Joseph and Comcare (Compensation)

Joseph and Comcare (Compensation) [2021] AATA 2897 (17 August 2021)
Division:GENERAL DIVISION
File Number(s): 2018/4547; 4744; 4745
Re:Michael Joseph
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:17 August 2021
Place:Sydney

The decisions under review are affirmed.
....................................[sgd]....................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
WORKERS’ COMPENSATION – prior medical history – expert evidence – causation – pre-existing and later aggravating injuries – Tribunal not satisfied that the applicant’s symptoms of pain and stress were caused by the subject incident – decisions under review are affirmed
LEGISLATON
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
17 August 2021
ISSUES

The applicant, a former member of the Australian Federal Police (AFP) made a claim for compensation for an injury to his lower, middle and upper back with referred pain in all four limbs, claiming that there was a causal relationship between his conditions and a work-related incident on 20 December 2016.
The applicant also made a claim for a psychological condition said to arise from chronic pain associated with his injuries.
By Application for Review of Decision dated 12 July 2018, three determinations by the respondent are now challenged, namely:
a)a determination dated 14 November 2017 in which the respondent determined there was no present liability for neck sprain and sprain of shoulder and upper limbs (bilateral) under section 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act);
b)a determination of the same date declining liability in respect of the claim for secondary lumbar and thoracic spine conditions under section 14 of the Act; and
c)a determination dated 27 November 2017 by which the respondent declined secondary conditions of adjustment disorder with mixed emotional features under section 14 of the Act.
For the applicant to succeed in challenging any of the determinations above in a), b) and c), the applicant must satisfy the Tribunal that he has suffered an injury, as defined in section 5A of the Act.
LEGISLATIVE FRAMEWORK
Section 5A of the Act defines injury as follows:
(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.
Section 14 of the Act requires the respondent to pay compensation in accordance with the following:
(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.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Section 16 of the Act requires the respondent to pay medical expenses where it is has been established that ‘an employee suffers an injury’.
Section 19 of the Act requires the respondent to pay compensation where an employee has been ‘incapacitated for work as a result of an injury’ subject to the exceptions referred to in the section.
FACTS
First Claimed Injury
The applicant was engaged as an investigator with the AFP. On 20 December 2016 at 9:30 am the applicant was undertaken duties executing a search warrant at a residence in New South Wales.
During the course of the search whilst removing a large item from the top shelf of a shed the applicant lost his footing and two boxes fell toward him, one allegedly striking the applicant. The applicant felt a sharp sensation in his back, neck and right shoulder. The pain subsided to a level of pain which had existed in his back and neck as a result of a previous workplace injury with the AFP which occurred in 2011. Later during that day, the applicant stated that he felt the pain in his back increase and after 30 minutes he found the pain in his back, neck and right shoulder to be unbearable. The applicant attended a medical centre for advice and treatment. The applicant reported the injury on 12 January 2017 (‘the first injury’).
On 13 March 2017 the applicant lodged a Workers Compensation Claim Form in respect of the first injury, indicating that he would not be able to return to work for three months. The records show that he was absent from work for several weeks.
The applicant consulted medical practitioner, Dr Phong Ho, who referred the applicant for an MRI which was conducted on 23 March 2017. With regard to the applicant’s cervical spine, the report stated that there was:
‘Minor spondylitic change and dehydration of the disc at C 5/6 level. Minimal broad-based osteophyte abutting the cord. There is no nerve compression.’
With regard to the thoracic spine the report stated:
Localised spondylitic changes at T8/9 level with a broad-based osteophyte with disc protrusion compressing the Cal sac.
Left paramedian disc protrusion at T9/10 level compressing the left side of the cal sac.
Appearances suggestive of chronic healed fracture of T8 and T9 vertebra. Clinical correlation is suggested.
The applicant remained off work from 17 March 2017 to 4 April 2017 and underwent physiotherapy and general practitioner consultations.
On or about 19 April 2017 the applicant consulted Associate Professor Behzad Eftekhar of Macquarie Neurosurgery. The report dated 19 April 2017 records:
The MRI of the whole spine from 2017 was examined. This did not show significant disc disease in either his cervical or lumbar spine. There were some minor disc disease at T8/9 and T9/10 levels, however this was not associated with significant neural compression. There was minor decreased vertebral body height at the level of T 8 and T 9 which may represent a previous fracture, however this did not show any significant STIR signal chain suggestive of active inflammation.
Professor Eftekhar stated:
I believe Mr Joseph is suffering from an exacerbation of degenerative back pain. I am pleased that his MRI does not show any signs of instability and his degenerative changes are relatively mild, which implies that he should make a good recovery. In particular, there is no evidence of neural compression that would warrant any surgical intervention… I am optimistic that with time he will make a full recovery.
On 11 June 2017 the applicant was admitted to Concord Repatriation General Hospital for treatment for head, neck and back pain. The principal diagnosis was acute exacerbation of chronic pain. The applicant was admitted under the care of a neurologist for investigation and conservative management. Analgesia was prescribed. An MRI of the spine revealed:
‘No cause for symptoms demonstrated on this study; mild disc height reduction and disc desiccation in the L1/2 disc; no spinal canal or neural foraminal narrowing.’
The applicant was discharged on 14 June 2017.
Dr Ross Whittaker, rheumatologist, examined the applicant on 25 July 2017. Dr Whittaker concluded:
It is quite clear that the abnormalities noted on MRI dated 11 August 2017 are not the result of any specific incident or injury and they long pre-date the alleged workplace incident dated 20 December 2016.
I am unable to relate any of Mr Joseph’s current complaints to the alleged workplace incident.
His presentation is compounded by anxiety with recent panic attacks and fairly passive management strategies. He also has heightened pain responses.
He does not require any surgical intervention.
…
Second Claimed Injury
On 5 April 2017 the applicant lodged a claim in respect of a psychological illness or injury. The applicant asserted that following the first claimed injury he was absent for 80% of his shifts since that date and that he had been deemed unfit for duty.
The applicant consulted a psychologist, Ms Sonia Lalwani who provided a report dated 10 November 2017. She stated that the applicant commenced psychological therapy in June 2017 and had presented with symptoms of low motivation, poor concentration, fatigue, chronic pain, shortness of breath, lowered tolerance to stress, and persistent worry with the low moods. Such report stated that the applicant had been ‘injured a few times on the job but has been able to overcome those injuries and return to work’. The report also stated:
There is a direct relation between Mr Joseph’s chronic pain and his mental health. Experiencing chronic pain has worn Mr Joseph down, it is hard for him to sleep and there have been many changes in his life. Mr Joseph is unable to do the things he used to like carry his daughter, clean his house etc. Due to the chronic pain he is often fatigued, experiences low moods and other psychological effects. …
Cognitive behaviour therapy (CBT) and interpersonal therapy (IPT) were recommended.
Such claim was considered but by a letter dated 27 November 2017, liability was disallowed on the basis that the evidence did not support that he has suffered from a defined condition to his lower, middle and upper back or an aggravation of a pre-existing injury or underlying condition to those areas as a result of his first claimed injury.
APPLICANT’S EVIDENCE
The plaintiff has provided a statement which states that he was born on 30 January 1987 and joined the AFP on 28 February 2011. The statement records that prior to the injury on 20 December 2016, he sustained an injury during his employment with the AFP in June 2011 during riot training. The applicant states that with medical treatment, analgesia and exercise and other allied health assistance he was able to continue his day-to-day life except from two short periods. Otherwise the applicant states he was able to perform his normal work duties without any restrictions or concerns.
The applicant states his career continued without disruption performing policing duties for the AFP with the Australian Capital Territory Police. On 13 July 2005 he transferred to Sydney as a Federal Agent Investigator.
On 20 December 2016 whilst performing his duties he was searching inside a large said located the river residence. He states whilst removing large items from some shelving which were above head height, about 8 feet high, he slipped on some objects on the floor and slightly lost his footing. He states that he fell to the ground and two heavy boxes weighing approximately 15 kg fell from the top of the shelving and landed on the area of his back and neck region. He states he momentarily lost his vision and fell a sharp sensation in his back, neck and right shoulder.
The applicant considered that the pain was subsiding but when he departed from work later that day, he felt pain in his neck and back increase to a point where it became unbearable. He attended the ‘My Health Medical Centre’. The applicant states that he was prescribed Panadeine Forte for pain was given a medical certificate for two days off work. The applicant states his pain and suffering caused him to be bedridden and unable to perform any tasks or activities. He recovered during the Christmas – New Year stand down. The applicant lodged an incident report on 12 January 2017.
The applicant states that he attempted to return to work on several occasions but took many days off due to the chronic pain which he states he was ‘still experiencing in the back of my head, neck and back’ which resulted from the incident. He states he became stressed and anxious and was having very little sleep. The applicant states that he became less tolerant of stress, lost his appetite and felt hopeless. He submitted a Comcare claim form to seek support. He states he could not complete his normal duties due to chronic pain and could not even sit at his desk.
On 13 March 2017 the applicant submitted a workers’ compensation claim in respect to injuries to his back, neck and shoulders. He states that on 27 March 2017 he underwent an MRI of his cervical and thoracic spine which he understood showed spondylitic change and dehydration of the C 5/6 disc and a minimal broad-based osteophyte abutting the cord. On 11 April 2017 he underwent an MRI of his lumbar spine which showed a narrowing of the L 1/L 2 intervertebral disc space and loss of normal T 2 signal within the disc.
The applicant stated he had undertaken physiotherapy and was instructed by an exercise physiologist. However, he experiences chronic pain which fluctuates day-to-day. He states that he has chronic pain levels which reached 10 out of 10. He states he was admitted to hospital due to sudden severe flareups of pain in the back of his head, neck and back especially in June 2017 at Concord Hospital and that since he has been hospitalised a number of times, most recently on 15 May 2019 due to the same symptoms.
The applicant states that when his pain reaches levels of 10 out of 10, he requires hospitalisation, experiences lots of feelings in his limbs, pins and needles and ‘sharp drill like pain’ inside the back of his head and neck region which radiates from cervical, thoracic and lumbar regions into his limbs and shoulders. He states that he experiences poor vision and becomes insensitive to brightness and that he had not previously experienced such symptoms before the incident.
The applicant states that he resigned his employment with the AFP on 14 November 2018, as a result of the chronic pain and suffering resulting from the injuries. He continued to take the prescribed medication to help mitigate his pain and assist him to carry out normal day-to-day life. No other analgesia was suitable to help him. He states he suffers anxiety which is mitigated by undergoing prescribed Cognitive Behavioural Therapies (CBT).
The applicant states that due to his injuries he is unable to sustain any level of work as is constantly living with chronic pain and suffering whilst being mostly medicated. He claims to have no capacity for work and has been surviving on personal savings, support from family and friends and payments received from Centrelink sickness allowance. He states his partner has acted as his caretaker for more than 18 months.
The applicant states that he considers his injuries to have deteriorated since 20 December 2016. Prior to his injuries he played soccer, went on regular runs, canoeing, rock climbing and participated in many outdoor activities. He states he has now curtailed such activities. Even if he walks a short distance, he has pain and discomfort and the medication he is taking adversely impacts on his health. He’s able to undertake household activities but some days he is completely bedridden.
The applicant states that he is a father to his four-year-old daughter and was a full-time guardian while the mother travelled to Japan when she was 20 months old. He stated that he is now unable to place her on his shoulders or carry her for long periods of time.
Cross Examination of applicant
The cross examination of the applicant revealed that the plaintiff had sustained an injury on 20 February 2006 when he was engaged with the RAAF. The applicant stated that his lumbar spine was not involved but rather his hip flexor was injured.
The applicant also sustained an injury on 20 April 2010 to his lower back and lower leg region whilst he was on deployment with the RAAF attached to the Navy. He states he saw a nurse for this condition.
In 2014 the applicant was involved in a motor vehicle accident when his car collided with a light pole when he blacked out suffering from a high temperature. This incident is referred to in detail under the medical history which follows in this decision. The applicant states that he returned to work after that accident and had no complaint of whiplash.
In 2011 he had lumbar/thoracic/cervical problems but since then he had problems with his back which continued to the incident on 20 December 2016. The applicant states that he had one course of physiotherapy in 2014, and states that he was taking Voltaren. However, it appears that on 30 March 2016 he reported to Dr Daniel Chen he was clinically well; was continuing to see a physiotherapist and would try acupuncture. He was prescribed Voltaren 25 mg enteric coated tablets twice a day. The applicant stated he had pain in his back from time to time but could not recall that the pain had continued into the latter part of 2016.
Medical records show that on 16 November 2016 the applicant presented with symptoms consistent with an exacerbation of the back and neck pain; ‘long history, post being tackled in a riot with AFP years ago’. The clinical notes recorded the applicant stated applicant stated to Dr Bishoy Marcus that he has felt very stiff and reduced range of motion; nil neuropathic pain. A plan was prepared for the applicant which involved exercises as demonstrated. A prescription of Naprosyn was issued and a certificate unfitness for work was issued. The reason for the visit was stated to be ‘neck pain’. The applicant stated that he did not draw on the prescription. The applicant stated that he was adverse to medication and preferred to take across the counter medication because the prescription medicine caused internal bleeding. The prescribed Voltaren gave him side-effects and he was advised to consume no more. He believes he discontinued Voltaren in early 2017, possibly up to June 2017. The applicant states he was intolerant to and other drugs such as Neurophen.
On 20 February 2017 the applicant consulted his general practitioner Dr Duncan Chang. The reason for the visit is described as neck pain. The notes record that the applicant ‘went to gym today to work out for one hour, has remedial message one hour and 30 minutes of physiotheapy; had 2 Voltaren tablets today. Requesting medical certificate.’
On 21 February 2017 the applicant consulted Dr Carla Qasabian for neck/back pain. The notes record that the applicant was seeing a physiotherapist, had a remedial massage and had been to the gym and had also taken Voltaren. A medical certificate was issued.
On 17 March 2017 the applicant consulted Dr Phong Ho, general practitioner. The reason for the visit is described as ‘workers compensation certificate; back pain, back pain, thoracic; neck, back, shoulder pain, neck pain.’ A prescription for Voltaren and Nexium was issued.
Conflicting reports concerning the incident of 20 February 2016
The applicant was cross-examined concerning the details of the accident on 20 February 2016.
The records of the consultation on the day of the accident by Dr Kim Nguyen, the applicant’s general practitioner at the time, recorded the reason for the visit as ‘neck pain, back pain, thoracic’. The history taken from the applicant stated that the applicant ‘slipped on some objects on the floor and needed to stop the above head objects from falling’. Significantly, Dr Nguyen recorded ‘nil direct trauma to back or muscles’. The notes also recorded that the showed applicant was tender on the right paraspinal C spine and over rhomboids. The lumbar spine had no apparent disability. The impression of the medical practitioner was:
‘soft tissue muscle injury neck and thoracic area’.
In contrast, the applicant had informed Dr Cochrane, a spinal surgeon whose evidence is contained later in this decision, that one falling box had hit him, but that he fended the other box off, and that he fell over.

