MacFarlane and TNT Australia Pty Ltd (Compensation) - [2020] AATA 3721

MacFarlane and TNT Australia Pty Ltd (Compensation) [2020] AATA 3721 (21 September 2020)
Division:GENERAL DIVISION
File Numbers: 2015/6532
2017/4565
2017/4566
2017/5519

Re:Malcolm MacFarlane
APPLICANT

AndTNT Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:21 September 2020
Place:Brisbane

In application no. 6532 of 2015 I remit the decision under review to the respondent for reconsideration under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) having regard to these reasons, in particular at paragraph 307 above, within 60 days of receiving this decision. Costs cannot yet be determined in respect of this application.
In application no. 4565 of 2017 I set aside the decision under review and substitute a decision that the applicant’s lumbar spine condition continues to be contributed to, to a significant degree, by the applicant’s employment with the respondent and therefore, the respondent was, and continues to be, liable to pay compensation under section 16 and section 19 of the Act in relation to the 2009 back injury. Costs in respect of this application are to be agreed or taxed by the Registrar or an officer of the Tribunal.
In application no. 4566 of 2017 I set aside the decision under review and substitute a decision that the applicant suffers from a Major Depressive Disorder condition which continues to be contributed to, to a significant degree, by the applicant’s employment with the respondent and therefore, the respondent was, and continues to be, liable to pay compensation under section 16 and section 19 of the Act in relation to the Major Depressive Disorder condition. Costs in respect of this application are to be agreed or taxed by the Registrar or an officer of the Tribunal.
I affirm the decision under review in application no. 5519 of 2017, being a decision that the respondent was not liable to pay compensation to the applicant for permanent impairment under section 24 of the Act in respect of the applicant’s psychiatric condition. Costs are not payable by the respondent in respect of this application as the decision has been affirmed.
.........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for medical treatment under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion surgery – aggravation of pre-existing degeneration within lumbar spine – whether medical treatment obtained in relation to injury – whether reasonable treatment decision under review remitted under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) for reconsideration
COMPENSATION – determination to cease liability for compensation under section 16 and section 19 Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether applicant continues to suffer the effects of the compensable injury – aggravation – whether aggravation continues to be contributed to, to a significant degree, by employment with the respondent – whether compensable injury gives rise to the need for medical treatment or incapacity for work – decision under review set aside and substituted
COMPENSATION – determination to cease liability for compensation under section 16 and section 19 Safety, Rehabilitation and Compensation Act 1988 (Cth) – adjustment disorder/depression – whether applicant continues to suffer the effects of the compensable injury – sequela – adjustment disorder/depression – whether sequela continues to be contributed to, to a significant degree, by employment with the respondent – whether compensable injury gives rise to the need for medical treatment or an incapacity for work – decision under review set aside and substituted
COMPENSATION – claim for permanent impairment and non-economic loss under section 24 and section 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – adjustment disorder/depression – whether injury results in impairment – whether impairment permanent – degree of whole person impairment – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Guide to the Assessment of the Degree of Whole Person Impairment Edition 2.1
Notice of Variation of Licence - TNT Australia Pty Ltd (Notice No 40 of 2019) (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
CASES
Alamos v Comcare [2014] AATA 629
Comcare v Holt (2007) 94 ALD 576; [2007] FCA 405
Comcare v Lofts (2013) 217 FCR 220; [2013] FCA 1197
Comcare v O’Connell [2013] FCA 111
Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43
Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502
Comcare Australia v Rope (2004) 135 FCR 443; [2004] FCA 540
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147 (Federal Court of Australia)
Commonwealth of Australia v Beattie (1981) 35 ALR 369 (Federal Court of Australia, Full Court)
Eaves v Blaenclydach Colliery Company Ltd [1909] 2 KB 73; (1909) 2 BWCC 329
Emery and Comcare, Re (1992) 15 AAR 477; [1992] AATA 208
Jorgensen and Commonwealth of Australia (1990) 23 ALD 321; [1990] AATA 129
King v Comcare, Re [2011] AATA 500
KTKY and Comcare (2015) 149 ALD 151; [2015] AATA 309
Lock and Comcare (Compensation), Re (2018) 163 ALD 361; [2018] AATA 2386
McDonald v Director-General of Social Security (1984) 1 FCR 354 (Federal Court of Australia, Full Court)
Mellor v Australian Postal Corporation (2009) 108 ALD 159; [2009] FCA 504
O’Connell and Comcare (2012) 131 ALD 400; [2012] AATA 532
Roberts and Military Rehabilitation and Compensation Commission, Re (2011) 124 ALD 78; [2011] AATA 430
Rope and Comcare (2018) 158 ALD 183; [2018] AATA 42
Tiranti-Valenti and Comcare, Re (1996) 45 ALD 478; [1996] AATA 458
Warner and Comcare (Compensation), Re [2018] AATA 1403
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
21 September 2020
INTRODUCTION

Mr Malcolm MacFarlane (“the applicant”) seeks review by this Tribunal of four decisions made by TNT Australia Pty Ltd (“the respondent”) under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). The decisions under review are as follows.
Application no. 6532 of 2015
On 2 November 2015, the respondent affirmed its earlier determination dated 14 September 2015 in which it determined that the applicant was not entitled to compensation under section 16 of the Act for the applicant’s claimed L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion surgery (“the proposed surgery”) in regard to the applicant’s accepted “aggravation of pre-existing degeneration within lumbar spine” condition suffered on 14 January 2009 (“the 2009 back injury”).
Application no. 4565 of 2017
On 12 July 2017, the respondent affirmed its earlier determination dated 12 May 2017 in which it determined that the respondent was, as at that date and to the present date, not liable to pay compensation under section 16 and section 19 of the Act to the applicant in respect of the 2009 back injury.
Application no. 4566 of 2017
On 17 July 2017, the respondent affirmed its earlier determination dated 24 May 2017 in which it determined that the respondent was, as at that date and to the present date, not liable to pay compensation to the applicant under section 16 and section 19 of the Act in regard to applicant’s “adjustment disorder/depression” condition (“the psychiatric condition”).
Application no. 5519 of 2017
On 7 September 2017, the respondent affirmed its earlier determination dated 4 August 2017 in which it determined that the applicant was not entitled to payment of compensation for permanent impairment and non-economic loss under section 24 and section 27 of the Act in regard to the applicant’s psychiatric condition.
BACKGROUND
On 27 January 2009, the applicant made a claim for workers’ compensation for “BACK INJURY (LOWER)”, the 2009 back injury, which the applicant claimed to have suffered on 15 January 2009.[1] In the claim form, the applicant stated that he first sought medical treatment for the 2009 back injury on 19 January 2009 with Dr George Bertsos, General Practitioner.[2] The applicant stated he was lifting a 40 kilogram carton onto the back of a truck at the time of the 2009 back injury.
