Kearns and Australian Capital Territory (Compensation) - [2019] AATA 1631

Kearns and Australian Capital Territory (Compensation) [2019] AATA 1631 (2 July 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL            )
  )  No: 2016/5014
GENERAL DIVISION  )
Re: Shayne Kearns
Applicant

And: Australian Capital Territory
Respondent
DIRECTION
TRIBUNAL:  Senior Member Linda Kirk
DATE OF CORRIGENDUM:  10 July 2019
PLACE:           Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.   The name of the Respondent on page 1 be changed from ‘Comcare’ to ‘Australian Capital Territory’ ;
2.   The words ‘(‘the Respondent’)’ be deleted from paragraph 13; and
3.   The words ‘the Respondent’ be changed to ‘Comcare’ at paragraph 26.

...................................................................
Senior Member Linda Kirk
File Numbers: 2016/5014 and 2016/5590
Division:GENERAL DIVISION
File Number(s): 2016/5014
2016/5590

Re:Shayne Kearns
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:2 July 2019
Place:Canberra

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
........................................................................
Senior Member Linda Kirk
Catchwords
WORKERS COMPENSATION – whether the Applicant continues to suffer the effects of an accepted condition – whether the Applicant continues to suffer the effects of a second accepted condition – whether an aggravation or ailment was contributed to in material degree by employment – whether an aggravation or ailment was contributed to in a significant degree by employment – decisions under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Comcare v Power [2015] FCA 1502
Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Howes v Comcare [2016] FCA 1521
Prain v Comcare [2017] FCAFC 143; 256 FCR 65
Re Blasco and Australian Postal Corporation [2017] AATA 1222
Re Carmel Elizabeth McDonald v Director-General of Social Security (1984) 1 FCR 354
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110
REASONS FOR DECISION
Senior Member Linda Kirk
2 July 2019
INTRODUCTION

Mr Shayne Kearns (‘the Applicant’) was born in 1955. On 29 July 2002 hecommenced work with the ACT Government, Department of Housing (‘the Agency’). He retired from the Agency on 19 July 2011.
On 20 July 2006, the Applicant lodged a workers’ compensation claim for ‘jarred back back strain’ arising from a workplace incident on 29 June 2006.[1]
[1] T38.
On 31 July 2006, Comcare accepted liability for ‘lumbar sprain’ under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’)[2] (‘first accepted condition’).
[2] T41.
On 27 July 2010, the Applicant lodged a workers’ compensation claim for ‘reinjured back jarred back aggravated pre-existing back symptoms’ arising from a workplace incident on 16 July 2010.[3]
[3] T75.
On 6 September 2010, Comcare accepted liability for ‘aggravation of lumbar sprain’ under s 14 of the SRC Act[4] (‘second accepted condition’).
[4] T81
On 2 June 2016, Comcare issued a determination that the Applicant’s ‘lumbar sprain’ had been superseded by his underlying age related degenerative condition. It determined the effects of the 2006 lumbar sprain injury were no longer a factor of the lumbar spine condition the Applicant presently suffered.[5]
[5] T192
On the same date, Comcare issued a determination that the Applicant had no present entitlement to compensation in respect of medical expenses under section 16 of the SRC Act and incapacity payments under section 19 of the SRC Act for the 2010 aggravation of lumbar sprain injury.[6]
[6] T193
Comcare issued decisions dated 24 August 2016 (2016/5014)[7] and 12 October 2016 (2016/5590)[8] (‘the Reviewable Decisions’) which affirmed the determinations dated 2 June 2016.
[7] T199
[8] T202
On 19 September 2016, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the Reviewable Decisions.[9]
[9] T2.
Due to the ACT Government’s transition to obtain a self-insurance licence under Part VIII of the SRC Act, which was effective from 1 March 2019, the Australian Capital Territory is now the Respondent.
The review applications were heard by the Tribunal at a hearing in Canberra on 1 and 2 August 2018 and 7 May 2019. The following witnesses gave oral evidence at the hearing:
·the Applicant;
·Dr Nicholas Burke;
·Dr Garth Eaton;
·Dr Phil Allen; and
·Professor Peter Youssef.
The following documents were before the Tribunal:
·Applicant’s Statement of Facts, Issues and Contentions dated 25 May 2017;
·Statement of the Applicant dated 16 January 2017 (Exhibit A1);
·Statement of Marianne Kearns 9 May 2017 (Exhibit A2);
·Supplementary Medical Report of Dr Garth Eaton dated 20 October 2017 (Exhibit A3);
·Respondent’s s 37 documents (T1-T213, pages 1-952) filed 27 October 2016 (Exhibit R1);
·Respondent’s Statement of Facts, Issues and Contentions with Annexures A-H dated 27 June 2017 (Exhibit R2) ;
·Surveillance discs and reports filed 15 August 2018 (Exhibit R3);
·Briefing letter to Dr Garth Eaton dated 14 September 2017 (Exhibit R4);
·Medical report of Dr Nicholas Burke dated 27 July 2018 and briefing letter dated 10 July 2018 (Exhibit R5);
·Supplementary medical report of Dr Nicholas Burke dated 4 September 2018 and briefing letter dated 14 August 2018 (Exhibit R6);
·Report of Dr Phil Allen dated 15 March 2017 and briefing letter dated 21 January 2017 (Exhibit R7);
·Supplementary Medical report of Dr Phil Allen dated 24 August 2018 and briefing letter dated 14 August 2018 (Exhibit R8);
·Medical report of Professor Peter Youssef dated 23 July 2018 with briefing letter dated 10 July 2018 (Exhibit R9);
·Medical report of Professor Peter Youssef dated 10 September 2018 and briefing letter dated 14 August 2019 (Exhibit R10);
·Curriculum vitae of Professor Peter Youssef (Exhibit R11);
·Agreed questions for concurrent evidence (Exhibit R12);
·Email correspondence between Mr Ross Moss of Comcare and Ms Jennifer Newman of Colquhoun Murphy Lawyers from 13 June to 28 June 2018 (Exhibit R13).
LEGISLATIVE FRAMEWORK
SRC Act
Sections 14 and 16 of the SRC Act provide for the payment by Comcare (‘the Respondent’) of compensation as follows:
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…
‘Injury’ is defined in s 5A of the SRC Act:
(1)…
(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.
The test of employment contribution for a disease (or aggravation thereof) is dependent on timing of the onset of the compensable “injury”. The SRC Act was amended in 2007 replacing the “material degree” test with the “significant degree” test.
At the date of the first claim (20 July 2006), s4(1) of the SRC Act defined ‘disease’ to mean any ailment or aggravation of any ailment suffered by an employee ‘that was contributed to in a material degree by the employee’s entitlement by the Commonwealth.’
Relevant to the second claim (27 July 2010) is the current provision of the SRC Act which defines ‘disease’ in s 5B to mean:
(1)…
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.”
In determining whether an ailment, or aggravation thereof, was contributed to, to a significant degree, by an employee’s employment s 5B(2) provides that the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This list is non-exhaustive, and s 5B(2) specifically provides that the matters listed in the subsection do “not limit the matters that may be taken into account.”
Section 5B(3) defines “significant degree” as a “degree that is substantially more than material.” It follows, then, that a “material degree” is substantially less than a “significant degree”. The “significant degree” test applies in relation to an ailment, or an aggravation of that ailment, that an employee suffers on or after 12 April 2007.
As Finn J explained in Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536, what meets the threshold of a material degree is a matter of fact and degree, but it is clear that it is a more generous standard for an injured worker than that which applies following the 2007 amendments.
An ‘ailment’ is defined in s 4 of the SRC Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
“Aggravation” includes acceleration or recurrence – s 4(1).
Subsection 16(1) of the SRC Act provides:
“Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
Section 16(1) of the SRC Act requires that the medical treatment obtained must be “in relation to the injury”. Whilst the words “in relation to” have the widest possible meaning intended to convey some connection between the subject matter to which the words refer, (Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 at 111 per Mann CJ), the relational connection between the medical treatment and the compensable injuries must be determined objectively and by reference to all relevant evidence. In order to determine if the relational connection exists or existed, it is necessary for the Tribunal to consider the nature of the compensable injuries in light of the evidence presented, including opinions by medical specialists, and make, on the balance, an evaluative conclusion – Howes v Comcare [2016] FCA 1521 at [53] – [54].
Section 19 of the SRC Act provides that the Respondent is liable to pay compensation to an employee who is incapacitated for work as a result of an injury and compensation is calculated in accordance with the prescribed formulae. Compensation for incapacity is paid on the basis of normal weekly earnings and is designed to reflect pre-injury earnings, including regular overtime and certain allowances.
ISSUES FOR DETERMINATION
The issues for determination are:
(1)Whether, as at or before 2 June 2016:
(a)the Applicant continued to suffer from the effects of the first accepted condition;
(b)the Applicant continued to suffer from the effects of the second accepted condition.
(2)Whether, from 2 June 2016 to date:
(a)any ailment, or aggravation of such an ailment, affecting the Applicant’s lumbar spine from 29 June 2006 was contributed to, in a material degree, by his employment?
(b)any ailment, or any aggravation of such an ailment, affecting the Applicant’s lumbar spine from 16 July 2010 was contributed to, to a significant degree, by his employment?
(2)If the Applicant’s ailment or any aggravation of an ailment affecting his lumbar spine had not resolved as at 2 June 2016:
(a)Did the Applicant obtain reasonable medical treatment for his ailment or any aggravation of an ailment sustained on 29 June 2006 and/or 16 July 2010?
(b)Is the Applicant incapacitated for work as a result of his ailment or aggravation of an ailment sustained on 29 June 2006 and/or 16 July 2010?
(c)Did the Applicant unreasonably fail to seek suitable employment?
(d)Did the Applicant otherwise fail to mitigate his loss of income?
APPLICANT’S EVIDENCE
After completing his schooling in 1972 the Applicant joined the Commonwealth Public Service and was employed as an administrative officer. In 1997 he took a redundancy and set up his own landscaping/concrete edging and gardening business.[10] He was self-employed in this business until 2001 when he joined the Agency as a Fencing Officer. His work was mostly out in the field inspecting fences on ACT Housing properties.[11]
[10] Exhibit A1, para 2.
[11] Applicant’s SOFIC at para 3; Transcript of proceedings, 1 August 2018, p25.
Previous workplace injury
In 1995 the Applicant sustained an injury to his neck in the course of his employment with the Commonwealth Public Service. The injury was an overuse syndrome and primarily caused symptoms to his neck, shoulders and both arms. It sometimes caused referred pain to his whole back which caused his muscles to tighten. Comcare accepted liability for aggravation of a disc lesion at C4-5 on 1 May 1995.[12]
[12] T32.
Imaging of the Applicant’s back in May 1995 showed no abnormalities of the lumbar spine and the cervical spine was degenerate.[13] These findings were confirmed on MRI in October 1995.[14] In his report dated 2 November 1995, Dr Andrews, Consultant Neurologist, reported that the Applicant has a ‘significant disc lesion at C5-6.’[15] Dr Andrews examined the Applicant in relation to his neck pain and noted in his report dated 3 January 1996 that the CT scan of the Applicant’s cervical spine showed degenerative changes at C4-5, 5-6. He noted that the Applicant has ‘a history of chronic low back pain for two years’.[16] The Applicant was asked about this in cross-examination and denied saying this to Dr Andrews.[17]
[13] T15
[14] T18.
[15] T19.
[16] T14.
[17] Transcript of proceedings, 1 August 2018, p44.
In an Initial Needs Assessment dated 16 November 1995, Gillian Clarke, Occupational Therapist, Commonwealth Rehabilitation Service, recorded that the Applicant stated that he slept on a water bed which he found beneficial in terms of his back pain that he has had in the lumbar region for about 20 years.[18] When questioned about this in cross-examination, the Applicant stated that he had a water bed at the time as they were ‘fashionable’ not because he had back pain.[19]
[18] T29.
[19] Transcript proceedings, 1 August 2018, p45.
Health issues prior to June 2006
In his statement dated 16 January 2017, the Applicant claimed he did not have any problems with his back prior to the June 2006 incident, although he was unfit and overweight.[20] He would undertake tasks in his free time such as landscaping his property, gardening and one off sports games. Occasionally he would over-exert himself and experience muscular pain to all areas of his body. This pain would last a day or two and then he would recover. He does not recall seeking any medical treatment for this pain.[21]
[20] Exhibit A1, para 3
[21] Exhibit A1, para 3.
Medical records of Dr Anthony Ng, General Practitioner, indicate that from early 2003 to mid-2006 the Applicant sought treatment for gout, knee pain and epicondylitis.[22]
[22] Respondent’s Statement of Facts, Issues and Contentions, Annexure C.
First incident – 29 June 2006
On 29 June 2006, while returning from the work carpark to the office the Applicant slipped on black ice.[23] He managed to stop himself from falling but in doing so he twisted and hurt his lower back. He experienced a sharp burning pain in his lower back, right-hand side, just above his right buttock.[24] He reported the incident and completed a compensation form and, as the pain was ongoing, he left work and returned home.[25]
[23] Exhibit A1, para 6.
[24] Transcript of proceedings, 1 August 2018, p25-26
[25] Transcript of proceedings, 1 August 2018, p26.
The Applicant saw his general practitioner, Dr Ray Burn, the following morning. He told him to take painkillers and to get some physio and take a number of days off to rest.[26]
[26] Transcript of proceedings, 1 August 2018, p26
On 19 July 2006, the Applicant lodged a workers’ compensation claim for ‘jarred back back strain’.[27] On 31 July 2006 Comcare accepted liability for ‘lumbar sprain’.[28]
[27] T38.
[28] T41.
The Applicant had approximately ten weeks off work, including graduated return to work. During that period he underwent physiotherapy treatment, remedial massage and was on pain medication. He returned to work full-time in midSeptember 2006.[29]
[29] Exhibit A1, para 6; Transcript of proceedings, 1 August 2018, p26
The Applicant’s back pain did not cease but was manageable. In August 2008 the pain began to increase again in the same spot where he experienced pain following the 2006 injury. The Applicant does not recall any particular incident that triggered the increase in pain.[30] Medical records of Dr Ng indicate that the Applicant attended the practice reporting low back pain on a number of occasions from July 2008 to April 2009.[31] During this period the Applicant required some time off work and more intensive treatment for his back pain. Dr Ng recorded on 29 January 2009 that the Applicant complains of ‘constant daily pain … localised to his lower back’. He diagnosed the Applicant with ‘chronic low back pain which appears to be musculoligamentous in nature’.[32]
[30] Exhibit A1, para 7.
[31] Respondent’s Statement of Facts, Issues and Contentions, Annexure C.
[32] T49.
In July 2009 the Applicant was referred to Dr Geoffrey Speldewinde, Consultant in Rehabilitation, Pain and Musculoskeletal Medicine, who provided a range of treatments including cortisone injections and physiotherapy.[33]
[33] Transcript of proceedings, 1 August 2018, p29.
The pain gradually decreased and the Applicant was able to undertake a graduated return to work program from mid-September 2009 until he resumed full-time work on 28 June 2010.[34]
[34] Applicant’s SOFIC para 6; Exhibit A1, para 8.
Second incident – 16 July 2010
By mid-2010 the Applicant had been promoted to Project Manager relating to the construction of new houses for the Agency. This role involved inspections of current work, dealing with builders and ensuring that projects were being completed and deadlines being met.[35]
[35] Transcript of proceedings, 1 August 2018, p30.
On 16 July 2010 the Applicant was on a building site at Cowan to meet a builder and check on the progress that had been made on the construction of aged care units. The Applicant walked around the back of the builder’s ute and slipped on black ice. To prevent himself from falling he grabbed the back of the ute. He immediately felt the same pain in his lower back he had experienced when he slipped in June 2006. The pain was very sharp and at a very intense level.[36]
[36] Transcript of proceedings, 1 August 2018, p30.

