Kovac and TNT Australia Pty Ltd (Compensation)

Kovac and TNT Australia Pty Ltd (Compensation) [2017] AATA 234 (28 February 2017)
Division:General Division
File Numbers: 2015/4257
2016/4947

Re:Radomir Kovac
APPLICANT

AndTNT Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:William Stefaniak AM RFD, Senior Member
Dr M Couch, Member
Date:28 February 2017
Place:Sydney

Application number2015/4257 – the frank injury
1.The Tribunal sets aside the decision under review and substitutes the following decision:
(a)the Respondent continues to be liable to pay compensation to the Applicant under section 16 and section 19 of the Act for the lower back pain injury he sustained on 16 December 2010; and
(b)the Respondent is to pay the Applicant's cost of this application as agreed or taxed.

Application number 2016/4947 – nature and conditions claim
2.The Tribunal sets aside the decision under review and substitutes the following decision:
(a)the Respondent is liable to pay compensation to the Applicant under Section 14 of the Act for the lower back injury he sustained due to the nature and conditions of his employment; and
(b)the Respondent is to pay the Applicant's costs of this application as agreed or taxed.

...................[sgd].....................................................
William Stefaniak AM RFD, Senior Member
CATCHWORDS
Workers compensation – entitlement to compensation for medical expenses – entitlement to incapacity payments – back injury – whether nature and conditions of the Applicant’s work contributed to a significant degree to ongoing back condition – whether Applicant presently suffers from the effect of the injury – where conflicting medical evidence – decisions set aside and substituted
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 14, 16, 19
CASES
Abraham and Comcare (2006) FCA 1829
Greaves and Comcare [2015] AATA 117
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Sandford and Linfox Australia Pty Ltd [2014] AATA 375
Stanton and Comcare (2015) AATA 397
Winsall and Comcare [2002] AATA 51
REASONS FOR DECISION
William Stefaniak AM RFD, Senior Member
Dr M Couch, Member
28 February 2017
BACKGROUND

The Applicant Radomir Kovac (or Ray as he is known) is 37 years of age.
He left school after completing year 10 and worked as an auto electrician and tree lopper for approximately 3 years before he was employed as a delivery driver with the Respondent in 2000. He had also had other jobs in his late teens to early 20s such as driving a truck and loading furniture.
Prior to leaving school the only other piece of history of any relevance is that the Applicant played junior soccer and junior rugby league as a centre until the under 13s. He did not suffer any injuries playing either of those two football codes.
In 2000 he commenced working with TNT, initially as a pickup and delivery driver on a casual basis and from 2003 on a permanent basis.
He operated out of the Erina depot from 2000 until 2007 and from 2007 to 2010 out of the Berkley Vale depot.
At the Erina depot he would start his shift by unloading semitrailers usually with another person assisting. The boxes from the trailer would be placed on a conveyor belt and it was not until 2005 that the boxes were labelled as to how heavy they were.
He would then load the boxes onto the delivery truck, often by using a forklift (for the boxes stacked on pallets) but sometimes manually. He would then do the deliveries as well as the pick-ups.
He described it as a tough job before he moved to the newer depot at Berkley Vale.
After the move to Berkley Vale in 2007, the process became a lot more automated as he began doing bulk delivery which consisted of delivering pallets of various items. These pallets were delivered to commercial businesses and warehouses and he would usually do the local delivery run which included driving to Morisset and Woy Woy.
It was common ground between all parties that approximately 90% of the items delivered out of the Berkley Vale depot would be loaded and unloaded by forklift as they were on pallets (the bulk items). The other 10% were mainly small boxes of varying weight. The work was much easier than at Erina but the Applicant said it was still at times not easy due to that 10%. .
On or about 7 October 2008 the Applicant injured his right knee. The injury occurred as he was attempting to get into his track. His foot slipped on one of the metal steps on the truck and as he fell, his right knee struck one of the other steps. He underwent a series of surgeries on his right knee, the first being in November 2008 and the last being about January 2010.
He initially had arthroscopic surgery and received a cartilage graft to the posterior aspect of the patella. His right knee symptoms settled and apart from some slight pain on occasions he had no further problems with his knee.
He was off work and had been compensated by the Respondent as such for a number of months and returned to work originally on reduced hours and light duties until he was able to return to full-time to his previous role.
On 16 December 2010 he was getting into his truck at Berkley Vale when his foot slipped on a step and he fell several centimetres, slightly twisting in the process and arrested his fall by grabbing the handle near the door of the truck (see Exhibit R1 G)
This arrested his fall, but he felt a sudden pain in his lower back as a result of the jolt. He also felt a pain down his left leg. This incident has been referred to in these proceedings as the “frank incident”.
He continued to work as he did not think too much of it at the time and thought it would pass. However when he went home he noticed that the pain had increased and it continued to increase overnight. He went to see his general practitioner Dr Eric Lim (on 22 December 2010).
It is relevant to note here that this was the first time that the Applicant had ever suffered back pain. None of the evidence before the Tribunal either by way of medical reports or evidence from witnesses, or from documentation in evidence before the Tribunal indicated any history or earlier incidents of any back strain or back problems.
Dr Lim organised an x-ray and diagnosed the Applicant as suffering from a lumbar spine strain with left leg reticular symptoms and certified him unfit for 22 December and fit for suitable duties from 23 December 2010 - January 2010 with restrictions of lifting no more than 12 kg.
The Applicant stated he was off work for around three weeks and was taking regular pain relief medication.
The Applicant also stated he had a cortisone injection to relieve the pain and he returned to work on light duties with a lifting restriction of 5kgs.
Dr Lim reported on 26 January 2011 that the Applicant had suffered a lower back injury with a resulting diagnosis of lumbar spine strain. The Applicant had made a good recovery and in the doctor's opinion would progressively update his capabilities and anticipated a final pre-injury duties certification.
The Respondent by determination dated 2 February 2011 accepted liability to pay compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) and accepted liability to pay compensation in respect of “lower back strain“ having regard to the medical evidence at the time.
The Applicant in his statement dated 18 November 2015 at paragraph 7, stated that on 10 March 2011 he had an exacerbation of his back injury. He had stepped onto the tail lift as he was getting into his vehicle and he felt a twinge in his back. He was in a lot of pain and had great difficulty moving.
He believed he saw Dr Lim shortly thereafter who ordered an MRI scan and referred him to orthopaedic and spinal surgeon Professor Peter Papantoniou
The Applicant said he had seen Professor Papantoniou previously following his initial back injury. He stated that Professor Papantoniou referred him for three cortisone injections and that when he did return to work after that incident he was on greatly reduced hours with a lifting restriction.
X-ray and MRI studies undertaken on 12 April 2011 showed small disc lesion at L3/4 and L5/ S1 of uncertain age with some associated chronic disc desiccation.
Dr Greg Bruce (orthopaedic surgeon) reported on 31 May 2011 that the Applicant had a low grade lumbar spondylosis and lumbar disc degeneration which had been aggravated by a low level strain injury.
The Applicant suffered a further aggravation to his symptoms on 9 January 2012 whilst undertaking his normal duties (pulling himself up into his truck).
An MRI study undertaken on a 31 January 2012 reported that the appearance was identical to the previous study taken on 12 April 2011. It revealed:
… at L3/4 there is a minimal disc desiccation and a mild left foraminal disc protusion… L5/S1 there is a disc desiccation, minor posterior end plate degeneration, mild to moderate posterior disc height narrowing and a mild posterior disc protrusion.
Professor Papantoniou reported on 4 June 2012 that the Applicant had an L5/S1 epidural on 2 April 2012 and the pain relief only lasted a day and a half. Professor Papantoniou felt the pain was coming from the Applicants L5/S1 disc prolapse. He suggested the Applicant continue with his medications and to add in regular swimming, walking and bike riding exercises.
Between August 2012 and 1 May 2013 things took a turn for the better and the Applicant was back at work doing full duties, having regular physiotherapy and going to the gym.
On 1 May 2013 Dr Lim noted that the Applicant had a sore back, was not getting better, had a recurrence of back pain and was sent to physiotherapy that day. The notes indicated that he had aggravated his back on Monday (28 April 2013)