[1] Exhibit A, T-Documents for 2015/6532, T5.
[2] Exhibit A, T-Documents for 2015/6532, T4.
When the 27 January 2009 claim was made by the applicant, the respondent’s insurer for workers compensation was Allianz Australia Insurance Limited. By 2 November 2015, the insurance of the respondent had been taken over by QBE Insurance Group Limited. For ease of reference, the actions of these entities will be referred to as having been undertaken by the respondent for all intents and purposes.
On 2 March 2009, the respondent referred the applicant for an independent medical examination by Dr Peter Boys, Orthopaedic Surgeon.[3] The applicant attended an appointment with Dr Boys on 4 March 2009. On 4 March 2009, Dr Boys gave his report.[4] Dr Boys had previously examined the applicant on 8 July 2008 in relation to a lower back injury sustained by the applicant on 8 July 2008 (“the 2008 injury”).
[3] Exhibit A, T-Documents for 2015/6532, T6.
[4] Exhibit A, T-Documents for 2015/6532, T7.
Dr Boys relevantly opined that the lifting activity which was undertaken on 15 January 2009 by the applicant had caused an aggravation of an existing degenerative condition being: “narrowing of the L5/S1 disc space and associated fact joint arthrosis” and “degeneration at the L4/5 level within the lumbar spine”.[5] Dr Boys expected the aggravation to resolve over a period of “some 3 to 4 months” and was “likely to be temporary”. Dr Boys did qualify this, however, remarking: “The persistence of symptoms thereafter however may indicate the presence of specific impairment related to described injury.”
[5] Exhibit A, T-Documents for 2015/6532, T7, p. 35.
The applicant also provided to the respondent his statement dated 31 March 2009.[6] The applicant provided his detailed account of the 2008 back injury and the 2009 back injury. As to the 2008 back injury, the applicant provided the following history:[7]
… on or about 8 July 2008 I woke up feeling quite stiff in the back, for no obvious reason. I can only assume my back felt that way from the nature of my duties, lifting items, as there was no specific incident. Anyway, over the next few days my back gradually worsened, and on or about 14 July 2008 this intensified after I helped a colleague]…] lift a 55 kg plasma TV from the dock floor. That happened on a Monday morning.
After that I felt a bit stiff and sore so I told […] my supervisor. He told me to see the doctor but I said no it was OK. He again said I should see the doctor, so I did. I sought medical attention from General Practitioner, Dr Neil Bartels… on 14 July 2008.
… On or about Wednesday, 23 July 2008 I suffered a setback and aggravated my condition when lifting a box at work while I was on light duties. A Leading Hand […] instructed me to load the belt. I told him I shouldn’t do it as I was on light duties and he told me to “just do the light stuff” which I did and then later completed a light delivery run.
That afternoon [the Leading Hand] told me to do a load in a semitrailer and I told him I shouldn’t do that because of my back injury and being on light duties. I clearly remember that he said “There is nothing wrong with you, just do it”. I again objected and he said to “pick up only the light stuff”. I went ahead and did it and after about 20 minutes to an hour (I have no idea how long it was) I picked up a small package that was 30 by 15 by 20cm. I picked up this box off the belt and passed it up to the other person […] who was also working in that area. It was only small but heavy. While I was prone or stooped picking up that box I felt my back spasming in the spot where I felt the sharp pain in July 2008. The Pain was about 9/10. I notified [my supervisor] and then sat in his office for a while then I went home… (emphasis in original)
[6] Exhibit A, T-Documents for 2015/6532, T8.
[7] Exhibit A, T-Documents for 2015/6532, T8, pp. 40-41.
It was later observed in a report by Dr Edwards that by July 2013, the Leading Hand referred to in the applicant’s statement dated 31 March 2009 no longer worked for the respondent and the applicant reported that a written complaint had been filed against the Leading Hand.[8]
[8] Exhibit A, T-Documents for 2015/6532, T53, p. 169, report of Dr Graeme Edwards dated 2 July 2013.
On 3 April 2009, the respondent made a determination as to the applicant’s 27 January 2009 claim.[9] The respondent accepted liability under the Act in respect of the “aggravation of pre-existing degeneration within lumbar spine” with an injury date of 14 January 2009.
[9] Exhibit A, T-Documents for 2015/6532, T9.
CLAIM HISTORY
The Respondent filed four bundles of documents (“T-Documents”). pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). The T-Documents were admitted collectively as Exhibit A. The following paragraphs disclose the extensive history contained within these bundles of the claims of the applicant prior to the applications to the Tribunal.
Application no. 6532 of 2015: review of determination dated 2 November 2015 that the applicant was not entitled to compensation under section 16 of the Act for the applicant’s claimed L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion surgery in regard to the applicant’s accepted “aggravation of pre-existing degeneration within lumbar spine” condition suffered on 14 January 2009
On 20 May 2009, the applicant underwent facet block injections in his spine administered by Dr George Ioannou.[10]
[10] Exhibit A, T-Documents for 2015/6532, T10.
On 2 July 2009, following the reported results of the facet block injections, Dr Neil Cleaver, Orthopaedic Surgeon (spine), wrote to the respondent requesting approval for the applicant to undergo surgery in the form of an “InMotion disc replacement at L4-5 and an anterior lumbar interbody fusion at L5-S1”.[11] On 23 July 2009, the respondent requested further information from Dr Cleaver,[12] which Dr Cleaver provided to the respondent on 14 September 2009.[13] On 7 October 2009, the respondent referred Dr Cleaver’s request for approval and further information to Dr Boys and sought a supplementary report from Dr Boys as to the proposed surgery.[14]
[11] Exhibit A, T-Documents for 2015/6532, T11.
[12] Exhibit A, T-Documents for 2015/6532, T12.
[13] Exhibit A, T-Documents for 2015/6532, T13.
[14] Exhibit A, T-Documents for 2015/6532, T14.
On 9 October 2009, Dr Boys provided a supplementary report.[15] Dr Boys opined that: the proposed surgery was not reasonably required in relation to the 2009 back injury; L4-5 lumbar disc replacement surgery and associated anterior lumbar interbody fusion at L5-S1 did not constitute acceptable treatment for the condition; and “Ongoing total incapacity for employment would be the most probable outcome following the types of procedures advised”.
[15] Exhibit A, T-Documents for 2015/6532, T15.
On 9 October 2009, the respondent determined that it was not liable under section 16 of the Act to pay compensation to the applicant in respect of the requested disc replacement and interbody fusion procedures.
