicant was self-represented.
It was not in dispute between the parties that the Applicant had an accepted claim pursuant to section 14 of the Act for “aggravation of disc degeneration L4-L5/L5-S1”.[7]
[7] T8, T documents (2016/3682) p 26.
The Applicant received payments of compensation under the Act for many years, even after he had been retired from employment on medical grounds in 2006.[8]
[8] T 143, T documents (2016/3282) pp 396 – 432.
It was also not seriously disputed that the Applicant continued to suffer back pain, some restriction of spinal movement and incapacity as a result of a degenerative lumbar spine. There was a fundamental dispute about the cause of the degenerative changes in the Applicant’s lumbar spine and related symptoms.
THE RESPECTIVE CONTENTIONS OF THE PARTIES
The Applicant’s case was that after suffering the compensable injury in 2004, his lumbar spine condition and the effects of it never recovered. Further, that he had an episode of lumbar back pain at work in 2005, which further aggravated his lumbar spine and symptoms.
The Applicant contends that as a result of the compensable injury in 2004 and its worsening in 2005, he remains incapacitated for work and requires medical treatments and household services.
He claims that he has continuously suffered the effects of the 2004 compensable injury or a combination of its effects and the 2005 aggravation episode of injury at work.
The Respondent conversely contends that by 2013 at the absolute latest, the Applicant no longer suffered symptoms or effects from the compensable injury.[9]
[9] The accepted condition, suffered 20 April 2004.
Although the Respondent accepts that the Applicant has continued to suffer lumbar back pain and symptoms of depression since 2013, it asserts that these are now the result of an underlying degenerative condition and its normal progressive course, not the injury for which the Respondent accepted liability. The Respondent places considerable reliance on evidence it says demonstrates an underlying degenerative lumbar spine condition well before the Applicant’s initial workplace injury in 1998.
The Respondent disputed that there had been a new or further injury constituted by further aggravation of the 2004 work injury in September 2005.
RELEVANT LEGAL PRINCIPLES
As the T documents tendered in evidence show, the Respondent continued making payments for the 2004 accepted condition under section 16 and 29 of the Act, well after 2006 when the Applicant ceased work and retired on invalidity grounds.
When it made the determinations referred to in [1] and [4] above, the Respondent in effect changed its earlier view, and decided that the Applicant was no longer suffering the effects of the compensable injury.
Although the Respondent does not carry a strict onus of proof, it will only succeed in having the Tribunal affirm the reviewable decision in applications 2016/3682 and 2017/4137, if it puts before the Tribunal sufficient material to persuade it that the effects of the compensable injury have ceased, such that the need for household services materially results from another cause.[10]
[10]Flood v Comcare [2020] AATA 2152 at [90] and authorities cited; Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525; Commonwealth v Borg (1991) 20 AAR 299 at 307; Comcare v Nichols [1999] FCA 209 at [22].
In Gallway and Australian Postal Corporation,[11] the analysis required was expressed in the following way at [27]:
“…the civil standard of proof applies. In addition, there is no onus of proof as that concept is understood at common law and that the status quo of liability ought to remain unless the evidence established otherwise.[12] Nevertheless, the Tribunal needs to have an acceptable level of satisfaction of the case put by the Applicant to allow the application for review.”
[11] [2015] AATA 259.
[12] McDonald v Director-General of Social Security [1984] FCA 57; Commonwealth of Australia v Muratore [1978] HCA 47, both followed in Australian Telecommunications Commission v Barker [1990] FCA 489 at [8].
In determining whether the need for particular expenses or services under section 16 or 29 of the Act results from the compensable injury or its effects, it is relevant that in this case the compensable injury is an aggravation of a disease under section 5B of the Act. In disease injuries, other causes may have overtaken or intervened to create the real need for the claimed treatment or services.[13]
[13] Prain v Comcare [2017] FCAFC 143, approving of Tribunal’s approach below.
Whether the need for treatment or household services is in relation to or resultant from a compensable injury for payment to be required by section 16 and 29 of the Act respectively, the Tribunal must determine if there is a rational connection between the need and the compensable injury or if the need results from the injury or its effects in a common sense manner.[14]
[14]Ilsley v Wattyl Australia Pty Ltd(1997) 75 FCR 1; Manns v Comcare [2012] AATA 462; March v E & MH Stramare Pty Ltd[1991] HCA 12; (1991) 171 CLR 506.
In relation to the Applicant’s assertion in application 2017/7733 that he suffered a new injury in the course of employment on 26 September 2005, the Tribunal needs to be positively satisfied of that state of affairs, if the decision under review is to be set aside. If it is left in doubt, unpersuaded, then the Applicant will fail and the decision under review should be affirmed.[15]
[15] N 12, McDonald v Director-General of Social Security; Commonwealth of Australia v Muratore.
EVIDENCE RECEIVED BY THE TRIBUNAL
The T documents received in evidence by consent were extensive and consisted of eight sets of T documents, which were marked exhibit T1 to T8 respectively and were:
·2016/3682: T1 - T150; ST1 - ST3; ST1 - ST39; S1 - S24; AA1 - AA10
·2017/4137: T1 - T15
·2017/7733: T1 - T25
·2018/6070: T1 - T21
The documents cover a period from 1990 when the Applicant appears to have first experienced lower back pain. They also relate to a lumbar spine injury he suffered at work in 1998 for which the Respondent accepted liability. Documentation also related to the Applicant’s lumbar spine condition from 1998 to 2004 and onwards until the Respondent’s decisions which are the subject of the four applications for review.
The Applicant presented his case by tendering documents and giving oral evidence under cross examination. The documents tendered comprised of various written submissions, written statements and written contentions. In total there were six documents of this character.[16] Further, a Statutory Declaration was tendered in evidence, with medical certificates of Dr Boland dated 19 December 2019 and 12 February 2020.[17]
[16] Exhibits A1, A2, A3, A4, A5 and A8.
[17] Exhibits A6 and A7.
THE APPLICANT’S EVIDENCE
Counsel for the Respondent cross-examined the Applicant at length in relation to symptoms of back pain experienced from 1990 onwards. The Applicant’s evidence was that while playing tennis in 1990 he experienced his first episode of lower back pain. He described this as an acute episode. When asked if the pain in his lower back continued at this time, the Applicant stated that he had rested over the weekend and returned to work after about four days. He said he had fully recovered. He was challenged about this evidence and it was put to him that he had told a Dr Griffin that the recovery had taken two weeks,[18] the Applicant disagreed.
[18] T8, T Documents (2016/3682), pp 40.
The Applicant was also cross-examined about having investigations undertaken on his lumbar spine in 1990, in particular an x-ray and CT scan. The Applicant claimed that he did not recall whether he had to take time off work.
When asked about whether he experienced back pain between 1990 and 1995, he stated that apart from a “niggle” he was pain free. He said that in this period he was relatively fit and could do whatever he wanted to and that his body coped well. He worked long days commencing at 5:00 AM.
He agreed that he had consulted a physiotherapist and stated it was “possibly weekly”, but that he could not recall precisely.[19] He stated he had a low pain threshold and was attentive to his symptoms.
[19] Transcript, 11 March 2020, p 30, lines 2-3.
The Applicant did not dispute that he had seen a physiotherapist, Mr Latimer, 70 times between 1993 and 1995. However, the Applicant qualified his concession by stating that his relationship with Mr Latimer was not just one of therapy but education and training so that he could self-manage.
The Applicant was also asked to concede that he had given a history to Dr Pitcher in October 1998 of suffering a disc protrusion in 1995. The Applicant stated that he could not recall seeing Dr Pitcher or what the radiologist’s report at the time may have demonstrated.
Counsel for the Respondent pressed the Applicant about the nature of his lumbar spine symptoms between 1995 and 1998. In all answers given by the Applicant he stated he did not have an exact memory of that period of time. Despite this he stated that he did recall having adopted a series of regular exercises, stretches, daily walks and pool sessions all generally to manage his health. He agreed that he had been advised that this regime was beneficial for management of his back and his job situation, which necessitated prolonged static sitting either at a computer, at his desk in meetings or while travelling.