A further MRI of the lumbar spine was undertaken on 13 May 2013 and showed a small L3/4 disc protrusion and disc protrusion and degeneration at the L5/S1 level appeared stable. It also revealed a “mild oedema within the ligamentum flavum at the L4/5 level developed since the previous study [MRI] but no associated bone bruising of facet joint inflammation.”
Dr Lim also reported on 8 May 2013 that the Applicant had a lower spine strain with left leg reticular symptoms and aggravation of discogenic disc disease.
Rheumatologist Dr Stephen Potter reported on 19 August 2013 that the Applicant suffered from constant low back pain and left leg referred pain. He also commented that there was degenerative focus at L5/S1 on the MRI scan and that the Applicant had some further treatment including a spinal injection.
Professor Papantoniou performed a L5/S1 percutaneous lumbar discectomy/nucleoplasty on 24 January 2014.
This initially appeared to go well and Professor Papantoniou reported as such on 18 March 2014.
However, the Applicant indicated that TNT did not approve his physiotherapy and gym program until May 2014 which was a few months after the surgery and this delayed his rehabilitation. Professor Papantoniou noted in his report dated 22 April 2014 that “he continues to have left sided lower back pain, which has become much worse.”
When he did return to work following the surgery it was in mid-2014 and he was on restricted duties only working a few hours per day with a weight restriction of 5 kg which was gradually upgraded until he was able to work five days a week for 6 to 8 hours per day.
Dr Richard Powell reported on 15 May 2014 that an MRI scan revealed evidence of an L5/S1 disc lesion and that the Applicant had undergone a series of epidural steroid injections. A L5/S1 discectomy was performed in January 2014 and the symptoms improved. Dr Powell agreed with a rehabilitation program and encouraged the Applicant to maintain his own home based exercise program and regular self-directed hydrotherapy.
The Applicant was thereafter certified fit for suitable duties from 21 July 2014 to 11 June 2015.
In his report dated 18 September 2014 Professor Papantoniou noted:
Over the last week or so… he has developed some increasing lower back pain with what he describes as a clunking sensation of his lower back. The pain is constant in nature and fluctuant in intensity.
The Applicant was also sent to be examined by a Doctor Christopher Harrington, an orthopaedic surgeon, who in a report dated 2 February 2015 stated that the Applicant had suffered degenerative disc prolapse at work on 16 December 2010 which led to a surgical decompression by Professor Papantoniou in January 2014.
Dr Harrington was of the opinion that the lower back strain injury was an aggravation of a pre-existing condition and the effects of any aggravation had ceased. The incident description was considered an aggravation of underlying disc degeneration which could have happened at any time whether the Applicant was at work or not.
This new diagnosis seems to have triggered the determination of 19 June 2015. In the meantime however Professor Papantoniou reported on 5 May 2015 that the Applicant seemed to have had an excellent result from his percutaneous lumbar discectomy and that he was back at work doing his normal job albeit on restricted lifting and restricted hours.
The Applicant stated that he was undergoing physiotherapy as well as the gym program to strengthen his back and core and that he would see the physio once a week and go to the gym three times a week. He stated that he continued to work up until 11 June 2015 when TNT advised that they no longer had suitable duties available for him.
He stated prior to that he was working 6 to 8 hours a day with a lifting limit of 10 kg and was able to undertake the majority of his normal duties including making deliveries, operating a forklift and pushing and pulling pallets weighing up to 200 kg using a pallet jack. Whilst experiencing pain he was still able to work and manage the pain.
He stated he was doing about 80% of his job at the time.
He has not worked since 11 June 2015 and has continued to be certified as fit for suitable duties since that time.
As a result of TNT sending him a letter stating that they were no longer liable for his back condition the Applicant stated he had been unable to continue with physiotherapy or his gym program but he took pain relief medication such as nurofen and panadeine forte regularly and continues to consult Professor Papantoniou.
By determination dated 19 June 2015, a delegate of TNT determined that the Respondent had no present liability to pay compensation under sections 16 and 19 of the SRC Act for medical treatment and/or incapacity for “degenerative disc prolapse at L5/S1”.
The Applicant on 1 July 2015 requested a reconsideration on the basis that:
(a)the decision did not explicitly state that the effect of the aggravation on the Applicant's condition had ceased;
(b)the report of Dr Harrington was against the weight of medical evidence;
(c)the decision misinterpreted Dr Harrington's report.
The reviewing officer did not agree and on 7 August 2015 stated that she was satisfied that the claimant no longer suffered from the effects of the injury and was not presently entitled to compensation pursuant to Section 16 and Section 19 of the SRC Act for medical expenses and incapacity payments respectively.
As can be seen from the above, (which is largely based on the facts as set out in the Determination of 7 April 2015, the Applicant’s statements and the confidential medical records (exhibit R2) which all parties at the hearing accepted as being the most accurate records available of what transpired between 2010 and 2015), it is apparent that the Applicant has never fully recovered from his back problems that first manifested itself at around the time of the incident on 16 December 2010 (regardless of what caused it).
LEGISLATION AND ISSUES
Claims for workers compensation by employees of TNT are governed by the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
Section 14 of the SRC Act provides that the Respondent is liable to pay compensation under the Act for an injury – as defined in section 5A – suffered by an employee which results in incapacity for work.
On 2 February 2011, the Respondent accepted liability for the lower back strain sustained on 16 December 2010 under section 14 of the SRC Act. Pursuant to sections 16 and 19 the Respondent paid the Applicant compensation, paid for his medical treatment and paid him incapacity payments for work in respect of the injury.
Section 16(1) states;
(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.
Section 19 provides relevantly:
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula…
The issue for the Tribunal to decide is whether the Applicant continues to suffer the effects of the injury to his back sustained on 16 December 2010 or whether this has resolved and his current symptoms are the result of a degenerative condition.
A related issue is whether the injury he suffered on 16 December 2010 should be characterised as an injury pursuant to section 5A(1)(b) of the SRC Act, or in this instance whether the Applicant suffered an aggravation of disease in accordance with the definition of a disease in section 5B(1).
In regard to the latter Counsel for the Applicant is correct I believe in stating that everyone involved in the case agrees that his client has an ailment. This is particularly relevant in relation to the further workers compensation claim made on 29 June 2016 which referred to the nature and conditions of the Applicant’s work, if not being regarded as the main cause of the problems with his disc, would certainly be regarded as the main contributing factor to the aggravation of any underlying disc weakness that might have been present.
Injury is defined in section 5A as including a disease and disease is defined in section 5B to mean:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
That was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee
“Ailment “ is defined in Section 4(1) to mean:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)
In relation to this new claim, which was rejected by the Respondent on 3 August 2016 and again after reconsideration on 9 September 2016, the Tribunal has to decide whether the nature and conditions of the Applicant’s work with the Respondent contributed to a significant degree to the Applicant’s ongoing problems with his disc that first manifested itself in December 2010.
The Tribunal accepts the submission that this means it needs to be satisfied that the Applicant’s work contributed to a significant degree to his ongoing back problems.
THE EVIDENCE
Radomir Kovac- Applicant
The Applicant gave evidence by way of a statement made on 18 November 2015, an undated statement tended as exhibit A2 in relation to matter number 2016/4947 and a supplementary statement dated 27 October 2016 in reply to Sue Moffitt’s statement of 21 September 2016. He also gave oral evidence.
In addition to the accepted facts that have been outlined above, the Applicant stated the following about working at the Erina depot:
·Unloading semitrailers would be done manually and usually by two people.
·The boxes would be placed on a conveyor belt and these boxes could weigh up to 50 kg.
·He did not know how heavy they were until he and his colleague attempted to pick them up.
·From 2005 onwards the boxes began to be labelled with their weight.
·The delivery truck would usually be loaded by using a forklift, however he would sometimes load it by hand. He would then do his deliveries and pick-ups and in the afternoon reload the trailer.