On 22 July 2010, the Applicant lodged a workers’ compensation claim for ‘reinjured back jarred back aggravated pre-existing back symptoms’.[37]On 6 September 2010 Comcare accepted liability for ‘aggravation of lumbar sprain’.[38]
[37] T75.
[38] T81.
The Applicant’s doctors prescribed more pain medications and Dr Speldewinde provided more injections, nerve burns, physiotherapy and remedial massage. The Applicant also attended a pain management workshop which did not assist with the pain.[39]
[39] Exhibit A1, para 9.
In June 2011 the Applicant was on a graduated return to work program with heavy restrictions. He was working 4 hours a day, 3 days a week. He was not permitted to do the field work he enjoyed and he was working in the office doing administrative work like filing.[40] The work he was doing he considered ‘totally meaningless’, and he was becoming stressed and depressed and this was affecting his marriage and family.[41] He decided to take an early retirement and left the Agency on 19 July 2011.[42] He has not done any paid work since this time.[43]
[40] Transcript of proceedings, 1 August 2018, p31.
[41] Exhibit A1, paras 15-17.
[42] T101.
[43] Transcript of proceedings, 1 August 2018, p31.
On 1 March 2013 the Applicant applied for permanent impairment. Dr Ng noted that the Applicant’s ‘condition has stabilised. Underlying degeneration will continue.’[44]
[44] T114.
Medical treatment and assessment following incidents
On 16 August 2006 the Applicant had a CT scan of his lumbar spine and an xray of his lumbar spine.[45] It was reported that the Applicant was then suffering minor degenerative changes involving the L4/5 and L5/S1 discs posteriorly and the L2/3 and L3/4 disc anteriorly.
[45] T42.
On 25 August 2006, the Applicant had a regional bone scan of his lumbosacral spine.[46] The report of that scan concludes that there was no active lumbar facet joint arthropathy or discovertebral disease.
[46] T43.
On 6 May 2009, Dr William Coyle, Consultant Orthopaedic Surgeon, diagnosed the Applicant with ‘chronic low back pain, possibly the result of lumbosacral disc injury’.[47]
[47] T53.
On 3 June 2009 the Applicant had an MRI of the lumbar spine.[48] The report notes a left lateral L4/5 small disc protrusion extending into the left foramen and in contact with the inferior aspect of the left L4 nerve root.
[48] T56.
On 29 October 2009, 6 May 2010, 19 June 2010, 5 July 2010, 11 November 2010 and 14 December 2010, Dr Speldewinde administered a diagnostic zygapophysial joint injection.
On 28 April 2010 Dr Phillip Vecchio, Rheumatologist, reported to the Applicant's employer that the Applicant had an ‘age related degenerative lower lumbar disc disease, which was aggravated by a fall in July (sic) 2006, causing his mechanical lower back discomfort.’[49] He also stated that the condition is likely chronic and amplified by his bodily habitus and unfit status and that it was likely to be permanent.
[49] T69.
On 21 September 2010, Dr Ng reported that the Applicant’s fall on 17 July 2010 aggravated his pre-existing 2006 injury and that ‘there is also contributing progression of underlying background degeneration.’[50]
[50] T83.
On 7 December 2010, Dr Ian Kelman, Consultant Orthopaedic Surgeon reported to Comcare that the Applicant suffered from mild degenerative disease at L2, L3 and L4 and from a minor disc prolapse at L4/5.[51] In his opinion, the degenerative condition, had come about as a result of the aggravation of the discs following the injury the applicant had at work, and also as a result of the process of aging and the loss of fitness, muscle tone and core stability. He opined that the Applicant suffered from impairment as a result of the compensable condition which had become permanent as of July 2010. Dr Kelman further reported that there was no doubt that the Applicant had degenerative changes throughout his lumbar spine as a result of the aging process, however, the specific injury at L4/5 was more likely to have arisen as a result of the compensable injury. He considered that the first injury in 2006 initiated the pathology in his back, and that pathology had been aggravated by the further injury in 2010.
[51] T89
In his report, Dr Kelman noted that in the years 2006 to 2009 the Applicant had no problems with his back.[52] The Applicant told Dr Kelman that in March 2009 ‘he had a flare up of back pain for no apparent reason. He had no injuries occurring at this time but his back became significantly painful.’[53]
[52] T89 at 264.
[53] T89.
On 11 April 2011, the Applicant attended his general practitioner in relation to low back pain as a result of moving a television at home on the weekend.[54]
[54] p120
On 10 August 2012 Dr Speldewinde wrote to Comcare stating that the Applicant suffered from right lumbosacral and sacroiliac joint arthropathy creating persistent, intrusive, lifestyle restricting pain localised predominantly in that area.[55] He noted ‘the injury occurred during the course of his employment in 2006 and the pain continues to be troublesome in the same pattern with the same characteristics and is a direct consequence of his employment related injury. It does not appear to be due to other factors.’[56]
[55] T111, p1.
[56] T111, p1
On 26 June 2013 the Applicant underwent another MRI of his lumbar spine.[57] The report concludes that there was mild left L3/4 and right L4/5 neural foraminal narrowing (moderate left L4/5 neural foraminal narrowing), moderate degenerative facet joint hypertrophy at L5/S1 and mild to moderate degenerative facet joint hypertrophy at L4/5 and L5/S1 levels.
[57] T121.
On 12 July 2013 Dr Dwight Dowda, Consultant Occupational Physician, reported to Comcare that the Applicant's diagnosis was chronic right sacroiliac joint strain and degenerative changes in the lumbar spine.[58] He opined that it was likely that the Applicant had ‘aggravated previously asymptomatic degenerative change in his lumbar spine … on 29 June 2006 and re-aggravated that condition in the second injury in July 2010.’[59] The initial injury ‘led to a chronic level of pain which is reasonably controllable but was becoming increasingly symptomatic’. By the time of the second injury ‘he has aggravated degenerative change with resultant persistent symptoms in his lower back’. The Applicant ‘permanently worsened’ his ‘degenerative change with resultant persistent symptoms in the lower back.’[60] In his opinion, the Applicant’s employment ‘left him with a permanent aggravation of his lumbar degenerative changes’.[61]
[58] T123, p6
[59] T123, p7.
[60] T123, p8.
[61] T123, p8
Dr Dowda also reported that the Applicant’s lower back pain was likely to continue indefinitely into the future with variable levels of control as could be given with pain management.[62] Asked whether the impairment to the Applicant's lower back resulted from two or more conditions, Dr Dowda stated
I consider that Mr Kearns has a continuum with respect to his initial injury that was sustained to the lower back in the accepted claim of 29 June 2006 and re-aggravation of that condition by the injury of 16 July 2010. There were no two separate conditions but a continuum of the same condition. It is not possible to isolate effects of any condition which has contributed by Mr Kearns' employment.[63]
[62] T123, p9.
[63] T123, p10.
In an updated report on 30 June 2014 Dr Dowda confirmed that his findings on clinical examination differed little from those in the previous year.[64] There was increased low back pain and right sided sciatica, but the levels of pain as described to him on that occasion were very similar to those described on a visual analogue scale a year earlier. He stated that his ‘opinion is that [the Applicant] had had an aggravation (this being interpreted as a permanent worsening) of degenerative change in his lumbar spine as a result of the work-related injury.’[65]
[64] T146.
[65] T146.
Comcare had the Applicant assessed by Dr Andrew Muir, Consultant in Pain Management, on 25 May 2015. Dr Muir reported that in his opinion the Applicant was suffering from somatic, somatic referred and neuropathic pain.[66] This pain was a consequence of the injury to his lumbar spine and irritation of the spinal elements as they passed through the spinal column. Dr Muir was also of the view that the Applicant would require palliative pharmacotherapy and support indefinitely.[67]
[66] T158.
[67] T158.
On 15 December 2015 the Applicant consulted his general practitioner in relation to aggravation of lower back pain as a consequence of manual work at home.[68]
[68] p108.
The Applicant's general practitioner Dr Ng wrote to Comcare on 15 February 2016 and reported that the Applicant initially had musculoligamentous injury as a result of his fall which had evolved into a chronic pain syndrome.[69] Dr Ng was of the view that ‘part of his symptoms may also be related to age related degenerative changes to his lumbosacral spine.’
[69] T173
Current lower back symptoms and disabilities
Since the Applicant has stopped working the pain in his lower back has gradually worsened. He experiences sharp pain in his back that starts at a central point and gradually radiates out.[70] He tries to manage this by taking an increased level of medications that have a number of side effects.[71] The pain increases if he sits for more than 10 minutes or stands for more than 10 minutes at a time. He has disrupted sleep and feels depressed and is easily agitated. He is unable to engage in any heavy physical activity such as gardening or exercising without increasing his lower back pain.[72]
[70] Transcript of proceedings, 1 August 2018, p32.
[71] Exhibit A1, para 18.
[72] Exhibit A1, paras 19-20.
The Applicant is prescribed 300mg of Lyrica twice a day, Norspan patch 20 mg weekly, Endep 10mg 1 or 2 daily and Pariet 20mg daily.[73] The pain fluctuates from day to day in that he has good days and bad days. Since he started taking Lyrica, the Applicant's weight has increased by 20kgs.[74] He tries to walk 20-30 minutes per day to combat the weight gain, but he cannot do so every day.[75]
EXPERT MEDICAL EVIDENCE
[73] Transcript of proceedings, 1 August 2018, p31-32.
[74] Exhibit A1, para 18.
[75] Exhibit A1, para 18.
Dr Nicholas Burke, Consultant Occupational Physician