The Applicant then extrapolated, offering the opinion that constant sitting was a stressor on the spine and obviously his disc. The Applicant stated that he had been told by his physiotherapist and treating doctors that if he wanted to minimise reoccurrences of acute episodes of lower back pain, he should have a regular routine of daily exercises. He stated that he believed his motivation was to minimise chances of acute episodes.
The Applicant said he presently maintained the same exercise regime, although it has altered a little over time as his back pain is now chronic. Some exercises have been ceased to avoid bringing on sciatic pain, and his exercises had been modified many times over the past 20 years to reflect his changing condition.
His evidence was that between 1995 and 1998 he would walk daily for about an hour coupled with stretching exercises and hamstring stretches during his walks. He was asked whether he continued the walking and stretching and he stated that he did, although frequency and duration would depend on how his symptoms were. At his best he would walk five times a week and during his worst weeks he would not do any walking, but just gentle stretches and exercises at home on the floor. The duration of walks now was about 10 to 15 minutes, sometimes a little more and sometimes a little less.
The Applicant was also cross-examined about the content of the report of Dr Dowda.[20] In particular, he was asked about reference to X-ray and CT imaging on his lumbar spine carried out in 1990 and 1995. The Applicant stated that he did not specifically recall having the imaging or being advised of the conclusions drawn from the imaging.
[20] ST17, Supplementary T documents (2016/3682), pp 49 – 60.
The reports of Dr Dowda provided a detailed review and opinion about the condition of the Applicant’s lumbar spine in 2001 and 2003. In summary, Dr Dowda’s view was that the Applicant had mechanical irritability of the lumbar spine from established degenerative changes of the L5 S1 disc, possibly with non-verifiable radicular symptoms to the left leg intermittently, but no objective clinical findings of lumbar radiculopathy.[21]
[21] Ibid, p 56.
Dr Dowda noted that the CT imaging in 1990 and 1995 each showed degeneration involving broad-based disc bulge at L5 S1. He stated that in his view, the L5 S1 disc degeneration was not precipitated by the incident at work on 27 November 1998 as the history demonstrated that he had experienced symptomology at least seven times prior to that. Although Dr Dowda stated that the Applicant had a pre-existing condition at the time of the work incident on 27 November 1998, he considered that sitting at work for two and a half to three hours on 27 November 1998 caused an exacerbation of the pre-existing degenerative disc condition.
The Applicant was also questioned about a house move from Melbourne to Canberra shortly prior to the work injury in 1998. The Applicant was clear that he did not hurt his back during the course of the house move and did not undertake any lifting or moving of objects as a removalist was engaged and paid for by the employer.
The Applicant was also cross-examined about the precise circumstances of his injury at work on 27 November 1998. The evidence given was at times confusing, but eventually he stated he experienced lower back fatigue, not pain, and then pain when he stood up and had buttock pain.[22]
[22] Transcript, 11 March 2020, p 42, lines 27-29.
The Applicant maintained that although he experienced back pain, it was only after the episode at work sitting for a lengthy period on 27 November 1998 that he experienced left buttock and radiating left leg pain, which he had not previously experienced in connection with his lower back.[23]
[23] Ibid, p 41.
The Applicant was also cross-examined about the answer given to question 18(a) of his workers compensation claim dated 16 September 1999.[24] It was put to him that he had not disclosed prior episodes of lumbar back pain related to the period 1990 and onwards. The Applicant suggested that the question in the form did not call for disclosure, and he had not attempted to conceal the prior history as he had discussed it openly with his treating doctors at the time. He stated that he assumed Comcare would have asked for further information if required.
[24] Ibid, p 2.
It was directly put to the Applicant that he did not disclose the prior problems because he did not consider them to be the same as the injury episode at work on 27 November 1998. The Applicant agreed.[25]
[25] Transcript, 11 March 2020, p 43 line 38 – 39.
The Applicant was again cross-examined about his GP’s note at the attendance on 7 December 1998. It was put to him, that the doctor had not noted pain upon standing after a prolonged period of sitting because the Applicant had not given him that history. The Applicant disagreed that he had not given that history. The clinical note to which the Applicant was referred referenced “pain left para lumbar, buttock left thigh” but does not refer to pain upon standing.[26]
[26] Further Supplementary (AA) documents (2016/3682), p 9.
During 1999, the Applicant reduced his working time to four days per week and in 2001 his hours of work further reduced to 25 hours per week. The Applicant agreed that he received payments of compensation between 1999 and 2003.
There was documentation evidencing that on 27 August 2003, the Tribunal made an order by consent regarding the liability of the Respondent for the 1998 injury. It provided that from 14 June 2003 the compensable injury suffered in 1998 fully resolved, and that the continuing condition and resultant incapacity for work and need for household services was due to non-compensable factors.[27]
[27] ST 39, Supplementary T documents (2016/3682), pp 112-113.
Although the Applicant did not dispute the terms of the order by the Tribunal, he reiterated that he had accepted a lawyer’s advice and could not afford to pursue the matter further.
The Applicant agreed that he continued working after the Tribunal’s consent order. Initially he would not agree that he had been working 25 hours per week between July 2003 and his 2004 injury. However, after being referred to page 35 and 36 of the T documents (2018/6070), he eventually agreed.

The Applicant was then cross-examined about his claim for compensation relating to the injury in 2004.[28] He agreed that he had not disclosed anything about lower back problems between 1990 and 1997. The Applicant’s evidence as to why he had not was “because the injury at work had a materially different nature to anything I had experienced prior to the first injury in 1998. So, in my mind, that was a new injury. Different characteristics, different symptoms.”[29]
[28] Exhibit T1, document T6.
[29] Transcript, 11 March 2020, lines 1 – 4.
The Applicant maintained that he did not recall experiencing sciatic pain prior to the first work incident in 1998 and that the constancy of burning sensation in the buttock and radiating down was after that time. He agreed that the experience of back pain was not new but described it as intermittent previously and that it became constant after the first work incident in 1998.[30]
[30] Ibid, p 52, lines 19 – 25.
When asked again by Counsel for the Respondent why the Applicant had not disclosed the back problems prior to 1998 in his claim for compensation in 2004, the Applicant stated it was similar logic to his earlier answer regarding the 1998 claim. That is, he assumed Comcare would have obtained additional information from his doctors.
It was put directly to the Applicant that he did not disclose the problems with his lower back between 1990 and 1997 because he “deliberately chose to hide the lower back problems in 2004”. The Applicant stated that he disagreed with that characterisation.[31]
[31] Ibid, line 42.
The Applicant was asked whether his answer to question 24 of his 2004 Claim for Rehabilitation and Compensation[32] was a more accurate recollection of his injury at the time than his memory presently. The Applicant did not directly answer, but instead stated “I’m not a psychiatrist, but it sounds like a commonsensical observation, yes”.
[32] T 6, T documents (2016/3682), p 31; 35.
Ultimately, the statement in Exhibit T1 is signed by the Applicant and dated 4 June 2004 and speaks for itself.
It was then put to the Applicant that by November 2004 he had increased his hours of work to five days per week, working 25 hours per week but that he was taking one day sick leave due to discomfort and anxiety. The Applicant stated he did not have a clear memory of his hours of work because there was a lot of chopping and changing.
It was put to the Applicant that he continued working until September 2005 but that his hours were reducing from approximately July 2005. The Applicant said that may be right, but he was not certain as he recalled having an aggravation that led to his retirement. He stated that was the subject of another claim in dispute.
The evidence given by the Applicant in the preceding paragraph is a reference to the claim for compensation which is the subject of the application for review in proceedings 2017/7733.[33]
[33] Exhibit T5, containing T documents relevant to claim.
It was put to the Applicant that he ceased work in September 2005 and then medically retired either in March or September 2006. The Applicant stated he did not recall the dates.[34]
[34] Transcript, 11 March 2020, p 56 -57.
