Maakasa and Comcare (Compensation)

[2016] AATA 840

Maakasa and Comcare (Compensation) [2016] AATA 840 (25 October 2016)

Division	GENERAL DIVISION
File Numbers	2015/2050 and 2015/3021
Re	Eddie Maakasa
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	25 October 2016
Place	Melbourne

The Tribunal affirms the decision relating to the provision of household and gardening services (2015/2050) and remits the decision relating to ongoing liability, s 16 medical treatment and s 19 weekly compensation payments to Comcare for reconsideration in accordance with this decision (2015/3021).

........................................................................

Miss E A Shanahan, Member

COMPENSATION – back injury – termed sacroiliac ligament strain left – payment of compensation in accordance with s 16, s 19 and s 29 of the SRC Act since 14 June 2008 – denial of ongoing claim for household assistance – subsequent cessation of liability for medical treatment incapacity and household assistance 3 March 2015 – temporary incapacity resolved – change in diagnosis to spondylolisthesis – degenerative osteoarthrosis – spinal canal stenosis – unrelated to past work – requirement for household assistance – decision with respect to s 29 affirmed – decision relating to ongoing liability in accordance s 14, s 16 and s 19 remitted to respondent for reconsideration.

Legislation

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Miss E A Shanahan, Member

25 October 2016

1. Mr Maakasa lodged an application with the Administrative Appeals Tribunal for a review of the decisions of Comcare relating to the provision of household services, the first dated 24 March 2015 (file number 2015/2050) and the other 26 May 2015 (file number 2015/3021) determining no further entitlement under s 16, s 19 and s 29 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) with respect to an accepted injury.

2. Both reviewable decisions relate to the accepted injury sustained by the applicant on 10 April 2008 while working for the Department of Veterans’ Affairs (DVA) as a gardener attending Australian war graves throughout Victoria but predominantly at the Springvale Cemetery.  Mr Maakasa was working on a fixed contract commencing on 3 September 2007, and expiring on 30 June 2008.  The injury was described as sacroiliac (ligament) strain (left) and liability for this injury was accepted on 14 June 2008.  In accordance with acceptance of the claim Mr Maakasa received both medical and household services. The household services were gradually reduced over a period of years, so that by 2013 he was receiving one hour per week of household assistance and one hour per week of gardening services. 

3. Following the expiration of his contract with DVA, Mr Maakasa continued to work on a part time basis with the National Hearing Centre as a customer service officer and Arabic interpreter.  In 2013 he was made redundant by the National Hearing Centre.  Since that time he has been receiving s 19 weekly compensation payments at 75 per cent of his normal weekly earnings.  Despite his attempts he has not been able to obtain further employment.

4. At the hearing Mr Maakasa was represented by Mr Ray Ternes of counsel instructed by Shine Lawyers and the respondent Comcare was represented by Mr Roy Seit of counsel instructed by the Australian Government Solicitor. The Tribunal was provided with the documents lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  Both parties tendered further documentation, a list of which is appended to this decision.  Mr Maakasa, Mrs Anne Maakasa, Professor Richard Bittar, Dr Igor Jakubowicz (general practitioner), Mr Kevan Walsh (occupational therapist) and Dr John Ashwell (orthopaedic surgeon) gave evidence before the Tribunal.

   BACKGROUND TO THE APPLICATION

5. Mr Maakasa was born in Lebanon on 25 August 1953 and migrated to Australia in 1979.  Shortly after his arrival he obtained employment with a relative as a manager in a timber business that was owned by his uncle.  He remained in this position for a period of five years and then moved to Melbourne where he ran a newsagency from 1985 to 1990 working long hours.  He said this was not heavy work and he ceased because he was not making a great deal of profit.  He then gained employment with Bowen Timber, working on weekends while he studied full time undertaking two courses, one in horticulture and the other a Certificate I in IT.  He also undertook part time work with the supermarket chain Safeway between 1997 and the year 2000. 

6. During the 1990s Mr Maakasa performed some landscaping work on a seasonal basis.   He found the landscaping business did not return an acceptable profit and he ceased this pursuit in 2005.  Mr Maakasa denied having to undertake any heavy work whilst working as a landscaper.  Similarly, he denied heavy work while working for Safeway, where he was employed in a distribution centre for 30 hours per week whilst also working for Hardware House for 20 hours per week with some weekend shifts.  He stated in his evidence that the maximum lifting he performed working at Safeway would have been four kilograms. 

7. Mr Maakasa ceased working with Safeway on the basis of racial discrimination and took legal action in which he was successful.  He also ceased working at Hardware House when it was taken over by Bunnings.  Between the years 2000 and 2006 he worked for several timber merchants and hardware stores including Tait Timber, Mitre Ten and Tradecorp.  He commenced work with National Hearing in 2006 on a part time basis.  Mr Maakasa was involved in a total of three separate legal claims, one for racial discrimination and two for harassment and bullying. Mr Maakasa’s evidence was to the effect that neither his wife Anne, who has had right carpal tunnel syndrome requiring surgery and now has problems with her left wrist nor his two children who are still at home but both of whom are studying are in a position to help with household duties and he himself cannot do other than very light activities in both the house and the garden.  For these reasons following Comcare’s reduced provision of household services his eldest daughter, who does not live at home, assists in paying for household help.  The house is said to be large, with five bedrooms and at least three bathrooms.  In addition, it is said the eldest daughter has asthma and although she only visits home and stays there once a month, special cleaning is required to reduce the dust levels to which she reacts.  The garden is also quite large and necessitates a considerable amount of maintenance.