The applicant stated in cross-examination that the box fell on his right shoulder, upper part of the thoracic spine the back of his head and he sustained a direct blow from the box. His evidence is as follows:
And then you say that you suddenly lost your footing due to miscellaneous items on the ground or uneven ground being the surface upon which you were standing; correct? – – – Yes, it was that effect, yes.
And the items from the top shelf suddenly, fell toward you? – – – Yes, I was able to – I sort of broke the [fall] but it still landed on the top of my – I had my hand there, my right hand, but it’s hit me sort of the upper part of the spine – the mid spine to the upper spine at the back of my head and also hit in the right shoulder
You had a direct blow to your survival shoulder and to your right shoulder; did you?… Well, I would say it was a regional of the upper part of the thoracic and is this a vital part of my spine. Well, I guess the fractures that were later – I found with the upper part or the T 9 – the T 8/9 all the T9/10 I think it was.
Again, in contrast, the applicant’s claim form completed in March 2017 stated:
I gained sudden control of the box to avoid it falling on me… The box was quite heavy… Putting sudden and extreme pressure on my body...
Boxed items from the top shelf suddenly felt toward me. I gained sudden control of the box to avoid it falling on me.
The applicant also testified that two boxes fell down ‘but one struck me harder than the other one and I broke the fall of the first one and the second one just sort of landed right next to me…’
It was put to the applicant that neither box struck him, which he denied. It was also put to the applicant that he did not fall over. The witness denied such a suggestion.
The applicant stated that:
‘I stumbled, fell, box hit me – box hit me first, fell to the ground or other way, I couldn’t tell, but it was very quick, Mr Gollan.’
PRIOR MEDICAL HISTORY
The applicant has had a long history of neck and back pain issues continuing from 2005 – 2006 and continuing thereafter. He sustained an injury to his neck and back when a stretcher he was carrying whilst engaged with the RAAF fell. A summary of subsequent medical reports is set out below.
Philip Medical Centre records: on 20 October 2011 the applicant sustained an injury to his back whilst working with the AFP. He was engaged in riot training with another AFP member when the injury was sustained. The records note: ‘neck/back injury at work – riot control training.’
On 29 October 2011 the applicant presented with the same issue and reported neck pain. The applicant’s movement was reportedly good with no tenderness and was advised to have physiotherapy.
Mall Medical Centre Records: the applicant sought advice and medication on 17 February 2012 (Dr Brent Pannel); 8 March 2012; 19 March 2012; 13 June 2012 (Dr Hang Murphy); and on 7 August 2012 the applicant was discharged in Alice Springs Hospital Emergency Department with an emergency diagnosis of lower back pain.
Gininderra Medical and Dental records: these records show that on 9 January 2013 the applicant presented with neck and lower back pain; on 11 February 2013 the applicant presented with a recent flareup of neck pain; on 20 April 2013 neck pain and pressure sensation in the head were complained of.
Canberra accident
On 4 June 2014, the plaintiff was admitted to the Canberra Hospital following an accident when his car collided with a light pole. The history recorded in the clinical notes of the Emergency Department include the following statements:
complaining of C spine tenderness. Collar
C spine: back tenderness midline and laterally
thoracic spine
mild T 12… Tenderness
issues:… Mile left-sided weakness.
Back injury three years ago
back pain throughout
Past medical history back injury three years ago, chronic pain.
Injury suspected: C-spine
The applicant remained in hospital for two nights. The applicant denied that he told the hospital staff that he was suffering from pain from his cervical spine. An x-ray examination of the plaintiff’s thoracic spine recorded: no abnormality. recorded: under clinical history and findings:
MVA car into pole 60 kph. C and T spine pain, diffuse C-spine tenderness, left-sided paraesthesia and mildly reduced power. Tender at T 11- T 12. Past medical history back injury three years ago, chronic pain. Currently in Miami J [cervical collar]. No fracture on T spine X-ray can mobilise.
An MRI was not undertaken of the applicant’s spine.
The discharge summary of the hospital dated 6 June 2014 records the presenting history which includes the following statement:
‘He was found slumped on steering wheel and dazed but browsable. Helper attempted to extracted (sic) from care with severe pain left C-spine and bilateral lower back pain.’
Gungahlin Medical Centre records: on 12 September 2014 the applicant presented with ongoing severe back and neck pain due to a workplace injury in May 2011; on 20 October 2014 it was noted that the applicant had sustained an injury; on 4 December 2014 the applicant presented with ongoing back issues and had been feeling pain due to a flareup of his back condition; and, on 20 January 2015 the applicant presented with growing back problems.
The applicant was cross examined about his accident in June 2014. He stated that apart from tonsillitis on that day, there were no other parts of his body which caused him problems. He denied telling the emergency department that he was having problems with his neck and thoracic spine. Subsequently he said that he told the hospital:
‘In 2011 I had this AFP workplace injury, but I’m feeling fine today, nothing’s happened as a result of that accident. I was just sick’
The applicant then further stated to the Tribunal:
‘how they recorded is up to the individual, whether it sounds present tense, past tense, I just – I can’t answer that any further than that. No, there wasn’t an issue in the day, no.’
According to the applicant, a passer-by, who attended the applicant when he was slumped over in his car, informed and ambulance officer that the applicant had severe pain. The applicant stated:
However, when I was admitted to Emergency I do recall saying words the effect of, that, “I haven’t hurt my neck, I haven’t hurt my back, I’ve just been really sick, I’ve just come back from the doctors”, and again these are words to the effect of, and they said, “Have you had any issues?” And I said, “look, I had a previous incident at work when I hurt my back and I get pain”, and that’s – they misrecorded that as perhaps being that on the day that it was – it happened on that day and/or I was experiencing no symptoms on that day, but in fact I wasn’t and hence I was released and went back to work within 24 hours.
The applicant, in answer the question whether he returned for a checkup, denied that he did so, saying ‘I didn’t need to, they did everything, they took all precautions’.
The Canberra Hospital notes record the fact that the applicant remained in hospital for two nights and was prescribed a neck brace, as is considered in more detail hereunder. The hospital notes record: ‘Past medical history, back injury, three years ago, chronic pain’.
When asked whether the applicant had problems with his lumbar spine, he sought clarification whether the question was directed to the spine or the back ‘because it’s two different things’. He responded when asked about pain in the lumbar spine:
‘Without clinical evidence, I don’t know, but I do know I had problems with the lumbar region of the back.’
The applicant acknowledged that he had problems with ‘the lumbar region of his back.’ He also acknowledged that he had complained about neck pain, back pain, leg pain, knee pain every part of the body.
The applicant then said that he informed the hospital that nothing had happened as a result of a motor vehicle accident and stated:
I wanted to assure them, however they didn’t take my word for it and they wanted imaging to confirm that and they did. However, what I did say was that I had a back, or an injury to my back. I said that was about three years ago at work in 2011, and then I’ve had pain as a result of that injury. But I said, “Nothing is a result of today’s car accident”, however they still had me in a neck brace, required me not to move until imaging came back. There is no – on the day, I mean there is no issue, even if I had I would have said it: there is no issue whether I had pain there or not, but I did admit to the hospital because of that.
The records of the hospital show that there was tenderness at T 11/12 which the applicant understood was the thoracic spine region. An x-ray of the cervical spine was undertaken on 6 June 2014. However, the applicant denied that he complained about tenderness in his thoracic and cervical spine. Whilst the records of the hospital recorded the back injury three years prior, and chronic back pain, the applicant acknowledged that pain from time to time and indicated chronic pain.
The applicant denied having pins and needles. The hospital records recorded ‘full body pins and needles, paraesthesia’.
The applicant denied making any such complaint; rather, he states that he was having ‘shakes’ because of his temperature being almost 40 degrees celsius. The applicant claimed he was unconscious when taken to hospital for a period of time but not the whole time between the occurrence of the accident and being taken to hospital by ambulance. He agreed that he was suffering from much pain. The hospital notes show ‘Left cervical region pain described as aching’.
The applicant denied that he told the hospital that he had pain since the AFP workplace injury three years prior. He acknowledged he had tingling in his left arm. However, he states:
No, I never told them I had pain in my neck, in my back, in my legs, in my toes. I told them that I was feeling cold, that I was sick, that I had a severe headache, that I couldn’t see properly…
The applicant agreed that the scans taken in 2014 of his back or neck showed that he had a degenerative condition. The applicant responded:
It was my understanding, yes. It was a misunderstanding, because I read it wrong. And, in fact, it came back normal, as we can see from the evidence. It was no – in fact, it came up with – it was not remarkable at all…
And was it your understanding that that degenerative condition was a source of pain that you experienced in your neck and your back from time to time? – – – No, there was no confirmation that I had any spondylosis, and the reports show that.
On 7 December 2016, the applicant consulted Dr Duncan Chang. The clinical notes read:
2/7 neck pain/upper back pain after intensive activity at work. No radiation to arms
reason for visit: neck pain
examination:
tender neck/upper back
ROM C – spine normal
Imp: soft tissue injury neck/upper back
A prescription of Endone was provided, and the applicant requested a superannuation release form be signed. The applicant also requested a medical certificate certifying his condition and proposed treatment.
GENERAL HISTORY
Physical Injury
The applicant stated that between December 2016 and February 2017, he was attending a gymnasium which had a 30m swimming pool and spa. Following a visit, the applicant consulted his doctor and obtained a medical certificate. The doctor recorded that the applicant was consulting a physiotherapist, remedial massage and had been going to a gym. He then consulted Dr Ho on 24 February 2017 who recorded the applicant’s complaints of ‘ongoing back pain… worsening pain… chronic back pain [and] back pain, thoracic’.
The notes also record under the subheading ‘impression’:
likly [sic] MSK injury related to work injuries…
due to chronic nature and AFP willing to pay for MRI, decided to MRI C spine and thoracic spine for injury
Stress and anxiety
The medical records disclosed that the applicant had been feeling stressed and anxious since the work incident. He consulted a medical practitioner on 11 January 2017 about returning to work. The consultation notes of Dr Ho made on 12 May 2017 state the following:
‘Back at work, hasn’t had much sleep, ongoing pain. Sent home from work. States he has anxiety now due to pain. Pain seems to worsen with the pain.’
The notes continue:
‘Unclear because of anxiety. Patient thinks it’s due to pain. Situation at home is in good currently. Going through breakup with wife, however anxiety only started two weeks after having injuries.’
The applicant consulted a psychologist on 11 January 2017. He thereafter consulted the psychologist on 22 occasions to 12 May 2017. Dr Phong Ho requested imaging following reporting numbness in his leg on 6 March 2017. The imaging report includes the following:
I believe Mr Joseph is suffering from an exacerbation of degenerative back pain. I am pleased that his MRI does not show any signs of instability and his degenerative changes are relatively mild which implies that he should make a good recovery. In particular, there is no evidence of neural compression that would warrant any surgical intervention. …
The applicant’s wife and the applicant both attended Dr Ho’s office on about 12 May 2017. The applicant stated that he wasn’t sleeping well; was quick to get angry and complained of back pain all the time. He described it as ‘chronic pain, it just wouldn’t go away’.
The applicant and his wife had separated in September 2016. At first it appeared, from the evidence, that the break-up would be amicable. However, according to the applicant, the wife made excessive demands in about June 2017. This resulted in charges being brought against the applicant for domestic violence, all of which the applicant states were dismissed. An Apprehended Violence Order and a charge alleging assault were issued at the request of the wife Mr Joseph said:
I said it wasn’t traumatic because I had faith in the courts and I had faith in the judicial system. An understanding that the errors that she made in her statement, I knew it was a matter of time – and I was right – that her night saw the issues, and the matter was withdrawn after the first hearing. So I didn’t stress – the breakup of the marriage didn’t stress you at all. Is that what you are saying? – – – The break down of the marriage didn’t stress me at all senior member. It was mutual – and we were friends and everything was well, as we are now. What began stressful and what was stressful indeed was – and no one cannot deny – was the weekend that we started arguing about the division of assets… It was the division of assets that the applicant described as starting “the hell trail, which started this thing called Family Court” ...
The applicant denied that it was an acrimonious relationship. However, he acknowledged that the division of assets was stressful, but added ‘I wouldn’t say it was debilitating or cause me not to be able to sleep.’
MEDICAL CONSULTATIONS POST ACCIDENT
On 20 December 2016, namely on of the day the accident, the applicant consulted his general practitioner. The reason for the visit is stated as ‘neck pain, back pain’.
On 4 January 2017 further consultation took place. The following was recorded: ‘neck movements normal; nil pain in shoulder; rotation of shoulder normal; simple analgesia; physio if needed.’ There was no problem recorded with the applicant’s lumbar spine or back. Nor was there mention of pain in the lumbar region.
On the following day, 5 January 2017, the applicant again presented with a complaint of neck pain and sought a medical certificate to avoid having to undertake search warrants for his employer. No mention exists of any back pain. Nor is there any mention of lumbar pain.
On 11 January 2017 there was a reference in consultation notes to ‘ongoing back pain from work’, but no mention of chronic pain.
A consultation on 10 February 2017 records viral illness and a review of back pain.
A consultation on 20 February 2017 was recorded as for ‘neck pain’.
On 21 February 2017 in another consultation, there is no specific mention of back or neck pain.
In another consultation 12 May 2017, the purpose of the consultation was for anxiety, back pain, poor sleep.
The applicant had 21 further consultations throughout February, March, April and May 2017.
My Health Medical Sydney records: these records show that the applicant was discharged from Concord Repatriation General Hospital on 14 June 2017 having presented on 11 June 2017 with severe back pain. A report noted a history of acute exacerbation of mid-thoracic/intrascapular back pain ongoing up to 6 to 10 weeks, pain in neck and dull pain in occipit. But no associated neck stiffness or difficulty rotating neck. The records record a traumatic back injury six months prior in December 2016.
MEDICAL EVIDENCE: REPORTS
Dr Neil Cochrane
Dr Cochrane, neurosurgeon and spinal surgeon has provided a report to the applicant’s lawyer dated 4 March 2019. The medicolegal report was made following an examination of the applicant on 15 February 2019.
The applicant gave a history informing Dr Cochrane that:
‘One of the two boxes fell and he believes one hit him on his left hand and around the head.’
Having reviewed the MRI cervical and thoracic spine imaging made on 23^rd of March 2017 and a CT brain and spine scan made at Concord Hospital on 11 June 2017 and having examined the applicant, Dr Cochrane said:
it is my impression that the described workplace injury in 2011 likely initially and accelerated degenerative changes in the cervical spine, albeit mild and the development of a pain syndrome. This appeared to be not significant until further injury occurred in December 2016 with significant exacerbation of pain phenomenon and the probable emergence of an anxiety disorder or psychological injury. It is also noted that there are possibly 2 minor compression fractures of the thoracic vertebra as described above – the fact that these are at 2 contiguous levels of the thoracic spine T 8 and T 9 with no other abnormality elsewhere makes this likely represent a healed minor fracture, as opposed to other diagnoses such as Scheuermann’s disease…
It is my assessment that Mr Joseph has suffered injuries at the workplace which have been associated with the emergence of pain and represent both acute and musculoligamentous injuries to the spine (cervical thoracic and lumbar) and, to some degree acceleration and aggravation of pre-existing spinal spondylosis (cervical thoracic and lumbar) though the spondylosis is admittedly mild by radiological criteria. It is my determination of the injury described as occurring on 20 December 2016 is a significant injury in terms of development of a central pain phenomenon and I psychological injury although the latter would have to be characterised by a psychiatrist or psychologist with regards causation. It is my impression that the significant pain is associated with distress which, in my general medical opinion, would reasonably result in distress response which can be characterised as a psychological injury.
Dr Cochrane expressed the opinion that the most significant contributor to the current complaints are the work-related injury of 20 December 2016 which has caused an aggravation of spinal spondylosis, musculoligamentous injuries and the likely development of a central pain phenomenon or chronic pain phenomenon and likely secondary psychological injury.
Associate Professor Michael Robertson
Associate Professor Robertson, consultant psychiatrist, examined the applicant on 4 June 2020 and has provided a report to the applicant’s lawyer dated 6 June 2020. Dr Robertson interviewed via Telehealth and his report dated 6 June 2020 was ‘based entirely upon the evaluation of objective findings identified on 4 June 2020’.
Dr Robertson noted the following in his report:
27. Mr Joseph’s then treating psychologist, Ms Lalwani wrote in late 2017 that Mr Joseph had participated in psychological therapy from mid 2017 for treatment of on adjustment disorder with anxiety and depression.
28. At that time, Mr Joseph’s difficulties extended beyond his chronic pain including the vicissitudes of the breakdown of his relationship with his daughter’s mother in late 2016 culminating in Mr Joseph’s ex-fiancée making vexatious allegations of domestic violence and stalking against him for which he was stood down in July and October 2017 and subject to a restraining order.

