Kelly and Comcare (Compensation)

Kelly and Comcare (Compensation) [2018] AATA 761 (6 April 2018)
Division:GENERAL DIVISION
File Numbers: 2016/0715, 2017/0594 and 2017/5352
Re:Peter Kelly
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Miss E A Shanahan, Member
Date:6 April 2018
Place:Melbourne

The Tribunal affirms the decisions under review.
...........................[sgd].............................................
Miss E A Shanahan, Member
WORKERS’ COMPENSATION – claimed back injury in 2005 – liability accepted for thoracic sprain but not thoracic vertebral fracture – failed return to work programs – permanent impairment lump sum payment – formally ceased work in 2013 – no work performed since December 2010 – applications under s 29 for domestic cleaning and gardening – s 16 for medical costs to be continued – denial of s 16 payment for physiotherapy and osteopathy – decisions affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263
REASONS FOR DECISION
Miss E A Shanahan, Member
6 April 2018

Mr Kelly claims that on 7 February 2005 he sustained a back injury in the course of his work as an employee of the Department of Defence. Liability was accepted pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Thereafter Mr Kelly received compensation payments in terms of weekly earnings (s 19) and medical and paramedical treatment in accordance with s 16 of the SRC Act.
A permanent impairment payment of $62,500.00 for a 23 per cent of whole person impairment (WPI) was paid in 2012. Mr Kelly’s claims for domestic cleaning and gardening under s 29 of the SRC Act and ongoing payment for physiotherapy, osteopathy, medical treatment and medically prescribed medications were denied.
The decisions made by a Comcare delegate between 19 October 2014 and 5 July 2017 were reviewed by an authorised review officer (ARO). They were affirmed and are the subject of the current application before the Tribunal. The essential issue is whether at October 2015 and since Mr Kelly suffers from the effect of any injury sustained on 7 February 2005. The reviewable decision denying compensation for household services under s 29 was made on 15 December 2015; that denying payment for osteopathy, application 2017/0594, was made on 7 December 2016 and application 2017/5352 relating to ongoing payments under s 16 and s 29 was affirmed by the reviewable decision of 1 September 2017.
Mr Kelly was self-represented. Mr Ray Ternes of counsel, instructed by Sparke Helmore, appeared for the respondent. The respondent filed extensive documentation under s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). These were assigned the Exhibit number R1. Both parties tendered further reports and documentation, a list of which is appended to this decision.
Mr Kelly, his wife Leanne Kelly, Dr Gary Davison, Dr Tony Kostos and Mr Nathaniel Dunne gave evidence in person. Dr Clayton Thomas, Mr Neville Hunter and Mr Rob Dib gave evidence by telephone.
BACKGROUND TO THE APPLICATION
Mr Kelly completed year 12 secondary education and then joined the Royal Australian Air Force (RAAF). He commenced a course in engineering at Caulfield Technical College but did not complete these studies. He worked in the RAAF as a radio-technician and received extensive training. Following a period of various short-term jobs, Mr Kelly established his own business in electronic sales and service. He developed an electronic key that accessed an AutoCAD engineering and architectural computer design and sold this system at a greatly reduced cost to that of the developer. Between 1988 and 1993 Mr Kelly was involved in litigation for breach of copyright in the Federal Court and the High Court of Australia. The claim of breach of copyright was sustained and costs were awarded against him and his backers. He was bankrupted.
He obtained employment as a contractor with the Department of Defence between 1996 and 2000 and then a salaried position with the Defence, Science and Technology Organisation (DSTO) conducting scientific research into biofouling control. He worked at the Tenix shipbuilding facility.
This work involved the inspection of submerged sheets of various types of metal floating beneath a barge chained to Booth Pier at the Tenix site apparently located near the mouth of the Yarra River. The barge weighed about eight tonnes and was protected by bollards from crashing against the pier. A steel ladder soldered to the barge provided access from the timber pier above to the steel barge below. The ladder was estimated to be three and a half metres tall. Photographs of the actual barge and the arrangement of the ladder in relation to the pier were provided to the Tribunal.
Mr Kelly’s injury was sustained on 7 February 2005. It was a particularly windy day and apparently the barge was rocking from side to side and up and down, as the waves were large. Over the years there have been varying descriptions of the exact mechanism of Mr Kelly’s claimed injuries. Descriptions range from being injured while going down the ladder with a wave causing him to be pushed forward toward the ladder, hitting his chest and then extending backwards to Mr Kelly’s description of jumping from the ladder to the pier and then falling backwards and landing with his feet above his head having experienced both hyperflexion and hyperextension forces on his spine.
At the time of the incident Mr Kelly did not experience any pain. As both he and his assistant were drenched by seawater, he drove the assistant home to change and he himself went home, changed his clothing and returned to work. The following day he experienced increasingly severe pain localised to between his shoulder blades. There was also some discomfort in the anterior chest wall where he had suffered abrasions.
Mr Kelly had two days off work following which he returned to his normal duties and worked full time, although some of his work was performed from home. He continued in a full time capacity until May 2005. Between the date of the accident and May 2005, Mr Kelly attended his physiotherapist Mr Dib on a regular basis and was reported as improving on each visit. On several occasions prior to May Mr Dib considered that Mr Kelly was near normal and could shortly be discharged from his care. Mr Kelly did not consult his general practitioner and attended Mr Dib on a referral made the previous year for treatment of low back pain.
Although Mr Kelly did not see his general practitioner in the three months following the incident, he had contacted him by telephone in order to obtain ongoing prescriptions of Temazepam, a sedative he had been taking for 15 years in doses up to four tablets i.e. 40 mgs a night.
On 10 May 2005, Mr Kelly saw his general practitioner. Dr Smith recorded the incident of 7 February 2005 and ordered a plain x-ray of Mr Kelly’s thoracic spine. This revealed wedging of vertebrae at four levels (T8 to T11). Dr Smith informed Mr Kelly that he had wedge fractures at several sites. Mr Kelly lodged a claim for workers compensation on 11 May 2005.
Thereafter, Mr Kelly worked reduced hours, initially five hours per day with one to two of those hours working from home. In August 2006 he reduced his hours to two and a half a day, with three days at his worksite. This arrangement continued despite return to work programs being devised but rejected by Mr Kelly.
From 18 December 2008 Mr Kelly was certified as fit to work one hour per day, three days per week and after February 2008 three hours a week. On 14 December 2009 Mr Kelly was directed to return to work on a newly devised program with the aim of returning to full time employment by 1 February 2010. Several other return to work programs were devised but not followed and Mr Kelly’s compensation payments were suspended in December 2008 for a period of 12 months.
Mr Kelly’s claim submitted on 11 May 2005 was accepted by Comcare on 6 July 2005 for the condition of a thoracic sprain sustained on 7 February 2005. The decision specifically excluded the T8 fracture reported on the x-ray. Mr Kelly decided to appeal the respondent’s decision as he wanted the respondent to accept liability for the fracture. Following further investigation and opinions his solicitors recommended that he not proceed.
The further investigation referred to took the form of more x-rays, a CT scan of Mr Kelly’s spine and a nuclear bone scan, all of which suggested that the wedge compression, also known as wedge fractures although there is no fracture line, of four or five thoracic vertebrae were long standing and not attributable to the events of 7 February 2005.
From late May 2005 Mr Kelly has complained of incapacitating pain in his thoracic spine and has been seen by numerous treating doctors and independent medical experts.
In November 2010, Mr Kelly lodged a claim for permanent impairment. This was denied. He then lodged an application to the Administrative Appeals Tribunal for review of the decision. On 24 August 2012 a Consent Agreement was presented to the Tribunal accepting a WPI rating of 23 per cent for the thoracic fractures. Mr Kelly received a permanent impairment lump sum payment of approximately $62,500.00.
Mr Kelly had not worked since approximately December 2010. His employment with the Department of Defence officially ended in 2013. Throughout the period from 2005 to 2013 Mr Kelly received extensive treatment in the form of physiotherapy and pain management paid for by Comcare.
In addition to payment for his medical treatment, Mr Kelly has been receiving domestic household help and some gardening assistance as provided for by s 29 of the SRC Act. He has received s 16 compensation for the medical treatment and attendance at his general practitioner, his continuing consultation and treatment by Dr Clayton Thomas, occupational health physician, and his medication costs.
As stated previously, on 19 October 2014 Comcare issued a decision denying continuing funding for domestic household help; on 14 October 2016 a decision denying compensatory payments for osteopathy under s 16 of the SRC Act and on 5 July 2017 a decision denying ongoing payment for medication, general practitioner attendances, Dr Clayton Thomas’ charges and the provision of gardening assistance under s 29. These three decisions are the subject of Mr Kelly’s application before the Tribunal.
ORAL EVIDENCE BEFORE THE TRIBUNAL
Mr Kelly – the applicant
Mr Kelly advised the Tribunal that he was in pain at the time of giving his evidence and that his tolerance was limited. Thus it was possible that his evidence would be interrupted for the need for him to rest. Initially he addressed the pain and indicated by demonstration that it was at the T7/8 level and also at approximately T11 to L1 (thoracic vertebra 11 to lumbar vertebral 1). He said he was taking very large doses of Oxycontin, 180 to 240 mgs daily, was on regular doses of Valium, Mersyndol Forte, Temazepam 40 mgs at night and other non-prescribed medications such a Rosehip pills, Glucosamine, Vitamin B and Caltrate.
Mr Kelly saw his general practitioner every 28 days in order to obtain a prescription for the Oxycontin. He saw Dr Clayton Thomas six monthly and his osteopath Dr Mamo, fortnightly. He described his exercise program as doing some mild exercises at home but more recently he had started walking briskly in a military fashion around his property. He did this every one to two days. The property is variably described as being 10 or 14 acres.
Mr Kelly said that in the past six months he had felt better than he had for many years and he attributed this to the walking and the osteopathy. He was now paying for the lawn mowing and gardening himself. He outlined the duties of “Hughie”, the gardener, who worked four hours each weekend, in the house garden and the 10-acre property. In addition, a lady came every second week and used a whipper-snipper, mowed the lawn and did the weeding. Comcare no longer pays for these services. The cleaning lady, who dusts, sweeps and vacuums, and cleans the bathrooms and the showers, comes every two to three weeks and is now paid by the Kellys.
In his cross-examination, Mr Ternes took Mr Kelly to his description of the events of 7 February 2005. In his Statement of Issues, Facts and Contentions, Mr Kelly had described these in the following terms:
I state that as a result of rough seas and a large wave-train, the raft moved unexpectedly and resulted in acceleration forces and me striking a ladder. I immediately had to jump off the ladder attached to the raft which was moving increasingly violently, onto the pier where I landed on my feet but fell rolling backwards.
He confirmed that he had landed on his feet, stumbled, fallen backwards and to use his words ended arse up. Mr Kelly added to this description that as his feet went up and over his shoulders he heard a crunching sound. He admitted that he had never mentioned this to anyone before. Mr Kelly equated this to having been told that the last thing that a hanged person hears is the sound of his neck breaking. Mr Kelly was taken to his claim form and his incident report. These did not mention a fall or rolling backwards. Mr Kelly agreed this was the case and that there was no mention of a crunching sound. Mr Ternes then took Mr Kelly to several of the independent medical expert reports, wherein the description of events on 7 February 2005 differed.
It was brought to Mr Kelly’s attention that in his original claim form of 2005, he stated that there was no past history of similar symptoms i.e. spinal pain. Mr Kelly agreed that he had not declared that he had had low back pain before despite having undergone x-rays and treatment for lumbar spinal pain from 2000 to 2004.
The reports of some individual specialists were again queried. For example Mr Haw, orthopaedic surgeon, had diagnosed Scheuermann’s disease as opposed to wedge fractures and had attributed Mr Kelly’s then current symptoms to disc damage which would resolve. Mr Kelly denied he had been provided with these diagnoses at the time (letter of 16 November 2005).
Mr Kelly agreed with Mr Ternes’ suggestion that he had been involved in litigation against the Department of Defence or Comcare since 2005. He had lodged a claim for permanent impairment in 2006 and again in 2012. Mr Kelly had formally complained to the Fair Work Commission when he was asked to retire on medical grounds and he remained of the opinion that he had not been treated fairly by Comcare.
In relation to the domestic duties, Mr Kelly detailed the tasks he and his wife undertook, these being shared at about a 50:50 ratio. It was noted that Mrs Kelly had both lumbar and cervical spinal degenerative disease which limited her ability to undertake domestic cleaning.
Mr Kelly confirmed that he drank 42 cans of double strength beer a week. He drank six stubbies of Fat Yak beer between 4.30pm and 6.30pm every evening and spent his time in the evenings watching Foxtel. During the day Mr Kelly pursued his hobby of TIG welding having attended the Sunshine TAFE to learn this type of welding.
Mr Kelly gave evidence that from about 2010 onwards he felt depressed despite the opinions of the two psychiatrists who found no evidence of depression. Mr Kelly agreed that he had been taking large doses of Temazepam for many years. Prior to the event of 7 February 2005 he was taking 40 mgs per night in order to sleep. Since the accident the Temazepam has been paid for by Comcare, despite Mr Kelly not having nominated Temazepam as attracting s 16 payment. Once he found it was being paid for he did not object.
Mr Kelly’s evidence was that he had started taking Oxycontin in 2010. As he has a genetic abnormality in relation to the metabolism of Oxycontin he requires very large doses up to 240 mgs a day. The genetic defect results in him only achieving a 25 per cent effective pain relief from that dose.
Mr Kelly commented on the visit of the exercise physiologist, Mr Samuel Dunne who assessed their home in South Gisborne in order to determine the gardening requirements but had not received instructions to assess the domestic requirements. Mr and Mrs Kelly drew Mr Dunne’s attention to this oversight and both requirements were assessed.
Mr Kelly readily admitted that he had recorded his consultation with Dr Kostos on 1 December 2016 and that Dr Kostos was unaware that he was being recorded. Mr Kelly justified his actions on the basis that he thought Dr Kostos would give a dishonest opinion. Mr Kelly had Googled comments from claimants regarding independent expert opinions provided to Comcare. While not naming Dr Kostos as one such presumed offender, Mr Kelly had read the complaints of persons whose claims had not been supported by these experts.
Mrs Leanne Kelly
Mrs Kelly confirmed the content of her statement and described the domestic duties she had undertaken in partnership with her husband prior to his accident and currently. After his injury and while they were still living in Moonee Ponds she took over his domestic tasks in the house. She herself retired in April 2005 having worked in administration at a university, having developed both cervical and lumbar spinal degenerative disease resulting in limitation of her physical abilities. She had undertaken most of the cleaning of the house for the eight to nine years up until 2005. Thereafter, Mr and Mrs Kelly had hired a cleaner once a fortnight for 2.5 hours, at their expense.
Since shifting to South Gisborne in 2010 they have required domestic help provided by Comcare or paid for themselves. Mrs Kelly’s activities are limited to cleaning the kitchen or vacuuming the floor with a small upright, battery-operated, cleaner.
Dr Clayton Thomas – pain management and occupational physician
Dr Thomas first saw Mr Kelly in March 2006 for the purpose of pain management. Dr Thomas’ evidence was given by telephone. It would appear that the connection was poor and as a result the transcript is of little assistance.
Mr Kelly confined his questions to whether or not Dr Thomas had thought he was depressed when he first presented and why he had changed his opinion in relation to the original diagnosis of Scheuermann’s disease. Dr Thomas said he had no evidence of any depression but nor had he discussed Mr Kelly’s mood with him at any time. In relation to the Scheuermann’s disease, Dr Thomas said that while he believed that diagnosis was correct he had reconsidered his diagnosis as Scheuermann’s disease was usually asymptomatic. He now believed Mr Kelly’s chronic thoracic back pain was due to spondylosis, i.e. osteoarthrosis of a degenerative nature.
Under cross-examination by Mr Ternes, Dr Thomas said he had expected the pain to settle in a relatively short time. He confirmed that Mr Kelly had not at any time given a history of having fallen; and to Dr Thomas’ knowledge had jarred his back on several occasions because the water on which the barge was anchored was usually choppy. Dr Thomas did not regard the presence of wedging of the thoracic vertebra as equating to a fracture.
Dr Thomas was not aware that Mr Kelly had been treated and investigated for low back pain in December 2000 and January 2005, nor was he aware of Mr Kelly’s Temazepam usage. He was of the opinion that the use of opioids could make pain more widespread. Dr Thomas attributed the wedging of the thoracic vertebrae to Scheuermann’s disease.
When fully acquainted with Mr Kelly’s pre-injury history Dr Thomas said he was not in the position to change his opinion retrospectively. He agreed that Mr Kelly’s current alcohol intake would be neurotoxic and considered osteopathy, physiotherapy and chiropractic treatment as not being of any benefit.
The Tribunal asked whether Dr Thomas considered Scheuermann’s disease predisposed the individual to wedging of the thoracic vertebra. He stated yes this was the case but maintained his opinion that Mr Kelly’s symptoms were due to an aggravation of spondylosis, not the osteochondritis of Scheuermann’s disease and that the spondylosis had resulted in the development of a chronic pain syndrome.
Mr Neville Hunter