8. Prior to his back injury Mr Maakasa said he did a great deal of the housework, including cooking meals twice a week, doing the dishes, washing the clothes and performing the vast majority of the domestic duties.  Mrs Maakasa has never performed the normal household duties as she was predominantly involved with the caring of the four children and breastfed for many years.

9. Over the years from 2008 onwards Mr Maakasa’s back symptoms are said to have increased in severity. 

10. The medical evidence relating to Mr Maakasa’s lumbar spinal pathology is somewhat conflicting. Associate Professor Bittar supports a diagnosis of facet joint and degenerative changes in the lumbar spine with L4/5 spondylolisthesis which has been progressive over the years.  In contrast the orthopaedic surgeon Dr Ashwell was of the opinion that Mr Maakasa’s back or sacroiliac joint injury of 2008 was a temporary condition that should have resolved within eight weeks.  It was his opinion that the current situation was one of natural progression of degenerative changes giving rise to chronic back pain which he opined was generated from or by changes of osteoarthrosis in the facet joints and also foraminal stenosis.  Professor Bittar had also localised Mr Maakasa’s pain to these two sites.  Both had considered there was no evidence of disc rupture or protrusion of any clinical significance.

11. Mr Maakasa claimed that his back pain has been continuous since the event of 10 April 2008 and that it has deteriorated in the intervening years. He claims he has not been able to pursue recommended surgical treatment because of Comcare’s denial of continuing liability. He seeks restoration of his weekly compensation payments, coverage of medical treatment/medication provided by s 16 of the SRC Act and the re-establishment of household and gardening services at Comcare’s expense.

    EVIDENCE BEFORE THE TRIBUNAL

12. Mr Maakasa’s evidence has been summarised under BACKGROUND TO THE APPLICATION however, there are certain features that require further examination.  It would appear that prior to his injury of April 2008, he did most of the housework and all of the gardening and following his so called sacroiliac ligament strain he has experienced increasing restraints on his physical activity. He continued to work in his second job at National Hearing until mid-2012 when he says he resigned and was not retrenched; however there was clearly an incident at that workplace that led to complaints against Mr Maakasa.

13. In his evidence-in-chief, Mr Maakasa said that on 10 April 2008 he had a sudden onset of sharp pain in the back, causing him fall to the ground. This occurred two days after he had been undertaking the clearing of trees and bushes.  He said the pain was in his lower lumbar spine radiating into his left buttock, hip and thigh with pins and needles in his toes.  He eventually saw his general practitioner on 21 April 2008 at the direction of his supervisor.  Thereafter, he was certified for light duties and continued in this role until his contract expired on 30 June 2008. 

14. In cross-examination Mr Maakasa had no recollection of any previous episode of back pain reported to his general practitioner in 2004.  He did however expand on his back pain of 10 April 2008, stating that the pain had actually started some days prior to the tree shifting event.  Several medical practitioners have reported that the pain was brought on by Mr Maakasa digging up and shifting Hebes trees which are referred to occasionally as shrubs not trees.  The Tribunal is aware that Hebes are a New Zealand native plant colloquially known as New Zealand Lilacs that grows normally to a height and width of one by one metre, except in New Zealand and Chile where it may reach three by three metres.  It would seem that those in Australia would best be described as a shrub. 

15. When cross-examined on the lack of any report of radiation of his left sacroiliac pain to his thigh or feet in his incident form, Mr Maakasa explained that he completed the form as advised and thus did not mention any radiation. 

16. There were also inconsistencies in terms of his evidence compared with the evidence of other family members.  He stated his wife suffered from daily migraines and right and left carpal tunnel syndromes despite having had surgery on the right wrist, and as a result she was unable to perform household duties.  His children were both busy with their studies and their sporting activities however  the times he provided for his children going to school/University (RMIT) and the times of their return differ to those later provided by Mrs Maakasa.

17. Mr Maakasa said that he believed he was capable of working for two to three days per week on modified duties.

    Mrs Anne Maakasa

18. Mrs Maakasa confirmed that she had never played a major role in the running of the house or the performance of household duties and was not involved in the garden.  Her responsibilities lay with the rearing of the children to which she had devoted herself.  She had initially performed voluntary work at her church and then undertaken part time paid secretarial work.  It was while undertaking this employment that she developed right carpal tunnel syndrome for which she underwent surgery in 2012. She continues to suffer from wrist pain but no longer has any numbness or paraesthesia of her thumb and index and middle fingers on the right side.  Mrs Maakasa said she had since developed left carpal tunnel syndrome but on questioning it appeared that she actually had left cervical nerve root compression related to a bulging or prolapse of a cervical disc.  Details of this were not available.  She said she suffered from pain in her left arm, from her shoulder to her fingertips that also radiated down the left side of her body and down her left leg. 

19. Mrs Maakasa confirmed she had suffered from migraine for 20 years but said this occurred only once a week and when she had a severe headache she needed to rest for four hours.  She gave evidence that her left sided pain limited her housework to loading clothes into the washing machine and washing down benchtops. She also cooked four to five meals per week.  She said she was unable to mop, vacuum, scrub, reach above shoulder level or bend as she became dizzy if she endeavoured to bend. 

