Kumatia and Comcare (Compensation)

[2018] AATA 1505

Kumatia and Comcare (Compensation) [2018] AATA 1505 (1 June 2018)

Division:GENERAL DIVISION

File Number(s):      2017/0856

Re:Christiana Kumatia

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:1 June  2018

Place:Canberra

The decision under review is set aside and in place thereof the Tribunal decides that as of 9 August 2016 Ms Kumatia had a low back injury in respect of which she is entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988.

Determination of her entitlements to compensation under s 16 of the Act is remitted to Comcare.

........................[sgd]................................................

Mr S. Webb, Member

COMPENSATION – accepted left ankle ‘injury’ – fall at work - fractured fibula – use of crutches – altered gait - subsequent onset of low back and radicular symptoms - claim for treatment of low back symptoms – threshold liability rejected – meaning of ‘injury’ - jurisdiction to determine compensation in respect of medical treatment - pre-existing degenerative changes in lumbar spine – conflicting medical theories and evidence – balance of probabilities test – examination of facts – altered gait contributed to onset of low back and right lower limb symptoms – degree of contribution - employment contribution was significant – decision set aside

Safety, Rehabilitation and Compensation Act 1988, s 4, 5A, 5B, 14, 16, 62, 64, 67

Comcare v Muir [2016] FCA 346

Fuad and Telstra Corporation Limited [2004] AATA 1182

REASONS FOR DECISION

Mr S. Webb, Member

1 June 2018

1. In the course of her duties as a phlebotomist, Christiana Kumatia slipped and fell, fracturing her distal left fibula. She claimed and was paid compensation. Some weeks later, she experienced the onset of low back pain and pain radiating down her right leg. Her treating doctor sought Comcare’s approval of medical treatment for these symptoms, but the claim was rejected. This decision was reconsidered and affirmed by Comcare. Ms Kumatia applied for review.

   Factual Background

2. On 20 June 2016, Ms Kumatia attended a client. On leaving, she descended some steps onto wet grass. She slipped and fell, twisting to the left and landing awkwardly. She fell heavily on her left hip and twisted her left ankle.

3. She experienced pain in her lower left leg.

4. She attended the Canberra Hospital Emergency Department. She did not experience or complain of low back pain at this time.[1]

   [1] Exhibit 3.

5. A fracture of the left distal fibula was diagnosed and a back slab cast was applied, immobilising her left ankle.

6. She used crutches to perambulate. Doing so, she did not experience or complain of low back pain.

7. On 27 June 2016, she lodged a claim for compensation in respect of the fractured fibula.[2] Comcare accepted liability for “fracture – fibula (left)” on 14 July 2016.[3]

   [2] T5.

   [3] T6.

8. Two weeks after the initial injury, she returned to the Hospital fracture clinic. The cast on her left leg was replaced.

9. This cast remained in place until 29 July 2016, when it was removed. At that time, her left ankle was swollen, stiff and sore. She used crutches to exit the Hospital fracture clinic. At home later that day she walked leaning on walls without crutches, but experienced pain weight bearing on her left leg. She walked with a limp.

10. The next day, her left ankle was swollen, stiff and sore and she experienced pain when weight-bearing. Nevertheless, she ceased using crutches. Soon thereafter she was able to drive an automatic car and subsequently attempted to return to work, performing modified suitable duties.

11. Her evidence about experiencing back pain at this time is confused. Well before the hearing, she informed doctors who took a history from her that she experienced low back pain two weeks after the cast was removed and she ceased using crutches. She has given a statement in these terms.[4] The medical reports of Dr Ow-Yang (Ms Kumatia’s treating neurosurgeon), Dr Low (a consultant occupational physician), Dr Stubbs and Dr Pillemer (consultant orthopaedic surgeons), are consistent with this account. In her oral evidence at hearing, however, Ms Kumatia initially asserted that she experienced low back pain when her cast was removed and she ceased using crutches. When closely examined on this point, she asserted that she experienced low back pain some time later and it was sufficient for her to first report this on 9 August 2016.

    [4] Exhibit 9.

12. At this point I should say that I found Ms Kumatia to be an uncertain witness. It appeared to me that she had some difficulty following what was being put to her and her evidence was, in parts, inconsistent. This notwithstanding, I do not propose to disregard her evidence as entirely unreliable, although some caution is necessary when considering her evidence on key points in the absence of corroboration.

13. On 3 and 4 August 2016, Ms Kumatia consulted Dr Wahab, her treating general practitioner. The doctor’s notes do not record any complaint of low back pain.

14. On 9 August 2016, Ms Kumatia was assessed by Debbie Douglas, an Active Recovery physiotherapist. Ms Douglas reported that –

    “Reported Current Physical Status: Ms Kumatia reports that her ankle and back have been sorer since she commenced weight bearing.

    Presenting Problem: Left shin and ankle pain and weakness secondary to a healed fracture. Lower back pain due to adaptive walking.

    …

    Symptoms: Ms Kumatia reported lower back pain on the right after walking 10 minutes. She also reported pain in her ankle with walking and weight bearing.

    …

    Reported Participation in Activity: (Reported Functional Tolerances)

    Walking          20 minutes before onset of significant back pain

    Tested Functional Outcome

    Measures:

    Sit to Stand     Modified due to reduced ankle movement

    Walking          Walks with a limp, not rolling onto ball of foot at toe off, reduced step length on left, slow and reluctant to take weight on the left

    Calf raises      Times 3 – left side 2/3 of right (demonstrating reduced strength)

    …

    Lumbar Spine Range of Motion: mostly full range of motion, with pain at end of range extension and left lateral flexion.

    …

    Ms Kumatia reports that she has developed right sided lower back pain over the past few weeks due to using her crutches. Ms Kumatia is reporting high levels of pain, however her OMPQ is not significantly elevated indicating the psychosocial risk factors are not having a significant impact on her pain presentation.

    Objectively, Ms Kumatia has a stiff and weak left ankle and an adaptive walking pattern. Ms Kumatia was provided with gait re-education and was able to demonstrate a more normal gait pattern within 5 minutes.”

15. The notes and questionnaires from this assessment are consistent with and support the reported assessments.[5]

    [5] Exhibit 2.

16. On this evidence, I am reasonably satisfied that Ms Kumatia first experienced right-sided low back pain in the weeks preceding 9 August 2016, by her own account this was some time after she ceased using crutches on 30 July 2016.

17. On 11 August 2016, Natalie Wilson, a rehabilitation consultant and occupational therapist, assessed Ms Kumatia and discussed her case with Dr Wahab. Ms Kumatia consulted Dr Wahab with Ms Wilson on 11 and 15 August 2016. The doctor’s notes from 11 August 2016 do not refer to low back pain whereas the notes of the 15 August 2016 consultation include a reference to Ms Kumatia complaining of back pain – “back pain acute spasms”. The anti-inflammatory medication Celebrex was prescribed.

18. The medical certificate Dr Wahab issued on 15 August 2016 does not refer to low back pain.[6] Comcare submitted that I should draw an inference from this, namely that the back pain was not sufficient, or it not sufficiently made out, for Dr Wahab to include it in his medical certificate issued on that date. To my mind, however, no such inference can safely be drawn. The doctor’s clinical notes and his prescription of Celebrex are quite clear. One does not need a vivid imagination to readily conceive of reasons other than that for which Comcare contends why Dr Wahab may not have expressly referred to back pain in the medical certificate – he may simply have omitted to do so, for example. The safe course would be to call the doctor to explain this apparent discrepancy, but this was not done.

    [6] Exhibit 1.

19. On 16 August 2016, Ms Wilson produced a report in which she said –

    “Ms Kumatia is noted to walk with a significant limp, placing increased pressure through her right hip and knee. Ms Kumatia reported increased pain through her lower back on the right side, aggravated by walking.

    …

    … Dr Wahab examined Ms Kumatia, asking her to walk on her toes and heels. Ms Kumatia was unable to complete these tasks, reporting significant pain. Dr Wahab advised that Physiotherapy is required until these tasks are able to be completed, and Ms Kumatia is no longer limping.