He made the following conclusions:
The subject physical injuries seem to have been the prime mover in Mr Joseph’s constellation of psychiatric problems. There was no antecedent psychiatric disorder, developmental problems, early childhood trauma or other factors that would have contributed materially to his disturbed psychopathological state…
Mr Joseph experienced the onset of psychopathological stress following the December 2016 incident…
Mr Joseph’s observed psychopathologic disturbances are both the result of the work-related physical injuries…
Mr Joseph presents with a current incapacity for employment as a result of the combination of a somatic symptom disorder and his adjustment disorder with anxiety and depressed mood.
At present Mr Joseph demonstrates a total incapacity for employment. This is a situation that is likely to change with a better measure of control over his pain and appropriate treatment of his secondary psychological injury.
Dr Jane Standen
Dr Standen of Sydney Pain Specialists has provided a report dated 3 November 2020 to the applicant’s lawyer following an assessment on the same day. Dr Standen reported that she suspected ‘his pain is largely myofascial in nature and there are no red flags in his presentation today. Michael is predominantly managing pain with episodic use of opioid analgesia, which is sub optimal.’
Dr Standen provided a further report dated 1 February 2021. She reported as follows:
‘Progress: Michael has had a bone scan demonstrating minor spondylitic changes at C 2 – 3 and that T 7 and T 8 levels as confirmed on the SPECT CT images. There is tracer uptake elsewhere through the spine and this skeleton is unremarkable.’
Dr Standen noted that the applicant had trialled Norflex which had reduced pain by about 30 percent. However, he claimed that side effects including loss of appetite, nausea and vomiting prompted him to cease this medication. The report refers to the issue of a script for trialling medical cannabis 100mg/mL, 015mL. Further, Dr Standen suggested that if there are no side effects associated with this medication and there is an improvement in pain, the opportunity will be taken to reduce his reliance on strong medication including Targin, Endone as well as diazepam.
In another report of the same date addressed to Dr Duncan Chang (the applicant’s general practitioner) Dr Standen stated:
Mr Joseph is currently prescribed strong pain medication to better manage pain. Pain associated disability is significant with pain affecting all domains including mood and sleep and is significantly impacting on ability to engage in professional and personoanl (sic) activities.
Dr Neil W. McGill
Dr McGill has provided a medical report dated 1 August 2019 which followed an examination of the applicant on that day. The report states that the applicant was in ingesting the following medication:
oxycodone (Endone) on most days routine two and six tablets
Targin (oxycodone/10 mg/5 mg will) most nights and sometimes during the day
Oxy norm (fast release oxycodone) 10mg invariable doses when does not have a supply of Endone, diazepam 2mg between zero and seven tablets daily, and codeine when the applicant does not have a supply of oxycodone.
The applicant has also received parenteral narcotic and other potent analgesia (morphine, fentanyl, oxycodone, ketamine) at the time of presentation to hospital which has occurred in about 12 occasions.
Dr McGill’s summary states relevantly:
The entries by his general practitioner over the subsequent days and weeks did not suggest a substantial spinal injury but he continued to report widespread spinal symptoms with exacerbations. At a rehabilitation assessment on 28 March 2017 it was noted that he had recently split from his partner.
Based on the history he today provided, he has established a very inappropriate method of managing his symptoms by way of relying on addictive medication and then presenting to hospital Emergency Departments and receiving parenteral therapy. …
The applicant stated that he was required to attend for emergency treatment on seven occasions for pain relief opioids during the hearing. It became apparent that several visits were made to private hospitals, and not to emergency departments of public hospitals.
Dr McGill noted that the applicant’s general practitioner, Dr Chang, provided a referral to Dr Taylor, a member of the Northern Pain Centre and Royal North Shore Hospital Pain Team in March 2018 but that the applicant had not yet made any appointment.
The reports of imaging studies indicated minor degenerative disease and possible very minor fractures of T8 and T9 that were chronic by March 2017. The history of the two events and the documentation recorded close to the time of those events, did not suggest that he suffered spinal fractures in 2011 or 2016. …
Dr McGill answered specific questions asked of him and stated that the applicant suffers with fluctuating non-specific spinal pain; that the minor abnormalities detected on the MRI are of little or no significance with respect to his symptoms. He stated:
‘I think personality and psychological factors are of major importance in terms of understanding his symptoms.’
Dr McGill acknowledged that it was reasonable to conclude that the applicant suffered a muscle strain in 2011 and again in December 2016 but that the physical effects of those injuries ‘are likely to have long since ceased’.
He considered that the state of the applicant’s spine was currently the same as it would have been had the 2011 and 2016 injuries not occurred. However, he acknowledged that it is possible that the incident on 20 December 2016 aggravated a maladaptive pattern of behaviour.
Dr McGill stated:
There was no inconsistency with his physical examination today but there was a discrepancy between his reported level of symptoms (including that his pain today was 7/10, his average level) and the normality of his examination, including the report of lack of tenderness and what appeared to be relatively minor discomfort in the lower back in response to resisted hip flexion and in the lower mid back in response to lateral flexion of the spine. On an objective level he is fit for most forms of work. Given his pattern of symptom reporting, I think it would be sensible for him to be engaged in activities not requiring lifting in excess of 15kg and not requiring forceful physical activity such as the apprehension of people. I thus do not think it would be appropriate for him to return to policing or defence force activities although there is no physical abnormality that would prevent him from doing so.
He does not require any further investigation nor any further treatment along physical lines. …
Dr Christopher Cocks
Dr Cocks, general adult and forensic psychiatrist has provided a medico-legal report dated 27 August 2019. Following an examination on that day Dr Cocks provided his report, the relevant portions of which are summarised as follows:
In my opinion, Mr Joseph meets criteria for a Severe Persistent Somatic Symptom Disorder with Predominant Pain. This is a psychiatric illness under the current DSM – V. In my opinion Mr Joseph has developed somatic symptoms that are distressing and have resulted in a disruption in his capacity to return to work as an Australian Federal Police Officer. Mr Joseph presents as having experienced excessive thoughts, feelings and behaviours related to his chronic pain. There is evidence of a disproportionate and persistent thought pattern about the seriousness of his symptoms. This has resulted in excessive medical intervention, opiate analgesia and recurrent presentations to hospital emergency departments. Mr Joseph presents as a man with persistently high anxiety about his chronic pain. … The medical evidence of A/Prof McGill and Dr Whittaker states that the effects of the muscle sprains sustained by Mr Joseph in 2011 and 2016 would have long ceased. This supports a diagnosis of somatic symptom disorder. …
In my opinion, Mr Joseph meets the criteria for an Opioid Use Disorder. This is a psychiatric illness as classified under the current DSM – V. Mr Joseph has developed a problematic pattern of opioid use leading to clinically significant impairment. He has required high-level opioid intake to manage his chronic pain. He remains prescribed combinations of opioids despite documented evidence as to the nature of the claimed injury in the psychological component to his presentation. Mr Joseph is currently unable to cut down his opioid intake. …
In my opinion, Mr Joseph does not currently meet criteria for a major mental illness. In my opinion, Mr Joseph does not currently suffer from an adjustment disorder with depressed mood and anxiety. He does not suffer from a mood disorder or psychotic illness
There is evidence that over the course of 2017 Mr Joseph experienced symptoms of anxiety with associated symptoms of sleep disturbance, impaired concentration, anorexia and a lack of energy and drive. These symptoms were significant such that Mr Joseph required nine sessions of psychological therapy. He has not been referred for ongoing psychiatric and psychological treatment since that time.
In answer to specific questions asked of him, Dr Cocks reiterated his diagnosis; that the applicant required recurrent medical intervention, periods of sick leave and analgesia to manage the pain he suffered in the context of his injury. Dr Cocks also stated:
‘In my opinion, there are significant non—work-related factors that are causally related to the deterioration in Mr Joseph’s mental health in 2017.’
He also considered that the applicant lacked the capacity to return to the workforce stating:
‘In my opinion, it is Mr Joseph’s somatic symptom disorder and opioid deficiency that is affecting his capacity to return to work.’
Dr Duncan Chang
Dr Duncan Chang, general practitioner from My Health Rhodes, has provided a report dated 20 February 2020. Dr Chang states that the applicant suffers from chronic pain which has a secondary psychological feature including anxiety with depressed mood resulting in the necessity to take Schedule 8 medications to manage his pain including Targin 15mg Endone 5mg and Diazepam 2mg.