20. The times she provided with respect to when her children left home and returned differed to those provided by Mr Maakasa.   She did confirm that her son Daniel who is in  Year 11 studied every night for three hours, except for those nights when he played indoor soccer and trained for football umpiring. He did this three nights per week and then on Saturday and Sunday he umpired Australian Rules football matches all day, being involved in three actual games.  She said her daughter Rebecca left home at 7.00am and returned at 9.30pm as she undertook volunteer radio station work after RMIT attendance.  Mrs Maakasa did occasionally take Rebecca on driving lessons.  Mrs Maakasa provided a statement and medical reports from her general practitioners relating to her carpal tunnel syndrome and migraine. 

    Professor Richard Bittar, neurosurgeon and spinal surgeon.

21. Professor Bittar provided a report dated 17 November 2015 regarding Mr Maakasa (Exhibit A6) together with his lengthy curriculum vitae (Exhibit A7) and gave evidence before the Tribunal.  Professor Bittar is a neurosurgeon whose primary specialty is the mapping of and neurosurgical treatment of Parkinson’s disorder. He also practices spinal surgery.  He is an Associate Professor at Melbourne University and a Clinical Professor of Neuroimaging at Deakin University. 

22. In his report he detailed Mr Maakasa’s clinical history of low back pain this being constant, averaging a severity of eight out of 10 on the visual analogue scale and radiating through his left buttock to his hamstrings, calf and into his foot.  These symptoms were said to be exacerbated by sitting for more than 15 minutes, standing for more than 15 minutes, bending, twisting and lifting more than four kilos in weight.  It was recorded that Mr Maakasa was taking several medications including Endep, Lyrica, Celebrex, Prodeine Forte and Lexapro. 

23. According to Professor Bittar, Mr Maakasa started work with the DVA in the landscaping and care of Veterans’ graves in 2006 and the work had been of a heavy physical nature.  Professor Bittar’s report states that Mr Maakasa had injured himself at work pulling out a small tree with his bare hands on 21 April 2008 following which he had experienced   a sudden onset of lower back pain radiating to his left leg. This caused him to fall backwards.  The report states that Mr Maakasa had 10 days off work and then returned on administrative duties.  It also notes Mr Maakasa has not been free of back pain or left sided sciatica since 21 April 2008 and that he has not worked since his employment was terminated five years ago.  Physical examination revealed moderate restriction of lumbar spinal flexion and a mild restriction of extension.  There was tenderness in the paravertebral muscle area.  Straight leg raising was described as being normal and there was no evidence of radiculopathy, that is, nerve root compression.

24. Professor Bittar addressed all the radiological imaging provided to him but he does not appear to have had access to the CT scans of 2008.  He considered the MRIs (Magnetic Resonance Imaging) revealed disc desiccation from L2 to L5, spinal canal stenosis, lateral recess stenosis at the lower lumbar levels and foraminal stenosis at L5/S1.  There was also facet joint arthropathy throughout the lumbar spine.  He assessed the degree of spondylolisthesis at L4/5 as mild (Grade 1). 

25. Professor Bittar made a diagnosis of aggravation of lumbar spondylosis with canal and lateral recess stenosis with a significant or dominant contribution arising from Mr Maakasa’s employment.  While he felt it might be possible for Mr Maakasa to obtain and cope with part time sedentary work he felt it was unlikely he would be hired in the open labour market.  Professor Bittar considered surgery appropriate treatment but before proceeding it would be necessary to localise the source of Mr Maakasa’s pain by performing nerve blocks and nerve sheath injections as well as facet joint injections.  It was concluded that Mr Maakasa’s restrictions would persist and that he would continue to require household and gardening services.

26. Professor Bittar’s evidence before the Tribunal was to the same effect as his written report and his opinion was still maintained after he was made aware of the earlier history of Mr Maakasa’s back pain in 2004 and the proposition that the pain said to have first occurred on 10 April 2008 had developed gradually over a longer period prior to that date.  Professor Bittar disagreed completely with the opinion of Dr Ashwell and stated that there was no evidence that Mr Maakasa’s original injury of April 2008 had recovered in a period of six to eight weeks.  In relation to restrictions on what Mr Maakasa could do Professor Bittar said he had actually not taken a history of the nature of Mr Maakasa’s work but understood it was not terribly heavy.  He considered the diagnosis of left sacroiliac strain to be a meaningless diagnosis.  He agreed that based on the evidence Mr Maakasa could work up to 20 hours per week.

27. In response to a question from the Tribunal, Professor Bittar confirmed that his diagnosis was most probably lateral recess stenosis and not spinal canal stenosis. 

28. In re-examination Professor Bittar discussed the plasticity of the spinal cord and its ability to recover. He noted that with the passage of time pain appreciation changes and despite a lack of nerve root compression, patients with back injuries or spondylosis could continue to experience pain radiating to their lower limbs. 

    Dr Igor Jakubowicz  

29. Dr Jakubowicz is Mr Maakasa’s general practitioner and has fulfilled this role since November 2008.  He was not caring for Mr Maakasa at the time of his injury on 10 April 2008.  He has provided several reports detailing diagnoses and progress.  In his evidence before the Tribunal Dr Jakubowicz indicated he saw Mr Maakasa monthly for the provision of certificates. 

30. Dr Jakubowicz felt that whilst Mr Maakasa experienced fluctuations in his symptoms, his condition had shown slight but gradual deterioration over the years.  He was of the opinion that regular gym attendance had helped Mr Maakasa with respect to core strength development as did physiotherapy and hydrotherapy.  He confirmed that Mr Maakasa was currently taking Lyrica 25 mgs twice daily for control of his chronic pain. (Tribunal note:  The Tribunal had queried this dose as it is extremely low.) 