    …

    [On 15 August 2016] Ms Kumatia reported a significant increase in pain in the right side of her lower back, attributing the increase in pain to the walking she had done with her children at the shopping centre over the weekend.

    …

    … It was discussed that periods of walking, whilst Ms Kumatia is still exhibiting a limp, will flare up the lower back and hip pain. Ms Kumatia was educated around pacing and alternating tasks to enable periods of rest with periods of work. Ms Kumatia was also educated around the importance of maintaining a balanced gait pattern, which was observed, and Ms Kumatia was strongly encouraged to slow down and ensure appropriate and balanced use of the lower limbs.

    …”[7]

    [7] T14 folios 38-41.

20. On this evidence, I am reasonably satisfied that there was an increase in Ms Kumatia’s low back pain symptomatology on or about 15 August 2016, including pain extending into her right hip, that required physiotherapy treatment. It appears that Ms Kumatia’s right side low back and hip pain were related to and exacerbated by walking with an altered gait.

21. On 23 August 2016, Ms Kumatia again consulted Dr Wahab. On this occasion the doctor noted –

    “C reporting worsening Back pain and not coping

    Her left leg – is stable but now she feels back pain – worsening after 3-4 hours of work”[8]

    The doctor’s medical certificate issued on this day states –

    “23 August 2016: worsening Back pain affecting her functionality – Possible Compensating effect from ? Fracture Fibula

    -    Up for CT scan”[9]

    [8] Exhibit 4.

    [9] T54 folio 190.

22. On 23 August 2016, Dr Van Der Merwe, a radiologist, took a CT scan of Ms Kumatia’s lumbar spine and reported –

    “L3/4 level, there is some minor left exit foraminal stenosis present with impingement of the exiting left L3 nerve root.

    L4/5 level, diffuse annular bulging noted with impingement of the exiting left L4 nerve root bilaterally but most markedly so on the left side. Bilateral facet joint degenerative changes are present.

    L5/S1 level, minor annular bulging noted with extension into the exit foraminas bilaterally causing right far lateral L5 nerve root impingement and quite marked bilateral facet joint degenerative changes noted. No spondylosis nor spondylolisthesis noted.”[10]

    [10] T16.

23. On 31 August 2016, Dr Wahab referred Ms Kumatia to Dr Ow-Yang for review.[11]

    [11] T19.

24. On 22 September 2016, an MRI of Ms Kumatia’s lumbar spine was undertaken. Dr Faulder, a radiologist, reported –

    “L3/4: There is mild facet joint arthritic change. The central canal and left exit foraminae are patent. There is mild narrowing of the right neural exit foramen.

    L4/5: There is facet joint arthritic change. No disc protrusion. The central canal and neural exit foraminae are patent.

    L5/S1: No parsinterarticularis defect or spondylolisthesis.

    There is marked facet joint arthritic change. There is a very small broadbased disc bulge. There is narrowing of the right neural exit foramen as a result of hypertrophic arthritic change. The central canal and left neural exit foramen are patent.”[12]

    [12] T27 folio 82.

25. On 28 September 2016, Dr Ow-Yang examined Ms Kumatia and reported to Dr Wahab –

    ““She had a heavy fall onto her right side when walking down steps and suffered a fracture of her left fibula. For some time she was in a cast and walking on crutches. Since returning to suitable duties at work she has noticed worsening low back pain radiating to the right gluteal region and into the posterolateral thigh and posterolateral calf with numbness in the lateral right foot. The pain is worse when walking, standing and driving for long distances. The pain improves when lying on her back…

    An MRI of the lumbar spine shows moderate to severe L4/5 and L5/S1 lumbar facet arthropathy as well as right sided foraminal stenosis with evidence of right L5 nerve root compression.

    The working diagnosis is one of an exacerbation of L4/5 and L5/S1 facet pain and right L5 radicular pain most probably in relation to the recent work injury as well as the abnormal gait associated with the left lower limb injury.”[13]

    [13] T28.

26. I note that Dr Ow-Yang’s report of Ms Kumatia falling heavily on her right side is not consistent with her own account, as recorded by Ms Douglas for example. Dr Ow-Yang was not called to give evidence, so this aspect of his report could not be tested.

27. On 10 October 2016, Dr Ow-Yang sought Comcare’s approval of payment for particular medical treatment –

    “… Bilateral L4/5 and L5/S1 facet injections/denervations & Right L/5 periradicular injection…

    … The recommendation for treatment and/or surgery is based on clinical facts contained in the correspondence to the patient’s referring doctor. Whether the patient has a compensable injury or not does not affect the recommendation.”[14]

    [14] T30 folio 87.

28. On 8 November 2016, Dr Low, a consultant occupational physician, examined Ms Kumatia for Comcare. The doctor provided a medico-legal report on 23 November 2016 in which he reported “no abnormal pain behaviour” and “a slight antalgic gait walking from the waiting room into the consultation room”.[15] Dr Low explained his assessment of Ms Kumatia’s symptoms in the following way –

    “It is my opinion that Ms Kumatia has a diagnosis of symptomatic lumbar spondylosis with non-verifiable right-sided radicular symptoms. In terms of its relation to the subject fall it is difficult to correlate the development of her symptoms to the fall. If there had been any aggravation of the pre-existing degenerative changes as seen on radiological investigation, one would have expected the initial impact injury to have caused an immediate development of her symptoms.

    In Ms Kumatia’s case, her symptoms developed some two months following the subject fall and as such, on the balance of medical probability, I do not consider that the impact caused an immediate aggravation of her underlying lumbar spondylosis.

    In terms of the argument of altered biomechanics, I agree that the alteration of gait may cause a degree of mechanical lower back pain. I would expect however for this to improve as normal gait mechanics are restored and would not expect it to significantly involve the component of radicular symptoms as is in the case of Ms Kumatia.

    On the balance of medical probability, I consider her symptoms as more related to pre-existing degenerative changes. I refer specifically to the MRI report dated 22 September 2016 where the narrowing of the right exit foramen has been related to hypertrophic arthritic change, which would have predated the fall.

    In summary, I consider the relationship of Ms Kumatia’s lower back symptoms and radicular symptoms to the subject fall as contemporaneous in nature, that is to say that they would have occurred regardless of the event.”[16]

    [15] T37 folio 116.

    [16] T37 folio 117.

29. On 30 November 2016, Comcare responded to Dr Ow-Yang’s request by issuing a primary determination.[17] The decision maker refers to a “claim for a back injury” and says –

    “Whilst recognising you have suffered an ailment, I consider your employment was not significant in the causation of your condition. This means your claim has been declined under Section 14 of the Safety, Rehabilitation and Compensation Act 1988.”

    [Original emphasis]

    [17] T38.

30. Ms Kumatia engaged a lawyer, who requested reconsideration.

31. On 20 January 2017, Comcare issued a reconsideration decision affirming its primary determination.[18]

    [18] T46.

32. On Dr Wahab’s clinical notes and medical certificates,[19] it appears that Ms Kumatia’s back pain persisted. So much is confirmed by Dr Ow-Yang, who reviewed Ms Kumatia on 1 February 2017 and reported “She still suffers severe and disabling low back pain and right lower limb symptoms”.[20]

    [19] T54.

    [20] T48.

33. Ms Kumatia applied for review.

34. In the course of proceedings before the Tribunal, Comcare obtained two further medico-legal reports from Dr Stubbs, a consultant orthopaedic surgeon.[21] Ms Kumatia obtained two medico-legal reports from Dr Pillemer, another consultant orthopaedic surgeon.[22]

    [21] Exhibits 7 and 8.

    [22] Exhibits 5 and 6.

    Jurisdiction

35. In the course of the hearing, there was some crystallization or clarification of Ms Kumatia’s case in respect of the alleged causal factors of her low back and lower limb symptoms. Counsel for Comcare, Ms Katavic, informed me that, despite some surprise, no point of procedural fairness necessitating delay would be taken.