He stated in his statement of 18 November 2015 that he continues to take regular pain medication and perform back stretches and that the pain is constant but manageable.
In his undated statement, the Applicant added some further information. The Applicant stated that when he was standing inside the semitrailer unloading the boxes from the semitrailer onto the conveyor belt he would have to twist, bend, pull and push to fetch the boxes.
If the conveyor belt broke down, he and his colleague had to physically push the items down the belt. On average the conveyor belt would break down about three times per month.
The boxes varied in weight. They would include items such as lawnmowers and treadmills. Some of the items were not in boxes. Some items weighed less than a kilo other boxes were extremely heavy- in excess of 70kgs. If he could not move an item he would ask for assistance.
The weight of an item was recorded on the consignment note, however it was often scribbled and hard to read.
He added that he usually drove an 8 tonne truck which had side access and which was suited to pallet work. He preferred to use a forklift and a pallet jack to load and unload the truck.
Six photographs of one of the trucks he drove were tendered in evidence (exhibit R1 and R3). These photographs show the steps leading into the cabin which he slipped on in 2008 and 2010. They show the handle welded into the side of the cabin which he grabbed to arrest his fall in 2010 and they show the open gate whereby pallets were forklifted on and off the truck.
They also show the pallet jack used to move boxes and the tailgate which boxes could be pushed along. They also show an example of items placed on a pallet and items placed in the truck whereby a pallet jack would be needed to move them.
He stated in his supplementary statement that he would make between 10 and 15 deliveries on an average day as well is 5 to 10 pick-ups. He indicated that often the customer's premises did not have a forklift so he was required to manually unload the truck. He would then, sometimes with the help of a pallet jack, take the items to wherever the customer wanted them placed.
Upon return to the depot he would unload the contents onto the conveyor belt and reload the semitrailer in preparation for its return trip to Sydney.
On Sundays someone else would load the semitrailer.
The new premises in Berkley Vale was separated into a bulk area and a ’smalls’ area.
He worked in the bulk area and the loading and unloading was usually done by forklifts, however there were still some manual lifting. Again, some customers didn't have a forklift and he would have to manually unload the truck when doing those deliveries.
The trucks he drove had either 2 or 3 steps into the cabin. Once at the top of the steps it was necessary to hold the handrail with his right hand and with his body bent at the knees and hips, twist his body into the cabin of the truck. It was the same procedure in reverse to get out of the truck and he would get into and out of the truck somewhere between 40 and 50 times a day.
The Applicant’s supplementary statement dated 27 October 2016 was prepared as a reply to the statement of Sue Moffitt dated 21 September 2006.
Apart from some minor semantic details as to his status as a part-time driver and where he contradicted her statement that she was his direct boss and indicated she was only his direct boss for a limited time, he also indicated that his role was not just confined to deliveries and that he was required to deliver all types of freight including satchels weighing less than 1kg as well as heavier items such as refrigerators and TVs.
He further stated that on occasions the gates of the side of the trucks would not be able to swing out for a number of reasons (such as the customer's premises not having enough room to enable that to happen) and that on these occasions he was required to lift the gate from the hinges and take the gate manually back onto the truck.
He further stated that prior to 2007 none of the trucks he drove were fitted with an electric tail lift and that after 2007 only 3/20 trucks were fitted with the tail lift. On some occasions for example when he had to deliver items to Wonderland, he could not place it on a pallet jack and had to manually stack the pallet and then unload the freight from his truck. .
He stated that he was responsible for loading his truck every day not just three days out of five and on some occasions, he could do as many as 30 deliveries a day and on a multi drop as many as 60 .
He stated that prior to 2007 he did deliveries and pick-ups throughout the entire Central Coast region.
He further stated that on some occasions he would stack the freight onto a pallet and then shrink wrap it.
He stated that at each location he would either unload the truck himself or assist the customer unloading the truck. The items he was required to unload by hand included fridges and lawnmowers. Sometimes the weight of the freight was not written on the side of the box it was in.
Whilst he agreed with Sue Moffitt as to company policy that any freight over 40kg needed to be lifted by two people, he was often unaware of the weight of the freight until such time as it had been placed on the deck weigh station and this meant that he was required to lift the freight onto the deck weigh station without knowing how heavy it was.
He agreed that Sue Moffitt would be present when the trucks were being loaded but she could not see everything that was occurring and at any rate it was his evidence and also the evidence of Sue Moffitt that whilst the company could track where each driver was going and track their movements, no one actually went out with the driver and there was no video evidence or anything else that could show how the deliveries to customers were actually made.
The Applicant said his three statements were correct and that he had not worked since June of last year. He stated he was on a weight restriction of 15 to 20 kg with no bending or twisting when he was stood down.
He stated he is currently taking Golkar and Panadeine Forte tablet and Nurofen. This helped with the pain in the morning.
He stated Dr Eric Lim was his GP and had been seeing him for a long time – at least 10 years.
He further stated he would see Dr Lim about once a month. He said that the confidential medical records (exhibit R2) were an accurate record of what transpired and that he certainly could not remember the details of every time he went to see Dr Lim or indeed any other Doctor.
On this point all parties before the Tribunal accepted that where there was any conflict between the Applicant's memory and the confidential medical records the confidential medical records were accepted as being the accurate description of that consultation.
The Applicant stated that he was still under Dr Papantoniou’s care but that he had not seen him for a few months. He stated he was having physiotherapy but stopped because he no longer could afford it and he swam and engaged in self-regulated treatment.
Under cross-examination the Applicant indicated that prior to 2000 he worked as an electrician and a tree lopper as well as a furniture removalist driver.
He stated in answer to a question that he had told Dr Potter in relation to his job at TNT that “there was nothing hard about it“. He did not recall saying this. He indicated that he had been talking to that doctor in relation to the new depot where at least items were labelled with their weight, compared to the early days when items were not labelled, and agreed he would have said something along the lines that it was ”a lot easier than the early days.”
He confirmed that he had had no back strain or back pain prior to 2010.
After the knee injury of 2008 he was on light duties for a considerable period of time but in December 2010 he was on full duties. He felt TNT just wanted to get rid of him as he was doing most of the job, but not all of it.
He stated that unlike 2008 where he slipped on a step, in 2010 whilst he slipped on the step, the injury was not the same because he caught himself by grabbing the handle and in doing so he felt the jolt. He didn't wack himself on a step as he had done to his knee in 2008. He jolted and felt a pain down his leg and then carried on.
He felt he didn't work the rest of 2010 and conceded it was a long time ago and was not sure if he asked for time off before Christmas. He felt he might have but been told ”no” as it was a busy time at TNT.
He was shown his workers compensation claims forms. He stated he had no confusion with the 2008 incident and when he was shown the word “resolve” he did not know what it meant.
He agreed that if Dr Lim had taken something down in late 2010 early 2011 he would have told him that even if he could not now remember what he had told Dr Lim. He agreed when Dr Lim had described the plan as fluctuating and said “that sounds right.”
He agreed that initially the pain got better, it then came back in March 2011 and he had a partial return to work from October 2011 to January 2012 on full duties and then the pain flared up again. He stated the pain symptoms fluctuate and it could come on by him “doing anything.”
He stated he saw Professor Papantoniou the first time that he was given a cortisone injection which went well and in August 2012 he went back to full-time duties which lasted until May 2013 when there was another flare up which caused him to go off full duties. He stated that Dr Lim told him what a disc lesion was and that he would have problems on and off into the future with his disc.
He stated he had been truthful to Dr Lim and therefore what Dr Lim had recorded would be the most accurate evidence even if he could not remember what he actually told Dr Lim.
He was taken through the various consultations and notations with Dr Lim from 2008 to November 2012 .
He was referred to a notation of 21 April 2011 that stated there were some disc lesions and that he would have problems intermittently. The disc lesion in L3/4 L5/S1 was of an uncertain age “with some associated chronic disc desiccation”.
He agreed that only 10% of the items he was delivering were loose but that some of the pallets which consisted of the other 90% did have to be broken down. He agreed 90% of the work was pallet work.
He stated when he was off work ”you would like to do full hours" – “I wanted to be fit and do my work”.
It is fair to say that this was sometimes reflected in Dr Lim's notes. For example, on 27 June 2012 Dr Lim reported “talking full duties – wants to get back into it – going to Gym – spine going well - father passed away”.7 August 2012 –“progressing well – would like to increase hours - the trial of pre injury duties.”
On that day he went back to full duties and he agreed that he was going all right until 1/5/2013 when there was a recurrence of his back pain. He agreed that there was no injury in May 2013, his back pain just came on.
He was then asked questions in relation to his second statement – i.e. about his alternative basis to his claim.
He indicated it was a tough job “before we moved depots- we’d pick things up not knowing how heavy they were.”
He further stated that the Good Guys at Tuggerah didn't have a forklift but they were a small store and that there were small items that had to be delivered to them every day.
He stated that prior to 2006 he was driving an old 8 tonne truck with no tail lift.
He stated driving a truck involved a lot more jarring as they drove along and that delivery drivers just had to do a job and quite often no one was going to help them unload and “you need to get the job done regardless.”
Invariably if a customer wanted to get an item he would just find a way to get it off the truck regardless of whether the customer had a forklift or not.
SUE MOFFITT
Susan Moffatt then gave evidence. She was employed by the Respondent as the service centre leader at the Central Coast depot and she had been an employee of the Respondent for 30 years.
She would see the Applicant on a daily basis and she worked previously as the operations supervisor. She was aware of his claim that stated he’d been employed as a bulk pickup and delivery driver at the central coast depot in Berkley Vale.
She stated that the Applicant's usual truck was an 8 tonne truck which had gates that would swing out and there were tarpaulins or curtains that needed to be unbuckled and pulled across to access the gates.
She stated the gates weighed approximately 30kg if the driver needed to lift them, but they only needed to swing open. (It should be noted the Applicant said on occasions he would have to lift them and it should also be noted that there was no evidence of anyone observing what the Applicant did when he was doing his deliveries.)
She stated the curtains weighed approximately 20kg to pull open and the back of the truck had an electric tail lift.
She stated TNT employees had the use of forklifts and a manual pallet jack for use in case a forklift was unavailable. The Applicant would use a forklift to unload the pallets off the side of his truck, swing shut the gates, pull the curtains closed and buckle them secure.
On average the Applicant would do about 15 deliveries a day and in the afternoon he would do several pickups in predominantly the West Gosford and Somersby areas. Both of these areas were industrial areas.
She stated the pallets weighed about 300kg each and the consignment notes would include the weight of the pallets. She further stated most customers would have their own forklifts and pallet jacks.
She did state “we do not encourage drivers to use the customer's equipment to unload the freight” she stated that if the customer didn’t have a forklift then the driver may need to pull the pallet from inside the truck using a pallet jack to the tail lift to unload. I take it from her statement that she meant it was okay for the customer to use a forklift but not okay for them to use their other equipment to unload freight.
She thought it was possible that the Applicant may have occasionally loaded freight by hand but that this happened very rarely and she stated that it would have been loose freight only- individual boxes or cartons of mixed freight that would be taken off a pallet. She stated on average loose freight would weigh 15kg.
She said prior to 2007 the Applicant would do multi drop runs where he would deliver loose freight and manually unload his truck, but as a bulk driver he would not do multi drop runs. She also thought that whilst the conveyor belt would sometimes breakdown, she did not think it was as frequent as three times a month.
She thought however that freight generally had to be pushed manually at the Erina depot. At the new depot a sticker is printed for all freight over 20kg and has the word “heavy” on it. Employees are told how to bend at the knees and to keep a straight back. Before lifting items. She stated at paragraph 81 that all employees are aware of how to correctly lift freight.
She agreed with the Applicant's comments as to how he got in and out of his truck and how many times a day he would.
She stated his run was predominantly pallets and said – I'd say 80% – the rest were loose cartons.
She stated if an item was too heavy for a driver to get off, they would return to the depot. She stated the Applicant would have brought back items about twice. She stated multi drop drivers get out of their trucks more often and manually lift more.
She recalled the Applicant being on light duties but couldn't recall what they were but stated light duties normally involve reduced hours and reduced weights and staying in the depot more.
At the Berkley Vale depot she said she would be on the dock supervising and she confirmed she had never been out with the Applicant on a run. She stated he had a regular daily run to drop off items and pick up items. There would be consignment notes which would have on them how much an item would weigh.
She confirmed that anything over 40kgs was a two-man lift and you would need assistance to get it off and it would be under the driver’s discretion.
Apart from supervising, she would work in the office, answer phones and do the paperwork which would include operation reports. She would work at the depot from 6am to 5.30pm. She stated she was naturally more familiar with the work she would do than what the Applicant would do and vice versa. She was never a truck driver or a freight loader and she did not agree with what the Applicant had said in relation to fridges and lawnmowers. She did state she had loaded cartons off trucks about two years ago and agreed that “of course there were heavy aspects to the job”.
She stated in relation to the June 2015 letter, that there were no suitable duties for the Applicant to perform. This was because his lifting capacity was restricted and she did not have a run available for him even though his medical certificate said he could do full hours. She said she felt he was travelling all right but he didn't come and tell her that he could do the work. It is worth noting here that the Applicant said at the time he was laid off he would have been doing 80% of his job which indicated he was not doing full hours.
She stated that she would walk around the docks in the morning and that on occasions her view would be obstructed by semitrailers.
With regards to fridges and lawnmowers she stated that they would come in semitrailers and that two people would pull them off. In relation to the Good Guys, she knew they had 2 stores but did not know if the one at Tuggerah had a forklift or not.
She stated the Applicant would not go back as a driver in bulk and that there was no loose work at the depot and no office work available.
When asked about other drivers with injuries, she stated there was one other driver who had been off work for five years because of a back fusion. There were five other drivers she was aware of who had made claims for back injuries caused to their backs by lifting cartons. She said these were multi use drivers and she could not think of any bulk drivers in that category.
She was aware of one knee injury where a driver had twisted his knee whilst lifting and one shoulder injury where the driver fell out of his truck.
Over the last six years she was aware of seven claims. All had gone back to full duties except for the one fusion and the one with the shoulder injury.
She stated the Applicant was only able to do one run when he was on light duties and this impacted on the other drivers.
In re-examination it was suggested to her that Dr Lim indicated the Applicant was fit for four hours per day five days a week, restricted to 10kg lifting and could not work continuously more than 60 minutes at a time without a break. She stated the Respondent couldn't accommodate those restrictions. Naturally prior to liability ceasing, they had to, but after liability ceased they did not.
MEDICAL EVIDENCE
The Applicant then called several medical witnesses. The first doctor to give evidence was Dr Pillemer.
Doctor Pillemer
Dr Pillemer is an orthopaedic surgeon and he prepared a report dated 14 June 2016.
After giving a basic history of the December 2010 incident and a similar incident in January 2012 the report noted how the Applicant had been on and off work and on and off full duties from December 2010 onwards.
The Doctor had been told of the heavy nature of the work for the first six years of the Applicant's employment and added on page 2 of his report that in more recent times when the Applicant was on restricted duties “he was still doing deliveries and at times the work could still be heavy with a lot of pushing and pulling”. The pallets could weigh anything from 100kg to a tonne, and he had considerable difficulty and had to use a lot of force to push the pallet jack.
The Doctor was aware that the Applicant denied any problem with his lower back prior to December 2010. The Doctor physically examined him and under “special investigations” noted:
I note that an MRI of his lumbar spine on 31 January 2012 suggested desiccation at the L5/S1 level with minor endplate degeneration of mild to moderate posterior disc height narrowing with a mild posterior disc protrusion. In my opinion the disc protrusion would be regarded as moderate. It is mainly on the left side.