31. Dr Jakubowicz indicated that recently Mr Maakasa had developed cervical spinal and right sided shoulder pain which with his continuing low back pain impacted on his capacity for work.  In August 2014 Dr Jakubowicz had recommended that Mr Maakasa receive four to six hours per week of household help.

32. Dr Jakubowicz had referred Mr Maakasa to Mr Myron Rogers, neurosurgeon, for consideration of surgical intervention but Mr Rogers was of the opinion that such surgery was unlikely to result in any improvement.  More recently Mr Maakasa had been seen by Mr Choi, an orthopaedic surgeon, who initially recommended surgery but more recently has declared surgery not indicated as in his opinion Mr Maakasa was seeking financial gain rather than treatment. 

1. Dr Jakubowicz was of the opinion Mr Maakasa could perform 20 hours of sedentary work per week provided he could have a ten minute break in every hour and could sit for periods of 30 minutes before needing to stand and move around. However on that basis he felt it would be almost impossible for Mr Maakasa to find a job on the open market.  Dr Jakubowicz was of the opinion that there had been no deterioration in Mr Maakasa’s condition since 2012, when he ceased employment with Hearing Australia.  Dr Jakubowicz considered Mr Maakasa capable of performing household tasks provided they were not physically demanding or required frequent bending.

2. The Tribunal asked Dr Jakubowicz if he had increased Mr Maakasa’s medications to which he answered no. When asked whether epidural nerve root blocks had been performed again the answer was no. 

   Mr Kevan Walsh, Occupational Therapist/Ergonomist

3. At the request of the respondent Mr Walsh provided a report dated 22 October 2015 (Exhibit R3) following his visit to Mr Maakasa’s home on 7 October 2015 to assess Mr Maakasa’s claim for household services.  Mr Walsh identified Mr Maakasa’s household  activities prior to his injury as being, vacuuming the carpeted areas of his home twice a week, mopping the tiled and wet areas, performing the ironing for the family, all of the gardening and taking his children to and from school and sporting activities. 

4. Mr Walsh also identified the number of persons resident in the household as Mr Maakasa, Mrs Anne Maakasa and two children, Rebecca then aged 18 and Daniel than aged 16.  The elder daughter lived with her maternal grandmother in an inner Melbourne suburb and they both visited once a month, often staying for the weekend.  This particular daughter suffered from asthma as did Mr Maakasa, although his appears to be well controlled with Ventolin.

5. Mr Maakasa had told Mr Walsh that his wife undertook activities such as hanging out the washing, loading and unloading the dishwasher, cooking for the family, performing the family shopping and also undertaking some vacuuming.  The children were said to assist with hanging out the washing, putting out the garbage bins, washing the car, loading and unloading the dishwasher, some vacuuming, folding washing and running errands outside the home, mopping the tiled verandah, spraying weeds, edging the lawn and weeding the garden areas.  The children also undertook responsibility for tending to the family’s pet guinea pigs.  Comcare’s cessation of payment for household services had led to the family requiring domestic assistance for three hours per week, with the elder daughter paying for these services.  In addition the family were paying $45.00 per week for maintenance of the garden and exterior of the home.  Mr Maakasa advised that his wife was suffering from left carpal tunnel syndrome after having previously undergone surgery for right carpal tunnel syndrome. He understood she was awaiting surgical intervention on the left and her ability to assist was therefore limited. 

6. The two resident children Rebecca and Daniel were both undertaking full time study. Daniel attended football training and umpiring training three nights per week and provided boundary umpiring services most of Saturday and Sunday. 

7. Mr Walsh assessed the already provided items of assistance, including a long handled dust pans and brush, a pickup stick, long handled sponge, a toe washer, a fit ball for exercise and a shower chair along with other items.  Mr Walsh noted that Mr Maakasa’s bed was quite low and suggested it should be raised. 

8. Mr Walsh concluded that given the occupation of the home by four adults, two of whom were not working and could therefore pace their activities, he found there was no reason to provide further domestic assistance.  It should be noted that while Mr and Mrs Maakasa said the house had three bathrooms, according to Mr Walsh it has two bathrooms and one powder room. 

   Dr John Ashwell, orthopaedic surgeon

9. Dr Ashwell had provided a report and opinion on 28 July 2014 at the request of the respondent after seeing Mr Maakasa on 18 July 2014.  This report was detailed in terms of the history obtained and the examination performed and included a review of the radiological investigations.  Dr Ashwell concluded that Mr Maakasa suffered from age related degenerative change in the lumbar spine with evidence of canal and foraminal stenosis that was not work related, although there may have been a temporary exacerbation of symptomatology due to work.  Dr Ashwell had found clinical signs inconsistent with true radiculopathy.  He considered that the recent MRI study of the lumbar spine showed no evidence of any abnormality in the region of the left sacroiliac joint. In his opinion the 2008 diagnosis of sacroiliac ligament strain would have resolved within a couple of months.  In that year there had been no evidence of any disc protrusion and certainly on examination the clinical signs were widespread and non-anatomical

10. Dr Ashwell provided a second report dated 8 March 2016.  This was in response to a request from the respondent dated 17 February 2016 posing a series of questions.  The Tribunal notes that Dr Ashwell erroneously refers to the injury as having occurred on 21 April 2008.  Mr Maakasa’s evidence was that the acute sudden onset of pain was on 10 April 2008.  Dr Ashwell maintained his previously stated opinion.  He also pointed out that there were no radiological findings on the CT scan of 2 July 2008 or the MRI scan of 19 October 2010 to indicate any acute injury, the changes all being long standing and degenerative in nature. 