Mr Hunter has known Mr Kelly for 45 years and they have maintained a close friendship throughout that period. He provided a statement dated 29 June 2016. This was challenged by Mr Ternes on the basis that it was hearsay. In his statement and his evidence, Mr Hunter spoke of his observations of Mr Kelly in terms of when he thought he was in pain and his level of activity but agreed that otherwise his evidence was hearsay. As a result this was of little weight or assistance to the Tribunal.
Mr Robert Dib – physiotherapist
Mr Dib has been treating Mr Kelly since 2000. He provided several reports over the years. His clinical records had been summonsed. Mr Dib had not been able to find any entries relating to his treatment of Mr Kelly for low back pain in 2004 or earlier. Between 9 February 2005 and 10 May 2005, Mr Dib was the only health professional who saw Mr Kelly. As noted under BACKGROUND TO THE APPLICATION Mr Dib considered that Mr Kelly was improving with physiotherapy and had anticipated his discharge from treatment by May 2005. In his cross-examination Mr Ternes addressed the various abbreviations used by Mr Dib in his record keeping and confirmed that the content of the records had been properly interpreted.
Dr Tony Kostos – rheumatologist
Dr Kostos saw Mr Kelly on 1 December 2016 at the request of the respondent and provided a report dated 12 December 2016 (Exhibit R6).
Dr Kostos was unaware that Mr Kelly recorded the entire consultation. Transcript of this recording has been provided to the Tribunal. In examination-in-chief, Mr Ternes first addressed the omissions in the history given by Mr Kelly, in particular relating to his 25 year use of large doses of Temazepam for poor sleep, his alcohol intake of eight to 10 standard drinks per day, his lower lumbar pain which first occurred in the year 2000 and upper lumbar pain first reported in December 2004.
Dr Kostos made a diagnosis of Scheuermann’s disease with wedging of multiple vertebrae but no actual fracture in the usual sense of the word fracture. He noted some mild changes of osteoarthritis in the lumbar spine, predominantly at the L5/S1 level and had found Mr Kelly’s thoracic spinal range of movement to be diminished. In his opinion, this related to failure to undertake mobility exercises. At the time of the consultation Dr Kostos was provided with plain x-rays of Mr Kelly’s lumbar spine performed in 2005 and the bone scan of 2006.
Mr Kelly had in his evidence informed the Tribunal that he had all the plain x-rays, CT scans, MRIs and ultrasound films in his possession. He brought them to the Tribunal for viewing by Dr Kostos and any other expert witnesses who were prepared to comment on this imaging.
Dr Kostos was asked to view the plain x-ray performed on 28 November 2000 (both postero-anterior and lateral films). The Tribunal had provided him with a commercial double x-ray viewing box to display the films.
Dr Kostos described the wedging of T10 and T11 as seen in the plain films, and the presence of Schmorl’s nodes (endplate deformity due to past osteochondritis) at both of these vertebral levels. He defined wedging as a diminution of the anterior depth of the vertebral body compared with the posterior depth. Normally, these measurements are the same. The radiologist’s report was similar to Dr Kostos’ interpretation but less detailed and did not mention the Schmorl’s nodes despite them being clearly visible to the Tribunal. Dr Kostos confirmed the diagnosis of Scheuermann’s disease.
The imaging undertaken in January 2005 consisted of a plain x-ray of the lumbar spine and a CT scan. Dr Kostos advised that CT scans provided more information than MRI’s as to bone density. The plain x-rays of the lumbar spine were clearly overexposed and according to Dr Kostos were of no use in determining the presence of osteoporosis. The films did however show considerable disc degeneration at L5/S1 with joint space narrowing and associated osteophytes. The vertebrae had been numbered. Dr Kostos believed the numbering to be incorrect. Mr Kelly admitted that he had labelled the vertebrae himself, and could well have made a mistake.
Once more the wedging of T11 and the bottom of T10 was seen to show endplate irregularity classical of Schmorl’s nodes. Dr Kostos thought there may have been some progression of the osteoarthritic changes between the 2000 and 2005 films. Despite the CT scan taking in the field of the lower thoracic vertebra the radiologist had not commented on these. The CT scan did assist to a degree in that it showed some facet joint arthritis. Dr Kostos considered this to be degenerative in nature.
Despite Mr Kelly’s back injury occurring in February 2005 an x-ray was not performed until May 2005. Dr Kostos considered the study of 10 May 2005 to be technically very poor. Once more the labelling of the vertebra was incorrect and again Mr Kelly admitted he had labelled the vertebra, not the radiologist. Despite the poor quality of the films Dr Kostos was able to demonstrate Schmorl’s nodes and vertebral body wedging at the lower thoracic levels. This wedging extended to the level of the eighth thoracic vertebra. Overall, T8 to T12 showed wedging. Dr Kostos said the appearances were suggestive or indicative of longstanding changes.
Dr Kostos looked at the bone scans, the first of which had been performed in November 2005. He explained that a bone scan indicated areas of increased bone turnover but was also positive in thickened bone. The films of November 2005 revealed a mild general increase in uptake in the mid to lower thoracic spine but not the dense black dotting that occurs in a fracture. Dr Kostos concluded that the bone scan of 2005 was not consistent with vertebral fracture. A further bone scan performed on 24 August 2006 reportedly showed similar appearances but no active bone pathology within the thoracic spine or elsewhere.
The repeat CT scan of 24 August 2006 gave a much clearer demonstration of the presence of Schmorl’s nodes, present from T8 to T11. There were lesser changes at a higher level. On this occasion the CT showed a minor degree of kyphosis. The Tribunal also viewed the films and had the impression that the Schmorl’s nodes went as high as the T5 vertebra. This was brought to Dr Kostos’ attention and he agreed that there were changes at that level.
An MRI scan had also been performed on 24 August 2006 at the request of Mr Graham Brazenor. In Dr Kostos’ opinion the MRI had been done to exclude the presence of canal stenosis and/or nerve root compression, which it did.
Mr Kelly’s next imaging was a plain x-ray of the spine in 2012. While there was a slight increase in the size of a few of the osteophytes, the wedging of the thoracic vertebrae was unchanged compared to the films of 2000.
Dr Kostos was well aware of the different descriptions Mr Kelly had given regarding the mechanism of the accident. This did not alter his opinion. He was definite that if a fracture of the vertebra had occurred, it would have resulted in severe instant pain. As five vertebrae were wedged it would have rendered Mr Kelly immobile. Given Mr Kelly had worked the rest of the day and only developed pain the following day, the clinical history given was incompatible with a fracture. This reinforced Dr Kostos’ opinion that Mr Kelly suffered from a thoracic spinal sprain. On direct questioning by the Tribunal, he agreed that a sprain represents an overstretching of ligamentous tissue or the capsule of a joint. This was the Tribunal’s understanding of the non-scientific term sprain.
Dr Kostos said that such a sprain normally resolved in six months. He was particularly impressed by Dr Smith’s finding of no spinal abnormality when he saw Mr Kelly on 10 May 2005. The range of movement of Mr Kelly’s spine was recorded as being normal and he did not exhibit any localised tenderness. Dr Smith had certified Mr Kelly fit for normal duties as of that day. Dr Kostos noted that Mr Kelly was given the results of the x-ray on 13 May 2005 and was told he had fractured his spine. While Dr Smith had filled out a Workers Compensation Certificate to this effect he had certified Mr Kelly as fit to return to normal duties. No further certificates were given until 12 July 2005 when Dr Smith reduced Mr Kelly’s hours to five a day.
Dr Kostos recorded that opioid treatment had commenced in November 2005. Given the course of events, he could not provide any diagnosis as to the cause of the pain when he saw Mr Kelly in 2006. He opined that the presence of Scheuermann’s disease predisposed the individual to the development of osteoarthritis because of vertebral endplate damage.
Dr Kostos was asked if Mr Kelly had a chronic pain syndrome (CPS). He did not believe that at the time he’d seen Mr Kelly such a diagnosis was appropriate as in CPS the pain is generalised and widespread with diffuse tenderness and is present both day and night. In contrast, Mr Kelly’s pain was localised and there was little in the way of tenderness. Dr Kostos was strongly of the opinion that Mr Kelly had a fixed belief that he had four or five fractured vertebra and this had resulted in him focusing entirely on the fractures. Dr Kostos considered that Mr Kelly’s focus on the compression wedging of the thoracic vertebrae had become the whole reason for his existence.
Dr Kostos said he did not use opioids except for acute pain nor did he prescribe passive therapy such as osteopathy which in his opinion was of no benefit whatsoever. He believed Mr Kelly’s physical activities were limited by the stiffness of his spine and recommended freestyle swimming as the best means of mobilising the thoracic spine. The strokes of freestyle swimming required frequent lateral rotation of the thoracic spine. Dr Kostos recommended regular Pilates.
In cross examination Mr Kelly strayed into giving evidence from the bar table. He described the walking he has been doing during the past six months. This is an exaggerated military style, with his arms flexing to the horizontal and despite having decreased his osteopathy to fortnightly instead of weekly he had noted a great improvement. Dr Kostos said this was to be expected as passive treatment was useless and the exaggerated style of military marching would involve rotational movement of the thoracic spine.