Dr Chang disagreed with Dr Whittaker’s findings that the abnormalities noted on the MRI dated 11 August 2017 were not the result of any specific incident or injury and that they pre-dated the incident of 20 December 2016 and that they were simply ‘constitutional in nature’. Dr Chang observed that Dr Whittaker did not explore take into consideration the initial injury suffered by the applicant in June 2011.
Dr Chang also disagrees with the observations of Dr Neil McGill in his report dated 1 August 2019 when he opined that the applicant suffered from fluctuating non-specific spinal pain with minor abnormalities seen being of ‘little or no significance with respect to Mr Joseph symptoms’.
Dr Chang observed that Dr McGill did not explain the applicant’s pain and suffering symptoms from the date of the injury. Dr Chang considered that the applicant’s examinations are consistent with reported symptoms. He states that the applicant has had persistent pain and pain associated disability since 20 December 2016.
Dr Chang stated that the applicant must continue his medication to manage his pain and follow the instructions of medical and allied health professionals. Dr Chang considered that whilst the Schedule 8 medications were powerful, the benefits of taking them far outweighed not ingesting them. Dr Chang referred to instances where the applicant had ceased packing his pain medication which had resulted in flare ups in the spinal region resulting in severe pain, and in some instances reporting to the emergency department for Supervised Pain Management. Dr Chang also commented that the applicant is limited in the medication which he can take and that he is unable to take Pregabalins (‘Lyrica'), an anti-inflammatory medication (NSAIDS) or tricyclic antidepressants as these have caused Mr Joseph severe side effects including ‘abdominal pain, nausea, vomiting, dry mouth, blood in stools etc’.
Dr Chang referred to the fact that the trial of Norflex by the applicant was productive significant side-effects. He stated that he is aware that the applicant has sought medication from his night doctor and has been given prescriptions as an inpatient. However, there is no evidence of doctor-shopping. He considered the applicant’s injuries have rendered him unfit to perform in any capacity his preinjury duties or in any role for which is condition prohibits, or which may worsen his condition.
EXAMINATION OF WITNESSES
Examination of Dr Cochrane
Dr Cochrane explained the central pain phenomena which can develop where the original pain is minor but can lead to complaints of pain out of proportion to the injury. He stated that usually there is some physiological changes which could be observed such as swelling, blistering which could give some confirmation. Dr Cochrane considered that a minor fracture of the vertebra would heal within 12 to 18 months and could be healed in as short as four months, but this was unlikely.
Dr Cochrane was asked if his opinion concerning the applicant’s 2016 injury would have been affected if he had a pre-dating injury. It was put to Dr Cochrane that the applicant spondylosis was not severe and that any muscular no-ligamentous injury would heal in time with walking, analgesia and hydrotherapy. He agreed that from a radiological perspective, there is nothing to indicate a reason for the applicant’s current complaints of pain.
Dr Cochrane explained the concept of nociplastic pain, being pain, the cause of which is not readily identifiable, i.e. less of an ability to directly identify the structural contributors to the reporting of pain. He agreed that there might be phantom pains were receptors could send messages to the brain via ‘pain highways’ which could lead the brain to believe that pain is still suffered.
Dr Cochrane agreed that it was necessary to look for the traumas that had been experienced. He agreed that in the absence of the applicant actually being struck by the object, there was unlikely to be a serious injury. The record of the general practitioner of the consultation on 20 December 2016 was put to Dr Cochrane where there was no record of any direct trauma by means of blows resulting from the falling box, which was consistent with the claim form made by the applicant on 13 March 2017.
Dr Cochrane agreed that in the absence of evidence of a box striking the applicant, he would have difficulty in can attributing the incident to damage to the cervical spine.
A factual scenario was then put to Dr Cochrane that if in fact the plaintiff did not fall, there was no injury to the lower spine, and that there was no evidence to suggest any trauma to the lumbar region. On that basis Dr Cochrane also agreed that he could not correlate the symptoms complained of by the applicant. He stated that if there was no fall there would be no blow to the body. He said it would be drawing a ‘longbow’ to say that there was any neuropathic pain in the circumstances. Such pain was dependent upon some physical injury which gave rise to the neuropathic symptom. Further, he agreed that if the applicant had back and neck problems prior to 2011 of a degenerative nature, this would confirm that his current complaints of pain could not be attributed to the incident on 20 December 2016.
Dr Cochrane believed at the applicant was suffering from central pain phenomenon which he described as follows (Day one TP 6322 – 25):
Essentially, there will be a perception of pain involving a more extensive region of the body than initially and what would reasonably be considered a severity of pain that would be greater than would be anticipated for the initial cause, all the initial injury. The most convincing objective signs would be disuse and swelling of joints around the affected part of the body. The most consistent subject of features (sic: subjective) are more severe pain over a more extensive reason (sic region). But being subjective, these are not verifiable.
Yes. And when you came to examine the applicant, Mr Joseph, and form your opinion as to his diagnosis, what factors prompted you to form the view that he likely suffers from central pain phenomenon? – – – That was in party subjective description of pain more severe than I would anticipate a more diffuse than I would anticipate. And more marked restrictions of movements in the spine, particularly the cervical spine, which when I assessed him, seem to be the most pain area of the body. So a combination of more global decrease of function and a subjective experience of pain that was greater than would have initially been anticipated with the neck and (indistinct) injury.
Dr Cochrane was asked questions concerning the previous injury as follows:
If you had taken a history from Mr Joseph and he had experienced back pain prior to the 2011 injury, would that have altered your view as the significant contributory role played by the 2016 injury? – – – Yes, I feel that if there was convincing pain pre-dating 2011 or thereabouts, one I would assume in such a circumstance that it’s more likely that there has been an earlier injury, therefore, any radiological changes in the thoracic spine, I would more likely attribute to an earlier incident and less likely attribute to a latter incident…
In cross-examination Dr Cochrane agreed that sensations of pain may exist even though there is no objective reason for such pain. He agreed that it was necessary to look at scans and consider the objective findings to find an examination for the complaints. The cross examination continued:
And having disposed of those other more objective considerations, the scans, the physical examination so much as muscle wasting and things of that concern, you’ve landed on the pain syndrome as being the most plausible explanation for his continued complaints if you accept him, agreed? –– I do agree.
Dr Cochrane gave the following evidence concerning the pain allegedly suffered by the applicant. The following is the relevant examination:
Do I understand that that, that the radiology doesn’t really provide an explanation for the paint that he complains of?---The radiology suggests that the amount of spondylosis is not severe, that would generally correlate for most persons with a lower severitive pain…
The muscular ligamentous injury, one would expect that that would resolve within a period of time, depending upon its severity, correct?---Agreed…
And so where we’re at is that the radiology being that we can see the skeleton, doesn’t manifest a conclusion that he should be presenting the way he is, agreed?---I think it’s a fair comment, yes.
And so far as what we know about muscular ligamentous injuries, again, you would expect that after a period of time there would’ve been resolution of those injuries, injuries of that type, agreed?---Injuries – yes, the injuries themselves would likely resolve, if I may, that does not always correlate with resolution of pain if, for example, as we discussed, we can discuss separately, but if there was similar issue such as pain syndrome.
Sure, no I understand that. And let’s just move onto that directly, if we can. Pain has been variously described, as I understand it, as neuropathic pain which is normally damage to the nervous system itself?---Agreed.
The clinical records of Dr Kim Nguyen who examined the applicant at 5:04PM on the same afternoon as the accident were put to Dr Cochrane. The note read as follows:
Reviewed (audio malfunction) and was working today, search warrant, taking objects from above head height. Slipped on some objects on the floor and needed to stop the above head objects from falling. Stiffness and pain in upper back and neck since then. Nil limb weakness, nil change in sensation, nil bowel and bladder dysfunction, nil direct trauma to back or muscles, pain getting worse.
The version of events contained in the applicant’s claim form signed on 13 March 2017 was put to Dr Cochrane, namely:
‘Boxed items from the top shelf suddenly feel towards me. I gained sudden control of the box to avoid it falling on me. The box was quite heavy…’