11. Dr Ashwell believed that the acute symptoms experienced in April 2008 could have occurred regardless of any work activity and he agreed with Dr Choi’s opinion of 12 March 2015 that Mr Maakasa was seeking financial gain and this made him a bad surgical candidate.  Dr Ashwell doubted the findings of the report of Dr Jakubowicz that Mr Maakasa’s symptoms of 10 April 2008 had been caused by heavy work, noting that on 13 May 2013 Dr Li had recorded that while pulling trees and shrubs in the Garden of Remembrance Mr Maakasa had fallen backwards, following which he felt pain in the back.

12. In his evidence before the Tribunal Dr Ashwell identified himself as a general orthopaedic surgeon with considerable experience in spinal disorders, although from a surgical point of view he had referred those patients requiring surgery to colleagues specialised in that area.  Dr Ashwell regarded Mr Maakasa’s history of back pain in 2004 as being consistent with age related spinal degeneration, although he had not obtained that particular history.  Dr Ashwell pointed out that the diagnosis of sacroiliac ligament strain had been made by a general practitioner and there was no specialist or radiological evidence to support such a diagnosis. 

13. Dr Ashwell considered the left leg pain to be referred pain from the back, probably a facet joint in the lower lumbar spine rather than being indicative of nerve root compression. He reiterated that his physical findings on examination were inconsistent and indicated non-organic disease behaviour. 

14. In cross-examination Mr Ternes challenged Dr Ashwell’s report in which he had used the word could. Dr Ashwell said he should possibly have more accurately stated would but regarded this as semantics which would not affect his findings.  Dr Ashwell denied over relying on the CT and MRI findings in reaching his opinion.

15. In response to a question from the Tribunal bringing to Dr Ashwell’s attention that the 2008 CT showed more severe changes than the 2010 MRI according to the reports, he responded that he found them to be similar.  It would appear that in contrast to Professor Bittar, Dr Ashwell actually viewed both the CT and the MRIs. 

    DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

16. There is a vast amount of documentary evidence including multiple radiological imaging in the form of plain x-rays, CT scans and MRI imaging.  Most of this has been referred to in the course of evidence provided by Professor Bittar and Dr Ashwell but it should be noted that there has been little in the way of progress of the underlying changes termed degenerative by the reporting radiologists.  While Mr Maakasa complains predominantly of pain and dysaesthesia radiating to the left lower limb to the level of the toes, the MRI evidence is that any nerve root impaction or compression is more pronounced on the right side than on the left.  Mr Maakasa’s radiation of pain from his back is said to occur only on the left side.

    Statement of Rebecca Maakasa, dated 4 March 2016

17. Rebecca Maakasa had provided a hand written summary of her activities which was converted to a witness statement by Shine Lawyers (Exhibit A4).  Rebecca stated that she was undertaking full-time studies at RMIT in journalism whilst completing an internship and presenting material on a community radio program.  She claimed she spent 50 hours per week attending and preparing for classes etc. including travel times.  Rebecca said she studied from 7.00pm until 10.30pm, presumably every night, and this included actual practical work such as filming.

18. Rebecca said she goes out with friends for approximately five hours per week and was learning to drive and this was taking a minimum of two hours per week.  She stated she had always helped her parents with the cooking and tidying up after meals and three times a week she would do the grocery shopping and help prepare meals.  On a weekly basis she vacuumed the family room three times a week, taking 30 minutes in total and also spent time dusting and cleaning the family and study areas.  She cleaned her own bedroom, helped with the ironing of her own clothes and assisted her father with outdoor activities when she could.

    Witness Statement of Daniel Maakasa dated 4 March 2016

19. Daniel stated he had just commenced year 11 and left for school at 7.30am and returned home at 4.30pm.  He said he studied for two and a half hours per night, played 12 hours of cricket per week, undertook umpire training for two and a quarter hours on Wednesdays and umpires Australian Rules football matches both Saturdays and Sundays. He plays indoor soccer for two hours on Monday nights.

20. At home he said he assisted in tidying up after meals, ironed and put away his own clothes and kept his room tidy.  In his written report as opposed to his formal statement he said he spent two hours a week cleaning the guinea pigs’ cage.  He studied for one and a half hours a night, five nights a week and for 30 minutes on weekends.  He estimated his travel time at five hours per week and his full time student studies at 26.3 hours per week.

    Dr John Choi, orthopaedic spinal surgeon  

21. Dr Choi has seen Mr Maakasa on several occasions between 2014 and the present, at the request of his general practitioner Dr Jakubowicz. In September 2014 he advised that surgical intervention in the form of Rhizolysis and Fenestration at the level of L4/5 and L5/S1 was required. 