Mr Nathaniel Dunne
Mr Dunne is an exercise physiologist who at the request of Comcare visited the Kelly’s property in July 2015 and provided a report dated 13 July 2015 (T91). He assessed primarily the gardening requirements but also the activities of daily living, the latter including some assessment of housework and internal house requirements. In the history given by Mr Kelly to Mr Dunne, the accident of 7 February 2005 was described as he jumped to the pier and I knew something was crunching. He confirmed that after the event he returned to work and completed his day’s activities.
In his report Mr Dunne recommended that Mr Kelly receive two hours of gardening assistance once a fortnight and services for pruning every six months. However, he opined that there was no need for any cleaning or upkeep of the house as he had assessed Mr and Mrs Kelly as capable of performing these tasks at a paced rate. Mr Dunne described techniques for performing tasks such as vacuuming that would place minimal stress on the thoracic spine.
Doctor Gary Davison – occupational physician
Dr Davison saw Mr Kelly on two occasions at the request of Comcare. The first of these was on 12 February 2015 with a report of the same day provided. He saw him again on 30 August 2016 (Exhibit R8). The history obtained by Dr Davison describing the actual mechanism of the incident of 7 February 2005 was:
Mr Kelly was on a barge. It was rocking violently. He scrambled up a ladder. Got to the top of the ladder. Jumped to the pier and landed on his feet, fell backwards, experiencing acute spinal flexion. I knew something was crunching. Clothes were drenched, drove home and changed. Completed his day’s activities, notwithstanding.
On the first occasion Dr Davison made a diagnosis of a minor wedge fracture of the T8 vertebra as a result of forceful spinal flexion. In 2016 Dr Davison had changed his opinion and reported Mr Kelly most probably suffered a localised soft tissue injury and subsequently chronic pain syndrome. In his evidence-in-chief Dr Davison said he had changed his mind after seeing a plain x-ray of the spine taken in 2012 at the request of Mr Dib the physiotherapist. This x-ray did not show any structural injury to the thoracic spine.
Dr Davison was not prepared to view the films himself and relied on the reports of the radiologist. Dr Davison was unaware that Mr Kelly had had two bone scans, one in November 2005 and a second in 2006 revealing minor changes with slightly increased uptake in the T8 vertebra on both occasions. Having been informed of these findings he said that this was not indicative of a fracture but more consistent with degenerative change i.e. osteoarthrosis.
Dr Davison was of the opinion that normally a crush fracture would heal in approximately 6 to 12 weeks; but there could be evidence of the crush fracture on a bone scan for up to 12 months although the symptoms had resolved. The persistence of changes on bone scanning at 18 months was compatible with degenerative change, not a crush fracture. Regardless of these considerations, Dr Davison remained of the opinion that Mr Kelly’s problem was a CPS. He maintained this opinion despite being taken to several other reports in which the medical expert could not make a diagnosis as to the cause of Mr Kelly’s back pain, e.g. Mr Michael Johnson, orthopaedic surgeon, in 2009.
In 2015 Dr Davison considered Mr Kelly’s functional capacity to undertake household chores was limited unless these were minor and self-paced. In 2016 he felt there had been further deterioration as Mr Kelly’s range of movement of the spine had decreased, in particular flexion by 20 degrees. He assessed the spinal lateral flexion and lateral rotation to have decreased to 50 per cent of the normal range. Movement was limited by pain and also what he described as stiffening up of the spine.
Mr Ternes suggested that Mr Kelly on his own evidence had improved in the last six months. Dr Davison believed that if this was the case Mr Kelly would have greater capacity to undertake physical tasks with appropriate technique training and adaptive aids. Dr Davison was firmly of the opinion that passive therapy such as osteopathy was of little benefit. He recommended Mr Kelly be instructed in appropriate exercises to improve strength, take anti-inflammatory medication as required, receive non-opiate based analgesia and be encouraged to undertake as much normal day to day activity as possible. He did not believe that 180 mgs of Oxycontin a day was indicated and opined that this opioid intake, in addition to Mr Kelly’s alcohol consumption, would result in sedation.
In cross-examination Mr Kelly informed Dr Davison that he had undergone genetic testing that showed that his metabolism of opioids was abnormal and he required larger doses because he responded to about 25 per cent of the effect of these medications. He was asked by Mr Kelly to comment on his medication over the years but Dr Davison declined to do so as he had no knowledge of the varying medication between 2005 and the current dates. Further questioning regarding the bone scan was made but Dr Davison explained that he was unaware of the 2006 bone scan and had he been provided with it in 2015 his opinion would have been different.
Mr Kelly questioned why he had not been referred to a rheumatologist as recommended by Dr Davison. Dr Davison of course could not answer this question. However he indicated that given the presence of widespread psoriasis from which Mr Kelly had suffered for many years, Dr Davison had thought it worthwhile obtaining an opinion in order to exclude the diagnosis of psoriatic arthritis. Dr Davison explained why he thought this would be relevant but did not stress the point given the subsequent MRI findings.
At the completion of Dr Davison’s evidence Mr Kelly raised several matters of concern that the Tribunal believes are outside the realms of this hearing. They related to the ICD (International Code of Diagnoses) description of various conditions of the thoracic spine. Mr Kelly was relying on the current 2017/2018 definitions and did not have any evidence to present relating to the definition in place in 2005 when his claim was made and the injury was described as a sprain of the thoracic spine. Similar arguments were raised regarding his medication, the various strengths of analgesics and the increase in his Temazepam dosage which he claimed was necessitated by increased pain after the incident. Mr Ternes recommended and the Tribunal agreed that these should be matters for submissions.
It had been intended to call Dr Mamo, Mr Kelly’s treating osteopath. Dr Mamo had unexpectedly gone overseas and was not available to give evidence. His reports were taken into evidence.
DOCUMENTARY EVIDENCE
A vast number of reports from independent medical experts have been amassed since 2005. These reports will be summarised according to the timeframe in which they were provided. In 2005 Mr Kelly was seen by Associate Professor Graham Brazenor, neurosurgeon and Mr Chris Haw, orthopaedic surgeon. They both noted the presence of Scheuermann’s disease and considered the wedging of the thoracic vertebrae to be pre-existing and well demonstrated in the x-rays of January 2005 prior to the claimed injury.
Associate Professor Brazenor questioned the possibility of facet joint injury but had there been any it was now well healed. Mr Haw considered the symptoms to be due to a disc lesion. Some two years later he changed his opinion, attributing the pain to the T8 fracture resulting from the accident of 7 February 2005. However he believed the situation in 2007 was stabilised and the lesion had healed.
In 2006, Mr Kelly was reviewed by Associate Professor Brazenor, seen by Dr Peter Stevenson, physician, Mr Peter Magnos, general surgeon, Mr Peter Dohrmann, neurosurgeon, and Dr Clayton Thomas, occupational and pain management physician. Dr Stevenson stated no diagnosis could be made and no damage had been done. Mr Mangos made a diagnosis of spondylosis symptomatic since 2000 and opined that it should improve. Mr Dohrmann diagnosed a fracture of the eighth thoracic vertebra but qualified this report following receipt of the MRI findings. He then determined that the compression factors were pre-existing. Dr Clayton Thomas made the diagnosis of a chronic pain syndrome.
In 2007, Mr Kelly was seen by Dr Poppenbeek, occupational health physician, and Mr Michael Shannon, orthopaedic surgeon. Dr Poppenbeek was unable to make a diagnosis because of the poor correlation between the degree of impairment claimed and the examination findings and radiology. He felt that mid-thoracic facet joint dysfunction was the most probable diagnosis. Mr Shannon could not explain the source of Mr Kelly’s pain. He stated there was no fracture in February 2005 and the symptoms might possibly be due to aggravation of pre-existing degenerative changes.
In 2009, Mr Kelly was seen by Mr Michael Johnson, orthopaedic surgeon, Mr Max Wearne, orthopaedic surgeon, Dr Grant Ramage, occupational physician and Dr Carolyn Arnold, rehabilitation and pain medicine physician. Mr Johnson could not proffer any explanation for Mr Kelly’s symptomatology. He noted the pre-existing Scheuermann’s disease which in his opinion pre-disposed to the development of vertebral wedging. Mr Wearne made a diagnosis of aggravation of pre-existing degenerative changes and recommended referral to a psychiatrist as he believed there was non-organic overlay. Dr Ramage found it hard to make any diagnosis but opted for facet joint pathology and found evidence of abnormal illness behaviour. He concluded that Mr Kelly was fit to resume all work. Dr Arnold was of the opinion that Mr Kelly injured his back in the fall of 7 February 2005 but expressed her concern regarding his opioid use and recommended a pain management course.