On 28 October 2009, the applicant sought reconsideration of the respondent’s determination dated 9 October 2009.[16] Together with the reconsideration application, the applicant provided a further report of Dr Cleaver dated 28 October 2009 in which Dr Cleaver reiterated his support for the proposed surgery and expressed concerns that the respondent had consulted a general orthopaedic surgeon and not a spinal surgery sub-specialist orthopaedic surgeon.[17] Dr Cleaver requested approval for an injection of epidural steroids.
[16] Exhibit A, T-Documents for 2015/6532, T17.
[17] Exhibit A, T-Documents for 2015/6532, T18.
On 1 December 2009, the applicant ceased work as a driver for the respondent.[18]
[18] Exhibit A, T-Documents for 2015/6532, T26, p. 77.
On 18 December 2009, at the request of the respondent,[19] Dr Cleaver gave a report regarding the epidural steroid injection procedure.[20] Dr Cleaver confirmed that the epidural steroid injection to the applicant’s L4-5 interspace had been undertaken on 1 December 2009. Dr Cleaver recounted:
[19] Exhibit A, T-Documents for 2015/6532, T20.
[20] Exhibit A, T-Documents for 2015/6532, T22.
The procedure was complicated by a puncture to the dura, giving an aspiration of cerebrospinal fluid [CSF]. The treatment for this complication was to withdraw the needle to make sure that no intrathecal injection took place, to change the angle by a couple of millimetres and to perform the procedure. This went ahead without complication.
The next day, Mr Macfarlane presented to the Emergency Department of Allamanda Private Hospital with a severe headache, and this would have been because of the CSF leak. A CSF leak normally resolves with 24 hours of simple bed rest. However, with Mr Macfarlane, it didn’t and he required significant analgesia. Because of this failure to respond to conservative management, it was deemed necessary to perform a blood patch … this appeared not to work in Mr Macfarlane’s case as he had 3 or 4 days in hospital in considerable discomfort and neck stiffness…
Mr Macfarlane was given a presumptive diagnosis of arachnoiditis, which is an idiosyncratic reaction to a preservative in the steroid which causes considerable pain and the treatment for that is controversial, but I decided it was judicious to commence a course of Dexamethasone steroid treatment.
Mr Macfarlane made a tremendous recovery on the first day of having Dexamethasone treatment. However, on day 2, he relapsed and was symptomatic once again. It was thus considered judicious, after consultation with a neurosurgeon, to obtain an MRI scan of his brain.[21] It was indicated to me that an MRI scan of the brain, in the presence of a continued CSF leak, shows findings that can explain these symptoms… Mr Macfarlane had increased uptake in the dura of the brain indicative of continued CSF leak.
Therefore on 10 December 2009, he went back to theatre to have a repeat blood patch. This provided Mr Macfarlane with one day’s relief and then his headache returned. I asked Dr Simon Broadly, neurologist, to review Mr Macfarlane and he commenced the patient on caffeine. That had a dramatic effect and resolved the headache and Mr Macfarlane was discharged from hospital on 15 December 2009.
Mr Macfarlane represented to Accident & Emergency at Allamanda Hospital on 16 December 2009 and was admitted under my care in relation to intractable back pain. Mr Macfarlane has had a very complicated admission to hospital with pain that is not able to be controlled with conservative measures. Every attempt to discharge him from hospital has failed, he has either not made it past the door or come back into hospital 2 days later with severe pain.
This letter serves to request approval from [the respondent] to perform spine surgery on Mr Macfarlane. We plan to perform the surgery on Saturday the 19^th of December. Mr Macfarlane needs a L4-5 L5-S1 el anterior lumbar interbody fusion…
I am of the opinion that taking out that disc and fusing that level will resolve much of his pain syndrome. It is also my professional opinion that, without surgery, it is likely that Mr Macfarlane will have a very protracted and expensive stay in hospital and this will only be delaying the inevitable, which would be to do the surgery.
… at this time, I am unable to state when Mr Macfarlane will be fit to return to work.
The surgery that was referred to in his report did not take place on 19 December 2009.
[21] Exhibit A, T-Documents for 2015/6532, T21.
On 29 December 2009, the respondent wrote to Associate Professor Dr Greg Day to request a report in relation to the applicant’s injuries and the proposed surgery.[22] In the respondent’s letter it was remarked:
Dr Cleaver further has requested he perform L4-5 & L5-S1 al anterior lumbar interbody fusion as per his report 18^th December 2009, [the respondent] has advised this procedure was also not approved however this was based on the lack of opportunity for review prior to approval and the fact that Dr Cleaver was due to commence leave 1 day post surgery and our concern for ongoing care of the patient due to his initial reactions and complications from the injections.
[22] Exhibit A, T-Documents for 2015/6532, T23.

On 11 January 2010, on the day of the applicant’s assessment by Dr Day, the respondent provided to Dr Day a medical certificate and comments from Mr Macfarlane’s rehabilitation provider regarding his stay in hospital and the applicant’s recent deep vein thrombosis (“DVT”).[23] The rehabilitation provider’s comments were to the effect that the applicant was still suffering some effects of DVT and his back was a “bit sore this morning but no big drama”. The respondent requested that Dr Day give his opinion on whether the applicant’s DVT was directly related to the 2009 back injury.
[23] Exhibit A, T-Documents for 2015/6532, T24.
On 13 January 2010, Dr Cleaver wrote a letter to Dr Kevin Chiu, General Practitioner, in which he remarked that the applicant’s DVT was being treated with Warfarin and that the applicant was concerned about arachnoiditis.[24] Dr Cleaver remarked that “the diagnosis of arachnoiditis was really made on the basis of supposition and an MRI scan report”. Dr Cleaver opined that it is “too early” for the applicant to have arachnoiditis and that the “MRI scan findings don’t support a diagnosis of arachnoiditis”.
[24] Exhibit A, T-Documents for 2015/6532, T25.
On 15 January 2010, Dr Day gave his report.[25] Dr Day reported that the applicant had been prescribed OxyContin following the complications with the steroid injection procedure. Dr Day reported that the applicant stated that his condition had worsened in the week before the assessment, his DVT had caused a swelling in his right leg, and he had daily headaches. Dr Day opined that the applicant had no capacity to work at present and that would be the case “in the near to medium future”. Dr Day diagnosed the applicant with:
(a)Aggravation of pre-existing lumbar spondylosis;
(b)Blood within the CSF in the lumbar spine with a recent increase in symptoms; and
(c)Right sided deep venous thrombosis.
[25] Exhibit A, T-Documents for 2015/6532, T26.
As to the proposed surgery, Dr Day remarked that there is generally a slight risk of DVT, and in the context of the applicant’s history of DVT, the surgery carries a significant risk of causing further DVT. Dr Day opined that “there is an absolute contraindication to performing anterior lumbar surgery as Mr MacFarlane was only recently diagnosed with deep venous thrombosis and requires Warfarin”. Dr Day observed that:
It is recommended by the manufacturers of lumbar disc replacements that all patients have 6 months of rehabilitation and still have significant symptoms after that period, before surgery is contemplated.