On 19 April 2016 Comcare referred the Applicant to Dr Nicholas Burke. Dr Burke reported the Applicant suffers from ‘chronic low back pain associated with degenerative disc disease.’[76] In his opinion, ‘the condition is essentially constitutional except that there would have been exacerbations associated with events at work, particularly on 29 June 2006.[77] He opined that ‘the principal cause of his ongoing condition relates to constitutional disc degeneration.’[78] The contribution of the incident on 29 June 2006 to his condition ‘is likely to be low’, and in his view, ‘the condition has been superseded by natural progression of his underlying degenerative condition.’[79] In relation to the prognosis for the Applicant’s condition, he stated that ‘he has developed a significant chronic and persistent back condition and it seems likely that the symptoms and disability that he continues to describe will be ongoing’.[80]
[76] T189, p6.
[77] T189, p6
[78] T189, p6.
[79] T189, 6.
[80] T189, p6
In a supplementary medical report dated 27 July 2018, Dr Burke stated that having viewed the complete evidence, he was now of the view ‘that there remains some contribution from the workplace aggravations.’[81] He considered ‘it is most probable that the pre-existing degenerative change, as well as other factors, are the most significant contributors [to] his ongoing symptoms.’[82]
[81] Exhibit R5, p4.
[82] Exhibit R5, p4.
In his oral evidence, Dr Burke stated that in his opinion, prior to the incident on 29 June 2006, the Applicant had ‘some mild degenerative change in his lumbar spine’ and ‘some associated persistent pain.’[83] In his view, this pain was ‘relatively mild’ although Dr Andrews documented that the Applicant had chronic back pain.
[83] Transcript of proceedings, 7 May 2019, 16.
Dr Burke was asked what back condition, if any, the Applicant sustained from the June 2006 incident. He stated that ‘he suffered a lumbar sprain or a soft tissue injury of the lumbar spine with an exacerbation of that underlying degenerative change.’[84] As to whether the back condition was contributed to in a material degree by employment, Dr Burke was of the view that in 2006 there would have been a material contribution to his presentation.[85]
[84] Transcript of proceedings, 7 May 2019, 16.
[85] Transcript of proceedings, 7 May 2019, 17.
In relation to whether the Applicant continues to suffer from the effects of any such condition, Dr Burke stated that ‘the best description of his condition at this stage would be a persistent pain condition associated with a number of factors including age related degenerative change.’[86]
[86] Transcript of proceedings, 7 May 2019, 17.
Dr Burke was asked the following multi-part question:
If the applicant continues to suffer from the effects of any such condition what is the extent to contribution to any current condition arising from -
(a)The incident of 29 June 2006
(b)A pre-existing congenital, constitutional or underlying condition
(c)The natural progression of an underlying condition
(d)His age
(e)His weight
(f)Other health problems.
In Dr Burke’s opinion, the Applicant’s condition is contributed to by (b) and (c).
Dr Burke was asked what back condition, if any, the Applicant suffered from immediately before the incident on 16 July 2010. He stated that in his opinion, the Applicant suffered ‘persistent pain condition associated with degenerative change.’[87]
[87] Transcript of proceedings, 7 May 2019, 19.
In answer to the question of what back condition if any the Applicant sustained from slipping on black ice in July 2010, Dr Burke stated, ‘[a] lumbar sprain or a musculoligamentous injury of the lumbar spine with an exacerbation of his underlying degenerative change and pain condition.’ [88]In relation to whether this back condition was contributed to, to a significant degree, by employment, Dr Burke stated ‘… at his presentation at the time in 2010, there was a contribution from employment.’ [89]
[88] Transcript of proceedings, 7 May 2019, 19.
[89] Transcript of proceedings, 7 May 2019, 19.
When asked whether the Applicant continues to suffer from the effects of this condition, Dr Burke stated ‘[y]es, he continues to suffer from a persistent pain condition associated with underlying degenerative change.’ [90]
[90] Transcript of proceedings, 7 May 2019, 19.
Dr Burke was asked the following multi-part question:
If the applicant continues to suffer from the effects of any such condition what is the extent to contribution to any current condition arising from -
(a)The incident of 16 July 2010.
(b)A pre-existing congenital, constitutional or underlying condition.
(c)The natural progression of an underlying condition.
(d)His age.
(e)His weight.
(f)Other health problems.
In Dr Burke’s opinion, the Applicant’s condition is contributed to by (b) and (c).
In Dr Burke’s view, the condition from which the Applicant currently suffers is ‘a persistent pain condition of the lumbar spine associated with underlying degenerative change.’[91] He believes there are likely to be multiple factors contributing to the Applicant’s condition, including psychosocial factors, but in his opinion the contribution from the two incidents ‘is relatively minor with respect to his current presentation.’[92] He does not believe that there is any significant or material contribution from his employment to his current condition.[93]
[91] Transcript of proceedings, 7 May 2019, 20.
[92] Transcript of proceedings, 7 May 2019, 21.
[93] Transcript of proceedings, 7 May 2019, 22.
Dr Burke was invited to explain the information on which he formed his opinion in relation to the Applicant’s condition and its causative basis. He stated:
… the documentation at the time seems to indicate that he mainly suffered from a musculoligamentous injury. The imaging done from around that time didn’t show any major new pathology, bone scans are done around that time which didn’t reveal anything of any major consequence. There was a past history of back pain and documented in Dr Andrews’ report and reading Dr Burn’s … notes in the period of time subsequent to the injury in 2006 his principal problem more related to his neck rather than his back. So his back wasn’t a major source of attention certainly from his general practitioner over that period of time. So they’re my major reasons for feeling as though that the injury would’ve been relatively [minor].[94]
[94] Transcript of proceedings, 7 May 2019, 24.
In his opinion, as the Applicant did not report significant symptoms at the time of the 2006 incident, but he did start to have more persistent symptoms after around 2008 and then after 2010, this ‘would fit the development of a persistent pain condition associated with a number of factors, but principally … his age-related degenerative condition.’[95] Even without the two work incidents ‘it would be highly probable that he would have developed his back condition with time.’[96] The 2006 incident resulted in an exacerbation of his pain condition, meaning that any underlying biomedical injury had returned to its base level. The injury was not a major contributor to the subsequent development of the ongoing symptoms and disability.[97] He agreed that another way of expressing this is that the 2006 incident did not cause a permanent change to the underlying pathophysiological process in the Applicant’s lumbar spine.[98]
[95] Transcript of proceedings, 7 May 2019, 28.
[96] Transcript of proceedings, 7 May 2019, 29.
[97] Transcript of proceedings, 7 May 2019, 31.
[98] Transcript of proceedings, 7 May 2019, 31.
In his opinion, the sequence of events tended to suggest that the actual biomedical injuries that occurred during the 2006 and 2010 incidents ‘were not overly severe’ and that the principal factor contributing to the Applicant’s persistent pain is the underlying degenerative change.[99]
[99] Transcript of proceedings, 7 May 2019, 39.
Dr Burke told the Tribunal that the most important predictor of subsequent or persistent pain is a previous episode of pain. Therefore if the Applicant had chronic lower back pain in 1995, then it is ‘highly probable’ that the condition would occur again in the future.[100]
[100] Transcript of proceedings, 7 May 2019, 40.
Dr Burke stated that he does not believe the Applicant reasonably requires any ongoing medical treatment in relation to any condition that is significantly contributed to by his employment.[101]
[101] Transcript of proceedings, 7 May 2019, 22.
In relation to whether the Applicant is currently prevented from undertaking employment, Dr Burke said that when he saw him he thought he was fit for some employment, but did not think any incapacity for employment was significantly contributed to by the work-related incident.[102]
[102] Transcript of proceedings, 7 May 2019, 23.
Dr Garth Eaton, Occupational Physician
Dr Garth Eaton examined the Applicant at the request of his solicitors on 30 June 2016, and provided a report dated 12 July 2016.[103] Dr Eaton reported that the Applicant has ‘chronic spinal and leg pain which is directly and consequently related to the initial work related injury and to the subsequent work related aggravations. He has experienced ongoing aggravations and cumulative trauma to the spine as a result of the various work related injuries.’ [104]
[103] T196.
[104] T196, p7
Dr Eaton examined the Applicant again on 10 October 2017 and provided a supplementary report dated 20 October 2017.[105] Dr Eaton reported that the Applicant’s diagnosis had not changed, and he ‘suffers with chronic spinal pain as a consequence of aggravation of degenerative spinal disease.’[106] His view had not changed in relation to the relationship between the Applicant’s condition and the workplace incidents. He reported that the Applicant:
continues to suffer with symptoms both directly and consequentially related to the initial work injury and the subsequent aggravation. The consequential component is the development of chronic spinal pain which is likely to be permanent. The degenerative changes in his spine are likely to deteriorate with time and increasing age and would have more than likely done so over recent years. However the work-related incidents are likely to have caused a permanent deterioration in his condition which has been symptomatic ever since and has led on to the development of chronic spinal pain.[107]
[105] Exhibit A3.
[106] Exhibit A3, p3.
[107] Exhibit A3, p4.