On 24 October 2016 the Applicant submitted a claim for compensation relating to injury suffered on 26 September 2005.[35] The claim for compensation referred to a medical certificate of Dr Madden.[36] The accompanying certificate from Dr Madden refers to an examination on 12 July 2016, identifies a date of injury of 26 September 2005 and diagnoses “aggravation of disc degeneration L4/L5, L5/S1 caused by prolonged sitting and severe pain when stood from a sitting position”. Dr Madden has added a note “not own observations, related by patient, old notes of Dr R Hain also consulted”.[37]
[35] T 6 and T 6a; T documents (2017/7733), p 18 onwards.
[36] Ibid, p 23.
[37] Ibid.
The Applicant was also asked about a detailed statement he had made and signed for the purpose of making the claim for injury on 26 September 2005. The Applicant agreed that he had prepared the statement personally.
When pressed as to the circumstances of injury on 26 September 2005, the Applicant stated, “I don't recall the exact circumstances”. Despite this, the Applicant maintained that there had been an episode of worsening of symptoms on 26 September 2005 while at work and that this had led to his retirement on invalidity grounds. He stated that he had consulted his GP Dr Hain and also Dr Speldewinde around this time.
He described the pain at the time of the 26 September 2005 episode as being the “worst ever pain I had experienced”. He went on to state that he recalled having a series of injections which eased the excruciating pain somewhat but were not enough to get him back to work.[38]
[38] Transcript, 11 March 2020, pp 59 – 60.
Counsel for the Respondent further pressed the Applicant about the circumstances of injury on 26 September 2005 and the following exchange occurred:
MR TERNES: …my understanding is that you’re claiming for an injury on 26 September within a day or two of that - where you sat in the meeting for a couple of hours, maybe a few hours, and then you got up at some stage, you were in a lot of pain. That’s the claim that you put in, isn’t it?
APPLICANT: Yes.
The Applicant was then referred to the records of Dr Hain, produced under summons. Entries in January 2005 onwards were drawn to the Applicant’s attention and it was put to the Applicant that he had not attended his GP in 2005 and complained of pain following prolonged sitting at a meeting.
The Applicant’s response was lengthy,[39] and he maintained that he had suffered a severe episode of back pain and left buttock pain on or about 26 September 2005 and could not explain why reference to it was not expressly noted in Dr Hain’s progress notes[40].
[39] Ibid, p 61.
[40] Exhibit R1, Clinical notes of Interchange General Practice, 2005.
An exchange then occurred between the Tribunal and Counsel for the Respondent about what initially appeared to be a redaction of part of the medical certificate written by Dr Hain on 28 September 2005.[41] The exchange between Counsel and the Tribunal concluded and was summarised in the following way[42]:
MEMBER TAGLIERI: All right. So where we’ll leave that topic, then, is in relation to an explanation for the redaction, although I note that it’s not redacted elsewhere, and also inquiring into any return to work plans or incident reports around this time relevant to some further episode or worsening of symptoms on 26 September ’05.
[41] T 11c, T documents (2017/7733), p 44.
[42] Transcript 11 March 2020 p 68 lines 10 – 14.
The Applicant agreed with a report of Dr Hain dated 28 October 2005,[43] which stated the Applicant was attempting to work 25 hours per week consistently, but with that not being sustained, was working 20 hours per week and invalidity retirement not being discussed until the option was raised by his supervisor.
[43] T 35, T documents (2016/3682), p 108.
It was put to the Applicant that Dr Hain’s letter of 28 October 2005 did not make reference to a specific episode of back pain on 26 September 2005. The Applicant agreed but could not explain why that was so.
The Respondent’s Counsel also cross-examined the Applicant about a letter dated 24 November 2005 written to Dr Speldewinde.[44] The Applicant stated that he agreed with the contents of the letter also. When it was put to him that the letter did not identify a specific episode of back or buttock pain on 26 September 2005, contrary to what Dr Speldewinde later wrote in a report of 2016,[45] the Applicant reasonably said he could not speak for what Dr Speldewinde had written in his report.
[44] T 37, T documents (2016/3638) pp 113 – 114.
[45] T 138, T documents (2016/3682), p 382.
The Applicant was then asked about a report written by Dr Talbot dated 23 November 2006,[46] which referenced an exacerbation of symptoms in July 2005, aggravated by prolonged sitting and by pressure at work.
[46] Ibid, T 53, pp 166 – 177.
Following discourse between the Applicant, Counsel for the Respondent and the Tribunal, the Applicant’s evidence was that in the absence of any contemporaneous history in Dr Hain’s or Dr Speldewinde’s records identifying an additional exacerbation in July 2005, the reference to that date in Dr Talbot’s report is assumed to be an error on Dr Talbot’s part and is a reference to a claimed exacerbation on 26 September 2005.[47]
[47] Transcript, 11 March 2020, p 74.
History recorded by Dr Coyle in his report of 15 October 2007 was put to the Applicant, namely that:[48]
He had a similar episode of severe back pain in June or July 2005, which required him to be off work for six weeks. Further several episodes which were not as severe. He related these to sitting or standing for any length of time.
[48] T 64, T documents (2016/3682), p 203.
The Applicant questioned the accuracy of the history recorded by Dr Coyle, stating that his experience was that in limited time for assessments, doctors would supplement history he had given with the information provided by Comcare and so what they recorded was not always fully correct.
It was directly put to the Applicant that he had not suffered an exacerbation of his condition at work on 26 September 2005. The Applicant disputed that proposition and stated:[49]
…it was a significant aggravation in 2005. Obviously, the records seem to suggest it was September 2005, and going by the writers of other circumstantial evidence as to when that led to my eventual long term sick leave and then retirement, I’ve backtracked and determined that that must have been the date. It could not have been July because I continued to work until September. But that last aggravation was sufficiently severe to disable me from returning to work.
[49] Transcript, 11 March 2020, p 75 at line 25.
The documents in evidence show that by 20 September 2005, discussion about retirement on invalidity grounds had arisen. The Tribunal was referred to a letter from Dr Hain to Dr Lark of Health Services Australia, supporting the option of retiring the Applicant on ill-health grounds.[50]
[50] S 12, Section 71 Documents (2016/3682), p 25.
The Applicant agreed that he had seen Dr Lark who produced a report of 24 October 2005. When referred to the history in Dr Lark’s report of an aggravation of his condition since June 2005,[51] the Applicant did not recall the circumstances and date of the claimed further aggravation in 2005. His answer conveyed that his evidence was based on reconstruction. He said:
I don’t really have a recollection as to when it happened, but considering the circumstances of my retirement and the sick leave following the September aggravation, I would still imagine that that was the single biggest event. Whether there was also another period in July, that I cannot recall. It has to be really corroborated with the sick leave records and the treatment plans, and visits particularly to Dr Speldewinde, because after those episodes, really the only relief I could get was cortisone injections, which Dr Speldewinde administered in his practice ..... Little mini operating room there with all the latest technology, so that was the only kind of treatment that would have given me sufficient relief to be able to just go on, really. So that would have to be the basis of, you know, corroborating the exact, I guess, period, whether it was July or September, but my assumption is that it would have been September. [52]
[51] Ibid, p 50.
[52] Transcript, 12 March 2020, p 85.
The Applicant was questioned about receipt of compensation payments for household services. The Applicant’s evidence was that he had a larger house in Canberra, and his current residence is smaller. He stated that in his current circumstances, he required about half the assistance he was receiving when living in Canberra. In the context of actual hours, it was put to him that as he was receiving five hours per week in Canberra, so required two and a half hours now. The Applicant stated he would say three hours.
The Applicant gave evidence about his sitting tolerance and use of a laptop computer. He said that he usually did not sit for longer than half an hour and would vary his posture including reclining and placing a pillow beneath the laptop.
It was put to the Applicant that he had regularly travelled overseas on aeroplanes, involving prolonged sitting. He denied this was the case and stated that on the few occasions he had travelled overseas, he had broken up the flight by frequently standing up and walking around the cabin rather than sitting for extended periods. He also performed gentle exercises during the flight, travelled with a companion to assist and on one occasion was able to fly business class with medical certification and consideration by the airline. He had taken his usual medications to manage his pain during the last overseas flights and while overseas.
The Applicant agreed that he had married on his last trip overseas in 2019, but said his wife was not in Australia and there was no clarity about when she could come to Australia to join him.