36. Nevertheless, two issues concerning the Tribunal’s jurisdiction arise. The first issue is whether the Tribunal has jurisdiction to determine Ms Kumatia’s entitlement to compensation for medical treatment under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of her accepted lower left limb injury. This arises from Dr Ow-Yang’s request for Comcare’s approval of payment for particular treatments in respect of Ms Kumatia’s accepted left lower limb injury. The second issue is whether the Tribunal’s jurisdiction extends to determination of muscular or mechanical low back pain as an ‘injury’ for the purposes of s 14 of the Act. This issue arises from the crystallization of Ms Kumatia’s case and Ms Katavic’s assertion that the Tribunal lacks jurisdiction.

37. The originating claim underlying these proceedings is the request Dr Ow-Yang gave Comcare for approval of payment for certain medical treatment.[23] No separate compensation claim for a back injury appears in the documents before the Tribunal, and I understand that no additional claim has been made by Ms Kumatia for an injury of that kind.

    [23] T30.

38. It appears that Comcare interpreted Dr Ow-Yang’s request as a claim for a back injury – so much is clear from the determination and the subsequent reconsideration decision under s 62 of the Act.

39. Even though Dr Ow-Yang’s request is for payment of medical treatment in relation to Ms Kumatia’s accepted left lower limb injury, I understand that no corresponding determination has been made under s 16 of the Act. Comcare determined under s 14 of the Act that no compensable back injury had occurred, but it did not determine if the medical treatment Dr Ow-Yang recommended was medical treatment in relation to Ms Kumatia’s accepted injury that was reasonable for her to obtain. That matter has not yet been addressed by Comcare, and it lies open.

40. The present question is whether the Tribunal has jurisdiction to deal with this claim on review. At first blush, as Comcare contends, absent a primary determination squarely addressing this, it may appear that the Tribunal has no jurisdiction in respect of the s 16 claim in relation to Ms Kumatia’s accepted left lower limb injury.

41. There are two difficulties with this proposition, however.

42. Firstly, Comcare’s failure to determine Ms Kumatia’s entitlement to compensation for medical treatment expenses under s 16 in respect of her accepted lower limb injury is not determinative of the Tribunal’s jurisdiction.

43. The Tribunal’s jurisdiction is conferred by s 64 of the Act in respect of a reconsideration decision made under s 62. The Tribunal is not constrained to consider only those matters considered and expressly determined in the decision under review. On review, the Tribunal exercises all of the powers that were available to the person who made the reconsideration decision - all matters that were squarely before the reconsideration decision-maker are before the Tribunal, on review, subject only to the confines of conferred jurisdiction. Ascertaining what was before each decision-maker is a matter of practicality rather than jurisdiction, and it requires careful consideration of the claim made and determined. It is quite clear in Ms Kumatia’s case that the originating claim was payment for medical treatment expenses in respect of an injury. However the claim is construed, it’s content is unavoidable, and this rises presently as a jurisdictional fact.

1. Secondly, the three-tiered decision-making structure the Act provides, impliedly at least, proceeds on the basis that the decision-maker at each level deals determinatively with all matters before him or her under relevant sections of the Act - all matters that are placed in issue by a claim for compensation under the Act are to be determined under the applicable sections of the Act. For example, where an employee claims compensation for medical treatment in respect of an injury, the decision-maker must determine if there is an ‘injury’ for the purposes of s 5A and s 14 to which the provisions of s 16 apply. Each of those matters would be squarely before the decision-maker. Where a request is made for reconsideration of a primary determination of such kind, under s 62, the same matters would be squarely before the reconsideration decision-maker unless expressly foregone by the claimant. And where application for review by the Tribunal is made, under s 64 the Tribunal will have jurisdiction over all aspects of the decision under review, whether or not each matter arising from the originating claim has been particularised and expressly dealt with in any way. As Downes J said in Fuad and Telstra Corporation Limited[24] at [5] –

   It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.

   [24] [2004] AATA 1182.

2. Lest there be any doubt, if a particular claim was squarely before a primary decision-maker and the decision-maker determined to reject the claim at a threshold level without expressly dealing in any way with the particularity of the claim, the negative determination may be taken to apply to the particulars of the claim made. Furthermore, should a determination of this kind be subject of reconsideration under s 62, the reconsideration decision-maker is not confined to the threshold issue, alone – all particulars of the claim squarely rise for reconsideration. Should the primary determination be affirmed on reconsideration, even though the particular claim may not have been expressly dealt with in any way by the reconsideration decision-maker, it may be taken to have been affirmed. Should application for review of the reconsideration decision be made, all the particulars of the claim will be before the Tribunal.

3. Presently, the originating claim clearly seeks medical treatment expenses in respect of Ms Kumatia’s accepted injury. The claim engages s 16 of the Act. The section is essentially preconditioned by the existence of an ‘injury’. And it was on this point that Comcare determined to reject the claim, even though it had accepted liability for Ms Kumatia’s lower left limb ‘injury’ it determined to reject liability under s 14 for a ‘back condition’ that, in the decision-maker’s view, did not meet the threshold test of an ‘injury’. Had the threshold question of ‘injury’ been decided differently, the other elements of s 16 would then have been determined by the decision-maker – these were squarely before Comcare, pursuant to the originating claim. From this it follows that those same matters were before the reconsideration decision-maker and, on application for review, they are before the Tribunal.

4. As for the second jurisdictional point, counsel for Ms Kumatia, Mr Shillington, informed me that the low back conditions reported by Dr Ow-Yang are pressed as injuries for present purposes. In his submission, this should be construed broadly to include muscular or mechanical low back pain associated with altered gait.

5. Comcare opposed this proposition, arguing that no claim had been made or determined and reconsidered in respect of muscular or mechanical back pain. Making this submission, Ms Katavic relied on Comcare v Muir[25] and the limits upon a claimant opportunistically reformulating a claim.[26] In her submission, without, first, properly and adequately informing Comcare of the reformulated claim, the matter is not squarely before the Tribunal as the tiered decision making structure the Act provides has not been satisfied. Absent that, in her submission, the Tribunal is not seized with jurisdiction to determine the matter.

   [25] [2016] FCA 346.

   [26] Ibid, at [44].

6. For the reasons that follow, I reject Comcare’s submission on the second jurisdictional point.

7. It is quite clear that Dr Ow-Yang’s letter of request refers to two distinct features: pain relating to pathology at the L4/5 and L5/S1 levels, including involvement of the L5 nerve, and in respect of ‘abnormal gait associated with the left lower limb injury’. One does not need to stretch a long bow, or to torture the words Dr Ow-Yang used, to comprehend that pain associated with abnormal gait associated with a left lower limb fracture might include mechanical or muscular back pain. To my mind, it is entirely within reason to construe the claim in this way and doing so does not stretch the limits to which Flick J referred in Muir’s case with at [13] to [16].

8. It is conceivable, but far from clear, that Comcare construed Dr Ow-Yang’s request in this way when deciding to reject the ‘claim’ on grounds the ‘back condition’ was not significantly contributed to by Ms Kumatia’s employment. Certainly, it was open for Comcare to do so. When requesting reconsideration of the primary decision, Ms Kumatia’s solicitor did not expressly refer to mechanical or muscular back pain, rather the request was framed in reference to ”an aggravation of an underlying degenerative condition”. But this is not determinative. The request for reconsideration was made in general terms – “I am instructed to seek reconsideration of the determination pursuant to claim #1254547/1 dated 30 November 2016”.

9. It is quite clear that the reconsideration decision maker turned his mind and expressly dealt with issues relating to abnormal gait and mechanical back pain. He said, for example –

   “In terms of the subject fall, Dr Low agreed that there had been some alteration in gait, noted by a mild antalgic gait on observation. Dr Low considered that this biomechanical alteration may result in some temporary mechanical back pain however it could not alone, in his opinion, explain your level of symptomatology as well as your radicular symptoms...

   The medical evidence before me does not support that you sustained your claimed condition as a result of the incident in June 2016 or as a result of altered gait due to your fibula fracture.

   …

   … I do not consider that Dr Ow-Yang has provided sufficient clinical explanation and justification to support his opinion that your current condition was sustained as a result of both the fall and the altered gait.

   Consequently, your claim for compensation for a lumbar condition is declined under s 14 of the SRC Act.”[27]

   [27] T46 folio 145.