In his oral evidence, Dr Eaton stated that in his opinion, prior to the incident on 29 June 2006, the Applicant probably would have had at his age some minor degenerative changes. However he was not aware that the Applicant had previous chronic back pain as he did not complain to him of any back injuries or back pain.[108]
[108] Transcript of proceedings, 7 May 2019, 16.
Dr Eaton was asked what back condition, if any, the Applicant sustained from the June 2006 incident. He agreed with Dr Burke that the Applicant ‘would have sustained a musculoligamentous strain along the region given the jarring injury as a result of the fall and an aggravation of underlying degenerative changes in his spine.’[109] As to whether the back condition was contributed to in a material degree by employment, Dr Eaton agreed that there was a material contribution to his injury.[110]
[109] Transcript of proceedings, 7 May 2019, 16.
[110] Transcript of proceedings, 7 May 2019, 17.
In relation to whether the Applicant continues to suffer from the effects of any such condition, Dr Eaton stated that the Applicant ‘suffers from chronic spinal pain and there’s multiple factors that were contributive to that and he obviously still has his underlying degenerative change and I think that probably the best way to describe it is a chronic pain condition.’[111]
[111] Transcript of proceedings, 7 May 2019, 17
Dr Eaton was asked the same multi-part question in paragraph 72 above. In his view, factor (a) provided a ‘substantial contribution’, and (b) to (f) also contribute to, the Applicant’s condition.
When asked what back condition, if any, the Applicant suffered from immediately before the incident on 16 July 2010, Dr Eaton stated ‘persistent spinal pain but I would add in that there was a contribution from the initial incident.’[112] In relation to whether this back condition was contributed to to a significant degree by employment, Dr Eaton stated ‘… I would agree there was a significant work related contribution to that particular incident.’ [113]
[112] Transcript of proceedings, 7 May 2019, 19.
[113] Transcript of proceedings, 7 May 2019, 19.
In answer to the question of what back condition if any the Applicant sustained from slipping on black ice in July 2010, Dr Eaton stated ‘… a soft tissue strain, musculoligamentous strain, aggravation underlying degenerative change …’ [114] When asked whether the Applicant continues to suffer from the effects of this condition, Dr Eaton stated, ‘Yes, he continues to suffer with persistent chronic spinal pain (indistinct) contribution … from the second incident.’[115]
[114] Transcript of proceedings, 7 May 2019, 19.
[115] Transcript of proceedings, 7 May 2019, 20.
Dr Eaton was asked the same multi-part question in paragraph 77 above. In his view, all six factors contribute to the Applicant’s condition.[116]
[116] Transcript of proceedings, 7 May 2019, 21.
In Dr Eaton’s view, the Applicant currently ‘suffers with chronic spinal pain which continues to have had a contribution’[117] from the six factors. He emphasised that in his view the two incidents are significant and part of the reason why the Applicant is still having pain.[118] It is on this point that he differs from Dr Burke, who believes the work incidents are a minor contribution, whereas he considers these are moderate to severe contributions.[119]
[117] Transcript of proceedings, 7 May 2019, 21.
[118] Transcript of proceedings, 7 May 2019, 21
[119] Transcript of proceedings, 7 May 2019, 22.
Dr Eaton stated that the Applicant’s pre-existing degenerative changes could have been made worse by the incidents. The exacerbations or aggravations can mean that the underlying structural integrity of the area of the body affected can be made worse.[120] He and Dr Burke differ on this point as Dr Burke believes that after each incident the exacerbation settled, whereas he is not convinced of this because there is no objective measure to assess whether the damage from the exacerbation had settled or healed.[121]
[120] Transcript of proceedings, 7 May 2019, 38.
[121] Transcript of proceedings, 7 May 2019, 39.
Dr Eaton agreed with Dr Burke that the best predictor of back pain or chronic pain condition is previous back injury or back pain.[122]
[122] Transcript of proceedings, 7 May 2019, 40.
As whether the Applicant reasonably requires any ongoing medical treatment in relation to the effects of his work-related condition, Dr Eaton stated that when he saw him he needed help with pain management and counselling.[123]
[123] Transcript of proceedings, 7 May 2019, 22.
In relation to whether the Applicant is currently prevented from undertaking employment, Dr Eaton said that when he saw him he had not been able to do any physical work, but could possibly have been employed in some sedentary roles, ‘however, because of his chronic spinal pain and the psychological, emotional effects he probably at that stage was not employable.’[124]
[124] Transcript of proceedings, 7 May 2019, 23.
Dr Phil Allen, Orthopaedic Surgeon
Comcare referred the Applicant to Dr Allen for review on 28 February 2017. Dr Allen provided a report dated 16 March 2017 in which he opined that the Applicant suffers from lumbar spondylosis which was aggravated by the two injuries he had at work in 2006 and 2010. [125] In his view, the Applicant’s ongoing symptoms are not due to those aggravations, but rather the natural progression of the lumbar spondylosis and its natural history.[126] Dr Allen also opined that the Applicant's condition was further contributed to by his high body mass index, his metabolic syndrome and his gout.[127] In his view, the Applicant’s employment does not continue to contribute to his diagnosed condition.
[125] Exhibit R7, p7
[126] Exhibit R7, p7.
[127] Exhibit R8, p7.
Dr Allen provided a supplementary report dated 24 August 2018.[128] In his view, the Applicant had ceased to suffer from the effects of his lumbar sprain which he sustained on 29 June 2006. Given that the Applicant returned to work after three months and reported that his back had recovered and there was ‘no problem’, Dr Allen was of the view that the effects of the sprain had settled by this time.[129] The 29 June 2006 incident had not contributed in any material degree to the Applicant’s current condition.[130] Further, the Applicant no longer suffers from the effects of the aggravation of his lumbar sprain which occurred on 16 July 2010. He found ‘[t]here is no evidence of any structural injury. Deterioration from that time is due to his constitutional condition.’[131] Treatment the Applicant received from June 2016 relates to ‘his constitutional degenerative spinal disease’ and not the lumbar sprain/aggravation of the sprain in 2006 and 2010.[132]
[128] Exhibit R8.
[129] Exhibit R8, p2.
[130] Exhibit R8, p2
[131] Exhibit R8, p3.
[132] Exhibit R8, p3.
In his oral evidence, Dr Allen stated prior to the June 2006 incident the Applicant suffered from degenerative lumbar spondylosis.[133] He formed this view based on the history and his assessment of the Applicant together with the available radiographic evidence, being the MRI scan of the lumbar spine performed on 16 August 2006. He described the characteristics of this condition:
Lumbar spondylosis is a degenerative condition of the lumbar spine. The degeneration affects both the bony elements as well as the soft tissue elements including the discs between the various blocks of the vertebrae. Being degenerative in nature, it has underlying metabolic aetiology which is related to the patient’s genetic makeup and their constitutional conditions.[134]
[133] Transcript of proceedings, 7 May 2019, 44.
[134] Transcript of proceedings, 7 May 2019, 47.
In Dr Allen’s opinion, the 2006 incident caused an exacerbation of the Applicant’s pre-existing lumbar spondylosis which, at its very best, may be considered an aggravation.[135] He explained the difference between an exacerbation and aggravation:
… an exacerbation is when an incident has caused the symptoms of the condition to be expressed without any significant material change to the underlying condition and the symptoms then recede over a period of time and the patient returns back to their original condition. An aggravation is … an instance where an incident occurs, there is a change materially or symptomatically with respect to a patient. In other words, once the incident has settled the patient is left either worse off from a symptomatic point of view or worse off because there’s been a material change in the condition insofar as it has the greatest along a particular line of progression.[136]
[135] Transcript of proceedings, 7 May 2019, 44.
[136] Transcript of proceedings, 7 May 2019, 50.
In the context of lumbar spondylosis, an exacerbation is ‘an expression of symptoms that does not result in a permanent change to the underlying pathophysiological process in the lumbar spine.’[137]
[137] Transcript of proceedings, 7 May 2019, 45.
Dr Allen told the Tribunal that he had no evidence that the Applicant’s back condition was contributed to in a material degree by the Applicant’s employment. In his opinion, the slip on the ice exacerbated the Applicant’s lumbar spondylosis which then settled. The underlying condition was not caused by the Applicant’s employment, but the expression of symptoms was caused by the black ice incident.[138]
[138] Transcript of proceedings, 7 May 2019, 45.
In his opinion, the Applicant does not continue to suffer from the effects of any condition he sustained from the June 2006 incident. The Applicant had time off and returned to work full-time after three months, which would indicate that the exacerbation had settled.[139]
[139] Transcript of proceedings, 7 May 2019, 45.
On the assumption the Applicant continues to suffer from degenerative lumbar condition, in Dr Allen’s view this is 100% attributable to a pre-existing congenital, constitutional or underlying condition, the natural progression of an underlying condition, the Applicant’s age and weight and other health problems.