He went on to say that
… at the moment he does have evidence of ongoing radiculopathy involving the L5 nerve root on the left-hand side as evidenced by the sensory loss in the L5 distribution and the weak extension of his left big toe, as well as the slight muscle wasting on the left side and restricted straight leg raising (that is, radiculopathy).
The doctor went on to say that in his opinion
… the nature and conditions of Mr Kovac’s work over the 16 years he worked for TNT would need to be regarded as a substantial contributing factor to the development of his disc problem, either by way of causation or by way of aggravation of an underlying degenerative condition. In my opinion if this was an aggravation, then his work would be regarded as the main contributing factor to that aggravation/ acceleration of his disc problem.
The Doctor then went on to make some suggestions as to further treatment. He stated that the Applicant would only be fit for very restricted duties that didn't place stress on his lower back region. He said that in the absence of further investigation and treatment it seemed predictable that the Applicant was going to have significant ongoing problems in the future.
He summarised by saying Mr Kovac’s injury “has occurred in the course of his employment and I would regard his employment to be a substantial contributing factor to his injury.”
He was shown reports by Dr Harrington and Professor McGill. He noted that Dr Harrington had said in his report of 2 February 2015 in answer to a specific question “I do not believe that the condition is significantly contributed to by his employment”.
He noted that Professor McGill had concluded “I think the physical state of his back currently is likely the same as would have been the case had he not been performing his diving (sic) duties with TNT”.
Dr Pillemer, while agreeing with the specialist’s comments regarding the extent of the incident at the time of the onset of symptoms on 16 December 2010, felt it was essential to take into account the Applicant’s work history. Namely, that he had worked at TNT for 16 years, that the work was physically very stressful, that he would unload boxes that could weigh up to 70kg and it was not until five years into the job that boxes were labelled with their weight, and that he would have to load the truck manually by hand on occasions.
The Doctor concluded:
while certainly excepting [sic] that Mr Kovac may have some degenerative changes in his lumbar spine, in my opinion the nature and conditions of his work were of a very heavy nature which would undoubtedly place significant stress on his low back region. I would be very confident in suggesting that the nature and conditions of Mr Kovac’s work, if not being regarded as the main cause of the problems with his disc, would certainly be regarded as the main contributing factor to the aggravation of any underlying disc weakness that might have been present.
I respectfully then disagree with the opinions expressed above.
Dr Pillemer also prepared a supplementary report dated 11 October 2016.
He had been shown a supplementary report dated 23 September 2016 by Professor McGill and Sue Moffatt's statement of 21 September 2016.
He stated that whilst the incident in December 2010 may not have been severe, it would certainly have aggravated an underlying problem to the extent that there would have been some disc protrusion that occurred at the time to explain the referred pain down his left lower limb.
Similarly, the injury in January 2012 when he had a similar incident with significant increase in his back and left lower limb pain, once again suggests that there was some increased disc protrusion at the time.
The doctor went on to note that his earlier comments in relation to the effect of working with TNT for 16 years was actually confirmed in Ms Moffatt's statement noting that there was a lot of heavy lifting and carrying over a number of years. Whilst the Doctor agreed with the two articles mentioned in Professor McGill's report he went on to say that:
…statistically heavy physical loading demands at work can still be implicated in aggravating the underlying degenerative change which is not clearly noted in the report. In addition as noted, Mr Kovac did have two particular incidents after each of which he developed leg pain initially and increasingly leg pain in the second accident suggesting disc protrusion initially and aggravation of this disc protrusion on the second occasion.
What the articles do not take into account is the fact that the Act also includes aggravation of an underlying degenerative condition, and even accepting that degenerative disc disease almost certainly does have a constitutional component, the Act also provides for taking into account predisposition and vulnerability.
In my opinion then it would be far more likely than not, that if Mr Kovac over the period of 16 years that he worked for TNT doing heavy manual work, had in fact been doing a more sedentary type of employment, that he would not have developed the symptoms in December 2010 and January 2012 as he did.
The Doctor reconfirmed his opinion in his original report that it was Mr Kovac’s work that was a substantial contributing factor to the development of this problem either by way of causation or by way of aggravation of an underlying degenerative condition. His position and opinion did not change from his earlier report.
He concluded:
In addition as noted, the MRI carried out on Mr Kovac’s spine on 31 January 2012 showed only mild changes at all levels in the lumbar spine apart from the L5/S1 level where there was disc desiccation with mild to moderate posterior disc height narrowing, and mild posterior disc protrusion. Importantly, these findings are far more in keeping with the lumbosacral disc damage rather than underlying widespread constitutional degenerative change.
Dr Pillemer gave evidence before the Tribunal.
He stated he had been an orthopaedic surgeon for some 40 years.
The December 2010 incident which the doctor refers to as the “frank incident” was clearly minor but it caused irritation of the nerve root. It caused the disk to protrude. It caused pain down the left leg. Sciatica indicates potential nerve root involvement.
The Doctor said everyone’s spine degenerates, usually later in life. Some get more severe than others because of their genes. Backs also degenerate because of such things like employment and the various stresses of daily life.
Pressure increases by persons standing, bending, lifting and stooping. Pressure decreases by people lying down. In a normal business it doesn't particularly matter too much.
The doctor said one must look at what the Applicant had done between 2000 and 2010. He felt that the frank incident in December 2010 was minor and the disc may have been significantly damaged and about to protrude prior to them.
The significant damage could be caused by two main possibilities. Firstly, prior to starting with TNT he had no problems and that it was the TNT work program that caused the damage. Secondly, there is a possibility that when he started with TNT there were some issues already but the nature of his work was a significant contributor to the disc degeneration and the incident was the “straw that broke the camel's back.”
He felt that Professor McGill’s statement that he would have the same back problems if he'd never worked at TNT just did not make any sense. He stated that the Applicant's employment either caused it or significantly affected it.
He stated he had seen lots of these cases over the years and he was not at all surprised that the Applicant was taking pain medication still because of the nature of his problem and that he had fluctuating symptoms and even getting out of bed could set off problems with his back.
The 2008 knee injury didn't alter his opinion or his findings.
He had seen the three MRI reports and Professor McGill's comments in relation to these. He felt Professor McGill might have used the wrong date in his comments in relation to one of his reports and that was the first incident because it did not make sense. This was on the basis that the second MRI studies were in fact after the first.
In relation to degenerative abnormal disks he said there could be any number of causes: an injury, age, an infection. In terms of lower back problems he said if all five levels were damaged you could involve a person's constitutional predisposition.
The Applicant only had a lower back problem. He only had one level that was degenerative.
The doctor felt that if there was nothing else to point to outside of work, then it was work that caused the problem.
The doctor went on to say that a vibration in the truck could have an effect but it was far less stressful than bending and carrying. The doctor stated that over the last 14 years about a third of his work has been medical legal and he had examined hundreds of back problems.
The doctor in cross-examination said that many people would have the Applicant’s problem. Manual work over many years will lead to the sort of problems he had. A lot depended on the individual and that we didn't know if the Applicant was predisposed to an earlier degeneration than others.
The Doctor clarified that back strain usually indicates a muscle ligament strain and that is something that usually gets better after about 3 to 6 weeks.
This may also be true with disc lesion but the disc doesn't heal. The majority of patients (2 out of 3) improve with time. As the disc gets smaller the pain will settle.
The doctor agreed that this type of injury could happen at work or at home, but it happened at work and the type of work he did exacerbated it.
He agreed that if the original incident was merely muscle strain it would resolve and even if it involved a disc bulge it could resolve in six weeks.
The doctor stated that with degenerative disc disease comes on at any time- even getting out of bed.
He agreed the MRI in April 2012 suggested an underlying degenerative problem and stated in 2010 the disc was an accident waiting to happen.
When it was put to him that the Applicant had done heavy work prior to working with the Respondent namely tree lopping and furniture removal the Doctor indicated that the Applicant however had not complained of any back problems until 2010.
He also agreed that working as he did until 2007 would build the muscles in his back up and that the work after that was less manual plus he had taken time off as a result of the knee injury. The doctor said that all this meant was that the Applicant was able to go on for longer before the disc protruded and it would have been earlier and would have happened earlier if he kept doing the type of work he did prior to 2007.
He stated seven years was more than long enough for a person to get disc problems and that in the Applicant's case it wasn't just heavy work but heavy work with twisting and turning and that this was significant. He stated once a disc degenerates it is only a matter of time.
He stated younger people can tend to get disc protrusion. He stated if one did heavy work for about a month that was insignificant. It would be more significant after six months and very significant after 18 months. So, he felt 7 years of heavy work was very significant. He said once a disc was damaged it's all downhill from there. He said he couldn't say if the disc was all right prior to 2010 or whether it was degenerative.
The Doctor said that as well as an exacerbation of symptoms since going back to work there was another factor to consider too and that was the fact that his partner had left him and his father had died which would not help him psychologically
He was not aware that the Applicant had gone back to full duties in August 2012 until May 2013 when everything was going fine.
This however did not affect anything he had said in his reports or to the Tribunal. He reiterated the two incidents exacerbated the underlying degenerative condition and that work was the main factor because of; one, the nature of his work and two, the duration of his work.
He saw the December 2010 incident as “the straw that broke the camel's back” but noted that there were no symptoms that had manifested themselves before that straw. He was asked in general terms of assessing someone with a history of back pain what weight should one put on the history.
He said clinical history is vitally important as was clinical examination and in the Applicant’s case, the history just fits together i.e. “over a long period of time heavy work causes aggravation of the disc- bending, twisting and lifting causes excessive stress/pressure in one particular area.”
The Doctor described the disc as the nuclear shock absorber of the spine in terms of tears that is where nuclear material breaks through and puts pressure on the nerves on the spine.
He noted that there had been no other incidents apart from those that occurred at work and that there had been no change in the first two MRIs. He said it could be that December 2010 was not a major traumatic event and that was the reason there was no change in the first two MRIs. He said a disc protrudes and then it goes back in.
The Tribunal was advised that Dr Hopcroft was no longer going to be relied on by the Applicant.
ASSOCIATE PROFESSOR PAPANTONIOU
The next witness was Associate Professor Dr Papantoniou.
Professor Papantoniou saw the Applicant on many occasions since 2012 and between 4 June 2012 and 3 February 2015 supplied some 16 reports that were incorporated into the T documents.
The first report of Professor Papantoniou was dated 5 March 2012 and it went through the history noting he injured his back at work in 2010 and had pain on and off ever since. It noted he had quite a bad flareup in January of 2012, that he had sleep disturbance most nights and that his lower back pain was worse than his lower limb pain.
He felt the Applicant’s pain was coming directly from is L5/S1 disc and was most likely coming from the impingement in the lateral recesses. He sent him off for a steroid injection. It was immediately after this that the Applicant then had a L5/S1 epidural on 2 April 2012.
On 4 June 2012 he saw the Applicant again and reported that the pain relief had only lasted about one and a half days. The pain had been fluctuating in intensity. Thereafter, he noted the patient had started a supervised gym program and was doing physiotherapy.
He noted the patient had a left-sided lower back pain with a radiation to his left buttock and left L5 distribution. Sometimes the pain came even at rest. As well as doing a structured exercise program with a physiotherapist, the Applicant was also undertaking regular core stability exercises and was taking Panadol, Nurofen and Voltaren for pain relief.
Professor Papantoniou suggested the Applicant undertake regular swimming exercise, walking and bike riding. He hoped his pain had stabilised to enable him to continue his work without too many problems. The Doctor stated he would see the Applicant routinely in two months’ time.
The next report was dated 3 June 2013. The Professor noted that since January the Applicant had had increasing back pain which had become much worse in the last month. The physiotherapy had not alleviated this and the medicine he was taking did not give sufficient pain relief. The pain was mostly central lower back pain with radiation to his left buttock and the left sciatica pattern to the L5 distribution. His lower back pain is worse than his lower limb pain.
The MRI of 13 May 2013 demonstrated “quite a large L5 – S1 posterior disc prolapse with an annular tear and an L4 - L5 broad-based disc bulge also with an annular tear”.
In the Doctor's opinion it was likely that the Applicant had extended his annular tears as the source of his pain. He asked him to practice usual back precautions and avoid any lifting, bending and twisting. He sent him off to have an epidural steroid injection.
The next report was dated 3 December 2013 and whilst the steroid injection had worked for a couple of weeks the pain started returning and was now at the same level as the pre-injection pain. The Applicant had left-sided lower back pain with radiation to his left lateral hip, down his left lateral thigh to just below his knees. This was affecting his activities and the pain was activity related. He was at the time off work.
Most of the pain was from L5 – S1 but some component would be also from L4 – 5 where he had the annular tear.
In his report of 21 January 2014 the Professor stated “Mr Kovac is very keen to have his surgery as soon as possible so that he can get back to work.”
On 24 January 2014 Professor Papantoniou undertook needle surgery – segmental nucleoplasty on the Applicant. This is also known as percutaneous lumbar discectomy.
In a report dated 4 Feb 2004, 11 days after the surgery, the Professor stated that the Applicant was doing very well. Similarly he reported on 18 March 2014 seven weeks after the surgery that the Applicant was doing very well and he was encouraged to continue doing his physiotherapy and exercises and avoid straining any parts of his back by lifting, bending or twisting.
On 22 April 2014 the Professor noted that the Applicant was still off work and he continued to have left-sided lower back pain which had become much worse. He noted that he still had not been approved for his supervised gym program by the Respondent and that he was trying to do as many self-directed exercises as he could.
The Professor stated that the gym and strengthening programmes were critical to his recovery and was concerned that the rehabilitation provider was not fulfilling its role. He concluded; “I note Mr Kovac is very keen to get back to work and these delays are the cause of his failure to get back to any duties”.
It seemed this report had the desired effect as the Respondent allowed the supervised gym program to recommence.
The next lot of reports by Professor Papantoniou indicated an improvement once the gym program restarted. By August 2014 the Applicant was going to the gym every day, doing physiotherapy once a week and was back at work four hours a day three days a week on restricted duties.
In September 2014 the Applicant was progressing well but had also developed a clicking sensation in his lower back.
The Professor, in his 2 November 2014 report, felt the Applicant was doing reasonably well and noted that he was back driving his truck at work and avoiding any loading or unloading wherever possible. He noted that if he sat too long the Applicant would get some pain and that pain would be on the side of his lower back radiating to his left buttock and left L5. The Professor went on to say that this was quite manageable and that the Applicant was now working 5 to 5 1/2 hours a day 4 days a week on restricted duties and, “is just managing to cope”.
In a report dated 3 February 2015 Professor Papantoniou stated the Applicant was doing very well one year after his surgery and he was slowly improving in terms of pain control and work capacity. He went on to say the Applicant could lift about 8kg on a non-repetitive basis.
On 5 May 2015 the Professor opined in a similar manner to his February report, indicating that the Applicant's pain fluctuated in intensity but was much better than pre-operation and that the Doctor was happy for him to continue on his return to work plan as per Dr Lim's recommendations.
The next report was 11 August 2015. Whilst noting he was doing extremely well after his spinal surgery, the Professor noted that the insurer had sent the Applicant for an IME debrief and as a result of that report had stopped all therapies and had now stopped him from going to work.
The Professor understood that the Applicant had been looking for another job to try to get back and work and he stated “certainly, there is no need to him to sit around at home”. He further noted that whilst he was happy for the Applicant to continue on his return to work programme, it would be difficult as he is not allowed to work.