10. As can be seen, the reconsideration decision maker did not accept that temporary mechanical back might, itself, constitute an injury for the purposes of the Act as it would not explain the level of symptoms and Ms Kumatia’s radicular symptoms.

11. From this it follows, under s 64 of the Act, the Tribunal has jurisdiction to review these matters.

    Issues for determination on review

12. The key issue for determination is whether Ms Kumatia’s low back and radicular pain, including all the matters reported by Dr Ow-Yang, constitutes an ‘injury’ for the purposes of s 14 of the Act.

13. It is also necessary to determine Ms Kumatia’s entitlements to compensation under s 16 in respect of medical treatment expenses, as claimed.

14. On this issue, however, as the parties did not ventilate issues of relevance to s 16 other than the threshold issue in respect of ‘injury’, the determination of Ms Kumatia’s entitlements to compensation under s 16 will be remitted to Comcare. As will appear, there are two considerations. Firstly, whether she is entitled to payment of medical treatment expenses, as claimed, in respect of her accepted left lower limb injury. Secondly, whether she is entitled to such payments in respect of a low back injury. In each case, the particular elements of s 16 must be applied – is the medical treatment obtained ‘in relation to’ an ‘injury’ and is it ‘treatment that it was reasonable fot the employee to obtain in the circumstances’?

15. I will go no further on this point.

    INJURY

16. It is not helpful to refer to Ms Kumatia’s low back condition as a secondary injury. For an ‘injury’ to be established for the purposes of the Act, all of the applicable statutory tests must be satisfied.

17. The word ‘injury’ is given meaning by s 5A -

    5A(1)  In this Act:

    injury means:

    (a)  a disease suffered by an employee; or

    (b)  an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)  an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

    …

18. As can be seen, when applying this definition of ‘injury’, the first consideration is in respect of a ‘disease’, to which s 5B applies –

    5B(1)  In this Act:

    disease means:

    (a)  an ailment suffered by an employee; or

    (b)  an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

    (2)  In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

    (a)  the duration of the employment;

    (b)  the nature of, and particular tasks involved in, the employment;

    (c)  any predisposition of the employee to the ailment or aggravation;

    (d)  any activities of the employee not related to the employment;

    (e)  any other matters affecting the employee’s health.

    This subsection does not limit the matters that may be taken into account.

    (3)  In this Act:

    significant degree means a degree that is substantially more than material.

19. Two key questions arise at this point –

    (a)is there an ‘ailment’ within the meaning given in s 4(1)? ‘Ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

    (b)And if so, is the ‘ailment’ contributed to in a significant degree by the employment?

20. For a ‘disease’ to exist, both questions must be answered affirmatively.

21. If the answer to the second question is no and there is no ‘disease’, only then is it necessary to determine if the ailment is ‘an injury (other than a disease)’, or an ‘an aggravation of a physical or mental injury (other than a disease)’ involving an identifiable physiological change ‘arising out of or in the course of the employment’.[28]

    [28] Military Rehabilitation and Compensation Commission v May [2016] HCA 19, per French CJ, Kiefel, Nettle and Gordon JJ at [44].

22. When determining these matters, it is necessary to consider the evidence on a fact by fact basis.

23. On these points, Ms Kumatia’s case was not framed with precision. But imprecision and opacity in the presentation of a claimant’s case is not, of itself, determinative. As I comprehend her case, at least insofar as Mr Shillington’s closing submissions are concerned, both limbs of ‘injury’ are pressed.

    Ailment

24. The existence of an ‘ailment’ is to be made with reference to the claim – Dr Ow-Yang’s letter to Comcare.

25. On the evidence of Ms Douglas, I am satisfied that on and shortly before 9 August 2016 Ms Kumatia experienced low back pain, as well as pain and weakness in her left lower limb. Ms Douglas noted that Ms Kumatia walked with a limp, favouring her left leg, and attributed Ms Kumatia’s lower back pain to this adaptive walking pattern.

26. On or about 15 August 2016, on Ms Wilson’s report, Ms Kumatia experienced a significant increase in low back pain on the right and right hip pain that was associated with walking. At this time she was still walking with a ‘significant limp’.

27. It was in this context of ‘worsening back pain’ that Dr Wahab referred Ms Kumatia to Dr Ow-Yang for review.

28. I am satisfied that Ms Kumatia’s right-sided low back pain, right hip pain and altered gait when she consulted Dr Ow-Yang are ‘ailments’ for the purposes of the Act.

29. The answer to the first question is Yes.

    Employment contribution

30. The second question requires consideration of the degree to which Ms Kumatia’s employment contributed to her ailments – a significant degree of contribution, being one that is substantially more than material, is required.

31. The parties made extensive submissions addressing this point which I have carefully considered.

32. In Mr Shillington’s submission, three employment factors significantly contributed to the low back pain and lower limb pain identified by Dr Ow-Yang in the originating claim underlying these proceedings: the impact of the fall on 20 June 2016; Ms Kumatia’s use of crutches from that day until 29 July 2016; and her altered gait after she ceased using crutches. In Mr Shillington’s submission, these factors, separately or in combination, caused an aggravation or exacerbation of Ms Kumatia’s pre-existing but previously asymptomatic degenerative pathology in her lumbar spine, rendering it symptomatic. He drew support for these assertions from the evidence of Dr Pillemer and Dr Ow-Yang. Mr Shillington argues that each of these factors is directly attributable to and caused by Ms Kumatia’s accepted lower left limb injury. In his submission, there is no other reasonable explanation for the onset of right sided low back pain symptoms between 30 July 2016 and 9 August 2016.

33. Comcare does not agree. In Ms Katavic’s submission, the expert medical evidence suggests a different conclusion, namely that Ms Kumatia’s low back and right lower limb symptoms occurred spontaneously or contemporaneously with her recovery from the injury for which Comcare accepted liability, and this occurrence was probably due to pre-existing degenerative or arthritic changes in her lumbar spine which would have become symptomatic in any event. Ms Katavic drew support for these propositions from the evidence of Dr Stubbs and Dr Low. These doctors found no objective evidence of radiculopathy and considered any connection between Ms Kumatia’s fall and the subsequent onset of low back symptoms some eight weeks later to be implausible. In Ms Katavic’s submission, the evidence of these experts should be preferred to that of Dr Pillemer and Dr Ow-Yang.

34. Furthermore, Ms Katavic argued that the available evidence does not suggest that the impact of Ms Kumatia’s fall on 20 June 2016, or her use of crutches for 6 weeks or so and her subsequent limp contributed to any degree, let alone a significant degree, to Ms Kumatia’s pain symptomatology. The onset of symptoms, so the argument goes, would have been immediate if the impact of the fall, or Ms Kumatia’s use of crutches, had any effect upon the pre-existing degenerative changes in her lumbar spine. She asserts that did not occur. In Ms Katavic’s submission, the evidence is not sufficient to establish that Ms Kumatia’s altered gait contributed to a significant degree to the onset of pain in the right side of her lower back and in her right lower limb – the proposition that her altered gait acted upon the intervertebral discs, facet joints, exit foramen or related structures and nerves in any significant way is purely speculative. She asserts that the weight of the evidence suggests that altered gait may result in mechanical or muscular back pain, but this would not result in radiculopathy involving disc pathology, narrowing of exit foramen or nerve impingement.

35. Even though Ms Katavic’s submissions have some force, as will appear, I am not persuaded that the result sought by Comcare is the correct or preferable decision.

36. The contemporaneous records of Ms Douglas, Ms Winter, Dr Wahab and Dr Ow-Yang are compelling evidence of a direct contributory link between Ms Kumatia’s altered gait and the onset of right-sided low back pain, which was first independently noted on 9 August 2016. As I have said, it is quite clear that in a matter of days, and certainly by 15 August 2016, Ms Kumatia’s low back pain progressed and affected her right hip. Dr Ow-Yang is clearly of the opinion that Ms Kumatia’s accepted injury and subsequent altered gait ‘most probably’ exacerbated pre-existing pathology at the L4/5 and L5/S1 levels, resulting in the low back pain and right L5 radicular pain of which she complained.[29] To my mind, Dr Ow-Yang’s evidence is most compelling. He is a practising neurosurgeon and his opinion should not be dismissed too readily. Even though Comcare cavils with his opinion and urges me to prefer the opinions of the two experts it briefed for medico-legal purposes, Dr Ow-Yang was not called to give oral evidence. Nevertheless, Dr Ow-Yang speaks clearly from the page.