Regarding his current treatment, the Applicant’s evidence was that he had been seeing Dr Francis and other professionals at the pain unit of the Royal Hobart Hospital. He was also regularly taking medication, Tramadol 200 mg and Panadol, but not necessarily every day. He had ceased using Endone due to its addictive effects.
The Applicant’s treatment was now managed solely by his general practitioner, Dr Boland. Dr Boland had previously referred him to psychiatrist Dr Wilson, but the evidence was not clear as to whether these visits continued or if they were required.
Before cross-examination of the Applicant was concluded, Counsel for the Respondent addressed the redaction of the medical certificate of 28 September 2005, referred to at [66]. He explained that his instructions were that there had been highlighting of those words, which manifested as redaction upon scanning and compilation of the documents to be filed with the Tribunal as Section 37 documents. He also advised that the Respondent had been unable to locate return to work records relevant to June 2005 until September 2005.
“MEDICAL EVIDENCE” RELIED UPON BY THE APPLICANT
The Applicant did not call any expert witnesses to give oral evidence during the hearing. He indicated that he did not have financial means to do so. Accordingly, he relied to various degrees on medical reports tendered in evidence, including reports of Dr Speldewinde,[53] Dr Madden, Dr Hain, Dr Boland,[54] Dr Westcome and Dr Wilson.[55]
[53] Specialist pain physician.
[54] All General Practitioners.
[55] Both Psychiatrists.
Each of the reports relied upon by the Applicant to varying degrees supported the essential claim that the Applicant continued to suffer lumbar spine pain which was associated in some way with the 2004 compensable injury.
Parts of the reports of Dr Vecchio[56], a specialist consultant rheumatologist who examined the Applicant in 2015, were also seemingly supportive in part to the Applicant’s case before the Tribunal. Dr Vecchio appeared to accept that sitting for prolonged periods at work in 1998 and 2004, materially aggravated the Applicant’s discogenic low back pain. However, his opinions were not clear about whether the Applicant continued to suffer from the 2004 compensable injury in 2015. His opinions appear to have been the genesis for the decisions made by the Respondent in 2016 and subsequently, which are now subject to review.
[56] T119 and T122.
The six bundles of documents tendered by the Applicant[57] included extensive medical or scientific literature or articles concerning low back pain, degenerative disc disease, risk factors for disc pain and disc protrusion, associations between sitting and back pain, associations between prolonged sitting and changes in discs or other structures in the lumbar spine.
[57] List of literature annexed as “A”.
The medical and scientific literature and articles were said by the Applicant to demonstrate a causal nexus between his employment duties, particularly prolonged sitting, and lumbar spine conditions (including degeneration of lumbar discs and other structures of his spine), resulting in continuous symptoms of pain and referred leg pain.
The Applicant cross-examined the Respondent’s expert witnesses by reference to the medical/scientific studies and literature he relied upon and elicited evidence referred to below.
THE RESPONDENT’S EXPERT EVIDENCE
Mr Gan - Neurosurgeon
The Respondent called a consultant neurosurgeon, Mr Gan, to give evidence. Mr Gan had been practising as a neurosurgeon since 1998 and examined the Applicant on 19 January 2017 for the purposes of his Comcare claims.
Mr Gan had produced a report of 1 February 2017[58] containing his opinions concerning the Applicant’s condition. He confirmed the contents of the report to be true and correct.
[58] T12, T documents (2017/7733), pp 62-70.
Upon cross-examination by the Applicant, Mr Gan’s evidence was:
·In reference to statements put about the contents of Dr Griffith’s report, Mr Gan responded by stating that in his view Dr Griffith was simply stating that he experienced aggravation of pain in 1998 relating to an episode of prolonged sitting at work. The pain became a chronic pain syndrome, a different problem, which he did not agree with.
·That he agrees that the Applicant has chronic pain after the aggravation in 1998 and 2004 but he cannot be more specific as to whether the 1998 and 2004 aggravations were material contributors.[59]
·That because of the degenerative disease of the spine which existed even prior to the 1998 work episode, the problem with sitting for long periods of time has pushed forward the aggravated, exacerbated degeneration in 1998, 2004 and 2005.[60]
·That he agreed that sitting excessively can increase the risk of herniation of discs, but he does not agree that it is by 90%.[61]
·That he agreed that there are multiple studies showing prolonged sitting can increase intradiscal pressure and that increased pressures have been shown to lead to disc bulges, protrusions and potentially harmful herniations.[62]
·Additional studies have evaluated the ensuing degenerative cascade leading to further degenerative changes, including ligamentous hypertrophy, facet arthritis and stenosis.[63]
·That the exact cause of lower back pain can be hard to determine and that in the Applicant’s case he agreed that degeneration of vertebrae causing stresses on muscles and ligaments that support the spine are a cause of lower back pain.[64]
·That once disc degeneration is in progress you start having more frequent pain. It gets better for a while but then may become chronic pain. That is actually quite usual.[65]
·He disagreed that prolonged static sitting caused the Applicant to sustain damage to the smallest nerves around the joints, muscles and disc but that is part and parcel of degeneration of the disc also. He did not agree that prolonged sitting caused nerve damage on the big nerves, eg S1 nerve groups.[66]
[59] Transcript 13 March 2020, p 141.
[60] Ibid, p 143.
[61] Ibid, p 147.
[62] Ibid, p 148.
[63] Ibid.
[64] Ibid, p 148.
[65] Ibid, p 182.
[66] Ibid, p 184.
Members of the Tribunal asked Mr Gan some questions for clarification of his views and he said:
·That the Applicant, in his opinion, was free from any effects of the exacerbation and aggravations previously experienced in 1998, 2004 and 2005.[67]
·That the Applicant’s reasonable need for assistance with household cleaning and gardening was due to his continued degenerative disc disease[68] but given that he has not worked since 2006 it is impossible to think of any physical reasons that would continue to aggravate the symptoms now.[69]
[67] Ibid, p 186.
[68]Ibid, p 184.
[69] Ibid, p 186.
Mr Gan was re-examined about the Applicant’s course of medical presentation and treatment with physiotherapy and general practitioner attendances from 1990 and right up until 1998 prior to the workplace incident. Specifically, he was asked what picture the treatment painted. Mr Gan’s evidence was that:
It shows that he’s becoming symptomatic in terms of his degenerative disc disease. … it just paints a picture that this is becoming more and more symptomatic with his back throughout that period, which also fits with what I’m trying to say, that he has aggravations periodically throughout – since 1990s, really.[70]
[70] Ibid, p 188.

Mr Gan was asked, noting that he accepted that in 2004 there was an episode of sitting for perhaps two or three hours and the Applicant experienced sharp pain in his lower back, how long in his opinion did the aggravation or exacerbation from the incident last. Mr Gan’s response was:
Well medical evidence itself, it should last for about a few months, at the most – a few days to a few months if it’s an aggravation. If you just look at changes in the spine when you sit down and get up, actually, once you get up, the stress of the pressure on your spine will resolve itself and get less, … it would probably last a few days to a few weeks to a few months, but that’s about it, really.[71]
[71] Ibid.
It was put to Mr Gan that his opinion as to the aggravation lasting a few days to a few months would not include 100% of samples. Mr Gan agreed that it would not be 100% but he would say more than 80% to 90% of samples would recover in those timeframes. In arriving at this view, he relied upon his experience in treating people.[72]
[72] Ibid, p 190.
Dr McGill - Rheumatologist
The Respondent called Associate Professor McGill, a medical practitioner practising as a Rheumatologist since 1990. Dr McGill examined the Applicant on 12 April 2017 and provided two reports in response to requests from the Respondent’s solicitors, which were tendered in evidence.[73]
[73] Exhibit R2, Report of 12 April 2017; exhibit R3, report of 6 March 2020.
The substance of Dr McGill’s opinion is summarised in his first report as follows –
The compensable condition was aggravation of disc disease L4/5 and L5/S1. The “aggravation” was an increase in symptoms, not a change of underlying pathology. There is no reasonable chance that the structure of his spine was altered by the periods of prolonged sitting while undertaking phone calls or other work activities. The effect of the prolonged sitting could have influenced his symptoms for a few weeks.