Dr Day considered that the applicant’s iatrogenic conditions of blood in the CSF and DVT were related to treatment and opined that “The cause of the DVT is probably due to prolonged recumbency following the epidural steroid injection on 1 December 2009”. Dr Day further remarked that it was no longer possible to state whether aggravation continues because the dominant features of the applicant’s condition relate to the sequelae.
Dr Day remarked that the applicant had reported that:
…he was involved in a motorbike accident on 2 May 1988. The accident was work related but he has not claimed under Worker's Compensation. He stated that he was wearing a helmet and was knocked out. He suffered a fracture of the right foot, a laceration to the left knee, a fractured nose and chipped teeth.
Dr Day deferred his opinion on whether the applicant suffered from arachnoiditis until a further MRI could be undertaken after a further six months due to the presence of blood in the applicant’s subdural or subarachnoid space.
On 29 January 2010, Dr Cleaver wrote to the respondent to report that the applicant had been readmitted to hospital with severe lower back pain.[26]
[26] Exhibit A, T-Documents for 2015/6532, T27.
On 21 May 2010, an MRI was undertaken of the applicant’s lumbar spine.[27] It was reported that minor degenerative changes were noted at the L4/5 disc and in the lower lumbar facet joints and “No focal changes are seen to suggest arachnoiditis or an extra-dural collection”.
[27] Exhibit A, T-Documents for 2015/6532, T28.
On 24 June 2010, Dr Paul Licina, Orthopaedic Surgeon, gave a report to Dr Chiu in which he remarked that the applicant had “had a bad time” with rehabilitation and exhibited “a number of positive signs of abnormal illness behaviour”.[28] Dr Licina opined that “The degermation at L4-5 is relatively minor and I am not convinced that fixing this will get rid of all his problems”.
[28] Exhibit A, T-Documents for 2015/6532, T29.
On 26 July 2010, Dr John Sing, Specialist Vascular Surgeon, wrote to Dr Chiu to report that the applicant complained of “burning from his back down into his left foot on walking”.[29] Dr Sing suggested that the applicant see Dr Cleaver again as he suspected it was a spinal problem, or alternatively, disuse atrophy. Dr Sing recommended the applicant continue to take Folic acid to maintain his homocysteine levels.
[29] Exhibit A, T-Documents for 2015/6532, T30.
On 16 August 2010, Dr Neil Cochrane, Consultant Neurosurgeon and Spinal Surgeon, gave a report to Dr Chiu.[30] In his report, Dr Cochrane remarked that he:
… would offer [the applicant] a percutaneous minimally invasive transforaminal lumber [sic] fusion at L4/5. This can be done from the back. I don’t believe he needs surgery at any other level of the lumbar spine at the stage. This would alleviate the fact-based pain syndrome and disc-based pain at L4/5…
[30] Exhibit A, T-Documents for 2015/6532, T31.
On 23 August 2010, Dr John Cameron, Neurologist, performed muscle sampling on the applicant’s right lower limb.[31] Dr Cameron commented that “The EMG study of the right lower limb was normal, suggesting no evidence of motor root disturbance over an L4/5/S1 distribution”. Dr Cameron also conducted nerve conduction studies on the applicant, the results of which he commented were “normal”.[32]
[31] Exhibit A, T-Documents for 2015/6532, T32.
[32] Exhibit A, T-Documents for 2015/6532, T33.
On 25 August 2010, the respondent requested that Dr Licina, Dr Cameron and Dr Cleaver provide further reports as to the applicant’s condition and treatment.[33]
[33] Exhibit A, T-Documents for 2015/6532, T34-T36.
On 30 August 2010, Dr Cameron gave his report.[34] Dr Cameron, in providing a history of the applicant’s condition, remarked that on review examination in July 2010 he:
… could not find any evidence of neurological disturbance in [the applicant’s] lower limbs, particularly to suggest nerve root or spinal cord disturbance. I suspected then that there were a number of psychological issues persisting, complicating [the applicant’s] recovery… I can find no evidence of any structural problem on his MRI study to account for his ongoing symptoms.
[34] Exhibit A, T-Documents for 2015/6532, T37.
Dr Cameron recommended the applicant undergo a “gradual condition exercise programme with encouragement from a psychologist and occupational therapist. He needs to remain on Endep”. Dr Cameron opined that the applicant “has no surgically treatable condition in his lumbar spine”.
On 7 September 2010, Dr Cleaver gave his further report.[35] Dr Cleaver reported the applicant’s diagnosis as “discogenic back pain secondary to degermation at the L3-4 and L4-5 discs, with radiculitis in the right leg”. As to the nerve conduction studies undertaken, Dr Cleaver opined that they are “essentially useless, as they did not include electromyographic studies, which are required for the diagnosis of radiculopathy I reiterate my thoughts on the fact that nerve conduction studies with EMG’s are required”. Dr Cleaver opined that the effects of the 2009 back injury are ongoing and likely to be permanent. Dr Cleaver reported that he was not aware of any non-organic or psychosocial factors impeding the applicant’s recovery.
[35] Exhibit A, T-Documents for 2015/6532, T38.
On 8 September 2010, the respondent requested that Dr Cochrane provide a further report.[36]
[36] Exhibit A, T-Documents for 2015/6532, T39.
On 13 September 2010, Dr Cochrane gave his further report in two parts.[37] Dr Cochrane provided his diagnosis of the applicant’s condition as “degenerative disc disease and fact joint arthropathy at L4/5 level. This causes bilateral sciatica and low back pain”. Dr Cochrane reported that the applicant’s walking pattern was “consistent with the back and spinal pain, representing a limping or antalgic gait pattern”. Dr Cochrane opined that, while fact joint block injections would be unlikely to be curative, they could assist from a diagnostic perspective. Dr Cochrane concluded his report by stating that “it is my opinion that surgery as mentioned in the accompanying letter to [the applicant’s GP] (16 August 2010) is the appropriate treatment option at the stage”. Dr Cochrane opined that the effects of the 2009 back injury had not ceased and that he did not believe that any pre-existing condition of the applicant had overtaken the effects of the 2009 back injury. Dr Cochrane did not consider there to be any non-organic or psychosocial factors hindering the applicant’s recovery. Dr Cochrane requested approval to perform “L4/5 minimally invasive transforaminal lumbar interbody fusion” surgery.[38]
[37] Exhibit A, T-Documents for 2015/6532, T40-T41.
[38] Exhibit A, T-Documents for 2015/6532, T42.