    [29] T28.

37. At this point it is necessary to examine the expert evidence of Dr Low, Dr Stubbs and Dr Pillemer. It is immediately apparent that there are stark differences in their clinical findings, diagnoses and assessment of medical explanations for Ms Kumatia’s low back and lower limb symptoms. These are matters of detail that require close examination. While a close examination of this kind will significantly increase the length and complexity of these reasons, I think it is desirable to do so for abundant clarity, and in order to address the extensive submissions of the parties relating to medical issues.

38. As will appear, in the result, I prefer the evidence of Dr Pillemer to that of Dr Stubbs and Dr Low, and I am reasonably satisfied that Ms Kumatia’s altered gait consequent to her accepted left lower limb injury significantly contributed to her low back ailment.

    MEDICAL EVIDENCE

    Symptoms and clinical findings

39. Dr Low examined Ms Kumatia on 8 November 2016 and reported –

    “Ms Kumatia reported ongoing pain residing in her lumbar spine radiating down the posterior aspect of her right lower limb to the level of her mid calf. She stated that the pain can increase to 9/10 and is exacerbated through activity such as prolonged standing or walking. She stated her pain is most relieved by lying in a supine position.”[30]

    [30] T37 folio 115.

40. Dr Stubbs examined Ms Kumatia on 23 May 2017. He reported –

    “Close questioning shows that the pain spread from the thoracoculumbar junction through to the lumbrosacral region and spreads into the buttocks and down the backs of both thighs. In the backs of the thighs, it then sweeps onto the inside of the calf and the inside border of the foot. Right is equal to left, and that has not improved. The distribution of the pain is low back, buttock and back of thigh, typical of low back pain without identifiable cause. She describes this as leg pain (really meaning lower limb) but any pain beyond the knee, (leg rather than thigh) is minor.”[31]

    [31] Exhibit 7, page 3.

41. Dr Pillemer examined Ms Kumatia on 22 June 2017, one month later, and reported –

    “… her main concern at the present time is severe pain in her low back radiating down her right lower limb and into her right foot particularly into the big toe region… Back and leg symptoms are described as being constantly present and ranging between 7-9/10.

    Symptoms are aggravated by sitting for any length of time, by bending or lifting or cleaning or pushing and she avoids bending activities.

    She does get a lot of relief by simply lying down and also by walking carefully and taking her tablets [Tramadol and Celebrex]…”

42. As can be seen, there is some consistency in the report of symptoms complained of by Ms Kumatia in the reports of Dr Low and Dr Pillemer.

43. It is difficult to know what to make of Dr Stubbs’ report of Ms Kumatia’s account of equally distributed bilateral lower limb pain symptoms and his comment that ‘distribution of the pain is low back, buttock and back of thigh, typical of low back pain without identifiable cause’. On this report of symptoms, Dr Stubbs is alone.

1. Dr Stubbs reported that Ms Kumatia was “inconsistent” during the examination. When asked to explain this observation, he gave evidence that aspects of the examination were inconsistent with his experience and his expectations, in respect of M Kumatia rising from the examination couch by rolling in one direction but not another for example. He was careful to explain that he did not consider that Ms Kumatia was malingering or untruthful about her symptoms, although he explained that she was anxious during the examination. It is quite clear that Dr Stubbs formed the opinion that Ms Kumatia’s pain had a behavioural component, whereas Dr Low reported “no abnormal pain behaviour”[32] and Dr Pillemer reported that he “found Ms Kumatia to be a very straight forward person with objective clinical signs”.[33] I note that Ms Douglas found no psychosocial risk factors in Ms Kumatia’s complaints of pain.

   [32] T37 folio 116.

   [33] Exhibit 6 page 2.

2. Dr Low and Dr Pillemer reported that Ms Kumatia exhibited a slight antalgic gait, whereas Dr Stubbs reported that her gait was normal, although he conceded that Ms Kumatia walked very slowly.

3. Dr Stubbs initially reported that Ms Kumatia was able to walk on her heels and toes.[34] He subsequently reported “Ms Kumatia did complain that she could not comply with my request to walk on her heels because this would cause back pain”.[35] In his oral evidence he explained this discrepancy as a mistake, suggesting that he should have referred to Ms Kumatia’s difficulty hopping rather than heel walking. It is difficult to know what to make of Dr Stubbs’ evidence on this point. Little more than one month after Dr Stubbs examined Ms Kumatia, Dr Pillemer reported that Ms Kumatia was unable to walk on her heels but could take a couple of steps on her toes. Dr Low did not report on this clinical test. I note, however, that Ms Wilson reported that Ms Kumatia was unable to heel toe walk when she was examined by Dr Wahab on 15 August 2016.

   [34] Ibid.

   [35] Exhibit 8 page 2.

4. Dr Low reported that spinal flexion was moderately restricted, with fingertips reaching just below the knees, extension was also moderately restricted and straight leg raising was “positive at 45° on the right and negative on the left”.[36] Dr Stubbs reported that Ms Kumatia was “near rigid” and she “would not allow her hips to flex beyond 30°. The straight-leg raising was the same – it was actively resisted at 90°. However, as noted, hip flexion and knee extension were much better”[37] - “It was noticeable that she moved only a few degrees in any direction in the lumbar and cervical spines and she appeared happy to sit comfortably with her hips flexed to 90°”, “The degree of voluntary restriction of movement was worrisome” and “When sitting with her hips and knees flexed to 90°, a slump test was negative, and from this position Ms Kumatia could get both knees straight, and more importantly bent forward to get her fingers almost to her knees”.[38] Dr Pillemer reported “significant restriction of back movement only getting her fingertips slightly below her knees in flexion and lateral flexion to the right was more restricted than to the left”[39] and “Straight leg raising was limited to 45° on the left and 30° on the right and she was unable to sit erect with legs extended”.[40]

   [36] T37 folio 116.

   [37] Exhibit 7, page 4.

   [38] Exhibit 7 page 3.

   [39] Exhibit 5 page 3.

   [40] Exhibit 5, page 3.

5. As can be seen, Dr Stubbs was concerned about the degree of ‘voluntary restriction’ and aspects of Ms Kumatia’s presentation that he considered to be inconsistent. In this regard, his report is exceptional.

6. Dr Low reported non-verifiable right-sided radicular symptoms.[41] Having heard his evidence, it appears that his assessment of ‘non-verifiable right-sided radicular pain’ was made despite a positive finding in the right lower limb on straight leg raising but without testing for lower limb wasting. Dr Low, Dr Stubbs and Dr Pillemer agreed that this test may provide objective clinical evidence of radiculopathy. It was a test applied by Dr Stubbs and by Dr Pillemer approximately one month later, with divergent results – Dr Stubbs found both lower limbs to be equal, whereas Dr Pillemer found 1.3 centimetres of wasting in the right lower limb. Dr Stubbs suggested that a margin of error might explain the difference – he explained that up to 1 centimetre variance would be considered within the margin for error. If that is what Dr Stubbs applied, and he did not disclose the particular measurements he took, it may explain the divergence. If that is correct, I would prefer the measurement reported by Dr Pillemer, being the measurement he recorded on examination rather than an approximation based on a margin for error. Dr Stubbs considered that there is no objective evidence of radiculopathy and L5 nerve root impingement.[42] Dr Pillemer reported “clear evidence of L5 nerve root involvement (i.e. radiculopathy) as evidenced by sensory loss in the L5 distribution, muscle wasting, and restricted straight leg raising”.[43]

   [41] T37 folio 117.

   [42] Exhibit 10, page 3.

   [43] Exhibit 5, page 3.

7. Considering these matters, to my mind, the evidence of Dr Low and Dr Stubbs on this point is less robust than that of Dr Pillemer.