Dr Cochrane, in answer to the question whether there is any explanation for the pain in view of the absence of any impact said:
So in the absence of any boxes falling and striking the applicant, it would be my opinion that given that he had fallen he would still be likely to have sustained an injury to the lower spine, the lumbar spine. I am of the opinion it’d be less likely that he’d sustained an injury to the cervical spine without a blow.
And if he doesn’t fall onto his backside or his back, equally it would be less likely that it was (audio malfunction) complaints regarding his lumbar spine, agreed? – – – That would be agreed, yes.
In the absence of the doctor recording problems regarding his legs and given the radiology, you would have difficulty connecting the legs to anything that happened on that day, wouldn’t you? – – – Neurologically, yes. There are certainly no signs of acute neurological trauma. I could not say, based on that information, whether there was or was not any aggravation spondylosis at that early stage.
And if one looks at the notes that the doctor produced it doesn’t appear that the lumbar spine is the subject of consideration at the time. That would also tend to the conclusion, wouldn’t it, that he didn’t suffer any blunt trauma to that part of his anatomy and those that are connected that we regularly see, such as legs, would be less likely to have a direct connection to the incident that happened on 20 December? – – – Well, certainly it’s recorded. There is no evidence to suggest there were recorded blows around the lumbar region, for example; agreed.
And even adopting the nociplastic concept, you would have difficulty accepting, given the history that’s both signed off by him and his doctor, that you’d have widespread pain, the nature of pins and needles or numbness in both of his arms, in both of his legs, coming and going, and the whole of this time, would you not? – – – In that scenario it would be difficult to correlate those symptoms, yes.
You’ve been left with the invidious position, having accepted him on the face of it, with respect to is complaints, as to try and make sense of it. I understand that, but if you accept the propositions that I’ve just put to you, you can’t make sense of it, can you? – – – It’ll be difficult for me to – it’ll be drawing a long bow to tie neurological symptoms in all limbs, mostly in the upper limbs, if there was no event, such as a fall and/or blows around the spine. So, yes.
Dr Cochrane had recorded the following history from the applicant:
Mr Joseph reports no history of medical conditions and enjoyed very good health prior to the described injuries…
Regarding pre-existing symptoms, the only injury he can recall was when he was employed by the ADF and he had a back pain episode which he believes was secondary to pack marching in 2005. It resolved, didn’t recur…
The following questions were asked of Dr Cochrane:
I take it that what you are seeking to delineate by making those observations was that if indeed he has a degenerative back problem that degenerative back problem was probably not significantly contributed to until he had the accident in 2011, is that right? – – – Yes, that’s correct.
If he’d had problems before 2011, in 2006, in 2008 and 2010, and his records are disclosed with the military that they were back and neck problems, might you assume that the degenerative process that (sic: had) already showed its face prior to the incident in 2011? – – Yes I would.
And that if it had been in place for that period of time, despite his otherwise young age, that it may indeed be following its particular diagnostic course? – – – Yes, I agree.
Examination of Associate Professor Robertson
Dr Robertson reported that the applicant was suffering from somatic symptom disorder and adjustment disorder.
Dr Robertson, when asked, described the somatic symptom disorder as follows:
‘a somatic symptom disorder interrogates the situation where a patient experiences a physical symptom, in this case pain… and that the physical symptom causes sufficient distress, psychological distress and impairment of functioning as to be clinically significant.’
Dr Robertson stated that the brain interpreted chronic pain even though there was no physical pain; that the brain exaggerated the symptoms, that is, the response of the brain was in excess of normal. Chronically stimulating the pain receptors or the pain system caused the brain to interpret all stimuli as pain. That is, the brain over-interprets or exaggerates pain. He stated if a person was chronically stressed, the constant pain could affect the brain, so the brain misreads, because it receives signals through the receptors and treats it as something which is in fact existing. Such syndrome can result in depression or anxiety. However, Dr Robertson agreed that, in relation to somatic symptom disorder that there must be an ‘originating physical pain’.
Dr Robertson agreed that adjustment disorder ‘is a psychological response to external stressors and life events’. He said:
And the response is in excess of what might normally be anticipated, it’s beyond normal distress… That is to say, we start to switch on processes that perpetuate the depression… The depression or the anxiety. The current focus of this epigenetics which is essentially genes being switched on at or switched off that favour a particular clinical state. So to not… Simply the point too much, a patient who is chronically stressed or chronically overwhelmed by adversity may have the depression genes switched on, and that then perpetuates the state, and it often I think explains why people who experience events many, many years continue to experience depression because it has essentially switched on the depression gene, in the same way that cigarette smoking may switch on a cancer gene, or too much sugar switches on a diabetic gene, the classic sort of environmental genetic interaction.
Dr Robertson explained further:
Well, an adjustment disorder by nature requires an event, or a stressor, to which your emotional state is a - excessive response. So it’s like posttraumatic stress disorder, you need a traumatic event to have the condition. The problem becomes the usual language and 15 adjustment disorder occurs might be if someone has a life event, a divorce, a bereavement, a job loss, a flood washes away their house, they develop a psychological state of distress. As the stressor improves or resolves, their mental state tends to improve in tandem. Now, when you have chronic stress, such as chronic pain or chronic social adversity, you develop a chronic adjustment disorder, but there comes a point where the diagnosis is redundant because it seems like the depression has become more - or hard wired, as I was talking about earlier, and you tend to then think, “Is this patient actually now living with a major depression?” like a clinical depression as against a reactive depression.
Dr Robertson said that other stressors in a person’s life such as a divorce, grievance, loss of job or relationship difficulties or difficulties of access to children could promote a stressor. He agreed that animosity would impact significantly upon the mental state of persons, including the applicant.
Dr Robertson did not have any knowledge of the fact that the Applicant has undergone a divorce and resigned from his employment. On this matter, the following examination took place:
Now that I’ve introduced it, I assume that you might reconsider what is the cause for his continued problems of an adjustment disorder, anxiety, and depressed mood, is that right? I think him being asked to assume those facts, it would prompt one to rebalance the causation – the attribution of causation. I don’t think it mitigates, completely, the pain, but it’s certainly, you know - - -
You would want an opportunity to talk to him again, I imagine, and explore it, before coming to a conclusion? Sure. In the facts that you’ve asked me to assume, that would be the conclusion I would come to.
Dr Robertson was asked questions concerning the somatic symptom disorder, which he explained was ‘introduced by the American Psychiatric Association to address the problem of the false dichotomy between medically explicable and medically inexplicable pain.’
Dr Robertson agreed that matters such as an investigation by the employer could result in a greater capacity for the applicant to experience long, enduring problems. That factor, together with animosity between the applicant and his wife could culminate in an impact upon all of the aspects of the applicant’s life.
Dr Robertson stated that secondary pain can be legitimate and can be caused by matters such as an inadequate medical reassurance. However, there was the necessity to have a primary pain. He agreed that there must be anatomical observations for a physical complaint: he stated that if a patient cannot be reassured, neoplastic pain may result.
Dr Robertson considered that the applicant’s pattern of help-seeking was consistent with ‘Pilowsky’s description of the phenomenon of abnormal illness behaviour’ as follows:
So abnormal illness behaviour is where a patient continues to maintain the sick role or maintain a kind of help seeking behaviour, despite adequate medical reassurance. The suppressed premise in that is at the medical reassurance is adequate, and I was not convinced that this patient had been adequately medically reassured.
Dr Robertson expressed his concern that the applicant had not been properly reassured:
So I think – well, the critical point I was trying to emphasise here is [that] at the time I saw Mr Joseph it was not evident to me that he had been adequately reassured, that he was starting to engage with this idea about essentially mediated pain or what you would call a nociplastic pain…
Now, the argument I think you’re making, Mr Golin[sic], is that at this point Mr Joseph has been given a credible narrative about his pain, and that should be – that constitutes adequate reassurance, and any subsequent illness behaviour would be abnormal. Is it the proposition?… Okay. Yes. I’m with you on that.