The next report by the Professor was on 19 October 2015. He noted that the Respondent had declined liability and that as a result of declining liability the insurer had stopped all treatments. He noted that the Applicant could not afford physiotherapy himself and was therefore unable to get any external treatment. He stated: “He is still doing his core stability [exercises] as much as he can by himself”.
The Professor stated in his opinion the Applicant still needed extensive non-operative management. He went on to say “unfortunately, he cannot afford it and the insurer has declined liability. As a result of this, undoubtedly he will become worse.”
He advised the Applicant to practice his usual back precautions avoid lifting, bending or twisting, go on a diet and lose some weight and continue his self-directed exercises.
In a final written report dated 26 October 2016 the Professor went through the history of the injury in December 2010. He also went through what the Applicant’s duties were and stated that there was no indication that the Applicant had any pre-existing lower back condition.
He concluded:
When I saw him he had an MRI that showed an L5/S1 disc prolapse. The pathology identified on the MRI matched the mechanism of injury as stated by Mr Kovac and was consistent with the timing of the injury. I was unable then and have not since elicited any variation in the history, nor has there been any inconsistent clinical findings in what would be the natural history of Mr Kovac’s disc pathology. Given the above I have no choice but to attribute all of Mr Kovac’s lower back pain and disability to his lower back injury at work.
Professor Papantoniou also gave evidence before the Tribunal.
He stated he had been an orthopaedic and spinal surgeon since 2007 and was the Applicant's treating orthopaedic surgeon.
He stated when he first saw the Applicant in 2012 he did not get a detailed history of the incident but got that later.
He explained to the Tribunal what was involved in nucleoplasty surgery and that he felt it was the best surgery at the time and he was trying to avoid doing anything bigger.
He went through what was involved with lower back problems and explained annular tears. He stated that in the normal condition of the spine the fibres will be holding back the discs and when there is a trauma the fibres will tear. He said “you can't get this type of tear without force being involved. You can't get it by just sitting in the driveway..”
He stated he had read Professor McGill's and Dr Potter’s reports. He felt Professor McGill's report was a confusing report and that constitutional implies genetic. He stated if this was so “we would see disc bulges at other levels up and down the entire spine. The fact that it was isolated to the lower lumbar region (L4/5) indicated a trauma.”
He felt the Applicant was not old enough to have a middle-aged degeneration from multiple incidents and went on to say that once a person damages a disc he can detect two months after the damage, a change.
It was suggested to him that the incident in December 2010 was “the straw that broke the camel's back” and he readily agreed.
He was aware that all reports had indicated no pain prior to that incident except for the knee injury.
He did not totally agree with Dr Pillemer. He stated an annular tear will also cause pain or a disc bulge which must involve an annular tear. To have sciatica he stated the Applicant must have suffered some damage in the incident which has been referred to as the “frank incident” in December 2010.
He stated there was no other plausible cause for the Applicant's pain in his left leg and back other than the work incident in 2010 as there was no prior history.
Professor McGill's comment “had he not been employed at TNT his back would be the same”- was put to him and he when invited to comment he replied – “I completely disagree”. He went on to say that “this man had no sporting injuries, nothing, no trauma”, how would he suffer annular tears to a disc bulge by sitting in an office all day, it is not due to his genetics. He concluded by saying “that is disingenuous to use a nice term.”
When the various studies looked at by Professor McGill were put to him Professor Papantoniou stated “to assume studying 100 people means we can generalise of 300 million people is – it's ludicrous”.
He had seen the Applicant's 3 statements and nothing in the statements caused him to change his opinion. He felt the statements were consistent with everything he had read and that he'd been told over the last three or four years. He also said he had read Sue Moffitt’s statement.
He was asked about Professor McGill's statement of 13 December 2015 specifically paragraph 3 where the doctor stated that when he saw the Applicant he had available to him the MRI examinations of his lumbar spine dated 11 April 2011 and 31 January 2012 and noted the two studies were essentially the same. Professor McGill went on to say: “the lack of any discernible change between the two MRI studies argues against any significant change in the structure of the spine on or near 16 December 2010”
The Professor stated in response:
I'm very disappointed he made a comment like that, it demonstrates he does not do this stuff every day like I do. We are talking eight months between MRIs, it shows whatever happened happened quickly and stabilised. It does not argue against any change in 2010. He should say we can't tell when damage occurred but it has not got worse. This is not evidence that there was no change on 16 December 2010. I like a compound approach radiologists miss things we must look at patients as well as the screen.
He went on to add “I see the screen and the patient as the treating surgeon. In isolation, one can't say anything about a picture. Radiologists miss tears”.
Professor Papantoniou went on to say that he had seen the joint report of Dr's McGill and Potter of 28 October 2016. He was asked to comment on the joint report specifically the third question “how serious or significant was the initial incident in December 2010” answer – “We agreed that the episode so described was minor and highly unlikely to represent major structural injury as such.”- question “what forces would have been in play in the spine at the time?” answer “highly likely to represent simple muscular contraction, no major structural injury”
The Professor stated that he saw 2000 consultations per annum specifically in the lumbar region L4 – L5 plus a thousand hips and 20,000 lumbar spines in his lifetime. He thought “with the greatest respect to Doctors Potter and McGill that they “clearly don't treat people” and “they don't know what they're talking about”.
He went on to say that he would see two or three times a month people who had slipped, fallen and caught themselves. This was, and is a common cause of back problems. The total fall may be small but it’s the impact that is important.
If the injury was muscular only and nothing else it would recover in two weeks.
He went on to say that he had no evidence that the Applicant had fabricated anything and that his story was consistent with the 20,000 stories he had heard from others before. It all matches.
He stated “I have not cured him. All I could do was improve his pain and functioning. I expect he’ll never be fit for manual labour for the rest of his life”.
He stated the next option is a spinal fusion and he would prefer not to do that as the Applicant is a young man. Non-operation and non-operative treatment is best; physiotherapy and hydrotherapy. He expected the Applicant to take pain medication.
He was questioned about his operating times. He said he had regular lists and would see 20 patients with lower back conditions for every one he would operate on. He would see in any given week between 60 and 80 people a week. He could ascertain these figures were correct by the amount of letters he sent out per year somewhere between 2,500 and 3200.
He stated he deals in and treats very specific pathology. He stated a disc bulge and annular tear is a structural injury.
He was disappointed that “doctors for the Respondent generalised in such a way to justify their position, they were not involved in the longitudinal treatment of this man”.
He said when looking at the MRI images one also has to look at the handwritten notes. In the third MRI he commented on the bulge in the annular tears .He stated he would only have referred to it earlier if it was a source of his pain.
He stated he could not say it did not exist without looking at the MRI film. He said it was possible the annular tear had developed after 11 April 2011 and before 2013. He again reiterated he would need to see the film with the report. He said to Counsel for the Respondent “I'm not an advocate for Ray. You guys subpoenaed me”.
He indicated that he had no evidence the disc was significantly damaged before the incident. He said it was possible. Either way he said it was something bigger than a muscle tear because the pain lasted longer than a few weeks.
He stated a bad strain as referred to by Dr's McGill and Potter was muscular and “being a muscular strain is not going to affect your nerve”. Pain down the leg was bigger, radicular pain - referred pain is pain to the buttocks area and top of the thigh, radicular pain goes right down the leg below the knee.
He said:
…something happened in 2010 it elevated him from being a truck driver to someone with structural damage – disc – which led him to have ongoing pain. If it is simple muscular strain I would not have seen this guy, he'd be back at work.
I describe it as a moderate structural injury if you want me to generalise. I didn't think L4 and L5 is the source of his pain.
He stated that it was not uncommon for people with pain like this to get back to full-time duties. People in the Applicant's position would get back pain but get used to it unless they did further damage to it.
He stated that he did not see people unless they had documented problems or had experienced an incident or trauma. He stated he had seen Dr Lim’s clinical notes.
He said an annular tear is for life and “If you get an annular tear you have to get pain”. He added, another incident could open up a healed annular tear and cause problems again as it would open up the scar tissue. Referred pain is nerve root pain.
He defined moderate structural pain as being pain some of the time and indicated that it took 12 months to heal a disc or 24 if one was a smoker.
He stated the Applicant had tried to go back to work as soon as possible and indeed would miss appointments so that he could go back to work.
He felt he may have been in pain during the nine months he was back on full-time duty between August 2012 and May 2013 but the pain did not meet the threshold.
He added that some people, big boned people, could go on forever as opposed to more lightly framed persons.
He indicated that a survey of Woolworths drivers who did similar jobs to the Applicant’s unloading and loading items, showed that after 8 to 10 years wear and tear would get to them.
He agreed to a question from the Tribunal that going back to work could have aggravated the injury or re-aggravated it and the incident in January 2012 might have been the reason the tear became visible on the later MRIs
He said “a minor incident down the track could set it off again and never really heal. Once you have a bad back you always have a bad back”. He stated he had disc bulges himself and concluded by saying that he could think of no activities prior to the work incident that would indicate any problems.
Professor McGill and Dr Potter
Dr Potter and Professor McGill also provided reports and gave joint evidence.
Professor McGill provided assessments dated 13 December 2015, 25 November 2015 and 23 September 2016. He also checked and agreed on 31 October 2016 with the assessment made by Dr Potter on 28 October 2016.
As a result of a request from the Respondent’s solicitors, Professor McGill first saw the Applicant on 25 November 2015. Professor McGill had the computer generated notes from Dr Lim, reports from Dr Michael Hunter which related to the period 2008 to 2010 and mainly dealt with his knee, and, Professor Papantoniou’s reports together with Dr Harrington's reports and Dr Hopcroft’s documents.
Professor McGill noted the Applicant had had at appendectomy at age 10, fractured his left clavicle at school and had a right knee injury in 2008 at work. He noted that he lived alone and had no current leisure activity. He was aware of his work history at the two relevant depots.
He was aware that the Applicant had not suffered any back problems until December 2010.
It would appear that the Applicant apparently did not give a full description of the incident to Professor McGill. Professor McGill in his report of 25 November 2015 stated:
On 16 December 2010, while climbing into his truck (requiring him to climb up three steps) he felt a twinge in the low back. He could not recall what activities he performed during the first two hours of his shift on 16 December but there was nothing out of the ordinary and he could not recall any injury. He continued his normal duties that day. That day when he cooled down he experienced pain in the low back. Although he did not mention his left lower limb symptoms at that stage of the history, subsequently when I checked when they first commenced he thought it was on the same afternoon that he first noticed his back pain.
Professor McGill went on to say that the Applicant saw Dr Lim, the company Doctor, the next day and was off work for 2 to 3 months.
It would seem from the above that the summary given to Professor McGill was not totally accurate.
Professor McGill then describes a later incident that occurred when the Applicant was climbing up the back of his truck and he felt back pain again and how at that time there was no sudden event or injury.
Professor McGill did not mention in any detail what duties if any the Applicant was performing in 2012 /13 except to say in the months prior to his surgery in January 2014 he had been performing light duties in the yard 1 to 2 days per week and that despite the improvement after surgery it wasn’t until the end of 2014 that he returned to restricted work duties which were gradually upgraded. The Professor said he did not return to driving until January 2015.
Professor McGill noted that the Applicant experienced pain in the lower back shooting down to the left lower limb sometimes as far as the lateral foot. The pain was always present but fluctuated in severity. He examined him, got him to do a few walking tests, and had a look at the three MRI studies and other documentation that he brought with him.
Professor McGill noted that the MRI study on 11 April 2011 showed a disc desiccation and mild-to-moderate disc narrowing with mild posterior disc protrusion at L5/S1. He went on to say:
Noting that his symptoms commenced on 16 December 2010, the degenerative changes at L5/S1 predated the onset of symptoms. There was also minor disc desiccation and minor left disc protrusion at L3/4.
The Professor noted that the second MRI on 31 January 2012 was identical to the April 2011 one he went on to say “lack of any change between the two studies indicated that there was no substantial injury to the lower back in December 2010. Had that been the case one would have expected a progression of the changes”.
Professor McGill further noted that the third MRI on 13 May 2013 was showing no change at L3/4 or L5/S1 but did show a slight oedema within ligamentum flavum at L4/5 of doubtful significance.
The Professor then noted some comments made in 2010, 2011 and 2015 by Dr Lim and also noted that Dr Michael Hunter, who appears to have treated the Applicant for his knee injury, stated on 22 July 2010 that as well as problems with his knee and pain in his right knee and left knee – “this is associated with back pain….. and intermittent left knee pain”.
Professor McGill indicated that the Applicant could not recall ever experiencing back pain prior to December 2010 but Dr Hunter's report indicated he had some back pain as well as problems obviously associated with his knee injury several months prior to this.
Professor McGill’s summary noted
On 16 December 2010 while climbing up three steps into his truck, but in the absence of any sudden movement or injury, he felt a twinge in the low back. He was able to continue his normal duties that day… I could not find any record of an abnormal neurological finding. MRI of the low back showed chronic degenerative changes in the L5/S1 and L3/4 discs and in addition there were protrusions of a certain age.
Professor McGill noted that whilst the Applicant's recollection of events didn't exactly match some of the documentation, he nevertheless appeared to provide a clear history. He felt he was reasonably cooperative with the physical examination although with a suggestion of embellishment – (for example the way he walked on his forefeet and heels during some tests).
Professor McGill stated:
There was no significant event at the time of the commencement or deterioration in his back pain on 16 December 2010. He experienced a twinge while walking up some steps. Later that day his pain became severe. He thus had essentially a spontaneous onset of low back pain with radiation to the left lower limb. There was no event at work that would have influenced the timing of that symptom.
I think the symptom was a reflection of the minor changes in his lumbar discs. The lack of any MRI change between 11 April 2011 and 31 January 2012 argues against any significant change in the structure of his spine on or about 16 December 2010. It is not uncommon for degenerative disc disease to cause a sudden onset of symptoms. Usually the symptoms settle over a period of weeks. His symptoms were more severe than average but they improved substantially with the help of epidural corticosteroid injection.
A subsequent deterioration in his symptoms a little over twelve months later was also not associated with any significant physical event.
The Professor went on to say “I think the physical state of his back currently is likely to be the same as would have been the case had he not performed his diving duties for TNT” (The Tribunal assumes this is a typo and the doctor meant “driving “duties.)
Professor McGill felt the disc disease was not related to his work and felt that the Applicant was capable of driving but should not perform repetitive lifting or twisting or lift anything greater than 10kg.
Professor McGill concluded “his condition has stabilised. His recovery has been partial. As noted above I do not believe there was an injury and thus questions related to the degree of recovery from injury are not appropriate.”
Professor McGill provided an updated report on 23 September 2016. He had seen Dr Pillemer’s report of 14 June 2016 and noted how Dr Pillemer understood the Applicant’s work to be physical and very stressful, especially at the Erina depot.
Professor McGill stated on page 2 of his report:
The literature in regard to the effect of various levels of physical activity and the experience of back pain or the development of degenerative changes in the spine is not uniform and it is possible to select studies to support very diverted views.
He attached a number of studies to his report. A study by Tichtal et al in 2015 demonstrated an association between physical inactivity and adverse MRI findings in relation to lower back problems. This study involved 72 participants 68% of whom were female.
Professor McGill also referred to a 2011 study by Williams and Sambrook which he said described very clear evidence of the important of inheritance in the development of back pain and disc degeneration but noted that in some studies physical occupational activities appear to play a role, although the strength of this association remains uncertain.
The study, which examined 164 men aged between 40 and 45, showed that an increased risk of back pain was found in relation to signs of disc degeneration and lower back pain was strongly associated with occupational factors. For example it was more common among machine drivers and carpenters than office workers. (page 75 of the study).