Dr McGill was referred to an MRI study in December 2005. Dr McGill stated that the degenerative changes shown in the imaging were common in the general community. He stated that the reference to degenerative disease meant that the imaging showed desiccation or drying out of the L5/S1 disc and that there was a shallow, broad-based disc bulge of the disc between L5 and S1.
Dr McGill was also asked about the Applicant seeing practitioners in a pain management team at the Royal Hobart Hospital in 2018. He was referred to a report of Dr Sanatham of 23 April 2018 and asked to comment on the meaning of certain passages. Dr McGill stated that the doctor had described “weakness but in a distribution that doesn’t fit with any nerve or nerve root, and that he stated that Waddell’s signs are positive”. That meant, according to Dr McGill, that the patient had demonstrated signs that are not explicable on a physical organic basis.[74]
[74] Transcript 12 March 2020, p 102.
Dr McGill also stated that the Applicant did not have any serious pathology in his spine at the time he examined the Applicant in 2017.
Dr McGill was also asked to comment on a report of Mr House dated 22 March 2019. Mr House had written that the Applicant’s situation was -
…long-term, nonspecific low back pain with significant pain-related disability. He has highly disabling non-red-flag low back pain. He is structurally safe but presents as highly fear-avoidant and kinesiophobic. He is unlikely to make rapid change. He has had many treatment failures in the past.
Dr McGill stated that this description closely fitted with his own formulation, that the Applicant had reported pain for many years but there are no physical findings of significant structural disease.
Dr McGill was asked about Dr Francis and a letter dated 2 September 2019. Dr McGill’s comments were that he is a compassionate rheumatologist and pain physician. He believes that Dr Francis is expressing pessimism that the Applicant will change his approach and belief system which is highly relevant in his presentation.[75]
[75] Ibid, p 104.
Dr McGill confirmed his view that there was no back injury suffered on 26 September 2005 and that the experience of increased pain was not equivalent to injury.
Dr McGill was specifically referred to the certificate written by Dr Hain on 28 September 2005 stating “further aggravation at work on 26 September 2005” and whether it changed his opinion. Dr McGill stated it did not.
The Applicant’s cross-examination of Dr McGill
The Applicant cross-examined Dr McGill in relation to the opinions expressed in his reports and the oral evidence given to the Tribunal.
The cross-examination was directed to two broad topics. Firstly, an alleged conflict between the opinions expressed by Dr McGill and the content of various scientific and medical literature, considered to be supportive of the Applicant’s case. Secondly, an assertion of a lack of objectivity and bias in the views expressed by Dr McGill.
When Dr McGill was challenged about his impartiality, it was put to him that he had a conflict of interest because he was paid for his report by Comcare and so lacked absolute objectivity.
Dr McGill stated:
I take great care and great pride in providing absolutely impartial assessments. I write plenty of assessments that do not please the people who are asking me for the assessment – well - or may not be deemed to be on the side of the person asking me for an assessment. I think in most cases I hope that they are – nevertheless are happier to have an assessment that tells me (sic) that their side is wrong earlier rather than later. But I have enormous pride in my integrity and I am not influenced by who is paying my fee for the report. [76]
[76] Transcript 12 March 2020, p121, line 24.
The Tribunal accepts the answer given by Dr McGill, particularly because he made appropriate concessions about some of the scientific or medical articles to which he was referred during cross-examination. He also provided cogent, objective evidence within his area of expertise when answering questions from the Tribunal.[77]
[77] Ibid, pp 123 – 124.
Dr McGill’s evidence under cross-examination about various medical and scientific literature, can be summarised as follows:
·He considered that in Australia and worldwide Chris Maher and Rachel Buchbinder were authorities in the epidemiology of low back pain.[78]
[78] Ibid, pp 104, lines 39 – 42.
·That it was important to distinguish between reliable scientific and medical literature and studies and those that are more generally informative. The more reliable ones being peer-reviewed journals and the less reliable being opinion pieces not based on statistically significant sized data or research.[79]
[79] Transcript, 12 March 2020, p 105.
·The articles produced by the US National Library of Medicine, National Institutes of Health,[80] were not, in his view, useful and though they may identify that people experience pain when sitting, it does not inform whether there is injury from prolonged sitting.[81]
[80] Exhibit A8, Applicant’s submissions, 14 August 2019.
[81] Transcript 12 March 2020, p 107, lines 5 – 10.
·In respect of the association between sciatica and prolonged sitting, the article titled Work-related Risk Factors for Sciatica Leading to Hospitalisation, published by Medical Research Centre in Oulu University in Finland was instructive and found no association between prolonged sitting and sciatica.[82]
[82] Transcript 12 March 2020, p 108, lines 30 – 39.
·Scientific and medical studies that look at back pain are more useful than short-term studies that look at changes in hydration in the discs. The literature needs to be looked at carefully in the context in which it is written and by whom it is written. For that reason, he considered that an article published in the Lancet about non-specific low back pain was excellent.[83]
[83] Ibid, p 110.
·The literature from the Mayo Clinic suggesting a relationship between excessive sitting and increased risk of disc herniation was an opinion, but in his opinion not supported by scientific studies carried out in Finland and in any event, the Applicant’s imaging did not demonstrate a disc protrusion or extrusion.[84]
[84] Ibid.
·Literature from the University of Utah, School of Medicine about causes of sciatica to flare-up was merely the opinion of one doctor, was not supported by any data and was simply an impression that had not been demonstrated.[85]
[85] Ibid, p 111.
·When pressed about the effect of prolonged sitting on the lumbar discs in circumstances where those discs were already vulnerable, Dr McGill stated:
I think it’s quite possible that while seated you could experience more discomfort at the time and it might even cause a flare of pain lasting for days, or possibly up to two or three weeks, but would not have changed the structure of your spine and would not have had any effect on your susceptibility to symptoms subsequently.[86]
·Dr McGill’s experience as a clinician looking after people with back pain all the time, was that when people are in an awkward position or do something like that, they can feel sore, but the soreness goes away within a day or two. It could potentially go on for two or three weeks, but it does not change the structure of the spine.[87]
·There are studies that demonstrate that sitting persons can experience back discomfort, but he did not believe that there were any studies demonstrating that being seated increases or changes the pathology in the spine or changes the structure of the spine.[88]
·Regarding the literature published by the US National Library of Medicine, National Institutes of Health, Dr McGill stated that although the article referred to changes in the shape of the disc from prolonged sitting, the study involved a total of only twelve patients and did not assist in regard to the question of whether sitting causes an ongoing change in the disc and that the authors did not suggest that was the case.[89]
·Dr McGill agreed that there was some scientific and medical literature that showed an association between prolonged sitting and increased lower back pain.[90] However, he was unaware of any scientific literature stating that the association continued when the sitting stopped. He agreed that this was the key issue in the Applicant’s case.
·Dr McGill agreed with a number of propositions in articles from the Johns Hopkins School of Medicine in the US.[91] Although Dr McGill agreed with the propositions in the literature, he did not consider they applied to the Applicant’s case, apart from the reference to depression in association with back pain leading to worse outcomes.
·Dr McGill agreed that pain cannot be seen and cannot be proven with absolute certainty. He also agreed that pain could not be isolated to a specific location and was difficult to communicate or describe.[92]
[86] Ibid, lines 36 – 40.
[87] Ibid, pp 111 – 112.
[88] Ibid, pp 112.
[89] Ibid, pp 114, lines 6 – 16.
[90] Ibid, lines 27 – 30.
[91] Ibid, p 116, lines 29 – 30.
[92] Ibid, p 119 – 120.
When questioned by members of the Tribunal, Dr McGill agreed that the Applicant had experienced pain following prolonged sitting at work in both 1998 and 2004, but said he was not qualified to express a view about how this corresponded to continuing chronic pain and the Applicant’s perception of pain.[93] He added that as a rheumatologist treating chronic back pain, his experience was that a person’s emotional and psychological makeup was a huge influence on the perception of pain and response to it in terms of continuing to work.[94]
[93] Ibid p 123, line 35 onwards.