On 26 October 2010, Dr Licina gave his further report.[39] Dr Licina began his report by stating that the applicant “has a long and complex past history, and this was not explored to the depth required for a complete medico-legal report. Keeping this in mind, the answers to your questions are as follows…”. Dr Licina’s diagnosis of the applicant’s condition was “discogenic low back pain with a functional component”. Dr Licina remarked that the applicant had very little movement in his back and a number of signs of abnormal illness behaviour, and the imaging “showed only minor degeneration of the L4-5 disc but not real significant abnormality”. Dr Licina reported that he “could find no evidence that the incident of 14 January 2009 has significantly altered Mr Macfarlane’s condition and therefore it would be reasonable to consider that it has ceased”. Dr Licina considered that the applicant’s current physical condition “would have occurred regardless of his incident of 14 January 2009”. Dr Licina did not feel that surgery had a role to play in the applicant’s treatment.
[39] Exhibit A, T-Documents for 2015/6532, T43.
On 12 November 2010, the respondent sought a supplementary opinion from Dr Cameron in regard to whether the applicant’s condition involved pre-existing degenerative changes.[40] The respondent directed Dr Cameron’s attention to a number of previous medical reports from other specialists, including with respect to a previous claim, and also to the applicant’s 1988 motor vehicle accident for which he had not made a compensation claim.
[40] Exhibit A, T-Documents for 2015/6532, T44.
On 12 November 2010, the respondent also sought a supplementary opinion from Dr Cleaver.[41] The respondent sought Dr Cleaver’s opinion as to a number of matters including the applicant’s 1988 motor vehicle accident.
[41] Exhibit A, T-Documents for 2015/6532, T45.
On 15 November 2010, Dr Cameron gave his supplementary opinion.[42] Dr Cameron did not consider that the applicant had disclosed a pre-existing condition that was relevant to the applicant’s current claim and remarked that, despite there having been a motor vehicle accident, there was no mention of back injury. Dr Cameron opined that the 2009 back injury had resolved and remarked that the applicant “has no residual neurological findings to suggest any ongoing disturbance related to his lumbar spine apart from his complaints of pain and abnormal illness behaviour”.
[42] Exhibit A, T-Documents for 2015/6532, T46.
On 22 November 2010, in response to a request from the respondent on 12 November 2010, Dr Cochrane gave a further report.[43] In his report, Dr Cochrane concurred that the applicant’s claim was “based on an alleged injury which may have caused an exacerbation of a pre-existing condition but is one of a number of potentially relevant injuries”. Dr Cochrane remarked that it was “virtually impossible to accurately determine the degree of pre-existing symptoms given there is recorded history of potentially relevant injury but no volunteered information provided to me by [the applicant]”. Dr Cochrane further remarked:
… I do believe that there has been an injury or series of injuries affecting the L4/5 spinal interspace. There may be a factor of degeneration from a series of minor injures [sic] predating employment with TNT. There has been concordant provocative discography to confirm disc failure. This condition is in distinction to a simple degenerate process which would not typically involve one spinal level only with normality at adjacent levels…
I believe this man still suffers significant pain yet can concede that the apparent disability may be exaggerated due to functional overlay. I note inconsistent signs and abnormal and exaggerated pain behaviour as documented by Dr Paul Licina. I cannot sensibly comment if the ongoing effects are due to a pre-existing degree of spinal pain or due to the apparent work-related exacerbation alleged by the claimant.
[43] Exhibit A, T-Documents for 2015/6532, T47.
On 22 November 2010, the respondent advised the applicant that it proposed to make a determination in respect of the applicant’s claim.[44] The respondent proposed to determine that the applicant was no longer entitled to compensation under section 16 and section 19 of the Act. The respondent noted that it had requested further reports from Dr Cleaver and Dr Cochrane which were due on 19 November 2010, which had not been provided by that date. The respondent indicated to the applicant that it wished to afford to the applicant an opportunity to present any further medical information relevant to his claim by 6 December 2010.
[44] Exhibit A, T-Documents for 2015/6532, T48.
On 7 December 2010, the respondent made a determination that the applicant “ceased to suffer from the effects of the compensable injury on 7^th December 2010” and that there was no longer any present liability for the respondent to pay compensation for medical treatment or incapacity for work under section 16 and section 19 of the Act.[45] The respondent was satisfied that the compensable injury did not result in incapacity for work or the need for medical treatment as at 7 December 2010. The respondent considered that Dr Cleaver had made comments as to the respondent’s management of the applicant’s claim which the respondent did not consider to be objective. The respondent preferred the opinions of Dr Licina and Dr Cameron to those of Dr Cleaver and Dr Cochrane.
[45] Exhibit A, T-Documents for 2015/6532, T49.
On 4 January 2011, the applicant requested reconsideration by the respondent of its decision dated 7 December 2010.[46] The applicant contended that he continued to suffer from ongoing effects from the 2009 back injury and from DVT. The applicant also contended that there was:
a major flaw in the assumptions provided to the specialists prior to them providing their most recent medical reports. This assumption, is that [the applicant] sustained a prior injury to his lower back in a motor vehicle accident which occurred in approximately 1988. [The applicant] instructs that this accident did occur, however, categorically denies that his lower back was injured in the accident…”
The applicant contended that the change the opinions of Dr Cochrane and Dr Cameron were attributable to these assumptions and their subsequent reports should be disregarded.
[46] Exhibit A, T-Documents for 2015/6532, T50.
The applicant further contended that Dr Licina’s opinion should be given little weight having regard to his concession that he did not have the requisite knowledge to given an opinion as to the applicant’s pre-existing condition. The applicant also drew attention to the opinion of Dr Cleaver that the 2009 back injury constituted a permanent aggravation of his lumbar spondylosis. The applicant also contended that Dr Cleaver had seen the applicant the most out of all of the specialists and was the most familiar with the applicant’s conditions and symptoms.
On 17 January 2011, the respondent made a determination as to the applicant’s request for reconsideration and decided to affirm its earlier decision dated 7 December 2010.[47] The respondent did not accept the applicant’s contentions that Dr Licina’s opinion should be afforded little weight and that the information provided to Dr Cochrane and Dr Cameron had been “tainted” by the information provided. The respondent concluded that the evidence of Dr Cleaver was neither “impartial” nor “consistent”. The respondent did not address DVT as this condition had not been the subject of the original claim.
[47] Exhibit A, T-Documents for 2015/6532, T51.
On 9 July 2012, following an application to this Tribunal, the decision of the respondent dated 17 January 2011 was set aside and substituted by consent of the parties pursuant to section 34D of the AAT Act with a decision that:[48]
(a)Pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), the respondent is liable to pay compensation to the applicant for incapacity resulting from ‘aggravation of pre-existing degeneration with lumbar spine’, date of injury 14 January 2009, from 8 December 2010 to the present in accordance with medical certification.
(b)From 1 May 2012, the applicant will undertake a rehabilitation program and return to work plan.