He felt that MRIs were greatly overrated and they should be used to complement what you found physically.
The Applicant needed to avoid any job involving heavy lifting, twisting or bending.
It was suggested to the Doctor that this man's problem was a combination of factors and he replied “this is as good a way as any at looking at it.”
The Doctor stated he had been working mainly as a knee and shoulder specialist since 1981. He would see this type of case 2 or 3 times a week. He added that just because a person had a degenerative spine does not mean that they have the symptoms.
He stated if one had a degenerative spine anything could set it off. He was asked if a jolt could set it off and he replied “yes”.
The final piece of evidence was a letter from the Respondent to the Applicant which confirmed that he is still actually employed and therefore he still has to submit medical certificates on which $1,210 is now owed and his formal status is that he has not been terminated but has been stood down without pay.
SUBMISSIONS
Counsel submitted the basic facts were really quite simple. The Applicant had been doing heavy work bending, lifting and twisting from 2000 to 2007. From 2007 to 2010 the work had become somewhat easier but he hurt his knee in 2008 and had been off work for some considerable period of time, not going back onto the full duties until October 2010.
Apart from one mention several months prior to the incident of back pain associated with his knee pain problems, there had been no mention of any issues with back pain prior to the incident on 16 December 2010 and that Professor McGill had agreed with this. He stated the Tribunal should place significant weight on this.
The High Court in March’s case is authority for a Tribunal or lower court to apply common sense.[1] Counsel for the Applicant submitted that the medical evidence was there to assist the Tribunal only, but not there to decide the case.
[1] March v Stramare (E and M.H) Pty Ltd (1991) 171 CLR 506.
Counsel for the Applicant stated that the mechanism of injury had now been clarified in relation to the slip and fall in that it is open for the injury to be more correctly described as being a result of the jolt he suffered in stopping his fall (despite what was written on the claim).
Counsel stated the Tribunal was probably best assisted by Dr Pillemer who has had 40 years’ experience as an orthopaedic surgeon and who described the incident as a minor incident in the big picture but an incident that was “the straw that broke the camel's back.” The heavy work with TNT especially the constant bending, twisting and lifting caused or substantially contributed to the stress on the lower spine.
Nothing here can be proven with absolute scientific certainty. Studies can support every opinion.
Counsel asked the Tribunal to look at the demeanour of the various witnesses and submitted that Professor Papantoniou made the most sense and was willing to make the most concessions. Counsel submitted it was very difficult to obtain concessions from Professor McGill and submitted that he was somewhat garrulous and tended to get on his soap box.
Counsel submitted the Tribunal should prefer the evidence of Professor Papantoniou as he had seen the Applicant on numerous occasions and was a spinal surgeon who sees lots of patients. This Doctor attempted minimal invasive procedure, he was optimistic but conceded the patient was still suffering and he was adamant that he did not cure him. Counsel submitted Professor Papantoniou was honest and direct.
Counsel submitted the Tribunal should not accept Professor McGill's hypothesis that it was just a disease process which we all have from age 18/19 onwards and stated “I don't have to prove the work of TNT caused the diagnosis, just that he had an aggravation”–.
Counsel submitted that back pain was a developing field and there were gaps in Doctors’ knowledge.
Counsel for the Applicant urged the Tribunal to be cautious with Dr Potter’s evidence and submitted the evidence was given in quite an eccentric manner and the Doctor is not as expert in back work as Drs Papantoniou and Pillemer.
Counsel submitted that the Applicant had followed medical advice on all occasions and had done what he was told to do. He would be back at work now if they'd let him.
The real issues are quite narrow. It is a combination of everything. Dr Harrington thought this was a reasonable view.
Counsel submitted that a minor event could trigger a degenerative back and that there was evidence from several doctors to that effect. The injury was a minor event it was not dramatic.
Counsel submitted there was no dispute that this man had an ailment.
Even the evidence of his colleagues (Sue Moffitt) indicated that it was heavy work he was doing, especially prior to 2007.
Counsel submitted that the evidence of Dr Potter as to the Applicant’s attitude is different from the other Doctors. Counsel suggested that this may be because Dr Potter saw him during a dark period in his life. Dr Lim’s clinical notes at the time refer to depression and the fact the Applicant had had a relapse of his back problems not long before).
Counsel submitted that Sue Moffitt was a witness who was doing her best to assist the Tribunal and whose evidence did not vary greatly from the Applicant. She did not see him do his deliveries and so she did not have the whole picture and therefore where there was any dispute as to what he actually did during his deliveries his evidence should be preferred as she was not there and there was no evidence to contradict what the Applicant said.
Counsel further submitted that the MRIs were not clean and that there was something there. Counsel suggested that even Professor McGill said the effects of the disease are still continuing.
Counsel submitted that the Respondent bears the onus (see Stanton and Comcare [2015] AATA 397 [32]). Counsel also pointed out that the Respondent accepted the frank injury at work and paid for the treatment of the injury and then ceased to accept liability in 2015. The onus is on the Respondent to show why the effect of the injury had ceased and therefore liability ceases. See Greaves and Comcare [2015] AATA 177 [26].
Counsel for the Respondent submitted that in relation to the nature and condition claim it was for the Applicant to persuade the Tribunal.
Counsel for the Respondent also submitted that the fact Professor Papantoniou sees the Applicant more than the other Doctors, does not put him in a better position in determining causation.
Counsel for the Respondent submitted that whilst Professor Papantoniou is a highly experienced spinal surgeon and was the treating surgeon the case really wasn't about the fact he sees 3000 people compared with only 1000 people Professor McGill sees.
Counsel was also somewhat scathing about the common sense argument or as he described it as akin to the “vibe” as was submitted to the Federal Court in that famous movie “The Castle”. Counsel for the Respondent made the point that what we all knew and thought of as common sense 20 years ago was often wrong today.
He said we don't know about the pain. He submitted that we know if you lift above a certain weight you increase the risk of a back injury and increase the risk of slipping a disk or pulling a muscle in your back. We do not know what the situation is with any particular individual doing “hard yakka”.
Counsel stressed that the Applicant was not dishonest but he was not reliable in some areas. He did have a vested interest in putting his best foot forward – that is just human nature. He could not remember a lot of things that were put to him in cross-examination.
Counsel submitted the description initially of lower back strain then changed to lower spine strain is not of any relevance and nothing turns on that. The degenerative disc prolapse is different and Dr Harrington was not told the correct history.
Counsel submitted that is was in 2012 during the nine-month period the Applicant was back at work when the work-related aspects of the Applicant’s underlying disc degeneration ceased to have effect and in reality he had been treated and was back to work on full duties by August 2012. Counsel noted that TNT did not cease liability in 2012 and continued to pay for the surgery and other treatment up until 2015.
Counsel accepted it was an employer's responsibility to find an employee recovering from injuries suffered at work appropriate duties. However when the condition was not work-related that obligation ceased.
Counsel stated that in relation to the section 14 liability that was accepted but effectively that had ceased by the end of 2012. In relation to the nature and condition matter it was first raised in mid-2016 and there is a different test (see definition of injury under Section 4(1) and Military Rehabilitation and Compensation Commission v May [2016] HCA 19 see also the definition of disease in section 5B of the SRC Act and the definition of ailment.)
An ailment or an aggravation of an ailment has to be contributed to in a significant degree by the employee’s employment by the Commonwealth. Counsel for the Respondent submitted “it means- ‘a lot’”.
Counsel for the Respondent said there was an accepted injury albeit one that is now rightly passed with the passage of time and for which liability is no longer accepted. Counsel submitted that the Tribunal should firstly “find fact and then apply the law”.
Counsel further stated the Applicant had a degenerative disc disease and for the Respondent to be liable it has to be shown that it was caused by or aggravated by his employment. It is necessary to find the aggravation that caused the disease. To the effect that work aggravated this disease, 2012 is the relevant date when one considers all the facts.
Counsel for the Respondent went through the evidence and indicated at the time of the December 2010 accident and several months thereafter the Applicant talked mostly about slipping and did not give people such as Dr Lim any description of the fall and the jolt. He has told some people that the incident occurred just while he was getting into his truck and he has given different histories to different people.