[94] Ibid, p 124, lines 6 - 9; 13 - 19; 21 – 23.
When directly asked whether the two work aggravations that had been accepted as compensable[95] were contributing to the ongoing pain and if so in what proportions, Dr McGill was of the view that it was none.[96] Dr McGill properly qualified his answer by stating that his view was expressed as an experienced clinician, not as a psychiatrist.
[95] 1998 and 2004.
[96] Ibid, lines 25 – 32.
When asked by Member Walters about the basis for the Applicant retiring from work, Dr McGill stated that he considered the Applicant physically capable of performing normal duties and remained capable of doing so. As to whether from a psychological status he was unable to work, he was not able to give an answer and stated that a psychiatrist would be more suited.[97]
[97] Ibid, lines 36 – 44.
Dr McGill stated that he did not believe the Applicant to be deliberately distorting his evidence about the pain he experienced. He accepted that the Applicant had pain and was distressed by his situation, but he considered it to be disproportionate to the physical makeup of his back.[98]
[98] Ibid, p 125, lines 1 – 11.
ANALYSIS OF EVIDENCE AND THE TRIBUNAL’S FINDINGS
The Tribunal finds that the Applicant has a degenerative lumbar spine and suffers pain from it. However, the key issue relevant to the outcome of these reviews, is whether the now chronic lumbar pain the Applicant experiences is a result of the compensable injury, being “aggravation of disc degeneration L4-L5/L5-S1”, or “the 2005 aggravation”, alleged to be a separate but also compensable injury suffered on 26 September 2005.
The Tribunal finds, based on the medical records, that between 1990, when he injured his back playing tennis, and the first workplace injury in 1998, the Applicant experienced more than trivial lumbar back pain.
The lumbar pain referred to at [117] may not have been constantly severe in the period prior to 1998 but was significant enough to warrant a number of radiological investigations and considerable treatment by doctors and physiotherapists. The report of Dr Dowda helpfully explains the nature and history of the Applicant’s lumbar spine condition prior to the initial workplace injury in 1998. Dr Dowda’s views which are accepted, demonstrate that prior to any work injury, the Applicant’s lumbar spine had already commenced on a degenerative course.
Although the Tribunal generally accepts the Applicant’s evidence to be reliable in many respects, where his testimony diverges from the contemporaneous medical records or other documents recording his historical back symptoms, the Tribunal prefers the reliability of the information documented. This is not to be inferred to mean that the Applicant was untruthful, rather it is a reflection of the fact that it is unrealistic to expect the Applicant to have a perfectly correct memory of events and symptoms from 1990 to 1998 or from that date onwards, when giving evidence in 2020. The Applicant acknowledged his imperfect memory on occasions during his evidence.
There is considerable scientific and medical literature in evidence demonstrating that prolonged sitting probably flares or exacerbates back pain in a person who is already vulnerable to experiencing back pain due to either a discrete injury to the lumbar spine or degenerative changes in it.
The Applicant gave evidence and the Tribunal accepts that his employment involved prolonged sitting on many occasions, but in issue is whether the episodes of prolonged sitting in April 2004 or September 2005 caused continued exacerbation of pain and/or aggravation of degenerative changes in the lumbar spine.
Mr Gan and Dr McGill, who were cross-examined by reference to the scientific and medical literature, generally agreed that prolonged sitting temporarily increases the experience of back pain in a person who has a discrete injury to or degenerative changes in the lumbar spine.
However, based on the medical and scientific literature as explained by the views of Mr Gan and Dr McGill, which were subjected to scrutiny and testing, the Tribunal is not persuaded that there is a:
a.likely nexus between episodes of prolonged sitting and permanent structural changes to components of the lumbar spine; or
b.causal association between prolonged sitting and permanent, continuing and severely incapacitating pain in an already degenerative lumbar spine.
The evidence of Mr Gan and Dr McGill, not surprisingly has provided useful assistance to determining the issues on the applications for review. The opinions are based on personal examination of the Applicant, assessment following consideration of all historical medical records and imaging and scrutiny from cross-examination.
In arriving at the findings expressed at [123], the Tribunal has had regard to the literature and articles relied upon by the Applicant, but our interpretation of them has been informed by the evidence given by Mr Gan and Dr McGill, as experts, and the facts and medical history relevant to the Applicant.
The scientific articles and literature are informative but of limited value in isolation and need to be evaluated by reference to the totality of the evidence before the Tribunal.
Regarding the assertions that Dr McGill lacked objectivity or was biased in the opinions he expressed, the Tribunal rejects such notions. Dr McGill did not accept the ultimate propositions put to him by the Applicant, namely that prolonged sitting was capable of causing either:
a.structural change in the lumbar discs or other structures; or
b.prolonged permanent pain in the lumbar spine, whether degenerate or not.
But, not accepting these propositions does not make him biased or place him in a conflict of interest. His views were logical, based on his qualifications and experience and a rational interpretation of the medical/scientific literature. They were also based on his unchallenged qualifications and experience.
In addition, Dr McGill declared that he abided by the expert witness code of practice and the members of the Tribunal saw nothing that suggested non-compliance with the code. The Tribunal also accepts Dr McGill’s evidence that he gives impartial opinions and that those instructing him do not necessarily get opinions supportive of their cases.
The written contentions filed at various times made allegations against Mr Gan’s impartiality also, but these were not particularly pressed during his cross-examination. For completeness, the Tribunal accepts Mr Gan was impartial and abided by the expert witness code.
Although the Tribunal has made the findings at [123], it is not positively persuaded that the effects of the compensable injury, aggravation of disc degeneration L4-L5/L5/S1, ceased at the latest in 2013, as the Respondent contends.
The opinions of Mr Gan and Dr McGill were based on examinations of the Applicant in 2017 and their interpretation and assessment of relevant historical medical records and other materials. When suggesting the length of time for which symptoms continued following the compensable injury, in the Tribunal’s view, Mr Gan and Mr McGill must have to a degree been speculating because they did not examine the Applicant prior to 2017. Their opinions about when aggravation or exacerbation of lumbar pain and associated incapacity likely ceased after episodes of prolonged sitting at work in April 2004 are necessarily hindsight opinions.
No doubt as medical experts, they are trained and qualified to express opinions in hindsight on historical information, but in this instance the Respondent invites the Tribunal to extrapolate their views to lead to the conclusion that by 2013 at the latest, well before they examined the Applicant, the effects of the compensable injury had ceased, because the flare or exacerbation of pain was temporary.
Whether the Tribunal should accept the Respondent’s contention in our view requires careful consideration of all the expert evidence, including the views of doctors who examined the Applicant in “real time” in the past, but whose views were not chosen to be challenged or tested at the hearing. It is inappropriate to selectively focus on the two experts who were called by the Respondent and make determinations on those alone.

The views of Mr Gan and Dr McGill diverged somewhat about the likely duration of increased pain from the compensable injury due to episodes of prolonged sitting at work in 2004.[99] In addition, their opinions about the duration of increased pain from prolonged sitting upon the Applicant’s degenerative lumbar spine was not absolute. This is not surprising because they had not personally examined the Applicant until 2017. Further, Mr Gan conceded that in a small proportion of cases, pain levels from degenerative changes in the lumbar spine did not necessarily diminish after prolonged sitting ceased.[100]
[99] At [91] – [97] above.
[100] [96] above.
Their opinions about the likely duration of symptoms may be strengthened or weakened by the other expert opinions (albeit untested) from Dr Spendelwinde, Dr Vecchio, Dr Madden and other general practitioners at the Interchange General Practice, all who undertook examinations of the Applicant after 2013. To varying degrees, these doctors’ appeared to accept that the Applicant’s lumbar pain was from the compensable injury.
Specific comment is warranted about the views of Dr Vecchio, who examined the Applicant on 24 August 2015. On the one hand he opined that the episodes of sitting in 1998 and 2004 caused permanent aggravations of low back and neurogenic pains.[101] But he diagnosed discogenic low back pain which results from degeneration with time and extra occupational influences such as tennis, sport, time, family history and quality of constitutional connective tissue.[102]
[101] T 6, T documents (2016/3682), p 337.