22. In his letter to Dr Jakubowicz, Dr Choi noted the onset of pain in April 2008 and thereafter chronic back pain, with more recent worsening resulting in Mr Maakasa being limited to a walking distance of 200 to 300 metres. Dr Choi interpreted this as spinal claudication due to spinal canal stenosis.  He also recorded symptoms of tingling and numbness of both hands on occasions.  On examination Dr Choi noted tenderness at L4/5 and L5/S1, the pain on palpation being so severe as to cause Mr Maakasa to cry.  Straight leg raising was limited to 20 degrees of the left.  The reflexes of the left lower limb were said to be very brisk and power and sensation were normal.  The Tribunal notes this is in contrast to previous and subsequent physical findings.  Dr Choi considered Mr Maakasa’s brisk upper limb reflexes to be indicative of myelopathy.

23. Dr Choi had available to him recent MRI studies which he said demonstrated canal stenosis at L4/5 and L5/S1 with bilateral foraminal narrowing involving the L5 nerve roots.  From his report it would appear that Dr Choi was more concerned about cervical changes than those in the lumbar spine.  He recommended further investigation of the cervical spine and in the interim arranged for Mr Maakasa to have an epidural injection of corticosteroids and local anaesthetic in the lumbar spine.

24. Further investigation of Mr Maakasa’s cervical spine revealed spondylosis, that is, osteoarthritic changes at C3/4, 4/5 and 5/6.  Dr Choi advised surgery to the cervical spine. He considered Mr Maakasa incapable of performing physical work but that he would be able to perform a sedentary desk job.  Dr Choi expressed his willingness to undertake lumbar spinal surgical treatment, should Mr Maakasa wish to proceed.

25. On 12 February 2015 Dr Choi reported that the steroid and local anaesthetic injection to the lumbar spine epidural space had provided an excellent result, there now being minimal lower lumbar back pain or functional disability.

26. In a letter to the general practitioner in March 2015 Dr Choi indicated that any surgical approach was in abeyance as in his opinion Mr Maakasa was seeking financial gain as opposed to resolution of his physical symptoms. 

    Dr Quang Li, rheumatologist 

27. Mr Maakasa had been referred to Dr Li by Dr Jakubowicz. Dr Li obtained a history that Mr Maakasa had been injured pulling out heavy trees and shrubs in the course of his work resulting in the sudden onset of pain radiating to his left leg with associated left leg weakness.  As a consequence of his ongoing pain Mr Maakasa was said to have become depressed and required treatment with the antidepressant Lexapro. 

28. Physical examination revealed diffuse tenderness of the spine with the entire left leg exhibiting decreased sensation.  The range of movement of the spine was limited by pain.  Dr Li advised conservative treatment in the form of analgesia, physiotherapy and anti-inflammatory medication.  When reviewed nearly two years later Mr Maakasa said his back pain had deteriorated since his gym, Pilates and sauna treatment had ceased.  Dr Li wrote to Comcare in an effort to have these treatments restored.

    RELEVANT LEGISLATION

29. In accordance with s 14 of the SRC Act, Mr Maakasa’s claim for left sacroiliac ligamentous strain had been accepted by Comcare resulting in payment of compensation in accordance with s 19, the payment of medical expenses as per s 16 and the provision of household and gardening services in accordance with s 29 of the SRC Act.

30. Over a period of some years, Comcare had gradually reduced Mr Maakasa’s level of household services and as of 19 March 2013 have ceased liability under s 16 of the SRC Act for a gymnasium program and physiotherapy.

31. Following reconsideration in accordance with the SRC Act, the six month gym membership was approved with review by a physiotherapist every three months. One hour per week of household assistance and one hour of gardening services was also to be provided at Comcare’s cost.

32. On 22 August 2014, Mr Maakasa was advised by Comcare that after conducting a review of his claim file, it found that the medical evidence suggested that he did not presently suffer from the effects of his compensable condition.  Sections 61, 62 and 63 deal with the reconsideration and review of determinations. 

    SUBMISSIONS

33. Mr Ternes identified two main issues.  The first of these was whether the  back injury sustained in 2008 while working for the DVA continued to affect and disable Mr Maakasa as at March 2014 and secondly, if so, what benefits should flow from this disablement.

34. Mr Ternes submitted that the Tribunal should accept the evidence of Professor Bittar rather than that of Dr Ashwell, on the basis that Professor Bittar had provided a more detailed report and oral evidence relating to the changes in Mr Maakasa’s lumbar spine and his level of pain.  It was contended that Professor Bittar was superiorly trained to Dr Ashwell and was less reliant on medical imaging in assessing Mr Maakasa and overall, his opinion should be preferred.

35. Professor Bittar’s evidence had been that Mr Maakasa had minimal degenerative changes prior to the injury of 2008, this being exemplified by the single episode of pain in 2004 and that while there would have been some underlying age-related degenerative changes the injury had resulted in aggravation in the form of increasing underlying pathological changes.

36. In addition, Professor Bittar’s opinion was supported by that of the treating general practitioner Dr Igor Jakubowicz and while the medical certification of 2008 had been sacroiliac strain it also referred to lumbar strain which Dr Becker had postulated could be related to a disc protrusion.

37. Mr Ternes submitted that an aggravation of an underlying degenerative change had occurred in Mr Maakasa’s lumbar spine in 2008 and continues to this date. 

38. Submissions were also made in relation to s 16, s 19 and s 29 benefits. In accordance with s 16 it was submitted that the costs of all medication and medical attendances, physiotherapy, hydrotherapy and attendance of gymnasium was required.

39. Given that all of the expert evidence indicated that Mr Maakasa could perform part time duties and Mr Maakasa himself felt he could work up to 20 hours per week, Mr Ternes submitted that compensation in terms of weekly payments should remain at the same level as prior to cessation of liability in 2014 and that the Tribunal should remit this consideration to the respondent to calculate the actual payment. 