(c)Pursuant to section 16 of the SRC Act, the applicant is entitled to receive compensation for the cost of medical treatment obtained in relation to the Injury from 8 December 2010 upon provision of accounts/receipts.
(d)Pursuant to sections 24 and 27 of the SRC Act, the applicant is entitled to receive compensation for a 10% whole person impairment resulting from the Injury, in the total amount of $30,000.00.
[48] Exhibit P.
On 3 December 2012, Mr Drew Singleton, Pain Management Physiotherapist, gave a report to the respondent regarding the applicant’s referral to the “COR Pain Management Program and for Back Rehabilitation”.[49] Mr Singleton reported that the applicant said he had trialled physiotherapy and hydrotherapy without success. Mr Singleton conducted a physical examination and observed that the applicant had some limited range of motion with regard to his lumbar spine flexion and extension, and with his lumbar spine lateral flexion to both sides. Mr Singleton reported “L4/5 Allodynia and Hyperalgesia. Some somatic influence L43/4 [sic] and L5/S1”. Mr Singleton also quoted an email from an exercise physiologist, Ms Donna McCook, which recounted an incident during an exercise component during the rehabilitation program undertaken by the applicant. While the applicant was attempting to adjust pillows on a physiotherapy table, the bar which is used to adjust head of the plinth was moved and caused the head of the bed to drop suddenly by about five degrees. Ms McCook recounted that the applicant expressed he experienced some discomfort and did not continue the exercise. Mr Singleton noted that, following that incident, the applicant did not complete the final day of the rehabilitation program.
[49] Exhibit A, T-Documents for 2015/6532, T52.
Mr Singleton, in his conclusion, observed that the applicant’s pain appeared “nociceptive, and directly related to his pathology associated with the long term lumbar spine pathology and associated complaint”. Mr Singleton also remarked that there appeared to be “severe psycho-social aspects” influencing the applicant’s experience of pain. Mr Singleton opined that the applicant’s physical condition “appears that of functional weakness… and a lack of effective ergonomic and self-management strategies” to improve his presentation. Mr Singleton recommended the applicant re-commence a supervised, functional exercise program for eight to twelve weeks with hydrotherapy and exercise.

Within the report of Mr Singleton is a section titled “Pain Specialist Review” containing a report from Dr Graham Rice, Pain Specialist, Consultant Psychiatrist and Anaesthetist.[50] Dr Rice remarked that the applicant described constant low back pain and that too much physical activity including walking, lifting and bending made his pain worse, while lying down reduced his pain. As to the applicant’s mood, Dr Rice remarked that the applicant said he was “not really depressed, but frustrated by what he cannot do and he cannot see a positive future”. Dr Rice also remarked that the applicant consults monthly with Mr Robert Hayes, Psychologist, and the applicant felt this was of some assistance. Dr Rice suggested a reduction in dose of the applicant’s opioid pain killers and an increase in his antidepressants.
[50] Exhibit A, T-Documents for 2015/6532, T52, pp. 162-163.
On 2 July 2013, Dr Graeme Edwards, Specialist in Occupational and Environmental Medicine, provided a report to the respondent following an assessment of the applicant on 8 May 2013.[51] Dr Edwards reported that the applicant advised him that he considered the 3 December 2012 report by COR rehabilitation[52] “appalling” and the applicant suggested that his history and name had been confused with another examinee. Dr Edwards remarked that there was “significant evidence of a psychological disorder, or at least significant interpersonal conflict” at the time of the 2008 back injury. Dr Edwards observed that throughout the course of events in 2008 and 2009, the applicant’s history was “characterised by major biopsychosocial features that meant that he was hypersensitive and hyper-vigilant”. Dr Edwards opined this would have “profoundly influenced his presentation to attending practitioners”, along with his “interaction with work, his perceptions of “work”, and in particular, his perception of those individual’s [sic] in a position of authority concerning his safe deployment at work”. Dr Edwards recommended a forensic assessment of the contemporaneous medical records by an independent psychiatrist.
[51] Exhibit A, T-Documents for 2015/6532, T53.
[52] Exhibit A, T-Documents for 2015/6532, T52.
Dr Edwards’ diagnoses of the applicant’s conditions were:
(a)Adjustment Disorder with mixed anxiety and depressive features;
(b)Symptomatic lumbosacral spondylosis maximal at the L4/5 level, compounded by narcotic dependence, the epidural injection procedure, and DVT; and
(c)Dysfunctional sleep – uncharacterised.
As to adjustment disorder, Dr Edwards opined, on the balance of probabilities, that the clinical state of the applicant’s adjustment disorder condition was a “direct complication of the biopsychosocial stressors of the applicant’s perceptions of work in 2008, the 2008 and 2009 back injuries, and the complications following treatment. Dr Edwards considered that the applicant’s grievances associated with his workplace in 2008 had not been adequately addressed and that the applicant’s employment with the respondent was “a” contributing factor to his adjustment disorder condition. Dr Edwards remarked:
While there is a clear association with work, predominantly it is Mr MacFarlane's psychological construct and his "perceptions of work" that are the material contributors to his mal-adjustment to his non-work related pathology.
Specifically, work has highlighted the presence of the degenerative pathology, but has not "caused" the degenerative pathology.
Also, while "continuing to work" contributed to the experience of the intractable pain that then lead to the specific treatment interventions (that went wrong), the "decision to work” is the psychosocial issue that underpins the Adjustment Disorder.
As to symptomatic lumbosacral spondylosis, Dr Edwards considered the condition was “not at maximal medical improvement” in the context of the applicant’s narcotic dependence, and other intervening medical and psychosocial problems. Dr Edwards considered that, had these intervening issues not arisen, the applicant’s 2008 and 2009 back injuries would have resolved or reach maximal medical improvement within three months of their injury dates. Dr Edwards concurred with a report given by Dr Cleaver dated 12 November 2010 in which Dr Cleaver was said to have opined that surgical options were contraindicated, however, this report was not before the Tribunal and is inconsistent with the reports of Dr Cleaver that are in evidence. While Dr Edwards opined that the impairment associated with the underlying degenerative pathology had been “changed” by the 2008 and 2009 back injuries and complications from treatment, Dr Edwards considered it impossible to quantify the price contribution of those events to the level of impairment. Dr Edwards remarked: “The underlying degenerative pathology is irreversible; and the psychological state will be intractable, unless there is a restructure of his cognitive beliefs”.
As to the applicant’s dysfunctional sleep condition, Dr Edwards remarked that this was present to a significant degree and may be a manifestation of the applicant’s adjustment disorder or some other pathology. Dr Edwards considered that further investigation and management of the condition was needed to determine any relationship with the applicant’s compensable injuries and suggested investigation by way of polysomnography (a multi-channel sleep study).