[102] T 6, T documents (2016/3682), p 336.
In his later report of 8 October 2015, which appears to have been requested to clarify Dr Vecchio’s views, he stated that episodes of sitting may aggravate discogenic pain, but that the entirety of the Applicant’s disability is not explained by benign incidents (referring to the episodes of sitting).[103]
[103] T 6, T documents (2016/3682), p 355.
Dr Vecchio was specifically asked about the Applicant’s current condition by reference to the “but for test” of causation and also about the factors contributing to the condition the Applicant was suffering at the time of assessment. He stated that the incidents of sitting in 1998 and 2004 influenced the Applicant’s condition in a material sense but also stated that irrespective of these incidents, he regarded it as definite that the Applicant would suffer back pain.[104]
[104] T 6, T documents (2016/3682), p 356.
The effect of the opinions of Dr Vecchio is somewhat confusing, possibly due to the manner in which questions were framed in the requests for opinions. This aside, the views of Dr Vecchio raised for the first time real doubt about whether the effects of the 2004 compensable injury were continuing to materially contribute to the level or extent of disability the Applicant presented with in 2015, and by extension related to or explained the need for treatment and household services.
Dr Spendlewinde was of the view that the Applicant continued to suffer from the effects of the 2004 compensable injury, but he appears to have been unaware of the Applicant’s medical history between 1990 and 1998.
Evaluating all of the evidence, the Tribunal is positively satisfied that the effects of the compensable injury had ceased by late 2015, based on the doubts of Dr Vecchio, later reinforced by the views of Mr Gan and Dr McGill who examined the Applicant in 2017. By late 2015, the Tribunal is satisfied that the effects of the 2004 compensable injury had been overtaken by:
·the initial injury to the lumbar spine in 1990;
·degenerative changes from the 1990 injury;
·the natural course of progressive degeneration of the lumbar spine with ageing; and
·the Applicant’s perception of pain based on his personality.
Review application No. 2017/7733 – Denial of liability for injury suffered 26 September 2005
The contemporaneous history of clinical signs and symptoms reported by Dr Hain between early 2005 and December 2005 in the medical progress notes were carefully reviewed by the Tribunal. They clearly demonstrate that after the compensable injury in April 2004, the Applicant experienced fluctuating pain in his lumbar spine which produced partial or total incapacity for work which varied frequently. Some reports of increased pain followed periods of improved pain and were reported by the Applicant to arise from nothing in particular or at other times were associated to an action or event involving no obvious force or strain on the spine.
Although the Applicant relied upon Dr Spendlewinde’s report[105] to support the claim he suffered a new injury in 2005, there is inconsistency between history Dr Spendlewinde took that the “worst ever” pain was in July 2005, and certification by Dr Hain on 28 September 2005, referring to an aggravation caused by prolonged sitting at work. The latter certification appears to be what the Applicant contended at the hearing was the new injury on 26 September 2005 and for which he had made the separate claim.
[105] T 138, T documents (2016/3682) p382, report dated 19 April 2016.
There is further inconsistency about what happened in 2005 as history in the report prepared by Dr Lark dated 20 October 2005,[106] refers to aggravation in June 2005.
[106] T 11e(ii), T documents (2017/7733) pp 53-54.
The progress notes made by Dr Hain and the medical certificates he wrote between January 2005 and December 2005 all refer to an injury date of April 2004, including the certificate of 28 September 2005, which notes aggravation at work on 26 September 2005. This, in the Tribunal’s view, clearly conveys that Dr Hain as the principal treating doctor, regarded the presentation in September 2005 to be related to the April 2004 injury. Logically, this also explains why no separate claim for compensation was made at the time.
Other documents in evidence convey that because of the inability to progress return to work plans following the April 2004 injury, consideration was given to retirement on invalidity grounds.[107] Whether this was initiated by the employer or Applicant is immaterial for the purposes of this review.
[107] T25, T documents (2016/3682) p 91.
Having carefully considered the evidence, the Tribunal is not satisfied that a new injury was suffered on 26 September 2005 for the purposes of section 5A or 5B of the Act. It follows that the decision under review in application No. 2017/7733 should be affirmed.
In disposing of the review on this application, it is desirable that the Tribunal address the redaction issue referred to at [66] and [83] of these reasons. The full content of the medical certificate written by Dr Hain on 28 September 2018, was included elsewhere in the T-documents.[108] The Tribunal, based on its own experience and knowledge, is aware that highlighting in a PDF Adobe version of a document may result in subsequent obscuring of the highlighted section upon copying or scanning. The explanation provided by Counsel for the Respondent is accepted. There was no deliberate attempt to conceal, no adverse finding is appropriate contrary to that suggested by the Applicant.
[108] T146, T documents (2016/3682) p473.
Review application No. 2016/3682
Noting the principles at [16] to [22] above and for the reasons given at [116] to [142], the Tribunal is satisfied that by late 2015, the Applicant was no longer suffering the effects of the 2004 compensable injury.
Based on medical views up until those of Dr Vecchio in late 2015, there was sufficiently persuasive evidence to support liability for the provision of medical treatment and household services. Although the effects of pre-existing and progressive degenerative changes to the lumbar spine may have overtaken the effects of the 2004 compensable injury at an earlier date, the Tribunal is not positively satisfied that was the case according to the required Briginshaw standard.[109]
[109] Prain v Comcare [2017] FCAFC 143.
In addition, the Tribunal ought not and will not look behind the determination made by consent on 1 December 2003. It follows that it accepts that the 1998 employment related aggravation of lumbar spine degeneration fully resolved.
Accordingly, the decision under review in application No. 2016/3682 should be affirmed.
Review application No. 2017/4137
By own motion review, the Respondent determined on 13 December 2016 that the Applicant was no longer entitled to payment of household services. The basis for the decision was that the Applicant no longer suffered the effects of the 2004 compensable injury, so he was no longer entitled to payment of household services under section 29 of the Act from that time.
Noting the findings and reasoning of the Tribunal at [116] to [142], this decision should be affirmed. It is imperative to impress that in affirming this decision, the Tribunal relies on its conclusion that the effects of the compensable injury ceased by late 2015. Accordingly, the entitlement to payment of claims made prior to late 2015 for household services are unaffected by the determination of the Tribunal. The Respondent ran its case on the basis that the reviewable decisions, left intact earlier determinations it had made, including the initial section 14 determination of 24 April 2004 and other decisions made after that date pursuant to sections 16 and 29 of the Act concerning the compensable injury.
Review application No. 2018/6070 – Refusal of 2018 claim for household services
The Respondent made a determination on 6 September 2018, denying liability for payment for past household services expenses incurred between 2013 and 2016.[110] The Applicant seeks review of this determination and contends that the Respondent should reimburse him for the cost of services incurred and paid by him between 2013 and 2016, as evidenced by a bundle of receipts he belatedly submitted in around February/March 2018.
[110] T 15, T documents (2018/6070) p 82.
During the hearing in March 2020, the Applicant was asked about the claims he had submitted in 2018[111] The evidence was:
MR TERNES: “Now, the most recent application that you have before the tribunal concerns household cleaning and services for inside the house for the period 2013 to 2015. Does that sound right?‑‑‑"
APPLICANT: “I was very late for the submission of the receipts. I usually was always late. I used to bundle them together and submit them every so often. During that period because of – because of the upheaval in my personal life, yes, my – my records and everything were all over the place, and then the move from Canberra to Tasmania occurred and all those receipts got packed in somewhere amongst my boxes which went to storage. So it took me obviously, I don’t know, two years or so before I finally got around to submitting them to Comcare, and I think – from the notes I have prepared recently that was prepared for me, I think it covered the period 2013 to the time of the liability ceased by Comcare, which was – I think – was it ’16? Sorry, it was for that period, yes.”
[111] T 15, T documents (2018/6070) p 82.
The claims that are referred to in this passage of evidence are those included in exhibit T6, pages 16 – 41 inclusive. Review of the receipts identifies that they span a period largely correlating with determinations made by the Respondent on various dates between 2013 and 2015, pursuant to section 29 of the Act, which are not subject to any review. Each receipt identifies a specific amount for the service provided.