8. Dr Low reported “Lower limb neurological examination was normal with normal tone”. Dr Stubbs reported “I did not observe hypoaesthesia, though this is more a symptom than a clinical sign, the patient complains during the testing, the examiner doesn’t see it”.[44] Dr Pillemer reported “hypoaesthesia to pin prick over the dorsum of her right foot and down to her big toe in a typical L5 distribution”.[45]

   [44] Exhibit 8, page 2.

   [45] Exhibit 5, page 3.

9. I set out these matters in some detail because it is difficult to know what to make of the divergence in clinical examination findings, particularly those reported by Dr Stubbs and Dr Pillemer following clinical examinations that were separated in time by only one month. On this point, Dr Pillemer observed “it is almost as though Dr Stubbs and I have examined two different patients”.[46] Dr Stubbs and Dr Pillemer are experienced surgeons who gave their evidence concurrently. Each clearly exposed the clinical assessment methods used when examining Ms Kumatia. As helpful as this was, stark differences in their clinical examination findings remain unresolved.

   [46] Exhibit 6, page 1.

10. Considering the divergence in clinical examination findings, it is perhaps not surprising that Dr Low, Dr Stubbs and Dr Pillemer arrived at different diagnoses and explanations for Ms Kumatia’s low back and lower limb symptoms.

    Diagnoses and causation

11. Dr Low diagnosed symptomatic lumbar spondylosis with non-verifiable right-sided radicular symptoms that he considered were “more related to pre-existing degenerative changes”, although “alteration of gait may cause a degree of mechanical lower back pain”.[47]

    [47] T37 folio 117.

12. In his oral evidence, Dr Low explained that altered gait (including the use of crutches) would not have acted upon Ms Kumatia’s pre-existing degenerative lumbar spine pathology or rendered her pre-existing lumbar spondylosis symptomatic. In his opinion, any resulting pain would be muscular - altered gait may cause a degree of mechanical low back pain, but this would be temporary: it would resolve as normal gait is restored. He accepted that mechanical low back pain might persist in the presence of continuing alteration of gait, but this would not, in his opinion, contribute to cause the level of low back and radicular symptoms of which Ms Kumatia complained. He rejected the proposition prolonged altered gait and asymmetrical load on perambulation could have that result - he had never come across such a case in which this had occurred.

13. Dr Low did not agree with or accept the proposition that the impact of the fall on 20 June 2016, followed by Ms Kumatia’s use of crutches for several weeks and her altered gait thereafter increased pressure on the degenerative changes in Ms Kumatia’s lumbar spine, resulting in a disc prolapse and the delayed onset of symptoms – in his opinion, had any of these circumstances been causally related to Ms Kumatia’s low back or radicular symptoms, the onset of symptoms would have been immediate.

14. In response to questions about diagnosis, Dr Stubbs reported “Ms Kumatia does not suffer from any identifiable medical condition affecting her back” and “There is no physical condition”. He appears to have accepted that Ms Kumatia experienced back pain but found “the clinical examination was not what one would expect from a continuing physical injury; it was inconsistent”, and said –

    “I can think of no reason that a fracture of the lateral malleolus would cause low back pain two weeks after full weight-bearing began if back pain had not occurred beforehand. I likewise do not think that this is the aggravation of a pre-existing condition. There was no pre-existing condition in terms of pain and disability, and the radiological changes are really within the normal range seen in healthy spines.”[48]

    [48] Exhibit 7, page 7.

15. In his opinion, Ms Kumatia’s ‘condition’ is not the natural progression of aging and her back symptoms are not caused by altered gait. He explained that “There is a mismatch between perceived disability and the actual injury – this is really a matter for behavioural modification” – “we are left with the puzzle of how back pain arising two weeks after the cast was removed could be related to her fall”.[49] The ‘puzzle’ arising from the symptoms and clinical examination findings Dr Stubbs reported is not one he was adequately able to explain. Nevertheless, Dr Stubbs gave evidence that crutch walking stresses the lower back and non-athletic people on crutches may complain of back pain, but the pain always goes away once full weight bearing resumes. Dr Stubbs was unable to provide a clear explanation of the persistence of Ms Kumatia’s low back and lower limb pain.

    [49] Exhibit 7, page 10.

16. This notwithstanding, Dr Stubbs did not agree with or accept the proposition that the impact of the fall on 20 June 2016 and the use of crutches for several weeks followed by altered gait thereafter would have increased pressure on nerve roots or resulted in disc prolapse in Ms Kumatia’s lumbar spine: he described this as “implausible” and “tosh”. His evidence is that if there was a prolapsed disc, in all likelihood, this would have occurred spontaneously as “most episodes of a prolapsed intervertebral disc occur during normal daily activities and are a matter of chance”.[50] Furthermore, in Dr Stubbs’ opinion, little can be taken from the radiological imaging as there is a very low correlation between potential pathology in MR imaging and the onset of symptoms – he pointed to research in support of this conclusion.[51] In any event, Dr Stubbs opinion is that “if thee [sic – there] was any back injury, symptoms would have become apparent at the time and become progressively worse on crutches”.[52]

    [50] Exhibit 8, page 2.

    [51] Exhibit 11, Are first time episodes of LBP associated with new MRI findings?, The Spine Journal, 6 (2006) 624-635 at 633.

    [52] Exhibit 10, page 2.

17. Dr Pillemer reported a diagnosis of “degenerative changes in the lower lumbar region particularly noticeable at the L5/S1 level” with “L5 nerve root involvement”.[53] In his opinion, “if Ms Kumatia had not had the fall on 20 June 2016 and had not been required to use crutches for a 6 weeks plus period, she would not have developed the symptoms in her lower back and the referred pain into her right lower limb”. In his oral evidence he explained that the impact of the 20 June 2016 fall, the use of crutches for several weeks and the abnormal gait thereafter could all have increased pressure on already degenerative features in Ms Kumatia’s lumbar spine, and “any increased pressure in the nerve root canal could cause pressure on the nerve and the symptoms complained of”.[54] When closely examined on this point, Dr Pillemer explained that it was more probable than not that this is what occurred.

    [53] Exhibit 5, page 3.

    [54] Exhibit 10, page 2.

18. In his opinion, the delayed onset of Ms Kumatia’s low back and lower limb symptoms can readily be explained in this way –

    “using crutches can place additional stress on a low back and I would agree that in the vast majority of cases the pain does go away. However if there is an underlying problem in the lumbar spine, the excess stress can aggravate and exacerbate this underlying condition leading to further problems, which in my opinion has occurred in Ms Kumatia’s case.”[55]

    [55] Exhibit 6, page 2.

19. Ms Katavic urged me to reject Dr Pillemer’s explanation in preference for that provided by Dr Low and Dr Stubbs. In her submission, Dr Pillemer was alone in his assessment of a causal relationship between Ms Kumatia’s fall, her altered gait and the onset of low back and lower limb symptoms two weeks after ceasing using crutches.

20. This is not correct, however. Dr Pillemer’s assessment is largely consistent with the evidence of Dr Ow-Yang and it is supported by the reports of Ms Douglas and Ms Wilson.

21. Dr Stubbs is alone in conclusion that there is no medical condition affecting Ms Kumatia’s lower back. His opinion that Ms Kumatia’s high level of disability “may arise from the psychological mechanism of catastrophising”[56] is not supported by any other doctor. These assessments are not consistent with or supported by the evidence of Dr Wahab, Dr Ow-Yang, Dr Low and Dr Pillemer. While there is some divergence of diagnostic opinion in respect of verifiable right-sided radiculopathy between Dr Low and Dr Pillemer, and there is clear divergence on the question of attributability of symptoms, this does not detract from their diagnosis of symptomatic lumbar spine pathology, which I accept. For Dr Stubbs’ opinion to be accepted, it would be necessary to reject key aspects of the evidence provided by Dr Ow-Yang, Dr Low, Dr Pillemer, Ms Wilson and Ms Douglas – the weight of medical evidence points to a different conclusion and, for this reason, Dr Stubbs’ assessment is not preferred.

    [56] Exhibit 7, page 10.