Counsel also pointed out that initially he said he was a driver in a previous job delivering furniture and then agreed he was actually a furniture removalist. Counsel said problems could have occurred initially in the three years prior to working at TNT when he was a tree lopper and a furniture removalist.
Counsel for the Respondent suggested the Applicant misread the report he filled in after the accident in December 2010 and was answering questions about his earlier 2008 injury as he answered in a similar way. Counsel also pointed out that he told Dr Potter it was a pretty easy job and there was no evidence he had exceeded his weight restrictions and there was no evidence that he ever taken time off before.
Counsel said “one thing we know about his back, and all the experts agree on is, we don't know.”
Counsel further submitted that in the 2007- 2010 period, the ageing process would become more relevant and this ties in with some of the expert evidence given by the Doctors as to how backs degenerate over time. To support that Counsel pointed to the three MRIs. It was only the third MRI that showed any change which Counsel suggested backed up this point.
Counsel for the Applicant in reply submitted that Dr Pillemer stated that his work was the main contributing factor to the aggravation of any underlying disc weakness. Counsel for the Applicant said this satisfies the test. Counsel stated that Dr Pillemer was not asked about this and he did not resile from it.
He also submitted that Professor Papantoniou had the full history when he prepared his statement of 29 June 2016.
He further said “we don't have all the answers and common sense meant common sense as at 2016 not 2066 or 2086”. Counsel submitted that heavy work was a relative term and that between 2000 and 2007 everyone agreed that the Applicant was engaged in a fair bit of heavy work then and even Sue Moffitt agreed that things were hard back then.
In relation to the similarities in his 2008 and 2010 claim form, Counsel submitted that this was a rather strange submission and most likely the Applicant was just trying to answer the question he was asked by the Doctor.
Everyone agreed he has an ailment. Counsel suggested he may well have had a muscle strain and the disc protrusion and the muscle strain resolved but the protrusion did not. The underlying problem is still with us today unmasked as it was by the incident.
Counsel quoted from Abraham and Comcare (2006) FCA 1829 at para 21 where Madgwick J was referring to degenerative change and said it was an evolving process –“once degenerative change has been stirred up it is a marriage that cannot be undone”.
Counsel further submitted it was very suspect to say it ceased at a certain time. Counsel concluded by saying once all these things were going on in the Applicant’s lower back they have effectively merged.
DISCUSSION AND FINDING OF FACT
The Tribunal after considering the submissions and all the evidence is satisfied in relation to a number of things.
It appears clear on the evidence before the Tribunal that Mr Kovac did not experience any problems with his back (except for some pain 3 months before the December 2010 incident that was related to his knee injuries but also manifested itself in some back pain) prior to 16 December 2010.
The Tribunal is satisfied that there were no incidents in his childhood, nor any history of back problems in his family. He did not suffer any injuries whilst playing Junior Rugby League and Junior Soccer and at any rate he gave up those sports when he was 13.
He worked for some three years before joining TNT as a tree lopper and also as a furniture removalist and there was absolutely no evidence to suggest that he suffered any problems to his back at that time nor that he suffered any problems in the 10 years he worked for TNT up to 2010.
The Tribunal is also satisfied that between 2000 and 2007 his work was more physical than it was from 2007- 2010. The Tribunal is satisfied that he would on a daily basis move and lift items from the truck and put items into the truck manually. Some items would be quite heavy – up to a possible 70kg on occasions and he would do this without the aid of laboursaving devices such as forklifts, pallet jacks or trolleys. The Tribunal accepts that it was not until 2005 that parcels were labelled with their weight.
The Tribunal is satisfied that he would have to push and pull items along the floor of his truck and that he would on a daily basis bend, twist and lift and many times a day, have to get in and out of his truck.
The Tribunal would describe this as reasonably heavy manual work.
Whilst the work was easier at Berkley Vale depot between 2007 and 2010, 10% of it still involved lifting and carrying individual parcels. These parcels weighed anywhere between less than a kilo and in excess of 20kg.
The Tribunal accepts the Applicant’s evidence as to what he did in terms of moving parcels on his various runs as there is no evidence to contradict what he says except in so far as whether certain businesses he delivered items to may or may not have had their own forklifts .Where there is a discrepancy between Sue Moffit’s evidence as to what businesses had its own forklift or not and the Applicant's recollection the Tribunal would be inclined to accept his evidence as he did the deliveries and Sue Moffitt did not accompany him on his trips.
The Tribunal notes there was some differences between some of his evidence and Sue Moffitt’s evidence in this regard but this could also be explained on the basis that for example, the good guys had two stores and the store at Tuggerah did not have a forklift.
Little, if anything turns on this. At any rate the Tribunal notes that the evidence given by the Applicant and Sue Moffitt is actually very similar and there are very few discrepancies.
The Tribunal accepts Sue Moffitt as a witness of truth who gave a reasonably comprehensive account of what she understood the Applicant's duties to be and what she observed him doing.
Similarly the Tribunal regards the Applicant as a witness of truth, who was not a good historian in many ways but who would answer questions when they were put to him by doctors and by Counsel and the Tribunal during the hearing.
On occasions the person asking the questions had to drag the answer out of the Applicant and it is correct to say on occasions the Tribunal detected the Applicant was trying to put his best foot forward and put the best spin on what he was describing. But, the fundamental thread of what he was relating and describing the Tribunal finds to be truthful.
The Tribunal does not accept the Respondent’s theory that the Applicant was describing the 2008 incident when he filled in the forms in 2010. There is no evidence to indicate that he was copying his 2008 application and the Tribunal would find it highly surprising if he would remember to use the same terms he had used in the earlier forms given that he himself admitted he could not remember everything. He said in his 2010 application that he was “getting into truck” and “slipped on step’ and what injured him was “the fall”. This was true enough as far as it went.
The Applicant himself earlier in the hearing stated that if Dr Lim had written something down that must have been what he told him. He said he could not remember everything he told Dr Lim as it was a long time ago. As there is absolutely no evidence to the contrary, the Tribunal accepts the evidence that the first-time any back problems came to light was on 16 December 2010.
As a result of its findings in relation to the Applicant above, the Tribunal also finds that the incident of 16 December 2010 occurred as the Applicant stated in his evidence before the Tribunal. That is, that his foot slipped on a step, he fell a very short distance- a matter of centimetres- and grabbed the hand rail on the truck cabin door area (see photos of the truck driver’s side cabin and door area) to arrest his fall, thereby jolting to a halt which caused back pain. We accept that he kept working and later on that day the back pain got worse.
The Tribunal accepts that he did not give an accurate or full history of what occurred and indeed seems to have given various medical professionals a very abbreviated history of the day in question.
The Tribunal doesn't read anything particularly into this as the Applicant is a simple man who would answer questions but not necessarily know what to say or what he needed to say of his own volition. At any rate it would seem from the evidence before the Tribunal that the doctors were not appraised of all the facts at the time they did their initial reports, but this was not a significant factor as it did not alter the views of the doctors called by the Respondent.
It is also clear that as a result of the incident of 16 December 2010 the Applicant spent a considerable amount of time off work and when returning to work had continuing problems which necessitated him being put on light duties. The Tribunal is satisfied that he was keen to go back to work and go back onto full-time duties and that in fact he managed to do this successfully for a nine-month period between August 2012 and May 2013.
The Tribunal is also satisfied that from May 2013 until the current time the Applicant had and continues to have problems with his back and accepts the evidence of various medical practitioners called by both sides that states that this situation will continue indefinitely. Indeed, the Tribunal believes there is much merit in Professor McGill’s evidence suggesting that the Applicant should avoid any job where he has to get in and out of vehicles and which involves regularly bending, twisting and lifting items. This may however not be possible, given his skill set.
The Tribunal also accepts the fact that the Respondent accepted liability for the incident on 16 December 2010 and accepted all expenses and duties that flowed from that up until the decision to cease liability in 2015.