In 2009, Mr Kelly was seen by the psychiatrists Dr Sheehan and Dr Farnbach as recommended in the earlier reports of the orthopaedic surgeons. Neither found any evidence of a psychiatric disorder.
In 2010, Mr Kelly was seen by Mr Ronald Haig, orthopaedic surgeon, and Dr David Prestage, occupational health physician. Mr Haig was not able to make a diagnosis. He considered the wedge fractures to be old and present prior to the incident of 7 February 2005. He questioned whether Mr Kelly was addicted to Oxycontin. Dr Prestage noted a slight kyphosis of the thoracic spine but was not able to make a diagnosis that explained Mr Kelly’s symptomatology. When seen Mr Kelly was not in pain and Dr Prestage found his spinal movement to be good. Dr Prestage expressed the opinion that Mr Kelly had a fixed unshakeable view of his injury.
In 2011 Mr Kelly was seen by Dr David Gorman, pain specialist and medical oncologist, Mr David MacIntosh, orthopaedic surgeon, and Mr Anthony Cairns, orthopaedic surgeon. Dr Gorman found that the pain Mr Kelly suffered related to the accident but could not determine its origin. Dr Gorman considered Mr Kelly to exhibit abnormal illness behaviour (T72, page 348) Mr MacIntosh made a diagnosis of degenerative disease and that the pre‑accident T8 compression fracture had healed. He opined that Mr Kelly’s symptoms were out of proportion to the clinical findings and that no permanent injury had been sustained. Mr Cairns was uncertain of the diagnosis, noted the presence of Scheuermann’s disease which he believed would predispose Mr Kelly to degenerative disease and found Mr Kelly capable of working in all aspects of his previous job.
In 2012 Mr Kelly was seen by Mr Michael Khan, orthopaedic surgeon, who attributed the compression fractures of T7, T8 and T9 to the fall of 7 February 2005. Despite this he concluded that the symptoms currently present were non-organic and not related to the injury.
The Tribunal notes that the vast majority of these reporting experts did not have access to the 2000 and the January 2005 x-rays showing the pre-existing wedging or so‑called fractures involving the thoracic vertebrae.
There have been several reports from treating general practitioners over the years. Prior to 2010 when Mr Kelly shifted to Gisborne South he had attended the Moonee Ponds Clinic and saw Dr Smith on a regular basis. Reference has been made to Dr Smith’s reports. Since shifting to Gisborne he has attended Dr Richard Siemienowicz and more recently Dr Peter Dawkins. The latest report from Dr Siemienowicz dated 11 March 2014, stated that Mr Kelly had gout and chronic back pain.
Dr Siemienowicz had provided a letter supporting the ordering of an x-ray of the cervical, thoracic and lumbar spine by Mr Dib, the physiotherapist. This x-ray performed on 27 November 2012 revealed degenerative changes developing at multiple levels and involving the discs of the cervical, thoracic and lumbar spine with severe facet disease at L4/5, associated with spondylolisthesis. Of interest is that the loss of height of the mid and lower thoracic vertebrae was considered to be minor. Degenerative changes were most severe in the cervical spine. Disc space narrowing was seen at all lumbar levels. The report stated that no definite acute bony injury could be identified.
Dr Dawkins has provided very brief letters in support of Mr Kelly receiving ongoing osteopathic treatment.
RELEVANT LEGISLATION
Comcare has accepted liability for thoracic vertebral sprain dating from 2005. This liability was expanded by the adoption of the Consent Order by the Administrative Appeals Tribunal on 21 August 2012. Comcare accepted liability for compression fractures at T6, T7, T8 and T9 with the date of injury deemed to be 7 February 2005. The Consent Order related to Mr Kelly’s application for a whole person impairment was determined in his favour as the parties had reached agreement as to the sum payable and costs. The agreement was signed by Ms Anne McMahon of counsel on behalf of Comcare.
The issues before the Tribunal relate to the reviewable decision of Comcare under s 29 and s 16 of the SRC Act. The relevant legislation is contained in the following sections :
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.
(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.
16Compensation 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.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4)An amount of compensation payable by Comcare under subsection (1) is payable:
(a)if the employee has paid the cost of the medical treatment—to, or in accordance with the directions of, the employee; or
(b)if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or
(c)in any other case—to the person to whom the cost is payable.
(5)Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first mentioned person.
(6)Subject to subsection (7), if:
(a)compensation in respect of the cost of medical treatment is payable; and
(b)the employee reasonably incurs expenditure in doing either or both of the following:
(i)     making a necessary journey for the purpose of obtaining that medical treatment;
(ii)     remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
29 Compensation for household services and attendant care services obtained as a result of a non‑catastrophic injury
(1)Subject to subsection (5), where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
(2)Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a)the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b)the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(c)the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d)the extent to which the persons referred to in paragraph (b), or any other members of the employee’s family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(e)the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
Note:     In relation to paragraph (2)(d), see also subsection 4(2).
(3)Where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains attendant care services that he or she reasonably requires, Comcare is liable to pay compensation of:
(a)$200 per week; or
(b)an amount per week equal to the amount per week paid or payable by the employee for those services;
whichever is less.
(4)Without limiting the matters that Comcare may take into account in determining the attendant care services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a)the nature of the employee’s injury and the degree to which that injury impairs his or her ability to provide for his or her personal care;
(b)the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care;
(c)the extent to which it is reasonable to meet any wish by the employee to live outside an institution;
(d)the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;
(e)any assessment made in relation to the rehabilitation of the employee;
(f)the extent to which a relative of the employee might reasonably be expected to provide attendant care services.
Note:In relation to paragraph (4)(f), see also subsection 4(2).
(5)Comcare is not liable to pay compensation under subsection (1) in respect of any week within the period of 28 days beginning on the date of the injury unless Comcare determines otherwise in a particular case on the ground of financial hardship or the need to provide for adequate supervision of dependent children.
(6)An amount of compensation payable by Comcare under subsection (1) or (3) is payable:
(a)where the employee has paid for the household services or attendant care services, as the case may be—to the employee; or
(b)in any other case—to the person who provided those services.
(7)Where Comcare pays an amount to a person who provided household services or attendant care services to an employee, the payment of the amount is, to the extent of the payment, a discharge of the liability of the employee to pay for those services.
SUBMISSIONS
At the request of both parties written submissions were provided. The deadlines ordered were not complied with. On receipt of Mr Kelly’s submissions requesting that the entire hearing and the decision of the respondent be set aside and all three matters be determined in his favour, a telephone directions hearing was ordered.
The telephone directions hearing resolved Mr Kelly’s request. He did not want the hearing set aside and the matter re-heard, he had misunderstood the intent of his submission. As a result the respondent’s lodgement of submissions was extended to 9 February 2018.
Applicant’s submissions
Mr Kelly provided his submissions in two parts, A and B.
Part A
In Part A Mr Kelly contended that he had been denied natural justice in that the respondent had attacked his credibility and had done so without forewarning. The respondent’s Statement of Issues, Facts and Contentions made no mention of, or reliance on his credibility or lack thereof. He complained that this had not been raised at the three separate conferences conducted by Conference Registrars. Had he been aware of the argument he would have called further witnesses to attest to his good character.
Mr Kelly also claimed that in these conciliation conferences, Comcare had assured him that the hearing would concentrate on the three issues outlined in the actual applications. As a result he had inferred that issues regarding his possible misuse of medications would not be canvased. Mr Kelly equated these events to contempt for the Tribunal but qualified this claim with reference to his lack of legal knowledge. He submitted that in civil proceedings pleadings require the declaration of any intention to pursue issues such as fraud and unjust enrichment.
It was further submitted that the respondent had breached s 66 of the SRC Act and s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
He had sought in the following terms:
I respectfully apply to have the entire hearing and claim by the respondent, set aside and seek decision in all three matters in favour of the applicant.
As stated in the introductory comments by the Tribunal with respect to this particular request, this was resolved by the Telephone Directions Hearing and Mr Kelly had clarified what he was in fact seeking to attain.
Part B
In Part B Mr Kelly dealt with the evidence before the Tribunal. He submitted that his increase in weight following the events of 7 February 2005, was indicative of his reduced capacity for exercise and movement. He claimed that this weight increase had not reflected his alcohol intake as this had been small between 2010 and 2016.
Mr Kelly dealt with the medications he was receiving and stated, rather than contended, that his Temazepam intake had not increased to a substantial level until after the workplace accident of 7 February 2005. Therefore, it was contended payment for the medication Temazepam by Comcare was appropriate. Mr Kelly reiterated the evidence that he was a slow metaboliser of opioids and that his doses were not excessive given this genetic abnormality.
Mr Kelly contended that his visits to the general practitioner from November 2000 to 13 January 2005 in relation to lower back discomfort were for a number of issues and that the back pain was infrequent and not a major issue. The use of non-steroidal anti‑inflammatory drugs during this period was said to be for soreness in the hands attributed by Dr Green to overuse strain associated with intensive keyboard work. Mr Kelly said he had not claimed a work-related compensation for these symptoms and that his use of NSAID’s was intermittent.
Mr Kelly addressed the conflicting descriptions of the events of 7 February 2005 as recorded by treating medical practitioners and the independent medical experts. He rejected many of these reports and nominated those of Associate Professor Brazenor,
Dr Arnold and Dr Farnbach, as being the most credible because they concurred with his recollection of the incident. Mr Kelly contended that the description by Dr Arnold, in her report dated 1 September 2009, was the most detailed and accurate of them all when she said that:
He had to hold on tight to the ladder and as he did he was thrown against the ladder resulting in bruising on his chest. He eventually managed to throw himself up onto the pier and sort of tripped and doing a somersault at the same time.
Mr Kelly dealt with the reports of most of the independent medical experts, although with a degree of selectivity of their evidence.
Mr Kelly addressed what had occurred after the accident and his most recent treatment and opinions, including the occupational therapist’s assessment of household duty assistance and gardening assistance required. As these were essentially a reiteration of the evidence before the Tribunal, they are not dealt with in detail despite Mr Kelly having done so.
Mr Kelly spoke to the respondent’s Statement of Issues, Facts and Contentions and initial submissions made by Mr Ternes prior to the written submissions of both parties being provided. In summary Mr Kelly refuted any suggestion that he had behaved inappropriately in accepting Comcare’s payment for Temazepam; that he had never claimed such and had been informed on 9 April 2014 by Comcare that they had approved the payment for the prescribed Mogadon.
He contended that all radiological and nuclear medicine examinations undertaken between 2000 and 2012 had been performed by medical specialist radiologists. Therefore, the reports of those examinations should be recognised as true records of his condition. On this basis the Tribunal should strongly weight the fact that no radiologist had referred to the presence of Scheuermann’s disease as pre-existing over many years before the incident and that he experienced no pain in the thoracic area prior to the accident of 7 February 2005.
Mr Kelly rejected Dr Kostos’ interpretation of the x-rays and his suggestion that Mr Kelly’s treatment had been passive treatment. Mr Kelly submitted that Mrs Kelly’s evidence of his daily walking, swimming and home exercises were evidence that his treatment was not passive. Mr Kelly contended that given his level of pain medication, there had been a masking of the extent of his injuries and his physical capacities when he was assessed by the medical experts.
Mr Kelly relied on the report of Dr Mamo, his osteopath, who believed he was responsive to treatment as improvement had been clearly observed. In addition the multi-disciplinary treatments recommended by various practitioners had been trialled with poor outcome. Mr Kelly addressed Dr Kostos’ recommendations in relation to swimming and Pilates. These had not been pursued as Associate Professor Brazenor had recommended walking and some swimming but no Pilates.
Mr Kelly rejected the respondent’s assertion of 1 December 2017 that his injury had resolved. He questioned the diagnosis of Scheuermann’s disease based on the kyphosis reported by Mr Dib on 13 February 2009 and because he had never suffered discomfort prior to 7 February 2005. Mr Kelly sought orders upholding his application for household assistance, including gardening, proper ongoing provision of multi-disciplinary medical treatment including osteopathy. Furthermore, as his symptomatology attributable to the incident of 7 February 2005 is ongoing, he requires medical and pharmaceutical treatment and the costs thereof.
Respondent’s submissions
Mr Ternes identified the issues before the Tribunal as being whether from 19 October 2015, the applicant continued to suffer from the effects of the injuries on 7 February 2005, this injury having been accepted in terms of liability for a thoracic sprain; if so:
(i)whether compensation is payable, from 19 October 2015 to the present and presently, under s 29 of the SRC Act in respect of household services inside the home and from 5 July 2017 inside and outside the home;
(ii)whether compensation is payable, from 14 October 2016 to the present and presently, under s 16 of the SRC Act in respect of osteopathic treatment; and
(iii)whether compensation is payable, from 5 July 2017 to the present and presently, under s 16 of the SRC Act in respect of any medical treatment other than the osteopathic treatment.
Mr Ternes provided an abridged chronology of the evidence, which in summary noted that Mr Kelly had been taking Temazepam since the early 1990’s and continued taking it until February 2005 and thereafter; an x-ray performed on 28 November 2000 revealed anterior wedging of the vertebral body of T11 and a narrowed T11/12 disc space; that Dr Kostos had viewed these x-rays and in his opinion the T11 vertebra was wedged and there were Schmorl’s nodes present at T10 creating end plate irregularity.
Mr Kelly had reported lower lumbar back pain in the year 2000 and suffered further bouts of this pain before 2005. In December 2004 he attended his general practitioner for upper lumbar pain which according to Dr Green could have been present for years as degenerative changes in lumbar spine had been documented for years. Further imaging in the form of plain x-ray and CT scanning undertaken on 5 January 2005 again confirmed the presence of Schmorl’s nodes at a T10 level and progression of osteoarthritic changes. CT films did not encompass the lower thoracic vertebra. In January 2005 Mr Kelly had been referred to the physiotherapist, Mr Dib, for treatment of his lower lumbar spine symptomatology.