22. For completeness, there are two further things to say in respect of Dr Stubbs’ evidence.

23. Firstly, it is curious that Dr Stubbs considered it appropriate to report that –

    “Her treating doctor, Dr Wahab, and also Dr Ow-Yang, neurosurgeon, are her advocates and have taken the view that her back pain is the consequence of her fracture. I have just the opposite view, and I cannot see any logical reason why they would adopt this view other than they are “as treating doctors, also Ms Kumatia’s advocate”.”

24. No further explanation of this remark has been provided, although it is quite clear that Dr Stubbs does not agree with the medical judgement of these doctors. The materials before the Tribunal do not support the proposition that Dr Wahab and Dr Ow-Yang acted as advocates for Ms Kumatia.

25. Secondly, it appears that Dr Stubbs viewed the MRI images and he included references to hypertrophic changes at the L3/4 level in his report, but he did not refer to any changes at the L5/S1 level. Dr Stubbs gave evidence that he was not aware a CT scan of Ms Kumatia’s lumbar spine had been taken and reported on 23 August 2016. It appears, however, that this report was provided to the doctor in the briefing materials he was given by Comcare – express reference is made to it in the briefing letter. That being so, it is curious that Dr Stubbs did not refer to this report and the findings it contains, especially in respect of the L5/S1 level and impingement of the L5 nerve. Nevertheless, when informed about the CT scan report particulars at this level, Dr Stubbs informed me that the reported findings did not alter his opinion.

26. Dr Low, too, was provided with reports of the MRI and CT scan of Ms Kumatia’s lumbar spine. He noted the reported findings at the L5/S1 level,[57] and concluded that the narrowing of the right neural exit foramen was related to pre-existing hypertrophic changes. On this point, there is some consistency of opinion between Dr Low and Dr Pillemer. Where they diverge, however, is in regard to the effect of Ms Kumatia’s fall and altered gait (including the use of crutches) over an eight-week period on her already degenerative lumbar spine prior to the onset of low back and right lower limb symptoms.

    [57] T37 folios 115 and 117.

27. Dr Low’s evidence is that altered gait would not have acted upon Ms Kumatia’s pre-existing degenerative lumbar spine pathology, including the narrowing of the right neural exit foramen at the L5/S1 level, and it would not have rendered her pre-existing lumbar spondylosis symptomatic. In his opinion, any resulting pain would be muscular - altered gait may cause a degree of mechanical low back pain, but this would be temporary: it would resolve as normal gait is restored.

28. Dr Pillemer held a contrary opinion, such that Ms Kumatia’s fall and subsequent altered gait acted upon her already degenerative lumbar spine, causing pressure on the right exiting L5 nerve and the symptoms of which Ms Kumatia has subsequently complained. Dr Pillemer went so far to suggest the increased pressure may have caused a prolapsed disc, and this, too, would explain the persistence of Ms Kumatia’s symptoms.

29. On this latter point, with respect to Dr Pillemer, the proposition of a prolapsed disc is conjectural – it is no more than speculative possibility without supporting evidence sufficient to establish it as a probability.

30. With respect to Dr Low’s evidence on these matters, there are two difficulties. Firstly, by the time Dr Low examined Ms Kumatia in November 2016, she had been limping and experiencing right sided low back pain and right lower limb pain for some 3 months, and prior to this she had been using crutches for 6 weeks. Her gait had not returned to normal and her right sided low back and lower limb symptomatology had not resolved. So much is reasonably clear from the documents before the Tribunal, many of which were provided to Dr Low. His own report that she exhibited a slightly antalgic gait is relevant to this point. Unfortunately, he did not record details of this alteration in gait and he could not recall which leg Ms Kumatia favoured at the time.

31. And secondly, Dr Low’s own assessment permits some level or degree of persisting ‘mechanical’ low back pain. He considered it premature to undertake invasive treatment as proposed by Dr Ow-Yang, rather “Ms Kumatia would better benefit from a longer period of conservative management and also see if restoration of normal gait may further improve any component of mechanical back pain”.[58]

    [58] T37 folio 120.

32. On this evidence, to my mind, it is clear enough that Ms Kumatia’s symptomatology in her lower back in the period from 9 August 2016 to the day she was examined by Dr Low in November 2016 is attributable, in part at least, to her persisting abnormal gait, albeit that Dr Low described this low back pain as ‘mechanical’. This assessment is supported by the evidence of Dr Stubbs and Dr Pillemer that use of crutches or altered gait places additional stresses on the lower back and this may result in experience of low back pain.

33. That being so, I am reasonably satisfied that from 9 August 2016 to 8 November 2016 at least, Ms Kumatia was experiencing low back pain that was attributable to the alteration of gait as a direct consequence of her accepted left lower limb injury. The extent to which low back pain of this kind may be distinguished from low back pain resulting from other causes is not clear on the available evidence.

34. As I comprehend Dr Low’s evidence, he accepted that mechanical low back pain might persist in the presence of continuing alteration of gait, but this would not, in his opinion, contribute to cause the level of low back and radicular symptoms of which Ms Kumatia complained. He rejected the proposition prolonged altered gait and asymmetrical load on perambulation could have that result - he had never come across such a case in which this had occurred.  On this point, he and Dr Stubbs agreed, whereas Dr Pillemer holds a contrary opinion.

1. Weighing the relevant materials on this point, it is probable that Ms Kumatia had right-sided radiculopathy when she was examined by Dr Ow-Yang on 28 September 2016 and this persisted. Dr Low’s report of right sided radicular symptoms  in November 2016 and Dr Ow-Yang’s subsequent report in January 2017 support this finding. It is also consistent with the nerve compression reported in the CT scan taken on 23 August 2016, even though the scan, itself, is not proof of radicular symptoms.

2. On the question of causation of radicular symptoms of this kind, Dr Low rejected the proposition that the fall and consequent alteration of gait (including the use of crutches) could explain the level of Ms Kumatia’s low back symptoms and her radicular symptoms. Dr Stubbs gave similar evidence.

3. Dr Low’s rationale is one of coincidental and spontaneous onset of symptomatic lumbar spondylosis, unrelated to Ms Kumatia’s altered gait at the time. Dr Stubbs attributed Ms Kumatia’s pain symptomatology to behavioural factors, unrelated in any way to the fall and alteration of her gait.

4. Dr Pillemer gave a different explanation, namely that the stresses placed upon Ms Kumatia’s already degenerative lumbar spine by the fall and the asymmetrical load relating to her altered gait (including using crutches) were the probable cause of her right-sided low back and radicular symptoms. As I have said, his evidence in respect of a possible disc prolapse is, with respect, speculative and it carries little weight. This proposition is not made out as anything more than a medical possibility.

5. Dr Pillemer’s rationale is consistent with Dr Ow-Yang’s diagnosis of “exacerbation of L4/5 and L5/S1 facet pain and right L5 radicular pain most probably in relation to the recent work injury and fall as well as the abnormal gait associated with the left lower limb injury”.[59]

   [59] T28 folio 83.

6. I prefer the evidence of Dr Pillemer and Dr Ow-Yang on this point. Their evidence is consistent with the facts of this case and it has a compelling logic. The proposition that the onset of Ms Kumatia’s low back symptoms was a coincidence that occurred spontaneously is not persuasive. It does not sit easily or well with the contemporaneous evidence of Ms Douglas, Ms Wilson and Dr Wahab concerning the onset and progress of Ms Kumatia’s low back and right hip symptoms, and there is little probative evidence to support it – to my mind it is largely speculative, albeit a medical possibility. The same can be said of Dr Stubbs’ attribution of Ms Kumatia’s pain symptomatology to behavioural factors.

7. This notwithstanding, each of the expert doctors agreed that narrowing of the right neural exit foramen would have pre-dated Ms Kumatia’s fall and that the narrowing, itself, would not cause symptoms – Ms Kumatia was previously asymptomatic. Dr Low, Dr Stubbs and Dr Pillemer agreed that using crutches and alteration of gait would place additional stresses of the lower back and this may result in pain. It is clear enough that Dr Low considered that part of Ms Kumatia’s low back pain in November 2016 may have been mechanical and attributable to her altered gait, even though such altered biomechanics would not result in radiculopathy.