40. In regard to household services in particular it was again contended that Mr Maakasa could not perform heavy work inside or outside the house. Dr Jakubowicz had recently stated that household services of four to six hours per week were required. This was in stark contrast to Mr Walsh’s opinion that as Mr Maakasa and his wife were no longer working they could pace their activities and perform all the required household duties.  Mr Ternes also submitted that it was unfair and unreasonable to impose such household duties, be they indoor or outdoor, on the two children Rebecca and Daniel as both had responsibilities in terms of their study and extra-curricular activities.  It was contended that the Tribunal could decide the hours reasonably required given that the Maakasas now paid for these services at a level of two hours per week. 

    Mr Seit

41. Mr Seit accepted that the initial claim had been for sacroiliac ligament and lumbar spine strain.  However, it was contended that Mr Maakasa’s denial of any previous back or spinal symptoms was clearly incorrect as similar pain of similar distribution had been recorded by his general practitioner in 2004.  While it was claimed that following the episode on 10 April 2008 Mr Maakasa had experienced pain radiating to his left leg, this was in fact not recorded by his general practitioner when first seen on 21 April 2008. 

42. Mr Seit contended that all of the experts had stated that Mr Maakasa’s spinal pathology was age related, degenerative in nature and there was no evidence of any recent underlying pathological change as the result of the injury of 10 April 2008. 

43. Mr Seit addressed the conflicting opinions of Professor Bittar and Dr Ashwell but contended that the Tribunal should look at the best evidence, which was the radiological imaging of 2008, 2010 and 2014, all of which had been reported as showing age-related degenerative change with no clear evidence of progression between 2008 and 2014. 

44. While Professor Bittar had raised the hypothesis that the resulting inflammatory reaction to injury was productive of symptomatology the respondent argued that such an inflammatory process should not persist for eight years.  Mr Seit stressed the fact that none of the imaging had shown disc protrusions of any significance.  Based on this evidence it was submitted that the injury on 10 April 2008 was a temporary exacerbation of underlying degenerative changes that on Dr Ashwell’s evidence would have resolved in eight weeks.

45. Mr Seit contended that the evidence of Mrs Anne Maakasa was in many respects suspect as to its accuracy and that her exact health status in terms of the diagnosis of her left sided symptoms affecting her face, arm, thorax and left leg was unclear. 

1. On behalf of the respondent, Mr Seit sought orders affirming all decisions under review.

2. Mr Ternes in reply reiterated his earlier submission that Professor Bittar’s evidence should be preferred to that of Dr Ashwell, as Dr Ashwell was not an expert in the spinal area and had not addressed the topic of spinal cord plasticity raised by Professor Bittar. 

   TRIBUNAL’S DELIBERATIONS

3. It is clear that Comcare accepted liability for what was then called sacroiliac ligament strain and lumbar strain which occurred on or about 10 April 2008 and has since paid weekly compensation and medical expenses and provided household and gardening assistance.  It is also clear that Mr Maakasa had pre-existing minimally symptomatic spinal changes compatible with his age as demonstrated by CT scanning and MRI investigations. 

4. Mr Maakasa claims that he has ongoing chronic constant lower back pain since the injury in 2008.  While he says that this limits his ability to work, perform household duties and care for his garden he agrees that he has a work capacity of up to 20 hours per week. 

5. Mr Maakasa has considerable experience in various areas of employment, having worked in the timber industry for many years and having acquired expertise in this area.  He also has experience in hardware sales and as a small business operator for a period of some 10 to 12 years and hence has business capabilities and understanding.  He has acquired training, knowledge and certification in landscape gardening and had used this in his employment with the Department of Veteran Affairs in the care of war-graves and gardens. 

6. There is evidence before the Tribunal that Mr Maakasa has made previous claims in relation to his past employment, including an application for unfair dismissal and more recently in 2012 when he claimed racial discrimination, relating to an incident at Hearing Australia that apparently led to him resign. 

7. Mrs Maakasa’s evidence is conflicting in that she claims to have a left carpal tunnel syndrome which prevents her from assisting in household duties but admitted she had not in fact undergone the necessary nerve conduction studies to make such a diagnosis. A CT scan had suggested that her left arm pain might be related to a cervical disc lesion although this did not explain her symptoms of pain and paraesthesia affecting the entire left side of her body. 

8. Similarly, the statements of the children Rebecca and Daniel do not coincide entirely with the evidence of their parents.  The children do however contribute in terms of performing household duties relating primarily to the upkeep of their own bedroom with some washing, ironing and cleaning in addition.

9. As neither Mr or Mrs Maakasa currently work, they have more time to pace their household tasks as noted by Mr Walsh and on his assessment should be able to cope with the requirements for cleaning and gardening with more assistance from their children. 

10. The initial diagnosis of Mr Maakasa’s back pain was that of sacroiliac ligamentous strain with lumbar strain.  The Tribunal accepts that this was a non-specific diagnosis and the symptoms probably originated from the lower lumbar spine as opposed to the sacroiliac joint.  The pain in the area of this joint may well have been referred pain from the lumbar spine. 

11. There is considerable evidence before the Tribunal in the form of objective medical imaging that Mr Maakasa has longstanding degenerative changes. The CT scan of 2008 established that these were in fact longstanding, there having not been any period of time available for these changes to have occurred secondary to the claimed injury of 10 April 2008. 