Dr Allen stated prior to the July 2010 incident the Applicant suffered from degenerative lumbar spondylosis.[140] Since 2006 there had been some progression in his symptoms consistent with the natural history of the condition given his constitutional condition and his comorbidities.[141]
[140] Transcript of proceedings, 7 May 2019, 46
[141] Transcript of proceedings, 7 May 2019, 46.
In his opinion, the July 2010 incident caused an exacerbation of the Applicant’s symptoms of lumbar spondylosis. This is based on the history and radiography, which was a MRI scan of January 2014, which did not show any injury-related structural change. This is consistent with the natural progression of degenerative lumbar spine disease. The exacerbation would have lasted a maximum of about three months and symptoms beyond this period ‘relate to the underlying pre-existing degenerative lumbar spondylosis.’ Accordingly, the Applicant does not continue to suffer from the effects of the exacerbation.[142]
[142] Transcript of proceedings, 7 May 2019, 47.
In Dr Allen’s view, the Applicant continues to suffer with lumbar spondylosis that is not materially nor significantly contributed to by his employment. The condition is constitutional and degenerative in nature.[143] The contributing factors are a pre-existing congenital, constitutional or underlying condition, the natural progression of an underlying condition, his age, weight and health issues. The constitutional conditions that have a significant correlation with lumbar spondylosis are metabolic syndrome, obesity, insulin resistance, hypertension and gout.[144]
[143] Transcript of proceedings, 7 May 2019, 48
[144] Transcript of proceedings, 7 May 2019, 48.
In his opinion, the Applicant does need ongoing medical treatment for his various constitutional conditions and he has a capacity for gainful employment.[145]
[145] Transcript of proceedings, 7 May 2019, 48, 52.
Professor Peter Youssef, Consultant Rheumatologist
Professor Youssef provided a report on the Applicant to the Respondent’s solicitors dated 23 July 2018 and a supplementary report dated 10 September 2018.[146] In his opinion, the injury on 29 June 2006 did not cause a significant structural abnormality to the spine, and the injury had probably largely resolved by the time the Applicant returned to full-time work in September 2006.[147] Further, any lumbar sprain experienced by the Applicant on 16 July 2010 would have resolved within a few weeks. The findings of Dr Kelman in December 2010 are consistent with no significant ongoing lumbar sprain.[148] Having reviewed the surveillance footage, Professor Youssef noted that the Applicant does not demonstrate any evidence of a lumbar sprain.
[146] Exhibit R9.
[147] Exhibit R9, p6-7.
[148] Exhibit R9, p8.
In his oral evidence, Professor Youssef told the Tribunal that he had not examined the Applicant, however he had reviewed the full suite of medical reports, the video surveillance material and the transcript from the proceedings in August 2018. The only advantage of examining the Applicant would be to determine whether there were any signs that may have been missed on previous examinations.
In his opinion, prior to the 2006 incident the Applicant probably had lumbar spondylosis, so degenerative disease. He based this view on Dr Andrews’ notes from 1995 and the X-rays with CT scan from August 2006 and the bone scan the same month.[149]
[149] Transcript of proceedings, 7 May 2019, 60.
In Professor Youssef’s view, the most likely injury from the June 2006 incident was a ‘musculoligamentous strain of some sort.’ He formed this view on the basis that the X-ray and CT and bone scan in August 2006 did not show any acute fracture or significant structural change, and the Applicant seemed to improve and returned to work. There was no reference to pain made in the medical files between 11 December 2006 and 29 November 2007, which makes the most likely diagnosis a soft tissue injury or strain.[150] The June 2006 incident would have contributed to a material degree the soft tissue injury or strain in the lumbar spine. This would not have impacted on any degenerative disease ‘because there was no evidence of a structural change in the spine, a serious structural change on the [August 2006] radiology.’[151]
[150] Transcript of proceedings, 7 May 2019, 60.
[151] Transcript of proceedings, 7 May 2019, 60.
Prior to the July 2010 incident there was evidence of degenerative disease in the Applicant’s spine in the MRI of 3 June 2009.[152] The July 2010 incident was relatively minor and most likely would have been another lumbar sprain.[153] The incident happened at work so the strain was contributed to, to a significant degree, by his employment. The incident would not have contributed to the degenerative condition. A comparison of the 2009 and 2013 MRIs indicates the progression of degenerative disease. The Applicant’s slip would not lead to degenerative disease at two different levels in four joints.[154]
[152] T56.
[153] Transcript of proceedings, 7 May 2019, 61.
[154] Transcript of proceedings, 7 May 2019, 62.
In Professor Youssef’s opinion, the Applicant continues to suffer the effects of the degenerative condition but does not continue to suffer from the strain in his lumbar spine. This is evident from the video surveillance evidence which shows he moves quite freely, can bend and does not appear to be in distress from the movements. If a person had a lumbar sprain they would have more difficultly bending, twisting and lifting and show facial features of pain during these activities.[155] The Applicant’s degenerative disease of the lumbar spine may or may not be symptomatic but the radiology shows it is present.
[155] Transcript of proceedings, 7 May 2019, 61, 62
In relation to the Applicant’s lumbar spine condition, in Professor Youssef’s opinion the contributing factors are the natural progression of an underlying condition, the Applicant’s age, weight and other health problems.[156] The Applicant does not have a back condition contributed to by his employment.
SUBMISSIONS
[156] Transcript of proceedings, 7 May 2019, 61, 62
Applicant
The Respondent must establish for practical purposes that the Applicant does not have a present entitlement to incapacity payments or medical treatment.
The Tribunal must determine whether or not there is degenerative change or whether the identified incidents are the cause of the ongoing incapacity and the need for medical treatment.
Prior to 29 June 2006 the Applicant did not suffer from any lower back injury or at least had been asymptomatic since at least November 1995. The 29 June 2006 incident caused an injury that was an aggravation of the lumbar spondylosis. On 16 July 2010 the Applicant suffered a further aggravation of his condition. The cumulative effect of the aggravations was that the Applicant developed a pain condition as a result of or in consequence of the injury he had suffered. At some point this condition became permanent, and certainly by the time he saw Dr Dowda in 2013. The condition continues to cause symptoms that lead to an incapacity for work and a need for medical treatment. This was the case when Comcare made its decision in June 2016 to the effect that there was no present entitlement to incapacity payments of medical treatment.
Dr Burke, Dr Allen and Professor Youssef have minimised the workplace incidents and supported their position in relation to this minimisation by reference to radiology or images. Dr Eaton accepted that the condition was multifactorial in cause but maintained that the incidents were substantial. Dr Coyle, Dr Kelman and Dr Dowda had the benefit of radiology and examination of the Applicant, and they came to the conclusion that he suffered an injury caused by work that was continuing and in some cases permanent.
Respondent
The Applicant had a predisposition to lower back pain as indicated by his reported symptoms and the radiography of his lumbosacral spine in May 1995 and the history noted by Dr Andrews in January 1996.
The medical records following the June 2006 incident until September 2006 indicate that the Applicant’s recovery followed the anticipated trajectory predicted by Dr Allen in relation to a musculoligamentous strain. There is then no specific record of low back pain for a period of more than one year; the next reference being on 4 February 2008. From this point on, the symptoms increase and the workplace contribution is ‘crowded out’ by non-work related events, the effects of the underlying degenerative condition and its natural progression.
The opinions of Dr Dowda and Dr Eaton were not based on the full suite of documents. The Respondent’s experts had a far better and more comprehensive understanding of the relevant factual history.
Dr Burke, Dr Allen and Professor Youssef are essentially unanimous in the conclusion that employment no longer contributes, or if it does contribute to the Applicant’s condition, it is not to a material or significant degree.. They put the two incidents in their proper place contextually, and attributed to them the weight they deserve in terms of a degenerative condition.
The evaluative threshold is not satisfied and the Applicant no longer suffers from the effects of the accepted conditions. Accordingly, there is no reasonable medical treatment that he requires as a result of a work-related injury. There is no incapacity to engage in work at the same level as before the injury. The Applicant has a functional capacity for employment.
In the alternative, the Applicant has unreasonably failed to seek suitable employment following his retirement in July 2011 to date.
CONSIDERATION AND REASONS
The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.