Dr Edwards agreed with the recommendation by Dr Rice as to reducing the applicant’s opioid medication and increase of antidepressant medication. Dr Edwards also recommended a psychiatric assessment of the applicant be undertaken. Dr Edwards considered that the program undertaken by the applicant in 2012 was premature and unlikely to be successful due to the applicant’s limited insight associated with his adjustment disorder, however, Dr Edwards reported that the applicant’s psychological treatment with Mr Holmes had “seen some advances”.
Dr Edwards suggested the applicant should be given three months following polysomnography to “demonstrate developing insight and understanding of his predicament” and a maximum twelve months to optimise his clinical state. Dr Edwards suggested that:
… failure to demonstrate improved insight at the three month mark, despite targeted psychotherapeutic interventions, would mean his psychological construct was inhibiting his rehabilitation (despite all reasonable medical management options being afforded to [the applicant]). At that stage, his continuing disability will not be materially caused by the work-related factors.
On 29 August 2013, the applicant underwent a lumbar discogram and CT scan conducted by Dr Ioannou who had earlier, on 20 March 2009, administered facet block injections to the applicant.[53] These procedures were undertaken through a referral from Dr Lawrence McEntee, Orthopaedic Surgeon (Spine). Dr Ioannou reported that the injection of the applicant’s L3/4, L4/5 and L5/S1 discs had produced severe pain, eight to nine out of ten. The pain from the L3/4 injection was similar in character to the applicant’s usual pain, while the pain from the injections at the L4/5 and L5/S1 levels were an exact reproduction of the applicant’s usual pain.
[53] Exhibit A, T-Documents for 2015/6532, T54.
On 4 September 2013, Dr McEntee provided a letter to the respondent.[54] Dr McEntee remarked that the applicant “continues to have significant symptoms” and the discography undertaken by Dr Ioannou “confirms reproducible pain at L4-5 and L5-S1”. Dr McEntee requested approval for the proposed surgery, being an L4/5 total disc replacement and an L5/S1 anterior lumbar interbody fusion. Dr McEntee estimated the total cost of the surgery to be $11,072.70. It appears that the respondent did not provide a response to this request for approval to carry out the proposed surgery.[55]
[54] Exhibit A, T-Documents for 2015/6532, T55.
[55] Exhibit A, T-Documents for 2015/6532, T59; Exhibit A, T-Documents for 2017/4565, T7, p. 40.
On 22 November 2013, the respondent sought a report from Dr Edwards as to the proposed surgery.[56]
[56] Exhibit A, T-Documents for 2015/6532, T56.
On 22 October 2014, Dr Terry Coyne, Neurosurgeon, gave his report at the request of the respondent.[57] Dr Coyne commenced by noting he had not had the benefit of reviewing the reports of Dr Licina, Dr Campbell, Dr Boys, Mr Holmes and Dr Day and offered to review and comment upon them if the respondent felt that review of those reports would likely change his opinions. Dr Coyne reported that the applicant said that his worst persisting symptom following the 2009 back injury was “burning pain radiating down the back of his right leg to his foot” and that his pain disturbs his sleep. Dr Coyne opined that the applicant’s history and documentation indicated that:
… in late 2008 Mr MacFarlane had a significant pain condition related to his lumbar spine, for which adverse psychosocial factors were significant. It is conceivable that the subject incident of 15.01.09 resulted in an exacerbation (temporary worsening) of Mr MacFarlane’s lumbar spine condition which had continued to a significant level to the time of the subject incident. It is conceivable that the subject incident may have resulted in an aggravation (permanent worsening) of Mr MacFarlane’s pre-existing condition. The history of the subject incident of January 2009 as described by Mr MacFarlane is consistent with resulting in either an exacerbation or an aggravation of a pre-existing condition. However, even in the event that the subject incident resulted in an ongoing aggravation of symptoms, Mr MacFarlane’s history and documentation suggest that the majority of his symptoms likely relate to his condition prior to the subject incident, and at most the subject incident has made a relatively minor contribution to his ongoing condition.
[57] Exhibit A, T-Documents for 2015/6532, T57.
Dr Coyne considered it difficult to suggest specific further medical or surgical therapy. Dr Coyne recommended that the applicant continue with analgesic medication and muscle strengthening exercises and that management of adverse psychosocial factors was important in the overall management of the applicant’s persisting pain condition. Dr Coyne suggested that the applicant undergo treatment at a multidisciplinary chronic pain clinic. As to surgery, Dr Coyne remarked:
The role of surgery for chronic lumbar spine symptoms for which no objective neurological compromise has been demonstrated radiologically can be controversial, and different neurosurgeons and orthopaedic spinal surgeons can hold different opinions in this regard. However it would not be my opinion that Mr Macfarlane would likely benefit from lumbar spine surgery at this point in time. The long period of symptoms, Mr Macfarlane's high level of disability, his significant associated psychological condition, and his long term requirement for maintenance oral narcotics all mitigate against a successful outcome from lumbar spine surgery. The literature suggests that lumbar fusion surgery (and by extrapolation lumbar disc replacement surgery) in a WorkCover context in the absence of neurological compromise has a significantly worse outcome than non-surgical therapy.
On 3 September 2015, Dr McEntee wrote a letter to the Respondent.[58] The letter enclosed a further request for a L4/5 total disc replacement and L5/S1 anterior lumbar interbody fusion and an estimate for the cost of the proposed surgery dated 27 August 2015, with a new figure in the amount of $8,800.50.[59] Dr McEntee remarked:
Imaging shows disc desiccation L4-5 and LS-S1 and subsequent discography confirmed exact reproduction of his lower back pain at both those levels. In regards to his ongoing sciatica the EMG testing shows bilateral L5 radiculopathies. It is now some 2 years since I requested surgery and I have not yet had a reply from you; therefore, I am re-requesting surgery today and would appreciate a response this time as a matter of courtesy.
[58] Exhibit A, T-Documents for 2015/6532, T59.
[59] Exhibit A, T-Documents for 2015/6532, T58.
On 14 September 2015, the respondent made a determination as to the applicant’s request, via Dr McEntee, for approval for the proposed surgery.[60] The responded refused to approve the proposed surgery. The respondent relied upon the opinion of Dr Coyne.
[60] Exhibit A, T-Documents for 2015/6532, T60.
On 1 October 2015, the applicant sought reconsideration of the respondent’s determination dated 14 September 2015.[61] The applicant advised the respondent that he intended to seek further discography and nerve conduction tests. The applicant provided the results of these tests to the respondent on 8 October 2015.[62]
[61] Exhibit A, T-Documents for 2015/6532, T61.
[62] Exhibit A, T-Documents for 2015/6532, T62, p. 197.
On 2 November 2015, the respondent affirmed its earlier decision to refuse to approve the proposed surgery.[63] The respondent relied upon the opinions of Dr Boys, Dr Dan and Dr Coyne and did not consider the surgery to be reasonable or appropriate medical treatment in relation to the applicant’s accepted injury. This is the decision under review in application no. 6532 of 2015.