Thank you. And the second proposition is that if through all the tests and an understanding of the dynamics of the precipitating incident, if it can’t be explained, that’s not to suggest that the doctors haven’t gone about attempting to do so? – – – I – look, I’m happy to accept adequate medical reassurance. …
Examination of Dr McGill
Dr McGill testified that a traumatic fracture would be very painful for a short period of time. A minor fracture would have pain associated for up to 3 months, but it should have totally resolved by no more than six months.
Dr McGill stated that the clinical findings do not reflect the complaints made by the applicant. The applicant had a very maladaptive pattern of behaviour with much symptom reporting which was in his consideration, due to other matters but were not associated with his physical condition. Dr McGill said the use of opiates for non-malignant pain and the use of injected opiates was inappropriate, as follows:
‘I thought he had a very maladaptive pattern of behaviour that with the use of opiates and particularly presenting for parenteral opiates, extremely maladaptive behaviour.’
Dr McGill could not explain the applicant’s complaints of pain. Dr McGill considered that there was no physical reason why opiates were required by the applicant, stating:
Doctor, given your review of the documentation, the radiology, your history taking and examination, on physical grounds are you able to explain the need for such high impact opiates? No, I can't, no. Not only is the imaging unremarkable and minor in its abnormalities of the sort that are commonly found in the general population, but his physical examination was he had a normal range of movement, he recorded a lack of tenderness, he has no neurological abnormality. He does not have radiological or clinical features to explain his report of pain or report/experience of pain and his use of potent analgesia.
Dr McGill was cross-examined by the applicant. Dr McGill stated that it was unlikely that the events complained of on 16 December 2020 caused the fractures which were referred to in the MRI made on 23^rd of March 2017. He stated that usually fractures are associated with oedema, namely bone bruising, it would normally take 3 to 6 months, even up to 12 months for oedema to settle. There was no oedema recorded on the MRI taken in March 2017. He considered that it was probably an old fracture and considered that it was very unlikely that the fractures occurred in 2016. He stated that the fractures may have been due to developmental causes and did not result from an injury. He gave much evidence concerning the side-effects of inappropriate medication. Whilst he considered that he could not wholly exclude the possibility of the fracture at the level T8/T9 on 20 December 2020, he considered it very unlikely and noted the visits to the general practitioner in the weeks before the accident for back and neck pain. He considered there may have been some muscle strain and that would have caused some pain. He did not consider that the alleged injury suffered on 20 December 2020 was a significant injury. He referred to the general practitioner’s observations made on the same evening when the incident allegedly occurred.
The applicant put to Dr McGill the fact that he was x-rayed in Canberra on 6 June 2014 and that there was no abnormality. The applicant queried how he could have obtained the fractures. Dr McGill explained that the fractures were unlikely to be revealed on x-ray and that only an MRI could detect whether there has been a change in the radiology between June 2014 – March 2017.
Examination and Further Evidence of Dr Christopher Cocks
Dr Cocks is the chair of the Medical Advisory Board of Northside Clinic. He stated that he believed the applicant was suffering from abnormal illness behaviour, namely somatic symptom disorder. He explained that there was a necessity to look for other factors to explain why the applicant was suffering from complaints of pain and that there was psychological involvement. He stated that it was necessary to explore external psychological stressors which then enabled a patient to engage in psychological treatment. He stated that if these physical aspects were removed, the applicant remained with a constellation of symptoms and that psychological stressors exacerbated the condition.
Dr Cocks noted that in 2017 the applicant had been involved with an allegation of domestic violence; there have been court proceedings between his wife and himself; there had been an investigation into certain matters involving the applicant’s employment and findings made which were not taken further because the applicant resigned his occupation in August 2018. He considered that these events were not amicable, and there had been issues in the relationship since 2017.
Dr Cocks considered that these events were a protagonist giving rise to the somatic symptom disorder. He acknowledged that the other influences in his life, namely significant psychological distress were present. He considered that the applicant was suffering from opioid use disorder in which the applicant was concentrating on what he believed were physical symptoms.
The applicant cross-examined Dr Cocks. The applicant suggested that the issues with his former wife were not significant. However, Dr Cocks considered that the history showed that the relationship was volatile resulting in criminal charges against the applicant in 2017. Dr Cocks considered that psychological treatment of the applicant was necessary. He considered that the injury did not follow the appropriate trajectory and that the effects of the injury should have resolved in a matter of weeks. The only explanation for the ongoing pain is psychological stresses. The current complaints of pain were so far removed from the injury that they could not be explained otherwise.
SUBMISSIONS OF THE APPLICANT
The applicant made oral submissions.
In respect of the incident, he maintained that the version of events contained in the workers’ compensation claim form was incomplete. He explained that he had assistance. He relied upon another person in completing the form and that the form did not record all the relevant details of the events. He reiterated that he was struck by the falling boxes and fell to the ground.
He emphasised the fact that he suffered neck sprain as recorded in a claims comment report of Comcare. He emphasised he had 34 consultations with his general practitioner, MyHealth Medical Centre following the incident, whereas prior to the incident, he had no need to seek medical treatment.
The applicant maintained that he suffered from a musculoligamentous injury to his cervical, thoracic and lumbar spine and that it was an exacerbation of an existing injury or a new injury. Following the incident, he was required to take many days off from work, due to chronic pain in his back and neck.
The applicant states that he was under pressure by the AFP to either return to work or submit a Comcare claim.
The applicant relied upon the medical report of Dr Andrew Jordan, a consultant rheumatologist, which was dated 14 May 2018. Dr Jordan was consulted on 16 April 2018. The applicant had not previously referred to this report in giving his evidence, and Dr Jordan gave no evidence.
Dr Jordan concluded that the plaintiff’s current symptoms in his ‘low back, thoracic and cervical spine’ were due to workplace injuries sustained by the applicant in 28 February 2011 and on 20 December 2016.
Dr Jordan said that the first injury caused symptoms but they were manageable with appropriate medical and allied health care. His report continues:
the second workplace injury exacerbated the previous injury and caused new symptoms and new injuries which have not been manageable with current interventions and have rendered him unable to work. In particular, it is my opinion that the second workplace injury is the predominant cause of his current reported symptoms. He was performing full work duties up until the time of the second injury and thus I feel the first Workplace injury has a minor contributing role to his current symptomatology.
The applicant also relied upon the findings of Dr Robertson contained in his report dated 6 June 2020, namely a finding of adjustment disorder with anxiety and depression. The applicant also said such diagnosis was supported by the findings of Ms Lalwani in her report dated 10 November 2017.
The applicant also relies upon the observations of Dr Inglis Howe Synnott dated 17 February 2020, which was prepared for AIA Australia in connection with an insurance claim for disability income insurance. Dr Synnott was not referred to in the evidence.
The applicant further submits that the evidence of Dr Cocks cannot be relied upon in view of the preponderance of evidence. He submits that Dr Cocks sought to cast him in a problematic light and refers to the criticism of Dr Cocks by Dr Robertson in Dr Robertson’s report as follows:
‘the tone of the diagnosis of opioid use disorder seems to cast Mr Joseph in an unfavourable light, further building a picture of a problematic claimant with a questionable clinical state.’
The applicant refers to the statement of his former wife in support of his contention that he was generally well up to the time of the incident and that he ‘detested medication’.
The applicant stated that he could not explain how Comcare accepted his claim made on the 13 March 2017 in respect of back, neck and shoulders. On the 28 March 2017, Comcare accepted the claim for ‘neck sprain; and sprain of shoulder & upper arm(bilateral).’
The applicant claimed that he was currently consulting a pain specialist, Dr Standen, as recommended by and referred to by Dr Cocks, Dr Cochrane, Dr Robertson and Dr McGill.
The applicant maintained that he had ceased using opioids for 8 days.