The Applicant has two accepted conditions under s14 of the SRC Act namely ‘lumbar sprain’ (31 July 2006) and ‘aggravation of lumbar sprain’ (6 September 2010). The central issue for determination is whether the Applicant continued to suffer from the effects of the accepted conditions as at 2 June 2016 and to the present date.
The Respondent does not contend that the initial acceptance of liability under s 14 was wrong and it is not argued that the Tribunal revisit the substantive determination relying on the principles expounded in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253. Rather, this matter, involves, inter alia, the contention by the Respondent that the compensation is no longer payable because of the “ceased effects” of the compensable “injury”.
The Tribunal’s role on review is established by section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) which provides that the Tribunal “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”. The Tribunal is not reviewing whether compensation should not have been awarded to begin with, but whether the compensation entitlements arising from the accepted conditions should be terminated on the basis that the Applicant’s employment is no longer contributing to his condition to the requisite degree.[157]
[157] Comcare v Power [2015] FCA 1502, at [63].
In Comcare v Power [2015] FCA 1502 Katzmann J said, at [70]:
… I accept that is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made…
If the Tribunal is unable to decide, on the balance of probabilities, whether the Applicant does or does not continue to suffer the effects of the accepted conditions, the Tribunal is bound to find in the Applicant’s favour.[158] There is no presumption that the reviewable decisions are correct.[159]
[158] Comcare v Power [2015] FCA 1502, at [71].
[159] Re Carmel Elizabeth McDonald v Director-General of Social Security (1984) 1 FCR 354, at 357; [1984] FCA 57.
On the basis of the evidence before it, particularly the evidence of the medical experts, the Tribunal makes the following findings in relation to the Applicant’s lumbar spine condition, and whether he continued to suffer from the condition at 2 June 2016 and presently.
The Applicant’s back condition
Prior to and following the June 2006 incident
The medical experts agree that prior to the June 2006 incident, the Applicant suffered mild degenerative lumbar spondylosis.[160] This was likely associated with some mild pain,[161] although Dr Andrews reported the Applicant in 1996 as suffering chronic back pain. The medical experts also agree that on 29 June 2006 the Applicant sustained a ‘lumbar sprain or soft tissue injury of the lumbar spine’,[162] otherwise described as ‘musculoligamentous strain’,[163] resulting in an ‘aggravation’[164] or ‘exacerbation’[165] of the underlying degenerative condition in his lumbar spine. They further agree that the sprain suffered by the Applicant as a consequence of the 2006 incident was contributed to, in a material degree, by his employment.[166]
[160] Transcript of proceedings, 7 May 2019, Dr Burke at 16; Dr Eaton at 16; Dr Allen at 44; Professor Youssef at 60.
[161] Transcript of proceedings, 7 May 2019, Dr Burke at 16
[162] Transcript of proceedings, 7 May 2019, Dr Burke at 16.
[163] Transcript of proceedings, 7 May 2019, Dr Eaton at 16; Professor Youssef at 60.
[164] Transcript of proceedings, 7 May 2019, Dr Eaton at16.
[165] Transcript of proceedings, 7 May 2019, Dr Allen at 44.
[166] Transcript of proceedings, 7 May 2019, Dr Burke at 17; Dr Eaton at 17; Dr Allen at 45.
The Respondent’s expert medical witnesses, Dr Burke, Dr Allen and Professor Youssef, consider that the 2006 incident resulted in an exacerbation of the Applicant’s underlying degenerative condition, and after approximately three months, the condition settled and returned to its baseline level. This is borne out by the fact the Applicant was able to return to full-time work duties by September 2006. Accordingly, the 2006 incident did not cause a permanent change to the underlying pathophysiological process in the Applicant’s lumbar spine.[167] This is supported by the August 2006 radiology, which showed no evidence of a structural change to the lumbar spine.[168]
[167] Transcript of proceedings, 7 May 2019, Dr Burke at 31; Dr Allen at 45; Professor Youssef at 60.
[168] Transcript of proceedings, 7 May 2019, Professor Youssef at 60.
Dr Eaton differed in relation to the ongoing impact of the 2006 incident. In his view, the Applicant’s pre-existing underlying degenerative changes could have been made worse by the incident. The underlying structural integrity could have been worsened, and there is no objective measure to assess whether the damage from the exacerbation had settled or healed.[169]
[169] Transcript of proceedings, 7 May 2019, Dr Eaton at 38-39.
The law in relation to claims involving an aggravation of a pre-existing condition was recently summarised by the Tribunal in the decision of Re Blasco and Australian Postal Corporation [2017] AATA 1222 at [125]-[131], where it was relevantly observed:
[125] Pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place: Commonwealth of Australia v Beattie (1981) 35 ALR 369 at 378. It is not necessary that any pre-existing condition itself be an injury (or a disease) within the meaning of the Act. The question is whether any pre-existing condition was aggravated and, if so, whether the employment contributed to a significant degree to that aggravation.
…
[127] It is not enough that an employee feel pain while at work. In Beattie (above), Evatt and Sheppard JJ said (at 378):
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury.
[128] Nor does it follow, merely because an employee feels pain on return to work after a period away during which symptoms abate, that she has suffered an injury within the meaning of the Act. In Tippett v Australian Postal Corporation (1998) 27 AAR 40, Finkelstein J said:
What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable ... Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment then the employee will have suffered a compensable injury: Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 179-180; 209-210. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee’s employment (emphasis added).
…
[130] For Ms Blasco it is submitted that the experience of pain itself constitutes an injury. Pain brought on by work may constitute an aggravation: Commonwealth of Australia v Beattie (1981) 235 ALR 369 at 378. That is so, but there must still be a causal connection to employment…
[131] In Comcare v Reardon [2015] FCA 1166, Mortimer J agreed with the observations of Finkelstein J in Tippett v Australian Postal Corporation (1998) 27 AAR 40, where he observed of Beattie:
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.
....
In Tippett v Australian Postal Corporation (1998) 27 AAR 40, Finkelstein J referred to the High Court decision of Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and Commonwealth v Beattie (1981) 35 ALR 369 and made the following observations (at 43 – 44):
In other words, there will be an exacerbation of an injury when the experience of the injury is increased or intensified without any alteration to the underlying physical or mental condition … In addition, because ‘aggravation’ of an injury is defined to include the ‘recurrence’ of that injury it is not necessary to show that the experience of an injury is increased or intensified. It will be sufficient if, as a result of activities undertaken in the course of employment, a previous injury occurs again whether or not the experience of it is at the same level of intensity as before.
Guidance on aggravation in the context of an underlying degenerative condition is found in Australian Postal Corporation v Bessey (2001) 32 AAR 508, a decision with factual similarities to the present case. Mr Bessey was employed between 1989 and 1997 to deliver mail for Australia Post using a motor bike. In February 1997, Mr Bessey was placed on restricted duties that did not involve bike riding due to lower back pain. One of the grounds of appeal concerned the claimed aggravation of Mr Bessey’s underlying degenerative lower back spondylosis. Gyles J made the following observations at 509 – 511:
… if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.
In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable so incapacitating the respondent.
This would require compensation for the period when the symptoms were operative, but would not, without more, constitute continuing injury. To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continued to have an effect. The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulting from a work-related injury (including aggravation) but rather resulted from the underlying condition…
… the Tribunal acted on the view that the pain suffered by the respondent whilst riding the bike was an aggravation and, as the pain was incapacitating, there was therefore an entitlement to continuing compensation. This was an error of law. (emphasis added).
The key difference between the medical experts in this case is squarely on this point. Dr Burke, Dr Allen and Professor Youssef are of the firm view that the ‘aggravation’ or ‘exacerbation’ to the Applicant’s underlying degenerative condition caused by the 2006 incident did not permanently worsen the condition. Dr Eaton’s opinion is that underlying structural integrity could have been worsened, and there is no objective measure to assess whether the damage from the exacerbation had settled or healed.