Mr Ternes addressed the varying descriptions of the events of 7 February 2005 as related by Mr Kelly to various doctors. Particular emphasis was placed on Mr Kelly’s evidence as recorded in the transcript that: when he fell and somersaulted onto the pier he had heard a crunching sound. This had never been mentioned before. It had been Mr Kelly’s evidence that he felt no pain, other than a minor discomfort on the day of the incident but the following day had severe back pain. Mr Kelly’s evidence was that on the actual day he had gone home to change his wet clothing, returned to work and completed the day’s work. Having had 8 and 9 February 2005 off Mr Kelly had returned to work performing normal duties for normal hours from 10 February 2005.
From 9 February 2005, Mr Kelly had seen Mr Dib for regular physiotherapy and reportedly improved rapidly. From 30 March 2005, Mr Dib made entries in his notes that Mr Kelly was better and he was planning to discharge him. Mr Kelly did not attend his general practitioner until 10 May 2005. He stated he was not improving. Physical examination had been entirely normal with no pain or tenderness and a normal range of movement. Mr Kelly was considered to be fit for normal duties. However, a thoracic spinal x-ray was ordered. This was undertaken on 10 May and showed mild kyphoscoliosis, mild anterior wedging of T8 and degenerative lipping of the lower spine.
Dr Kostos had viewed these films and described the quality of the examination as very poor. He was however able to identify Schmorl’s nodes, wedging at four levels and widespread end-plate irregularity. All of these were considered to be classical evidence of Scheuermann’s disease.
On 13 May 2005 Mr Kelly was informed by his general practitioner, Dr Smith, that he had a wedge fracture of the T8 vertebra. On this occasion tenderness over the vertebra was elicited. On 6 July 2005, Comcare had issued a determination accepting liability for the thoracic sprain sustained on 7 February 2005. Liability was for a sprain and not the reported fracture. Mr Ternes recorded that Mr Kelly thereafter had reduced his working hours initially to 20 per week and thereafter to lesser hours, many of which were homebased work.
Mr Ternes addressed all the medical expert opinions, those of treating general practitioners and appropriate treating doctors such as Mr Haw, orthopaedic surgeon, Dr Clayton Thomas, occupational health and pain management physician, and Associate Professor Graham Brazenor, neurosurgeon. Mr Ternes reported that Mr Kelly’s employment with the Department of Defence concluded in 2013, although he had not worked since December 2010.
On 24 August 2012 a s 42C Consent Order was made by the Tribunal after the parties reached a settlement whereby Mr Kelly received compensation at a rate of 23 per cent WPI for the thoracic vertebral compression fractures.
Mr Ternes dealt with Mr Kelly’s submissions under both Part A and Part B.
In relation to Part A, Mr Ternes acknowledged that at the Telephone Directions Hearing of 2 February 2018, Mr Kelly had not pursued most of his allegations.
Mr Ternes submitted that there was no evidence before the Tribunal that the respondent had instructed its employees to avoid communicating with Mr Kelly. The respondent accepted the early descriptions of the incident and that the original circumstances of the accident were not in doubt. However, the respondent contended that the later versions provided by Mr Kelly were unreliable. It had been open to Mr Kelly during the hearing to make an application for further witnesses to be called in this regard but he had not done so.
Addressing the five particular allegations, Mr Ternes contended that at no stage had Comcare demonstrated contempt of the Tribunal nor had Mr Kelly been denied natural justice. Mr Ternes pointed out that he had had every opportunity to put his case over four days of hearing. In addition the Tribunal had repeatedly extended liberties to the applicant with respect to the timing of his filing and serving of written material. Mr Ternes contended that Comcare could not offend under s 66 of the SRC Act as this placed obligations on the applicant only. Similarly, the respondent had not offended s 37 of the AAT Act, having provided three sets of T‑documents and assisted Mr Kelly in providing the documents that he required prior to and during the hearing.
In relation to the applicant’s Part B submission, Mr Ternes contended that the claim that Mr Kelly’s Temazepam increased use related to the incident of 7 February 2005 was implausible. This was because he had not consulted his general practitioner or reported his claimed thoracic injury between 7 February and 9 May 2005.
Mr Ternes submitted that the recording of events by various doctors based on the history given by Mr Kelly, did not establish the truth of what the applicant had said at the time. This was particularly so when there had been a considerable interval of time between the accident and the examination by the independent expert.
While Mr Kelly had stated that Dr Thomas had been provided with the x-ray report of the lumbar spine of 5 January 2005 before giving his opinion, this was incorrect. Dr Thomas’ evidence was that he had not been told that a plain x-ray and a CT of the lumbar spine had been performed prior to the incident. It had been Dr Thomas’ evidence that the only imaging he had was from May 2005 onwards.
Respondent’s submissions as to the Tribunal’s findings
Mr Ternes submitted that Mr Kelly’s evidence was seriously unreliable. There was substantial evidence of pre-incident existence of lower lumbar back pain. There was also medical evidence that he had suffered from upper lumbar pain for several years, underwent imaging in January 2005, referral for physiotherapy and the prescribing of NSAID’s. This has not been disclosed to the physiotherapist Mr Dib or to Dr Clayton Thomas.
It was further submitted that the applicant’s oral evidence before the Tribunal in relation to the incident of 7 February 2005 diverged from that given at the time of the incident. In particular the evidence before the Tribunal was the first time Mr Kelly had mentioned a crunching sound. Attention was drawn to other inconsistencies in the evidence given to the Tribunal in relation to Temazepam doses, whether Mr Kelly had received massage therapy from Dr Mamo and the failure to list Temazepam amongst his current medications. Mr Ternes contended that the Tribunal should accept only the contemporaneous accounts of the incident of 7 February 2005 and that the history taken by Miss Lapeyre was closest in time to the event.
Mr Ternes submitted that there were no fractures sustained in the incident of 7 February 2005 as all medical practitioners who gave oral evidence to the Tribunal were in agreement on this point. The Tribunal should find accordingly, notwithstanding the fact that this had been challenged in the reports of Mr Cairns, Mr Haw and Dr Gorman. These medical practitioners supported the view that the applicant fractured his spine on 7 February 2005. In contrast, Associate Professor Brazenor, Mr Mangos, Mr Wearne, Mr Haig, Mr MacIntosh and Mr Johnson had determined that there was no fracture arising from the incident.
Mr Ternes contended that the evidence of Mr Dib as supported by his clinical notes indicated that Mr Kelly’s symptoms had improved in the weeks following the incident.
Mr Ternes addressed all of the treating doctors’ diagnoses and those of Drs Kostos and Davison. He contended that Dr Thomas’ diagnosis was one of aggravation of thoracic spondylosis or a chronic pain syndrome as a result of the injury of 7 February 2005. Mr Dib’s conclusion was that Mr Kelly suffered from a fracture of the thoracic spine, giving rise to kyphosis and while the condition was degenerative, it was caused by the trauma of 2005. Dr Kostos’ diagnosis was of Scheuermann’s disease and secondary osteoarthritis. He considered the applicant’s injury of 7 February 2005 to be musculo-ligamentous and would resolve in 3 to 6 months. Dr Davison was of the opinion that it was a soft tissue injury, 90 per cent of which resolved within 12 months. Dr Davison also described Mr Kelly’s position as a chronic pain syndrome.
Mr Ternes contended that the Tribunal should accept Dr Kostos’ evidence in preference to that of the other reporting experts and treating doctors, as he was the only individual who had looked at all the radiological investigations undertaken between 2000 and 2012. Indeed as a result of Dr Kostos’ comments on the films, Dr Davison had altered his opinion regarding the presence of a thoracic vertebral fracture, once he was acquainted with the results of the second bone scan performed in August 2006. Mr Ternes further submitted that the opinions of Mr Dib and Dr Mamo, neither medically qualified, made no sense medically.
Dr Kostos rejected the diagnosis of a chronic pain syndrome, given the localisation of Mr Kelly’s symptomatology. Chronic pain syndrome sufferers reported widespread pain and tender spots. Mr Kelly firmly believed he had fractured his spine in February 2005 after Dr Smith informed him in May 2005 that he had multiple fractures of his thoracic vertebra. It was further contended that Mr Kelly’s continuing symptoms had been contributed to by the litigation process and his feelings that he had not been justly dealt with by the respondent. In addition Mr Kelly’s use of various benzodiazepines, opioids and alcohol were likely to have contributed, or maintained the symptoms. Dr Thomas had been of the view that there was a separate medication problem.
Despite the fact that Mr Kelly had, by a Consent Order, been compensated for 23 per cent WPI for ‘thoracic spine fractures’ in 2012, it was contended that the Tribunal was not bound by this decision as the SRC Act is an evolving decision-making scheme. The respondent relied on the decision in Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263.
Mr Ternes submitted that Mr Kelly’s symptomatic improvement during the six months prior to the hearing was indicative of the injury having resolved at the latest by 12 September 2017.