12. At the time Mr Maakasa has said to have sustained the injury in April 2008 his general practitioner was Dr Becker of Parkhill Medical Centre.  The clinical records relating to Mr Maakasa (Exhibit R4) record that prior to 3 April 2008, Mr Maakasa’s attendances were for minor health problems.  On 3 April 2008 he requested a medical certificate claiming that he was suffering from stress in relation to his work.  He next attended on 21 April 2008 giving a history of having sustained a back injury on 10 April 2008 while gardening and bending. 

13. Mr Maakasa visited Dr Becker between early June and mid-August 2008.  On 23 June 2008, Dr Becker counselled Mr Maakasa to focus on getting better and not on his anger in relation to his the employer.  Three days later Mr Maakasa consulted Dr Becker regarding claiming for compensation, despite then showing evidence of improvement. Dr Choi, the consultant treating orthopaedic surgeon initially recommended surgery both to Mr Maakasa’s cervical spine, which is not part of this application, and to his lumbar spine but has since declined to treat Mr Maakasa further as he believes his pursuit of medical treatment is related to financial gain and as such he is a bad surgical candidate.  (Exhibit R7)

14. Professor Bittar has clearly stated that he believes the work related injury sustained on 10 April 2008 or in the days preceding, have resulted in a pathophysiological change in Mr Maakasa’s underlying degenerative spinal disease and the symptoms of this change persist to this day.  In contrast Dr Ashwell believes that the so called strain of April 2008 would have resolved in six to eight weeks and any continuing symptomatology is due to the underlying longstanding degenerative spondylosis. 

15. Counsel for Mr Maakasa, Mr Ternes has argued that the Tribunal should prefer Professor Bittar’s opinion to that of Dr Ashwell on the basis that Professor Bittar is more experienced, better trained and has a lengthy curriculum vitae in relation to publications.  The Tribunal does not accept this submission as Dr Ashwell has a long history of actual orthopaedic practice and while he may not perform spinal surgery, he does investigate and treat conditions and where surgery is indicated refers patients appropriately. 

16. Professor Bittar’s area of expertise is primarily in neuroimaging and deep brain stimulation surgery for persons’ with Parkinson’s disease and other forms of dystonia, the treatment of neuropathic pain, epilepsy and psychiatric disorders such as obsessive compulsive disorder.  He does perform minimally invasive spinal surgery.

17. The Tribunal does not prefer the evidence of one of these two experts over the other.  The rheumatologist Dr Li and the orthopaedic surgeon Dr Choi have provided their reports to the referring general practitioner and have not clearly enunciated any opinions as to the cause of Mr Maakasa’s symptoms although both have referred to the event of 10 April 2008. 

18. The Tribunal accepts that if the original diagnosis was purely sacroiliac ligamentous strain then the effects of this condition based on Dr Ashwell’s evidence should have completely resolved within a period of approximately two months.  However, the original certification also mentioned lumbar strain and the current orthopaedic opinion refutes the diagnosis of sacroiliac ligament strain in favour of lumbar spinal pathology with pain radiating to the buttock and sacroiliac joint area. The radiological evidence in contrast to the clinical medical evidence indicates that the condition is one of spondylosis, a degenerative age related osteoarthritic process rendered symptomatic by the moderately demanding physical exertion of removing shrubs on 10 April 2008.  Whether or not the effects of this injury are continuing, it is the opinion of all reporting doctors, general practitioners and experts alike, that Mr Maakasa retains a capacity for work of up to 20 hours per week.  Mr oMaakasa himself shares this opinion.

19. The decision in this matter rests entirely on the facts presented and on that basis alone. The Tribunal determines that Mr Maakasa does not require ongoing household and gardening assistance, as sufficient help can be provided by family members’ as assessed by the occupational therapist Mr Walsh. 

20. The Tribunal affirms the decision in relation to the s 29 claim, file number 2015/2050.

21. In relation to the reviewable decision file number 2015/3021, the Tribunal remits the matter to the respondent for reconsideration on the basis that Mr Maakasa has a continuing capacity for work for 20 hours per week, has failed to accept recommended surgical treatment and has clinical evidence of non-anatomical physical signs which he attributes to his claimed injury. However at the age of 63 he is unlikely to find work on the open market without further rehabilitation or job search assistance.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

............................................................

Associate

Dated   25 October 2016

Date of hearing	10 – 12 August 2016
Counsel for the Applicant	Mr Ray Ternes
Solicitors for the Applicant	Shine Lawyers
Counsel for the Respondent	Mr Roy Seit

APPENDIX

APPLICANT

A1 Statement of Eddie Maakasa dated 7 March 2016

A2 Witness statement of Anne Maakasa dated 4 March 2016

A3Letter of Dr Khoury dated 15 July 2016

A4 Statement of Rebecca Maakasa dated 4 March 2016

A5Statement of Daniel Maakasa dated 4 March 2016

A6 Report of Professor Bittar dated 17 November 2016

A7 CV of Associate Professor Bittar

RESPONDENT

R1 T-Documents

R2 Second set of (smaller) T-docs

R3Report of Kevan Walsh dated 22 October 2015

R4 Dr Becker's (2 sets) medical records

R5 Current GP records of Dr Jakubowicz

R6 Dr Li's records

R7 Mr Choi's records

R8 Supplementary report of Dr Ashwell dated 8 March 2016