The Tribunal finds that following the 2006 incident, the exacerbation or aggravation to the Applicant’s underlying degenerative lumbar spondylosis caused by the fall had resolved and returned to its baseline level. It does so on the basis of the opinions of Dr Burke, Dr Allen and Professor Youssef, and the August 2006 radiological evidence. The Tribunal prefers the opinions of Dr Burke, Dr Allen and Professor Youssef on this point over that of Dr Eaton, as his view is based on there being no objective evidence on which to assess whether the damage from the exacerbation had settled or healed. However, the radiological evidence of August 2006 showed no evidence of a structural change to the lumbar spine, which supports the findings of the Respondent’s medical experts. This finding is further supported by the Applicant’s evidence that he was able to return to full-time duties by mid-September 2006. Furthermore, from September 2006 until early 2008, the Applicant did not report to his general practitioner any ongoing lower back pain, indicating that the injury from the 2006 incident had settled or resolved.
Prior to and following the July 2010 incident
In the opinion of Dr Burke, Dr Allen and Professor Youssef, prior to the July 2010 incident the Applicant suffered from degenerative lumbar spondylosis and associated persistent pain.[170] There had been a deterioration in his symptoms consistent with the natural history of the degenerative condition since 2006.[171] This was evident on the MRI of the Applicant’s lumbar spine on 3 June 2009.[172] Dr Eaton agrees that the Applicant suffered persistent spinal pain, but considers that there was a contribution from the initial incident in June 2006.
[170] Transcript of proceedings, 7 May 2019, Dr Allen at 46; Dr Burke at 19; Professor Youssef at 61.
[171] Transcript of proceedings, 7 May 2019, Dr Allen at 46; Dr Burke at 19; Professor Youssef at 61.
[172] T56.
All the medical experts agree that on 16 July 2010 the Applicant sustained a soft tissue musculoligamentous strain of the lumbar spine with aggravation or exacerbation of the underlying degenerative change and pain condition.[173] Dr Allen considers this was a relatively minor incident and the effects would have lasted about three months,[174] and in Professor Youssef’s view it would have settled in a few weeks.[175] Any symptoms experienced by the Applicant beyond this period would relate to the underlying pre-existing degenerative lumbar spondylosis.[176] The experts agreed that as this incident occurred at work, the sprain was contributed to, to a significant degree, by the Applicant’s employment.[177] Dr Eaton differs in his view in that, consistently with his opinion in relation to the 2006 incident, he is not convinced that the 2010 incident did not worsen the underlying degenerative condition.
[173] Transcript of proceedings, 7 May 2019, Dr Eaton at 19, Dr Burke at 19; Dr Allen at 34.; Professor Youssef at 61.
[174] Transcript of proceedings, 7 May 2019 at 47.
[175] Exhibit R10, p8.
[176] Transcript of proceedings, 7 May 2019, Dr Allen at 47.
[177] Transcript of proceedings, 7 May 2019, Dr Burke at 19; Professor Youssef at 62.
The Tribunal finds that on 16 July 2010 the Applicant sustained a musculoligamentous strain of the lumbar spine, which exacerbated his existing underlying degenerative lumbar spondylosis. On the basis of the opinion of the Respondent’s experts, the Tribunal finds the July 2010 incident, like the June 2006 incident, did not cause any structural change to the Applicant’s lumbar spine as evidenced by the MRI scan of January 2014.[178] The Tribunal finds that the 2010 incident did not worsen the Applicant’s pre-existing degenerative condition. Accordingly, the Tribunal prefers the opinions of the Respondent’s experts over that of Dr Eaton for reason that the objective evidence supports a finding that the exacerbation or aggravation of the Applicant’s underlying condition caused by the 2010 incident did not permanently worsen the condition.
[178] T139.
Ongoing effects of the incidents on the Applicant’s back condition
Dr Burke, Dr Allen and Professor Youssef agree that the Applicant continues to suffer from a persistent pain condition associated with the underlying degenerative lumbar spondylosis.[179] The principal factor contributing to the Applicant’s persistent pain is the underlying degenerative change. The strain or soft tissue injury to his lumbar spine the Applicant sustained from both incidents has settled and therefore his present condition is no longer attributable to the 2006 and 2010 work-place incidents. The other factors that contribute to the Applicant’s condition are his age, weight and other health problems. The experts agree that the Applicant requires ongoing medical treatment for his condition, but not in relation to any condition that is contributed to by his employment. Dr Eaton agrees that the Applicant’s underlying condition, age, weight and health problems contribute to his current condition, but maintains that the two work-place incidents are significant and part of the reason why the Applicant continues to have pain.[180] In Dr Eaton’s opinion, the cause of the Applicant’s ongoing pain condition is multifactorial.
[179] Transcript of proceedings, 7 May 2019, Dr Burke 19, Dr Eaton at 22; Dr Allen 48; Professor Youssef at 62.
[180] Transcript of proceedings, 7 May 2019, Dr Eaton at 22.
Counsel for the Respondent referred the Tribunal to the Full Federal Court decision of Prain v Comcare [2017] FCAFC 143; 256 FCR 65 in support of the proposition that the Tribunal is permitted, and in some cases obliged, to conclude that an original contribution from employment no longer remains material or no longer remains significant. Mrs Prain was an experienced nurse who had held senior positions in the public hospital system. In early 2011, she took up a senior clerical position at the Canberra Hospital. Within weeks of her appointment she encountered animosity and criticism from her supervisor and other staff of the Hospital. These developments distressed Mrs Prain and her pre-existing condition of fibromyalgia “flared up”. She ceased work on 19 April 2011. Comcare initially accepted her claim for adjustment reaction. It subsequently determined that from 16 July 2015 Mrs Prain had no entitlement for compensation for her adjustment reaction as her employment was no longer a significant contributor to her adjustment disorder.
Deputy President Humphries agreed with Comcare’s submission that subsequent events in Mrs Prain’s life had “crowded out” what occurred at the Canberra Hospital as the major contributors to her ongoing mental ill-health. On appeal, Kenny, Tracey and Bromberg JJ made the following observations in relation to the Tribunal’s findings at [82]:
There was no error in the Tribunal taking into account the duration of Mrs Prain’s employment at the Canberra Hospital or her predisposition to the ailment, since this was expressly permitted by that provision [(i.e. s 5B(2))]. Nor do we discern any relevant error in the Tribunal’s conclusion (at [66]) that ‘the effect of the relevant factors in s 5B(2) must be to diminish to some degree the weight attached in this case to the Canberra Hospital issues vis-à-vis other issues contributing to her mental disorder’. This conclusion was open to the Tribunal, having regard to s 5B(2) and the evidence before it.
Their Honours then made the following observations at [87]:
Further, reading the Tribunal’s reasons as a whole, we are not persuaded that the Tribunal failed to address the test in s 5B(1) of the SRC Act. Its appraisals of the evidence and relevant determinations show that it understood and applied itself to the statutory question to which s 5B(1) gave rise, namely, whether Mrs Prain’s ailment was contributed to, to a significant degree, by her employment at the Canberra Hospital. The Tribunal specifically acknowledged (at [60]) that, notwithstanding its doubts about some of her evidence, Mrs Prain was ‘entitled to succeed if the compensable factors have nonetheless contributed to that injury to a significant degree’. Whilst the reference to ‘compensable factors’ (as was its reference to ‘novus actus interveniens’ in [70]) were inapt, reading the Tribunal’s reasons as a whole, it is clear that the Tribunal had in mind the contribution made by Mrs Prain’s employment at the Canberra Hospital to her condition after July 2015 and that its reference to ‘factors’ was to this issue and to the factors listed in s 5B(2) that might, in the Tribunal’s direction, be considered in determining the question to which s 5B(1) gave rise and to which the Tribunal directed its attention at [65] and following. The Tribunal’s statement (at [68]) that ‘it seems improbable that one particular stressor – the week-long conflict at the hospital four years previously – should still amount to a significant factor in her ongoing condition’ should be understood as the application of that test. It is in this context that one must understand and read the Tribunal’s further statements (at [70]) that ‘factors which the medical records suggest were agitating Mrs Prain after April 2011’ had ‘the effect of pushing the employment factor further and further into the background’. Taking the evidence as a whole, it is plain enough that the Tribunal’s determination (at [70]) that Mrs Prain’s employment at the Canberra Hospital had ceased to be ‘a significant contributor to Mrs Prain’s adjustment disorder by July 2015’ was reached after considering the case Mrs Prain sought to make and correctly addressing the question to which s 5B gave rise. The Tribunal’s reasoning at this point is also consistent with its appreciation that, under s 5B(3), ‘significant degree’ meant ‘substantially more than material’. Accordingly, we consider that ground 3 is not made out. (emphasis added).