8. Dr Low told me that he has been in practice as a consultant occupational physician since 2012, and he is not qualified as a neurosurgeon. Much as Dr Low may be an expert in his field with more than five years’ experience in practice, I would give more weight to the assessments of Dr Ow-Yang, Ms Kumatia’s treating neurosurgeon, and Dr Pillemer, an expert orthopaedic surgeon, on this point.

9. On balance, I am reasonably satisfied that it is probable the “acute spasms” Dr Wahab noted in Ms Kumatia’s low back on 15 August 2016 were attributable to the effects of Ms Kumatia’s altered gait on her already degenerative lumbar spine. The contemporaneous records and reports of Ms Douglas, Ms Wilson, Dr Wahab and Dr Ow-Yang reveal a close association between altered gait and the onset of right-sided lumbar spine symptoms by 9 August 2016, which then increased and affected Ms Kumatia’s right hip on or about 15 August 2016 and subsequently, by 28 September 2016, affected other parts of her right lower limb.

10. Clearly enough, Ms Kumatia’s altered gait was directly attributable to her employment-related left lower limb injury.

    Contribution to a significant degree

11. It remains to determine if Ms Kumatia’s employment contributed to a significant degree to her low back and right lower limb ailments.

12. I am satisfied that it did.

13. Ms Katavic is correct in her submission that it is not necessary to identify other causes of the ailment claimed as an ‘injury’-  for the purposes of the Act, it is necessary to determine whether a causal connection with employment exists such that it can properly be established that the employment contributed to a significant degree to the ailment. The contributory factor may be one of many causes. The test under s 5B of the Act is whether the employment contribution is of a significant degree. I am mindful of the authorities to which she pointed in her submissions. It is not necessary to reprise the authorities, which are not in any way controversial, for present purposes.

14. The balance of probabilities test does not involve choosing between guesses or possibilities, even where one possibility seems more likely than another. More is required. Despite the divergence of medical minds on matters of diagnosis and medical causation in this case, there is some agreement that altered gait may result in mechanical low back pain. Medical evidence that the onset of symptoms from lumbar spine degenerative pathology may commonly occur spontaneously may well have a scientific basis, generally. But in a case of this kind, it is necessary to examine the specific facts without resort to speculation.

15. The relevant facts that are established on the balance of probabilities, as follows:

    (a)Ms Kumatia had pre-existing but asymptomatic degenerative changes in her lumbar spine prior to 20 June 2016.

    (b)She fell on 20 June 2016, landing heavily on her left hip.

    (c)She sustained an injury to her left lower limb in that fall.

    (d)The injury caused alteration in her gait for an extended period as she used crutches and subsequently limped.

    (e)It is probable that her altered gait placed unusual stress on her lower back.

    (f)This was associated with the onset of right side low back pain on and shortly before 9 August 2016.

    (g)The low back pain increased with walking and affected Ms Kumatia’s right hip on or about 15 August 2016.

    (h)The alteration in Ms Kumatia’s gait and the symptoms of right side low back and lower limb pain persisted over subsequent months.

16. To my mind, the facts demonstrate a sequence of linked events that are consistent with the contemporaneous records and assessments of Ms Douglas, Ms Wilson, Dr Wahab and Dr Ow-Yang, and the expert evidence of Dr Pillemer.

17. The facts are not consistent with a spontaneous or immediate onset of low back and radicular pain contemporaneously with, but causally unrelated to, Ms Kumatia’s injury-related altered gait, as suggested by Dr Low and, to some extent, by Dr Stubbs. Dr Stubbs’ evidence in respect of unidentifiable causes, behavioural factors and the sudden onset of symptoms being just “bad luck” may be conformable to the facts, but these are no more than assertions or possibilities, lacking probative support. For this reason, I prefer the evidence of Dr Ow-Yang and Dr Pillemer to that of Dr Low and Dr Stubbs on this point.

18. On their evidence, I am reasonably satisfied that Ms Kumatia’s altered gait over an extended period placed additional stress on her lower back and pressure on lumbar spinal structures that were affected by arthritic changes and hypertrophic narrowing. The additional stress or pressure contributed to right-sided low back pain and radicular pain in her right lower limb.

19. I accept that it is possible that other causes may exist to explain the persistence of Ms Kumatia’s low back and radicular symptoms – it is possible that pre-existing degenerative changes in her lumbar spine may have coincidentally become symptomatic, or on Dr Stubbs’ evidence, that something unexplained or spontaneous occurred without any causal nexus to injury or altered gait. As I have said, possibility is not sufficient and speculation, even when it has a theoretical scientific basis in general terms, is not persuasive.

20. The ‘significant degree’ test of causation should not be misconstrued as a ‘sole cause’ test. While an ailment may result from multiple contributory causes, a ‘disease’ exists only where the employment contribution is of a ‘significant degree’.

21. The preponderance of the medical evidence suggests only two probable contributory causes of Ms Kumatia’s low back and right lower limb ailments – degenerative changes in her lumbar spine and the effects of her altered gait as a result of her accepted injury. To my mind both contributed to the onset of symptoms to a significant degree – the degenerative changes rendered her lumbar spine vulnerable or susceptible to become symptomatic; and her altered gait after the accepted left lower limb injury placed additional stress and pressure on the musculature and degenerative elements of her lumbar spine, resulting in the onset and progress of symptoms.

22. On the evidence of Ms Douglas, Ms Wilson, Dr Wahab, Dr Ow-Yang and Dr Pillemer, I am reasonably satisfied that Ms Kumatia’s right side low back pain on and after 9 August 2016 is attributable to the alteration in her gait from 20 June 2016. Her altered gait, including her use of crutches from 20 June 2016 to 29 July 2016, is directly attributable to her accepted injury, and therefore to her employment. The alteration in her gait persisted and was reported by Dr Low in November 2016. It is an accepted cause of low back pain, albeit usually temporary. This is perhaps the singular point on which all the medical experts agree.

23. For this reason, I am satisfied that Ms Kumatia’s employment contributed to a significant degree to her low back pain ailment.

24. From this it follows that the requisite causal link to employment is made out – Ms Kumatia’s low back ailments were contributed to by her employment and the degree of that contribution was significant.

25. That being so, on the balance of probabilities, the ailment meets the test of a ‘disease’ under s 5B and for the purposes of s 5A(1)(a) this constitutes an ‘injury’.

    CONCLUSION

26. Comcare is liable to compensate Ms Kumatia for this ‘injury’ under s 14 of the Act and the decision under review must be set aside.

27. Having regard to s 7 of the Act, the date of the ‘injury’ is deemed to be 9 August 2016.

28. On the balance of the present evidence, it is probable that Ms Kumatia’s back ailment has progressed over time. It is probable that, initially, the low back pain she experienced was mechanical or muscular in nature, relating to her use of crutches and altered gait. It is probable that the persistence of her altered gait after she ceased using crutches exacerbated previously existing degenerative changes in her lumbar spine resulting in right-sided low back pain and radicular symptoms. On the present evidence, it appears that those symptoms have persisted from 9 August 2016 to the present.

29. As I have said, Ms Kumatia’s entitlement to compensation under s 16 of the Act in respect of medical treatment expenses specified by Dr Ow-Yang will be remitted to Comcare for determination.

    Decision

30. The decision under review is set aside and in place thereof the Tribunal decides that as of 9 August 2016 Ms Kumatia had a low back injury in respect of which she is entitled to compensation under s 14 of the Act.

31. Determination of Ms Kumatia’s entitlement of compensation for medical treatment expenses under s 16 is remitted to Comcare.

32. The parties have not been heard on the issue of costs under s 67 of the Act. Written submissions addressing this point may be made within 14 days. If no submissions are received by the Tribunal, Comcare will be ordered to pay Ms Kumatia’s reasonable costs of these proceedings as agreed or taxed.

I certify that the preceding 152 (one hundred and fifty-two) paragraphs are a true copy of the reasons for the decision herein of  Member Simon Webb.

.............................[sgd]...........................................

Associate

Dated: 1 June 2018

Date(s) of hearing:	10-11 May 2018
Counsel for the Applicant: Solicitor for the Applicant:	Daniel Shillington Slater & Gordon Lawyers
Counsel for the Respondent: Solicitors for the Respondent:	Kristy Katavic McInnes Wilson Lawyers