In relation to the provision of household services inside the home, since 19 October 2015 and outside the home from 5 July 2017, it was contended that while Mr and Mrs Kelly had for several years paid for assistance in household cleaning, it was Mrs Kelly’s evidence that there was only a little more in the way of household chores in the Gisborne South property than Moonee Ponds. Mr Kelly gave evidence that he was able to maintain the fences, undertake minor welding, use a petrol blower and mow two acres of grass using a ride-on mower. Mr Dunne, occupational therapist, had concluded that Mr Kelly and Mrs Kelly, with appropriate placing and energy conservation principles, could cope with the outdoor duties.
With respect to the payment for osteopathic treatment under s 16 of the SRC Act, it was submitted that Mr Kelly had been receiving this treatment since about July 2015, initially once a week and from June 2017 fortnightly. Mr Kelly had admitted that he didn’t do many of the exercises prescribed by Dr Mamo. Despite this his condition was improving. Dr Thomas, Dr Kostos and Dr Davison were of the opinion that as osteopathic treatment was passive in nature it was of no long term benefit and was not indicated for Mr Kelly’s condition. Both Dr Kostos and Dr Davison recommended exercise such as freestyle swimming and Pilates with intermittent use of anti-inflammatory medication and non-opioid based analgesia.
Mr Ternes urged the Tribunal to affirm all of the reviewable decisions.
TRIBUNAL’S DELIBERATIONS AND DECISION
While the submissions contained in Mr Kelly’s Part A document were addressed and resolved by a Telephone Directions Hearing on 2 February 2018, comment in brief is required.
Mr Kelly had contended he had been denied natural justice on several grounds. The respondent had attacked his credibility without forewarning that this would occur. As a result he had not called witnesses to attest to his good character. The Tribunal pointed out that there was nothing to stop him from calling witnesses during the proceedings and he had in fact arranged for his friend Mr Hunter to give evidence. It was beyond anyone’s control that his main witness, Dr Mamo was suddenly unavailable to give evidence. Despite Mr Kelly’s complaint, there was no evidence before the Tribunal that Comcare’s employees had been instructed to or did avoid communicating with him after the decisions were made. The documentation recorded frequent contact.
As Comcare had said the issues would be confined to or at least concentrate on the three reviewable decisions, Mr Kelly inferred that issues regarding his possible misuse of medications would not be raised. The Tribunal explained that given that in application 2017/5352 the reviewable decision of 1 September 2017 was, in practical terms, a cease effect to pay compensation for medical and medication expenses under s 16, it followed that the Tribunal’s consideration of this decision would involve the examination of the drugs prescribed, their dosage and the frequency of repeat prescriptions.
Mr Kelly had submitted that Comcare was in breach of the requirements of s 37 of the AAT Act. The Tribunal can find no evidence that the respondent breached any of their requirements. They filed all documentation in accordance with the time set for doing so, provided several sets of T-documents, a Statement of Issues, Facts and Contentions and the reasons for the reviewable decisions under consideration as well as documentation relating to earlier claims. This was in contrast to Mr Kelly’s filing of documentation which was frequently late and in breach of the Tribunal Orders but was accepted by the Tribunal without imposition of penalty. Mr Kelly’s contentions in relation to s 66 of the SRC Act were irrelevant as s 66 applies only to the claimant, himself.
While it was open to the Tribunal to consider and approve his request that the hearing be set aside, i.e. reheard presumably by another Tribunal Member, Mr Kelly stated that this was definitely not what he sought.
The substantive issues
On 6 July 2005, Comcare accepted liability under s 14 of the SRC Act for a thoracic sprain of Mr Kelly’s back sustained on 7 February 2005. In the decision of 6 July 2005, any fracture involving the thoracic spinal vertebrae was rejected as the delegate was not convinced that the T8 wedging was caused by the incident of 7 February 2005. Since that determination Mr Kelly has received compensation payments in accordance with s 16, s 19, s 24, s 27 and s 29 of the SRC Act.
On 24 August 2012 Mr Kelly and Comcare reached an agreement in relation to a s 24 and s 27 claim for permanent impairment and non-economic loss, the permanent impairment being a 23 per cent WPI due to the thoracic vertebral fractures. This was presented to the Tribunal prior to any hearing listing, accepted by the Tribunal and converted to a decision in accordance with s 42C of the AAT Act. Thus the evidence relating to this claim was not tested before the Tribunal. Mr Kelly had not worked full-time hours since 2007 and retired in 2013 at the age of 65. Since retiring he has continued to receive compensation payments pursuant to s 16 and more recently for household and gardening duties pursuant to s 29 of the Act.
The Tribunal agrees that the issues before it are as stated by Mr Ternes in his submission as being:
a.Whether, on 19 October 2015, the Applicant continued to suffer from the effects of the injuries sustained on 7 February 2005;
b.if so:
(i)Whether compensation is payable, from 19 October 2015 to the present and presently, under section 29 of the SRC Act in respect of household services inside the home (and from 5 July 2017 inside and outside the home);
(ii)Whether compensation is payable, from 14 October 2016 to the present and presently, under section 16 of the SRC Act in respect of osteopathic treatment; and
(iii)Whether compensation is payable, from 5 July 2017 to the present and presently, under section 16 of the SRC Act in respect of any medical treatment other than the osteopathic treatment.
To this is added the consideration that the attributing of Mr Kelly’s back pain to T8 to T11 wedge compressions was an incorrect diagnosis.
Medical Evidence before the Tribunal
The diagnosis and causation of medical conditions is based on the clinical history provided by the individual, the findings on physical examination and the results of any objective testing. When considering injuries due to extrinsic force the mechanism of the injury is of importance.
In light of the varying descriptions provided by Mr Kelly to both his treating doctors and the independent medical experts, the respondent submitted that the Tribunal should rely on the more contemporaneous medical reports describing the events of 7 February 2005.
In 2005 Mr Kelly was seen by his general practitioner Dr Smith, Miss Lapeyre, occupational therapist, Associate Professor Graham Brazenor, neurosurgeon, and Mr Chris Haw, orthopaedic surgeon. Dr Smith in a letter dated 16 June 2005, described the mechanism of injury as:
... he had hurt his back at work on the 7/2/2005 when he was working on a barge which had been hit by a wave. ...
Miss Lapeyre described the incident as:
... He stated that he was climbing on to a raft from the pier. He stated that as he was climbing down the ladder, a wave crashed over him. He stated that the force of the wave pushed him back then forward causing him to hit the ladder. He stated that the impact also caused him to hyperextend his back. Mr Kelly stated that he went home after the incident mainly to change his wet clothes. ..... he noticed bruising to his chest ...
Associate Professor Brazenor on 24 October 2005 related the history as given by Mr Kelly as:
... as he ascended the ladder from the raft to the pier an exceptionally large wave struck the raft and projected it and the ladder and Mr Kelly vertically in the air with an instantaneous deceleration as the mooring chains snapped taut. Mr Kelly was in the act of stepping off the ladder onto the pier and describes a violent flexion of his body at the waist and above, which gave him a scare but which at that early stage did not appear to have injured him. ...[on the same day he had] noticed bruises on his chest. ...
Mr Haw in his report to the general practitioner Dr Smith dated 16 November 2005, recorded Mr Kelly as saying:
... he was on a barge down at Williamstown and he was ascending a ladder when a wash from a passing boat hit the barge and the instability that this caused resulted in him having a very heavy fall.
Mr Haw diagnosed a disc injury and negated any spinal vertebral fracture.
In 2006 Mr Kelly was seen by Dr Clayton Thomas, occupational physician and pain specialist, Dr Peter Stevenson, consultant physician, Mr Peter Dohrmann, neurosurgeon and Mr Peter Mangos, general surgeon.
Dr Thomas who saw Mr Kelly in March 2006 described the incident as Mr Kelly working on a barge, with a northerly wind blowing and the water being choppy. A ship went past and in the process of the passing ship Mr Kelly had jarred his back on a few occasions.
Mr Peter Dohrmann on 24 August 2006 recorded that Mr Kelly had been:
... climbing down ladder attached to the raft when a passing ship produced a wake, causing the raft to pitch suddenly. ... he, [Mr Kelly] climbed rapidly climbed up the ladder in an attempt to alight from the raft. In the process he was “bashed” onto the ladder and nearly fell downwards onto the barge. He managed to scramble onto the pier nearby.
Mr Dohrmann wrote that Mr Kelly went home to change his clothes, noticed bruising on the anterior chest wall and returned to work.
Dr Stevenson who reported on 11 April 2006 described the event of 7 February 2005 as Mr Kelly was:
down the ladder was inspecting the various substances being immersed when he became aware that a wave was rising and he was getting wet. ... He clambered up the ladder, lost his footing, heaved himself sideways and was pulled up on the pier. ... He was conscious of a pain in the side and there was superficial bruising on his chest.