Counsel for the Respondent submitted, and the Tribunal accepts, that whereas Prain considered the issue in terms of the ‘significant degree’ evaluative threshold, the analysis by both the Tribunal and the Full Court applies mutatis mutandis, to the ‘material degree’ threshold applicable in this case to the 2006 incident.
The Respondent’s medical experts all agree that the factors contributing to the Applicant’s ongoing back condition are the underlying degenerative condition, constitutional factors, his age, weight and other health conditions. They are unanimous in their opinion that the two workplace incidents no longer contributed to his back condition in June 2016 or to date. Dr Eaton agrees that these other factors contributed to the Applicant’s condition in 2016 and presently, but maintains that the two workplace incidents remain significant.
On the basis of the evidence before it, the Tribunal finds that the two workplace incidents did not continue to contribute, in a material nor significant degree, to the Applicant’s condition in June 2016 nor presently. It makes this finding on the basis of the opinions of the Respondent’s medical experts, and having regard to Dr Eaton’s view that a range of factors in addition to the workplace incidents contributed to the Applicant’s condition in 2016 and at the present time. These other factors are necessarily such that the significance of the workplace incidents is diminished below the relevant evaluative thresholds. The Tribunal finds that the underlying degenerative condition, constitutional factors and the Applicant’s age, weight and other health problems have ‘crowded out’ the two workplace incidents as contributing elements or, in the words of Deputy President Humphries in Prain, these factors have had ‘the effect of pushing the employment factor further and further into the background’.
In relation to the ongoing effects of the 2010 incident, the Tribunal has had regard to the factors listed in s5B(2), specifically (c) ‘any predisposition of the employee to the ailment or aggravation’ and (e) ‘any other matters affecting the employee’s health’. As discussed above, the Applicant’s underlying degenerative condition, constitutional factors and the Applicant’s age, weight and other health issues are relevant to and support the finding that the Applicant’s ongoing condition was not contributed to, to a significant degree, by the Applicant’s employment.
The Tribunal has also had regard to the factor in s5B(2)(d) ‘any activities of the employee not related to the employment’. The evidence before the Tribunal is that the Applicant experienced ‘flare ups’ of his condition after undertaking manual work and lifting of heavy items at home. These incidents provide support for the finding that the employment contribution of the Applicant’s condition in 2016 and presently, does not meet the ‘significant degree’ evaluative threshold.
CONCLUSION
The Tribunal concludes that the Applicant is no longer suffering from the accepted conditions for which Comcare had previously accepted liability.
Therefore, the Tribunal finds that no compensation is payable by the Respondent to the Applicant under sections 16 and 19 of the Act.
DECISION
The Reviewable Decisions are affirmed.

I certify that the preceding 158 (one hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

………………………………………
Associate
Dated: 2 July 2019

Date(s) of hearing: 1 August 2018; 7 May 2019

Applicant: In person

Counsel for the Applicant: Mr Jamie Ronald

Solicitor for the Applicant: Ms Ellen Teys, Colquhoun Murphy Lawyers

Counsel for the Respondent: Mr Peter Woulfe

Solicitors for the Respondent:
Mr Scott Moloney, Moray & Agnew Lawyers

Date(s) of hearing:	1 August 2018; 7 May 2019
Applicant:	In person
Counsel for the Applicant:	Mr Jamie Ronald
Solicitor for the Applicant:	Ms Ellen Teys, Colquhoun Murphy Lawyers
Counsel for the Respondent:	Mr Peter Woulfe
Solicitors for the Respondent:	Mr Scott Moloney, Moray & Agnew Lawyers