The Tribunal notes that the Respondent with logical good cause perhaps could have at the end of 2012 determined that they were no longer liable as at that stage. It would have appeared that the Applicant's injury had got better and he was back at work doing full time duty. They did not however, and only decided they were not liable in 2015. At any rate, it may not have made any difference due to the Applicant relapsing in May 2013.
The Tribunal also finds that all the doctors who gave evidence were experienced and to varying degrees held strong views on the matter. The Tribunal also accepts that there is no absolutely definitive totally correct view in relation to back injuries and that views will vary significantly between professionals.
It is also apparent to the Tribunal that the studies provided by Professor McGill can be used to support any number of very different and even contradictory views. He said as much himself.
It is for the Tribunal to sift through the evidence and come up with the correct or at least preferable decision standing as it does in the shoes of the decision maker.
Professor Papantonious’ evidence was that he did a large number of operations on people with back pain as a surgeon. He held some very strong views and came across as a very experienced and forthright professional. Fundamentally, he stated that this was a man who did heavy work and that this heavy work was enough to increase the risk of disc degeneration.
Whilst the slip, fall and jolt were not major, it clearly did something to his disc, led to disc damage and also led to left leg pain and these injuries have never really settled.
He stated that radiologists often miss things in an MRI. An MRI is a great help but it is not everything.
He also stated that if the Applicant had disc degeneration for a long time and this incident was nothing as suggested by Doctors McGill and Potter, then one would expect problems all the way along the spine and not just in the lower spine area and lumbar disc area. In other words the disc problems should go all the way along the spine. One would expect to see spurs and the like.
Dr Pillemer effectively said the same and added that even if he had had a degenerative spine from an early age, the nature and conditions of his work made it worse and one could describe the incident in December 2010 as “the straw that broke the camel's back.”
Both the above doctors stressed that this was not a simple muscle strain. It was disc damage caused by the nature of the Applicant’s work with the Respondent.
Dr Harrington did not give a lot of detailed reasons and indeed seems to have been given some inaccurate information initially by the Applicant. He did indicate that degenerative disc disease is common but felt there was nothing to relate it to work. Under cross-examination he did pull back a little bit and did agree that the straw that broke the camel's back hypothesis was a reasonable one.
Dr Potter was also given some different information by the Applicant and of all the doctors seems to have been the only one who felt that the Applicant was “gilding the lily’. It appears that there may well be a lot to be said for the Applicant’s submission that the Applicant saw Dr Potter during a difficult period in his life (there was evidence from Dr Lim of depression around that time,) which may well explain the Doctor’s feeling that something wasn't quite right about the whole matter.
Dr Potter agreed with Professor McGill and felt the December 2010 incident was a muscle strain that had resolved.
Professor McGill said degenerative disc disease is a very frequent occurrence and is the norm rather than the exception and indeed starts as early as 20 or younger in many people. He felt, on the balance of the evidence, that anything could have set off the Applicant's problems and he did not place any great significance in the incident at work in December 2010.
Professor McGill felt that he would accept causation if the Applicant had fallen 1 meter and fallen on his backside on the ground. He did accept that the nature of his work might be of some minor relevance.
Unlike the other doctors Professor McGill placed great store in research, although the papers that he supplied to the Tribunal could be used to support any given views and positions, one paper suggesting work had very little if anything to do with back problems and another paper indicating a definite link.
The Tribunal was grateful to Counsel for the relevant case law cited by them, but found of particular interest the case of Sandford and Linfox Australia Pty Ltd [2014] AATA 375. This was a case decided by Deputy President Handley. Interestingly the two main doctors involved were Professors Papantoniou and McGill. The facts were very similar.
Mr Sandford, a truck delivery driver like the Applicant in this case, first complained of back pain in 2004 and in 2008 suffered a lower back strain while pulling a pallet off the back of a truck. On 17 December 2010 he suffered an injury to his back whilst bending over the chassis of his prime mover in order to disconnect the hoses between the trailer and his prime mover. The Respondent in that case accepted liability for mechanical back pain in February 2011.
Mr Sandford also had problems with his disks at L4/ 5 level and an annular tear. He also had degeneration at the L4/5 level similar to the Applicant in this case.
Professor Papantoniou recommended a steroid injection. Another Doctor diagnosed that Mr Sandford’s problems were due to multilevel degenerative disc disease that was constitutional and not work-related and compensation payments ceased in 2013.
Like the Applicant in the current case, Mr Sandford was told by his work that they had no further light duty work available to him and as he could not undertake his pre injury duties his employment ceased.
Dr Papantoniou at paragraph 31 in the Sandford case was quoted as stating:
I note Dr Wallace lists Mr Stanford's condition as constitutional in origin and not work-related. Nowhere would an annular tear, a disc bulge or disc protrusion be described as constitutional. These are traumatic incidents and in a normal uninjured person would not be present
The professor stated that Mr Sandford's condition was not of constitutional origin. If this was the case, one would expect to see widespread degenerative changes in the spine and not just at the three levels found in Mr Sandford's case. These changes were referred to in the report of an x-ray which records mild spur formation seen at the anterior body margin of L3, L4 and L5 due to osteoarthritic style changes.
He went on to say that in the case of constitutional predisposition, one would expect to see spurs all the way up the spine. The spurs seen in the x-ray could however be related to Mr Sandford's work as a truck driver.
This is an almost identical comment to the one made by him in the present case before the Tribunal.
Professor McGill in his report felt the CT scan MRI of the lumbar spine confirmed the degenerative changes previously seen.
He felt Mr Sandford's current symptoms and complaints were a reflection of the natural progression of constitutional degenerative disease aggravated by Mr Sandford's obesity and lack of physical fitness. He disagreed with Professor Papantoniou’s opinion that the disc bulges and annular tears were caused by trauma and felt that they were commonly found in people with a history of trauma.
He felt there was no evidence that the incident on 17 December 2010 with Mr Sandford caused any substantial structural change. He felt the incident caused an exacerbation of a pre-existing condition and how long that lasted was unclear but it was unlikely the incident was the cause of Mr Sandford's current symptoms.
Again, his comments in the Sandford case are very similar to the ones he made in the present case.
Deputy President Handley made his findings at paragraph 60 to 63.
Deputy President Handley said at paragraph 60
Professor Papantoniou is a spinal surgeon specialising in the lumbar spine. He said spinal surgery accounts for approximately 50 to 60% of his practice. In my view, I should, give particular attention to his opinion because of the specialisation and the fact that he has been treating Mr Sandford since 4 September 2012. (again, very similar to this current case)
At paragraph 61 Deputy President Handley stated:
Professor McGill expressed the opinion that the incident had not caused any substantial structural damage but rather had caused an exacerbation of Mr Sandford's pre-existing degenerative condition which are now resolved. He was, however, unable to satisfactorily explained Mr Sandford's back pain and the burning sensation in his left thigh having remained largely unchanged since the incident, and how and when the cause of those symptoms cease to be the incident on 17 December 2010 and became the constitutional degenerative condition. Professor McGill acknowledged that his opinion was based on probability.
Deputy President Handley went on to say:
In my view, there is sufficient evidence from the MRI scan dated 3 February 2011 – the damage to the disc at L4/5 and the annular tear – to support a finding that Mr Sandford suffered a frank injury on 17 December 2010. This is consistent with Professor Papantoniou’s evidence and that of Dr Bodel.
Deputy President Handley went on to state that he found there was insufficient evidence to support a finding that the effects of the injury to Mr Sandford's back had ceased.
He went on to say at paragraph 63:
While the paraesthesia and numbness affecting his right leg have resolved – it would seem as a result of the small sequestered fragment of the L4/5 disc being absorbed – the symptoms affecting his lower back and left thigh have remained largely constant since the incident on 17 December 2010. This suggests that his current symptoms are the result of the December 2010 incident.
Accordingly Deputy President Handley set aside the decision under review and found that the Respondent continued to be liable to pay compensation to Mr Sandford for the effects of the injury to his back sustained on 17 December 2010, that Mr Sandford continued to be incapacitated as a result of the injury and made some further findings in relation to what was reasonable treatment and made the normal order as to costs.
The Tribunal notes the evidence given by Professor Papantoniou in the Sandford case was very similar to this case and his opinions expressed also very similar to those held and expressed by him in this current case.
Similarly, the diagnosis by Professor McGill was very similar to the diagnosis in this case. In both cases his evidence indicated that in his view, the main problem with both Applicants was a constitutional degenerative spinal condition.
CONCLUSION AND DECISION
The Tribunal prefers the evidence of Professor Papantoniou and Dr Pillemer.
Professor Papantoniou is a very experienced surgeon and the treating surgeon to the Applicant. He has seen him on at least 10 occasions and has been involved with him for the last four years. He is an expert in his field and in the Tribunal's view is in a better position than any other doctor involved in this case to express an opinion.
His opinion given to the Tribunal was one where he had been in possession of all the facts as opposed to, for example Dr Potter and Professor McGill, who had not been told until the hearing exactly how the incident occurred.
This is not intended as criticism of those two doctors but it was simply how it panned out in terms of when the various experts were appraised of all the facts. Had the Applicant given a more detailed version of what occurred on 16 December 2010 to the various doctors he saw, perhaps the situation in terms of the evidence given in this case may have been different.
The Tribunal was particularly influenced in its assessment of the various opinions expressed by the various doctors by the following fact situation.
There was no family history of back problems, no indication prior to 16 December 2010 that the Applicant ever suffered from back pain, no indication of any incident prior to 16 December 2010 that would have caused any back pain save except for the knee injury incident in 2008.
The fact that after December 2010 and despite some valiant efforts to return to full-time work, there were continuing problems (incidents at work in March 2011, and January 2012) that appear to have set off a further aggravation and which may possibly explain the difference between the first two and the third MRIs.
The fact that after a nine-month period back at work on full-time duties between August 2012 of May 2013 the back problems flared up again in late April 2013 and continue to this day in one form or another.
The fact that Professor Papantoniou and Dr Pillemer stated that if this was a case of constitutional predisposition, one would expect to see spurs all the way up the spine and disc problems all along the spine rather than just in the lower back.
It would also seem logical to the Tribunal if the Applicant suffered a pre-existing degenerative condition that it would have manifested itself far earlier than when it did.
Whilst not using the term “common sense”, it nevertheless appears logical to the Tribunal from all the evidence, that the nature of the Applicant's employment was such that it was the main reason that he suffered from back problems. There is no other really logical explanation.
Professor McGill and Dr Potter also cannot point to exactly when and how the Applicant’s spine degenerated.
On the facts it would seem that his spine had degenerated to some extent prior to December 2010 and the best reason advanced for that is the nature of his work.
The jolt or frank incident on 16 December 2010, whilst not a major incident or an obvious incident in itself was indeed, on the evidence before the Tribunal, the incident that led to all the further complications he has suffered since (with the exception of his 2014 operation which may not have been the best solution, but there is little evidence one way or the other on that point and the Tribunal cannot draw any conclusion on it).
The Tribunal is certainly not satisfied that the incident on 16 December 2010 had no or if any, very little effect on what was a degenerative condition.
Similarly the Tribunal finds that there is insufficient evidence to support a finding that the effects of the injury to the Applicant's back have now ceased.
There is also insufficient evidence to find that the effects of the injury ceased as at the time of the determination.
It is perhaps a moot point that if determination was made in late 2012 whether we would be in this situation now as it would have been more logical to make that determination then. However the Tribunal notes that after the nine-month period when everything seemed to be going well the problems then flared up again and it would appear will never completely go away.
The Tribunal also notes that the Respondent obviously accepted the frank incident and paid bills and assisted the Applicant for some five years after the incident. The Respondent seized on a report by Dr Harrington, and it was logical to do so, to cease liability, liability it had accepted up until that time.
The Tribunal finds that the current symptoms suffered by the Applicant are as a direct result of the 16 December 2010 incident which, whilst not exactly a major incident in itself, was the immediate cause that set off everything that has happened to the Applicant since.
As well as this, the Tribunal finds that even if this were not so, the ailment suffered by the Applicant, namely his bad back, resulted in very large measure and certainly to a significant degree from his employment with the Respondent and specifically as a result of the relatively heavy work he did for the Respondent between 2000 and 2007 which continued to a lesser degree between 2007 and 2010.
Accordingly, the Tribunal finds that the Applicant continues to suffer the effects of his lower back injury sustained on 16 December 2010 in the course of his employment with the Respondent.
The Tribunal also finds that the Applicant sustained a lower back injury, namely the aggravation of his degenerative spinal disease, due to the nature and conditions of his employment with the Respondent and that he continues to suffer the effects of that aggravation.
DECISION
2015/4257 – the frank injury
The Tribunal sets aside the decision under review and substitutes the following decision:
(a)the Respondent continues to be liable to pay compensation to the Applicant under section 16 and section 19 of the Act for the lower back pain injury he sustained on 16 December 2010; and
(b)the Respondent is to pay the Applicant's cost of this application as agreed or taxed.
Application number 2016/4947 – nature and conditions claim
The Tribunal sets aside the decision under review and substitutes the following decision:
(a)the Respondent is liable to pay compensation to the Applicant under Section 14 of the Act for the lower back injury he sustained due to the nature and conditions of his employment; and
(b)the Respondent is to pay the Applicant's costs of this application as agreed or taxed.

I certify that the preceding 520 (five hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of William Stefaniak AM RFD, Senior Member and Dr M Couch, Member.

Date: 28 February 2017

Place: Sydney

........................[sgd]................................................
Associate
Dated: 28 February 2017

Dates of hearing: 31 October 2016; 1-3 November 2016

Counsel for the Applicant: Mr J Mrsic

Solicitors for the Applicant: Carroll & O'Dea Lawyers

Counsel for the Respondent: Mr S Whybrow

Solicitors for the Respondent: HBA Legal

[2017] AATA 234

28 February 2017

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Duty of Care

Expert Evidence

Negligence

Remedies

Statutory Construction

Dates of hearing:	31 October 2016; 1-3 November 2016
Counsel for the Applicant:	Mr J Mrsic
Solicitors for the Applicant:	Carroll & O'Dea Lawyers
Counsel for the Respondent:	Mr S Whybrow
Solicitors for the Respondent:	HBA Legal