When the Respondent determined on 6 September 2018 that it would decline to reimburse the Applicant for the receipted household services he had already incurred and belatedly submitted, the only reason given was lack of detail about the identity of the provider, date of services, charge amount and hours of services.
In closing submissions by the parties on 13 March 2020, the Respondent contended that because the Tribunal should be satisfied that the effects of the 2004 compensable injury had ceased by 2013, the decision under review in this application should be affirmed.
The Applicant submitted that he had not recovered from the compensable injury or an injury suffered in September 2005 for which the Respondent should be found liable. Further, he claimed that the Respondent reimbursed him for household services in the past on the basis of receipts similar to those he belatedly submitted. The Respondent has not challenged this assertion and the Tribunal accepts it, as there are similar receipts in evidence for earlier periods, with the schedule of compensation payments evidencing payments were made for the receipted household services provided.
In the course of preparing its decision, the Tribunal noticed determinations appearing in the T documents, by which the Respondent had decided it would pay by way of compensation under section 29 of the Act, between three and five hours of household services, for a period spanning 3 August 2012 and 30 September 2015.[112]
[112] T 147, T document (2016/3682) pp 504 – 513.
Neither party had specifically addressed them during the hearing. Accordingly, on 20 August 2020, the Tribunal advised that it would reconvene the hearing on 15 September 2020, to give the parties opportunity to make submissions.
At the resumed hearing, the Tribunal invited submissions and drew the Respondent’s attention to section 72(a) of the Act. It provides:
“In performing the function referred to in 69(a), Comcare shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities;”
This was raised on the basis that the Respondent had not previously relied upon lack of detail in receipts to refuse reimbursement of the Applicant for similar incurred household services expenses.
Counsel for the Respondent acknowledged that the chain of decision making by the Respondent was messy. He also agreed that the Respondent had not undertaken an own motion review of the determinations referred to at [162]. He repeated his previous closing submissions that the Tribunal should find that the Applicant no longer suffered the effects of any compensable injury by 2013, meaning that it should affirm the decision under review in all applications including application No. 2018/6070, notwithstanding the earlier section 29 determinations and the reasons given for the decision taken on 16 September 2018.
In support of his submissions, Counsel for the Respondent cited Hannaford v Comcare and Conti J at [57]:
“In my opinion, it should be concluded, upon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I have focused attention in these reasons, the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part...’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.” (bolded for emphasis by this Tribunal)
The Tribunal questioned Counsel for the Respondent, about whether the authority of Hannaford stood for the proposition he appeared to be putting. Namely, that if the Tribunal found that by 2013 the Applicant no longer suffered the effects of and/or did not need household services as a result of the compensable injury, it should affirm the reviewable decision, meaning that the affirmation would have retrospective effect and contradict the earlier determinations.
In the Tribunal’s view, the Respondent’s contention would create contradiction between, earlier determinations entitling the Applicant to receive payments for household services expenses up until 30 September 2015 when those earlier determinations were not subject to review.
Hannaford did not deal with the contention being put by the Respondent in this case, that affirmation of a reviewable decision ceasing liability for medical or other types of compensation, because the worker no longer suffered the effects of compensable injury, could operate retrospectively and in contradiction with past determinations under sections 16, 19, 24, 29 or otherwise. In the Tribunal’s view the reasons of Conti J make this plain, where after referring to the decision of Edmonds J in Duongv Australian Postal Corporation[113] at [44] he stated:
“So much was pointed out by Telstra to be an issue not involved in the present proceedings, since Telstra had accepted that ‘a departure at that level of fact’ produced no effect upon its previously accepted liability, or indeed any prospective liability”[114].
[113] [2005] FCA 991.
[114] Ibid at [53].
The Tribunal gave liberty for the Respondent to, within seven days, provide any case authority for the propositions put other than Hannaford. By email dated 22 September 2020, the Respondent referred the Tribunal to Hopkins and Comcare [2016] AATA 742, at [23] and Heales and Comcare [2020] AATA 810, at [6], Riddle v Telstra Corporation Ltd (2006) 149 FCR 348; [2006] FCA 58, particularly at [14]-[42] and Comcare v Lofts (2013) 217 FCR 220; [2013] FCA 1197 at [13]-[15].
On 22 September 2020, the Applicant was also given an opportunity to refer the Tribunal to any authorities of relevance, by 29 September 2020.
In the Tribunal’s view, the principles in Hannaford do not go as far as the Respondent contends. Rather, Hannaford concerns the Tribunal’s power on its review, to make subsequent findings of fact which contradict earlier findings previously made for the purposes of other determinations, but the contrary facts found operate only in respect of claims for compensation that are subject to the reviewable decision or future claims.
The reasons of the Court in Hannaford, which are binding, demonstrate that the power of the Tribunal to make alternate findings of fact operates only in respect of the subject matter of the Tribunal’s review. Further, exercise of the power is subject to being persuaded to do so and there being jurisdiction.
The approach at [173] and [174] is consistent with the reasoning expressed in Hopkins v Comcare, by DP Kendall (citations omitted) –
“The medical evidence relevant to this matter spans approximately 30 years. In determining whether Ms Hopkins suffers from an injury or an aggravation of it as defined in the SRC Act, the Tribunal will, of necessity, review this entire medical history. In these circumstances, the Tribunal may well find, as it is entitled to do (as per Telstra Corporation Limited v Hannaford and Cheung v Administrative Appeals Tribunal that Ms Hopkins never in fact suffered an injury or an aggravation of it. Should that occur, it goes without saying that Ms Hopkinsmay not currently be entitled to compensation payments. Further, the Tribunal may well find (again, as it is entitled to do) that something has changed medically such that whatever physical ailments Ms Hopkinsnow suffers from (however serious they might be) they are sufficiently different from her previous compensable injury because it cannot be said to the requisite degree that her employment with Comcare materially contributed to her current medical condition.

The citations referred to in Heales v Comcare and Comcare v Lofts do not provide any particular assistance in the Tribunal’s view. There is nothing in the Court’s reasoning in Riddle v Telstra that supports a position that exercise of the power to make contrary findings of fact operates in retrospect to contradict operation of decisions taken in the past about an Applicant’s entitlements to household services or other compensation.
The reviewable decision made in application No. 2018/6070 has been carefully considered to inform the Tribunal about the nature and scope of this review. The terms of the reviewable decision make it plain that the issue in question was whether the Applicant was entitled to be reimbursed for the cost of household services incurred by him between 2013 and 2016 and relates to 132 receipts for $125 each.[115]
[115] T15, T-documents 2018/6070.
To the extent that the Respondent has declined to reimburse the Applicant for the receipts he belatedly submitted for household services incurred due to lack of detail in the receipts, the Tribunal is not persuaded that this should relieve the Respondent from payment. The Respondent appears to have routinely reimbursed receipts with the same level of information and by virtue of section 72(a) of the Act, the Respondent should be consistent.
Because the Tribunal has rejected the contention that the Applicant no longer suffered the effects of the compensable injury from 2013, the Applicant should be reimbursed for the receipts for household services up until the end of 2015.
SUMMARY AND CONCLUSIONS
In application no. 2016/3682 and 2017/4137, the Respondent has persuaded the Tribunal that from late 2015 the Applicant was no longer suffering the effects of the compensable injury suffered on 20 April 2004. The decisions under review are affirmed.
The reviewable decision in application no. 2017/7733 is also affirmed, as the Tribunal has not been persuaded that the Applicant suffered a new or further injury within the meaning of the Act on 26 September 2005.
The reviewable decision in application no. 2018/6070 is set aside and that decision is remitted to the Respondent to give effect to the reasons at [178] to [179].

I certify that the preceding 182 (one-hundred and eighty two) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member and Dr R Walters, Member.

......................[sgd]...........................
Associate
Dated: 2 November 2020

Dates of hearing:
11 – 13 March 2020 and resumed 15 September 2020

Applicant:

Counsel for the Respondent:

Solicitors for the Respondent:

Self-represented, in person

Mr R Ternes

Ms S Khan, McInnes Wilson Lawyers