With respect to the 2014 car accident and injury in Canberra, the applicant noted that the CT scan and x-ray showed no changes to his spondylitic changes. The applicant referred to the report of Dr Chang dated 21 February 2020 in which Dr Chang referred to the ‘appearances suggestive of chronic healed fracture of T8 and T9 vertabra’. The applicant referred to the disagreement with Dr McGill’s findings when he stated that the applicant suffers from a fluctuating non-specific spinal pain with minor abnormalities seen being little or no significance with respect to Mr Joseph’s symptoms.
The applicant maintained that he has experienced chronic pain from the date of the incident; that injury has left him impaired. The applicant has requested the Tribunal to accept the evidence of Dr McGill and Dr Cochrane.
The applicant referred to his 12 admissions to various hospitals for emergency pain relief.
CONSIDERATION
Causation
There is conflicting evidence concerning the manner in which the alleged injury was sustained. As follows:
a)the Workers Compensation claim form signed by the applicant records:
inside the shed, I was searching through items from the wall shelving. I suddenly lost footing due to misc. items on the ground or uneven/crack grounding.
Boxed items from the top shelf suddenly felt towards me. I gained sudden control of the box to avoid it falling on me.
The box is quite heavy (KG unknown), putting sudden and extreme pressure on my body
b)The claim form makes no reference to trauma to his back nor to any back injury. There was no direct blow to his back. The claim form is consistent with the notes of the general practitioner who was consulted on the same day, namely Dr Kim Nguyen who recorded:
taking objects from above head height – slipped on some objects on the floor and needed to stop the above head objects from falling
stiffness and pain in upper back and neck since then…
Neil[sic-nil] direct trauma to back or muscles
The practitioner recorded their impression as: ‘soft tissue muscle injury neck and thoracic area…’
c)Dr Duncan Chang extracted a report recorded on the applicant’s behalf by member of the AFP medical services that stated:
While carefully removing large items on the top shelf examination, I had lost my footing slightly while handling a heavy boxed item. I immediately felt a sharp sensation in my back, neck and right shoulder. The pain subsided and maintained the leval (sic). It was only when I departed work, seated in my vehicle en route home that I felt the pain increase.…’ of pain that I generally feel in my back and neck which was as a result of another AFP workplace injury which occurred in 2011.
d)The statement of Ashleigh Elizabeth Andruska, the former wife of the applicant (who was not present at the time of the incident) states inter alia:
‘He lost his footing and some boxes fell on him…’
Dr Cochrane advised that the applicant had informed Dr Cochrane of the following:
‘[The applicant] was searching the right hand side of the shed was specifically checking freestanding 8 foot tall shelving at the side of the shed. He went to lift a box from the top shelf in the shelving started tip. He stood back to brace and avoid the box falling and, on standing on uneven ground, stumbled and fell backwards. One or two boxes fell and he believes one hit him on his left hand and one around the head. He cannot recall the number of blows sustainment recalls “seeing white” and and this felt slightly worse but he recalls he had already had Voltaeren that day …. He recalls standing up. He felt he had aggravated low back pain …’
Dr Cochrane, in cross examination, said he understood that the plaintiff had been knocked to the ground when the boxes fell on him from a height of approximately 8 feet.
The Tribunal, in view of the conflicting statements, cannot be satisfied how the accident alleged occurred. If the version provided by the applicant in the claim form is correct, it is apparent that the boxes never actually struck the applicant. Other versions indicate that the boxes struck him at the back of the head, and back of the neck. This is not what was recorded in the claim form. In his evidence he stated that he fell over and was struck by a box.
The Tribunal considers that the most likely to the applicant’s general practitioner on the day, and as contained in the claim form. That is, no boxes struck the applicant despite his testimony to the contrary. However, the Tribunal accepts that the applicant did suffer from strain in attempting to prevent the boxes from falling on him. The respondent accepts such finding, as is evident from the fact that it assumed liability for medical expenses in the months following the incident.
Injuries
The applicant contends that he has suffered a spinal injury on 20 December 2016 in the course of his employment and further, that such injury has resulted in a mental injury diagnosed as ‘Adjustment Disorder (with Anxiety and Depression)’. In his submissions in reply, the applicant also referred to the fact that the definition of injury in the Act includes ‘an aggravation of a physical or mental injury’.
Back and Neck
The Tribunal finds, based on the evidence of Professor Neil McGill, that there would have been some bruising or oedema around the fracture site persisting when the MRI was taken in March 2017 had the fractures been sustained in the accident as alleged. Dr McGill also stated that the x-ray taken in Canberra would not have revealed the fractures, but only an MRI would have revealed them if they then existed.
For these reasons, the Tribunal finds the applicant sustained a soft tissue injury in the accident. On the medical evidence before the Tribunal, such injury would have within three months, at the most six months resolved within a matter of weeks following the incident.
The Tribunal observes that the applicant has had a long history of cervical spine and neck pain arising out of incidents that occurred from 2006 whilst he was engaged by the RAAF. For example, a Department of Defence outpatient clinical record contains a record that the applicant was being treated with anti-inflammatories for back pain. Another entry for 11 March 2006 records lower back pain. From 2011, there is clear evidence of pain being suffered by the applicant. For example, a Physiotherapy Discharge Summary dated 31 August 2011 attached a diagram which depicts areas of pain in the applicant’s lower back described as ‘ache’ and in the lower thoracic area. Further, it is apparent that in 2014, the applicant sustained an injury when he was involved in the motor vehicle accident. The hospital notes show that he was required to wear a neck brace for approximately 3 days.
Thereafter, there are numerous records of the applicant seeking medical assistance for neck pain. For example, the Myhealth records show that Dr Chang was consulted on 26 October 2015 where the following is recorded ‘Chronic intermittent thoracic back (degenerative condition confirmed by MRI last year)/ neck pain since workplace injury in 2011’.
Dr Daniel Chen was consulted on 30 March 2016 when the applicant sought a script for ‘Voltaren prn when chronic back pain flares up… Cont to see physio, will also try acupuncture’.
On 16 November 2016 (one month before the incident) the applicant consulted Dr Bishoy Marcus who recorded ‘Patient presenting with symptoms consistent with an exacerbation of back and neckpain… long history, post being tackled in a riot with AFP years ago.’ His diagnosis was ‘neck pain’.
As already referred to, on 7 December 2016, the applicant consulted Dr Duncan Chang for neck pain. The notes record tenderness in the applicant’s neck and upper back area. This consultation was 13 days prior to the incident.
In view of the evidence that there is a long medical history of neck pain and back pain predating the accident on 20 December 2016, the Tribunal does not accept that the applicant’s current complaints of pain and disabilities arises from the accident. Further, the applicant’s claim that he suffered a fracture at T8/T9 in the accident is not established. There is insufficient evidence that any bodily trauma sustained by the applicant resulted in fractures at T8/T9. The evidence establishes that if in fact, the applicant has fractures at T8/T9, they were most likely caused by other means which predated the accident or are congenital.
Somatic Symptom Disorder
Dr Cochrane was not informed of the 2014 motor vehicle accident nor was he provided with a history of visits to the applicant’s general practitioner in the years leading up to the date of the incident. It is apparent from the cross-examination of Dr Cochrane that he could not support his assessment contained in his report dated 4 March 2019 that the incident was necessarily responsible for the applicant’s complaints of pain.
Dr Jordan’s report dated 14 May 2018 does not disclose that he was informed of the applicant’s prior history of neck and back issues, nor of his medical consultations in the months preceding the incident; nor of the 2014 motor vehicle accident. Accordingly, the Tribunal gives little weight to the conclusions drawn by this report.
For the same reasons as above, the report of Ms Lalwani is given little weight.
The opinions contained in the report of the applicant’s general practitioner are noted. The Tribunal however considers the opinions of specialised medical practitioners provide a more reliable diagnosis, as they have drawn their final conclusions after being informed of all relevant history and after extensive cross-examination.
Based on the above considerations, the Tribunal rejects the contention that the applicant is suffering from a somatic symptom disorder caused by the accident on 20 December 2016.
Adjustment Disorder
Domestic issues
The applicant and his former wife separated in September 2016. Whilst the applicant stated that the separation was amicable, the police records record proceedings were taken against the applicant for breach of an apprehended violence order (AVO) made on 1 June 2017 and assault occasioning actual bodily harm and stalk – intimidate intend fear physical harm (domestic) on 6 June 2016. The charges were dismissed at Burwood local Court on 28 November 2017.
Other proceedings had been taken of a similar nature. An offence was alleged to have occurred on 18 June 2017 of contravening and AVO (domestic). Such charges were withdrawn on 28 November 2017.
Further charges were brought against the applicant. On 8 January 2018 to 9 January 2018 the applicant was charged with the offence of contravening prohibition/restriction in AVO (domestic) and stalk/intimidate with intend to fear physical harm. These charges came before Downing Centre Local Court on 31 October 2018.
The applicant was found guilty on each charge, but no conviction was recorded against the applicant on the basis of these matters being a first offence. A further charge of using a carriage service to menace/harass/offend was dismissed.
The applicant denied that such court proceedings caused him any stress or anxiety. The applicant was also convicted of dishonestly obtaining a financial advantage by deception with regard to 12 counts. The applicant stated that there had been a misunderstanding with the use of a credit card, and he was fined approximately $140.
The Tribunal considers that the matters involving the applicant and court proceedings concerning the breach of AVO would have been stressful despite the applicant denying any stress. Such events are likely to constitute stressors as referred to by Dr Robertson which would have exacerbated the applicant’s anxiety and pain symptoms.
Australian Federal Police Investigation
The applicant resigned from the AFP immediately following an investigation by the Professional Standards Branch of the AFP. It was put to the applicant that the investigation of matters brought to the attention of the AFP was stressful. The applicant denied that he resigned in anticipation of the result of the investigation, but agreed that he did resign.
The applicant denied that he was caused higher levels of anxiety because of the AFP professional conduct matters.
The Tribunal makes the same observation as in relation to his divorce proceedings and surrounding domestic issues, namely that his workplace issues are likely to constitute stressors of the kind referred to by Dr Robertson. Those issues are unrelated to his claims of injury received on 20 December 2016.
The Tribunal follows the observations of the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 where the majority of their Honours [at 56] commented on the observations of the Full Federal Court namely that ‘subjectively experienced symptoms without an accompanying physiological or psychiatric change’ are inadequate to satisfy the statutory definition of ‘injury’. Such definition requires examination of ‘whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind’.
Following the concessions by Dr Robertson and of Dr Cochrane during cross-examination, there is no evidence to support the applicant’s claim that his psychological disabilities are related to the accident on 20 December 2016.
CONCLUSION
The Tribunal is not satisfied that the applicant’s symptoms of pain and stress were caused by the December 2016 accident. The preponderance of the medical evidence as to both physical symptoms and psychological symptoms does not attribute such accident as the cause, rather, the physical symptoms relate back to earlier injuries or degeneration. The psychological symptoms relate to stressors unrelated to the accident.
It follows that the respondent has no present liability to pay compensation for medical expenses and incapacity payments under sections 16 and 19 of the Act in relation to the accepted ‘neck sprain and bilateral shoulder sprain’ sustained on 20 December 2016.
The Tribunal finds that the respondent is not liable to pay compensation under section 14 of the Act in respect of the applicant’s claim for ‘middle and upper back with referred pain in all four limbs’.
The Tribunal finds that the respondent is not liable to pay compensation under section 14 of the Act in respect of the applicant’s claim for ‘adjustment reaction with mixed emotional feature’.
DECISION
The applications for review the subject of proceedings 2018/4547, 2018/4744 and 2018/4745 are dismissed.
The decisions under review are affirmed.

I certify that the preceding 209 (two hundred and nine) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President

.....................................[sgd]...................................
Associate
Dated: 17 August 2021

Date(s) of hearing: 23 - 25 March 2021, 13 & 30 April 2021

Applicant: Self-Represented

Counsel for the Applicant: A. Coombes (23 March 2021)

Solicitors for the Applicant: Carroll & O'Dea Lawyers (23 March 2021)

Counsel for the Respondent: M. Gollan

Solicitors for the Respondent: Moray & Agnew Solicitors

[2021] AATA 2897

17 August 2021

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Expert Evidence

Statutory Construction

Appeal

Date(s) of hearing:	23 - 25 March 2021, 13 & 30 April 2021
Applicant:	Self-Represented
Counsel for the Applicant:	A. Coombes (23 March 2021)
Solicitors for the Applicant:	Carroll & O'Dea Lawyers (23 March 2021)
Counsel for the Respondent:	M. Gollan
Solicitors for the Respondent:	Moray & Agnew Solicitors