Mr Peter Mangos on 10 May 2006 obtained the history that Mr Kelly had:
... suffered a sudden jerking injury at work. [On 7 February 2005] he had descended to the raft, and was ascending the ladder from the raft onto the pier when a large wave from a wake struck the raft and Mr Kelly ... was thrown upwards and jerked backwards as the mooring chains snapped tort. He did not actually fall and strike himself. ... He was very drenched ... had to go home to change and return to work.
In 2007 Mr Kelly was seen by Mr Michael Shannon, orthopaedic surgeon. Mr Shannon described the injury as having occurred when Mr Kelly was:
... standing on a ladder on a boat, which was hit by the wake of a passing boat and this caused him to have whiplash type of injury to his upper back.
It was said that he flexed forward over the top of the ladder. Once again he gave a history of going home to change his clothes and then returning to work.
From 2007 onwards, most of the examining specialists recorded the history of Mr Kelly suffering a fall. Mr Max Wearne, who saw Mr Kelly on 1 April 2009, recorded that on scrambling up the ladder Mr Kelly had been subject to a surge from a passing ship which caused the barge to rock and for him to hyperextend his back and then flex back over the top rung of the ladder. He got to the pier and fell over.
Dr Carolyn Arnold who saw Mr Kelly on 1 September 2009 obtained a similar description of the events of 7 February 2005. Mr Kelly said that:
... He was climbing from the barge up onto the pier, when the wake from a boat in the shipping channel caused the barge and the ladder to move quite violently. He had to hold on tight to the ladder and as he did he was thrown against the ladder resulting in bruising on his chest. ... he managed to throw himself up onto the pier and he sort of tripped and ... somersault at the same time. ... he went home to change on his way back to his office.
It would appear that after 2009 the description of a fall, plus or minus somersaulting became the usual history given. On 12 February 2015, Dr Gary Davison described Mr Kelly as having: ... scrambled up the ladder after a large ship had created a wake causing the barge to rock violently and when he got to the top he jumped to the pier ... landed on his feet fell backwards and experienced acute spinal flexion. [The Tribunal notes that this description is of an extension rather than an acute flexion of the spine.]
In 2016 Dr Tony Kostos, rheumatologist, assessed Mr Kelly. He obtained a similar history that Mr Kelly had climbed the ladder, jumped to the pier, stumbled and fell backwards. Mr Kelly had recorded the entire consultation with Dr Kostos and had filed the transcript. In the transcript Mr Kelly described the so called fall as a near-complete somersault ending up with his feet over his shoulders and as he put it arse up.
The clinical findings vary considerably from the most common finding of no abnormality in the range of movement of the thoraco-lumbar spine and no evidence of localised tenderness or muscle spasm, to the report of the treating physiotherapist, Mr Dib, who recorded a 25 per cent reduction in flexion and a 50 per cent reduction in extension due to pain when he examined Mr Kelly on 9 February 2005. Mr Dib did not record the mechanism of injury. He localised Mr Kelly’s pain to between his shoulder blades. With treatment Mr Kelly was said to have rapidly improved and by 2 March was very much better but not quite 100 per cent.
In 2012 Mr Michael Khan, orthopaedic surgeon, noted Mr Kelly’s spinal movements to be a little restricted and painful. Straight leg raising was normal and normal muscle strength was exhibited. No neurological abnormality was detected.
On 13 February 2015 Mr Gary Davison reported that Mr Kelly had a normal range of spinal movement with no local tenderness and no neurological abnormality. Dr Davison concluded that Mr Kelly’s spinal function was excellent despite having a degree of kyphosis.
In December 2016 Dr Kostos noted the presence of kyphosis with compensated scoliosis and that Mr Kelly’s thoraco-lumbar spinal movements while sitting and standing were restricted but not painful.
In summary the clinical findings on examination have varied considerably over a period of nearly 12 years with Mr Kelly exhibiting normal ranges of movement and no local tenderness on the majority of those occasions when his spine was fully examined. On occasion he was found to have a mildly restricted range of movement and para-spinal muscle tenderness on one or two occasions.
Radiological Imaging
In determining the cause of Mr Kelly’s back pain, the radiological imaging undertaken between the years 2000 and 2012 are of major significance given that his permanent impairment lump sum payment was made on the basis of the compression wedging of four thoracic vertebrae (T8 to T11 inclusive) despite liability originally being accepted for a thoracic sprain and a T8 wedge compression/fracture being specifically rejected.
Mr Kelly has been seen by 18 experts in various relevant fields, including neurosurgeons, orthopaedic surgeons, a rheumatologist and several pain and occupational health physicians. Some of these experts have seen him twice or more. The Tribunal estimates at a minimum there have been 27 reports emanating from the group. The psychiatrists’ reports are not considered as they do not conduct physical examinations or look at x-rays. While general practitioners’ notes are taken into account they rarely look at the x-rays but rely on the reports received.
Of the estimated 27 separate assessments of Mr Kelly, eight of the medical practitioners had access to his medical imaging but none had the complete series. Frequently it was one or two plain x-rays, occasionally the x-rays plus bone scans and less frequently the CT scans. Many of the reporting specialists commented on the absence of films and reports and had to rely on those described in other documentation forwarded to them by the legal representatives.
Only Associate Professor Brazenor and Mr MacIntosh appear to have had access to the plain x-ray and CT scan of the lumbar spine performed on 5 January 2005, some five weeks before the workplace incident. The vast majority of the reporting specialists relied on the plain x-ray of Mr Kelly’s thoracic spine performed on 10 May 2005; this being the basis on which he lodged his application for compensation on 23 May 2005.
In the course of his oral evidence before the Tribunal, Mr Kelly mentioned that he had been checking his large bag of x-rays the night before the hearing to make sure all were present. Further questioning revealed that he had all his x-rays back to the year 2000. The Tribunal is well aware that in the era prior to the digitisation of radiological reporting patients were instructed to keep their films forever. It would appear that Mr Kelly was not told to take his films with him for the benefit of any medical practitioner who might be reviewing him or assessing him for compensation. Many of the reporting specialists have decried the absence of any x-rays prior to 10 May 2005 given that the radiologist reported a T8 compression wedge fracture of indeterminate age.
Having ascertained the existence of all these x-rays, it was arranged for Mr Kelly to bring them to the hearing. Dr Kostos agreed to look at the films, point out the abnormalities and address them. The Tribunal has a very high quality dual radiograph imaging machine. Dr Kostos’ assessment of the films is considered by the Tribunal to have been excellent and unbiased. (The Tribunal member has more than 30 years’ experience in reading CT scans and a similar experience in MRI).
Dr Davison who gave evidence in support of Mr Kelly’s claim was offered the same opportunity to look at the films before the Tribunal, to assess them and discuss their relevance but declined as he did not have the experience or expertise to do so.
While the assessment was limited by the radiological field encompassed in the earlier films, those of 2000 performed to assess the lumbar spine also encompassed the thoracic vertebra from T10 to T12 in the lateral views. These were of sufficient quality to reveal that there was wedge compression of the 11^th thoracic vertebra with disc changes in the T11/12 disc as a result of this wedging and the presence of Schmorl’s nodes, diagnostic of Scheuermann’s disease, at the T10 level. These changes did not alter in the ensuing five years as the 5 January 2005 plain x-ray of the lumbar spine again, showed the T11 wedging and the T10 endplate changes indicative of Scheuermann’s disease.
Scheuermann’s disease is an inflammatory osteochondritis that occurs classically in adolescence. It is frequently referred to as growing pains and is of unknown aetiology. The osteochondritis usually runs a course of one to two years before the individual becomes asymptomatic but radiological changes may persist. The Tribunal Member has radiological evidence of Scheuermann’s disease.
Both Associate Professor Brazenor and Mr Cairns, orthopaedic surgeon, have changed their assessment and opinions over the years. In 2007 Associate Professor Brazenor concluded that there was no work-related injury and Mr Cairns reached the same conclusion in his report of 2012. It may well be that other experts would have revised their opinions had they been provided with all the radiological data.
The diagnoses provided
Based on the criteria of a clinical history, physical examination and the appropriate objective investigations, 8 of the 18 reporting specialists concluded that there was no diagnosis of a disease or work-related injury arising from the events of 7 February 2005. Dr Thomas, Mr Dohrmann and Dr Arnold considered that Mr Kelly had suffered an injury to his thoracic spine on 7 February 2005. Initially, Associate Professor Brazenor, Mr Cairns and Dr Davison also considered that there was a work-related injury but as further investigations came to light, all revised their opinions. Associate Professor Brazenor revised his diagnosis in 2007, stating any injury to the thoracic vertebra if present had resolved. Mr Cairns revised his diagnosis on receipt of the further MRIs and CT scans. Mr Dohrmann, while opining there was a work-related injury, recommended that an orthopaedic opinion be sought. Dr Arnold’s diagnosis was qualified as she had not been provided with any of the x-rays.
Mr Haw made a diagnosis of a disc lesion/disc damage but did not comment on any bony damage. Dr Davison reversed his diagnosis in relation to the compression fractures and concluded in his evidence before the Tribunal that the changes were due to degenerative processes i.e. spondylosis consistent with Mr Kelly’s age. The majority opinion is that there is no work-related injury.
Recommended Treatment
Based on purely symptomatic criteria, all of the reporting specialists concerned with the treatment of spinal disorders have said that passive treatment in the form of physiotherapy and/or osteopathy is of no benefit and in the opinion of some is contra-indicated. Almost universally the specialists have expressed concern at Mr Kelly’s use of opioids, although they acknowledge his genetic defect in the metabolism of these drugs. This includes his treating pain specialist Dr Thomas. Similarly, concern has been expressed about Mr Kelly’s use of Temazepam and other benzodiazepines.
In terms of physical activity, there have been strong recommendations relating to active movement, hydrotherapy and in particular swimming as the latter involves rotation of the thoracic spine. The Tribunal notes that Mr Kelly has found exaggerated military style walking to be of great benefit. This involves a degree of rotation of the thoracic spine and accords with Dr Kostos’ recommendations.
In summary, the medical evidence, assessment, diagnosis and recommended treatment provided by more than 18 consultant practitioners is diverse, frequently conflicting and has either not been followed or has been abandoned as not effective. This is not surprising, given the background addressed above.
TRIBUNAL’S DECISION
Based on the considerations outlined above, the Tribunal has adopted the majority opinion of the medical experts combined with the analysis of the radiological imaging data. The Tribunal determines that Mr Kelly’s compression wedging or as alternatively described compression fractures of T8, 9, 10 and 11 were pre-existing thoracic vertebral abnormalities related aetiologically to Mr Kelly’s Scheuermann’s disease which was probably active in his teenage years.
Any injury that he suffered on 7 February 2005 was on the balance of probabilities related to musculoskeletal damage of ligamentous or muscular in origin, although soft tissue injuries also include disc injuries. Such disc damage was considered present by only one expert in the 2005 to 2007 timeframe.
The medical experts’ evidence is that any musculo-ligamentous injury should have resolved by 12 months. The evidence suggests that Mr Kelly was improving with physiotherapy. After the performance of an x-ray on 10 May 2005 he was informed that he had fractured his spine. While he has maintained this position and it is not unreasonable given his belief has been re-enforced by some medical opinions, the objective radiological evidence is to the contrary.
The Tribunal has determined that the respondent’s acceptance, albeit by a Consent Order, that Mr Kelly’s T8 to T11 compression fractures arose out of his employment and in particular the events of 7 February 2005, was wrong.
The Full Court of the Federal Court in Hannaford determined that it was open to the Tribunal as part of s 16, s 19 and/or s 24 review to revisit the original acceptance of liability pursuant to s 14. A finding under these sections and presumably by expansion to s 27 and s 29, that liability was wrongly accepted, does not of itself set aside the original s 14 determination and accordingly no overpayment arises.
In Hannaford the Full Court of the Federal Court found that Mr Hannaford’s accepted liability under s 14, s 16 and s 19 for Ross River fever had been wrong. Telstra on 10 December 2003, and as affirmed by the Administrative Appeals Tribunal on 26 November 2004, concluded that Mr Hannaford had never suffered from Ross River fever. The Court found that the SRC Act permits progressive and evolving decision-making allowing for the changes in circumstance that are inevitably likely to happen. This, they said, was in the interests as much of employees as employers.
While in Hannaford the court considered at some length the reconsiderations of determinations under s 62, this is not applicable in Mr Kelly’s case as all three decisions arose from his lodgement of further claims for ongoing medical treatment under s 19 and household and gardening assistance under s 29. The Tribunal does not accept that the findings in Hannaford are not applicable to ongoing or new claims, there being no suggestion in the decision that they relate only to s 62 claims initiated by the determining authority on its own motion.
Based on the evidence before it the Tribunal decides that Mr Kelly’s so called compression fractures or wedging of the T8 to T11 thoracic vertebra was a pre-existing condition, secondary to his Scheuermann’s disease; the latter being well documented radiologically prior to the incident. The Tribunal also finds that any injury he suffered on 7 February 2005 had resolved by early 2007. Mr Kelly’s current symptomatology is due to age-related degenerative changes in the thoracolumbar spine referred to as spondylosis.
The attribution of the compression fractures to the work-related incident of February 2005 was wrong; but in accordance with Hannaford, no overpayment arises. The Tribunal is of the view that Mr Kelly is not entitled to continuing support in the form of household and gardening assistance under s 29; and that he is not entitled to medication and osteopathic treatment under s 16 of the SRC Act.
The Tribunal affirms the decision under review.

I certify that the preceding 189 (one hundred and eighty‑nine) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

............................[sgd]............................................
Associate
Dated: 6 April 2018

Dates of hearing: 12, 13, 14 September 2017 and 1 December 2017

Date final submissions received: 9 February 2018

Applicant: In person

Counsel for the Respondent: Ray Ternes

Solicitor for the Respondent: Joshua Lessing and Kellie Latta - Sparke Helmore Solicitors
APPENDIX
Applicant
A1Packet of Documents
A2Mrs Kelly statement dated 2 October 2016 received 4 October 2016
A3Neville and Jenny Hunter's statement
A4Dr Mammo's statement, page 25 of chart including medical information and colour photos

Respondent
R1      T-Documents
R2      Mr Dib's records
R3      Records of Margaret Street Clinic
R4      Dr Mammo's records
R5      Dr Clayton Thomas medical records relating to Mr Kelly
R6Medical report of Dr Tony Kostos dated 12 December 2016 and letter of instructions

R7 Referral for Occupational Therapist Assessment dated 22 June 2015
R8Dr Davison Report 30 August 2016 with Letter of Instruction from Sparke Helmore dated 23 August 2016

R9 Record of Michael Johnson orthopaedic surgeon
R10 Recent records of Dr Clayton Thomas regarding Peter Kelly

[2018] AATA 761

6 April 2018

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Causation

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Dates of hearing:	12, 13, 14 September 2017 and 1 December 2017
Date final submissions received:	9 February 2018
Applicant:	In person
Counsel for the Respondent:	Ray Ternes
Solicitor for the Respondent:	Joshua Lessing and Kellie Latta - Sparke Helmore Solicitors