Application no. 4565 of 2017: review of determination dated 12 May 2017 that the respondent was, as at that date and to the present date, not liable to pay compensation under section 16 and section 19 of the Act to the applicant in respect of the 2009 back injury
[63] Exhibit A, T-Documents for 2015/6532, T62.
On 17 January 2017, the respondent requested a report from Dr Simon Gatehouse, Adult and Paediatric Spinal Surgeon, with the intention of assessing the applicant’s present condition in respect of the 2009 back injury.[64] The respondent sought the opinion of Dr Gatehouse as to the condition that the applicant presently suffered and whether that condition continued to be contributed to by his employment with the respondent.
[64] Exhibit A, T-Documents for 2017/4565, T4.
On 7 February 2017, Dr McEntee gave a further report.[65] Dr McEntee remarked that he had seen the applicant in his rooms that day and he was preparing a comprehensive report as to the applicant’s situation. Dr McEntee considered that the applicant’s symptoms remained “much the same” since he had last seen the applicant in 2015. Dr McEntee observed that the applicant could drive a car as he had his care fitted with a left hand clutch “but otherwise he remains fairly disabled and he has been unable to return to any form of work”. Dr McEntee opined that the applicant’s situation still warranted consideration for surgical intervention.
[65] Exhibit A, T-Documents for 2017/4565, T5.
Dr Gatehouse – 20 March 2017
On 20 March 2017, Dr Gatehouse gave his report.[66] Dr Gatehouse examined the applicant on 13 February 2017. As to the applicant’s current symptoms, Dr Gatehouse reported that the applicant continued to complain of lumbar back pain, in addition to his referred right leg symptoms and had noticed no changes in the previous 12 months. Dr Gatehouse observed that the applicant’s pain as described was in the lumbosacral region, radiating down the posterolateral aspect of his right leg, which the applicant rated as moderate to severe and seven out of ten on visual analogue score. Dr Gatehouse considered that the applicant had a restricted range of motion in his back. Dr Gatehouse reported the applicant complained that his pain interfered with his sleep, he has depression and forgetfulness and his personal care is affected.
[66] Exhibit A, T-Documents for 2017/4565, T6.
On examination, Dr Gatehouse observed the applicant to have an antalgic gait, with use of a single Canadian crutch for mobility and a compression stocking on his right leg. The applicant had a slightly flexed forward posture, diffuse tenderness across his lower spine, with restricted movement in all directions due to pain and stiffness. Dr Gatehouse commented that there was a global reduction to sensation in the applicant’s right side and that his muscle power in his lower right leg was pain inhibited. Dr Gatehouse examined an MRI undertaken of the applicant’s spine on 22 May 2013 and remarked that the images:
… demonstrate a degenerative disc at the level of L4/5. There was no significant protrusion at that level. There appeared to be a free course of the neural elements. In addition there was facet arthropathy present at L3/4 and L4/5… Note is made of the discography in the past with concordant discography present at L3/4 and L4/5.
Dr Gatehouse considered that the applicant’s 2008 and 2009 back injuries were aggravations of the applicant’s pre-existing or constitutional degenerative disc condition, predominantly at the L4/5 level.
Dr Gatehouse opined that the applicant’s employment was a significant aggravator of the underlying condition of the applicant, however, Dr Gatehouse did not consider that the applicant’s employment had either accelerated, or contributed to the development of, the underlying degenerative condition of the applicant.
Dr Gatehouse suggested it was possible that the applicant’s DVT had contributed to his right lower limb symptoms. Dr Gatehouse also considered that the applicant had a “significant contribution from a psychiatric element in the form of depression”.
Dr Gatehouse considered that by the time of his report the work-related aggravation of the applicant’s condition would have ceased and that any extant pain was related to the underlying degenerative changes in the applicant’s spine, particularly at the L4/5 level. Dr Gatehouse considered this to be a natural progression of the applicant’s underlying condition.
Dr Gatehouse considered the prognosis of the applicant’s condition was poor. The applicant had experienced pain for some years and had experienced no significant improvement. Dr Gatehouse considered the applicant’s condition had “reached maximum medical improvement”. Dr Gatehouse did not consider that surgery was indicated, however, Dr Gatehouse suggested the applicant might require ongoing physical therapy and chronic pain management in the long-term. Dr Gatehouse considered that any improvement derived from any treatment undertaken by the applicant would be functional in nature and not directed towards his symptoms.
Dr Gatehouse considered the pain described by the applicant to be genuine and there did not appear to be any voluntary factor in his assessment. Dr Gatehouse, however, was unable to identify any “significant neural compromise that would account for the continued right leg neural symptoms”. Dr Gatehouse suggested it was likely that the applicant had developed a pain complex or pain syndrome.
As to capacity to work, Dr Gatehouse considered that while the applicant had a limited capacity to undertake employment, it would be of benefit from a rehabilitation and psychiatric perspective. Dr Gatehouse considered it would be appropriate for a functional assessment to be undertaken of the applicant. Dr Gatehouse considered the incapacity of the applicant to work was due to his underlying constitutional lower back pain condition and referred right leg symptoms, as opposed to being due to any work-caused aggravation.
Dr McEntee – 4 April 2017
On 4 April 2017, Dr McEntee gave his report.[67] Dr McEntee remarked early in his report that “Mr Macfarlane’s problems with his back and legs started in 2008”. Dr McEntee stated that he had attended the applicant on five occasions. Dr McEntee confirmed his opinion that the proposed surgery was indicated for the applicant’s condition and further, that the applicant’s employment was a significant initiating factor in the condition which was intended to be addressed by the proposed surgery.
[67] Exhibit A, T-Documents for 2017/4565, T7.
In his assessment of the applicant, Dr McEntee observed that the applicant walked with a limp and had an extremely stooped posture through his lower back with a complete loss of his lumbar lordosis. Dr McEntee observed that palpitation of the applicant’s spine revealed ongoing tenderness at L4/5 and L5/S1.

As to the progression of the applicant’s pain, Dr McEntee reported that prior to seeing him on 29 May 2013, the applicant scored 94 out of 100 for back pain on a “Visual Analogue Score” (“VAS”) and 77 out of 100 on a VAS for right leg pain, with 0 out of 100 for left leg pain. Dr McEntee also remarked that in 2013, the applicant perceived himself as having severe disability due to his scores on a “Roland-Morris Disability Questionnaire (RMDG) and an Oswestry Disability Index (ODI)” (“RMDG” and “ODI”). Dr McEntee reported that in 2015, the applicant’s VAS scores in mid-2015 had become 91 out of 100 for back pain, 84 out of 100 for right leg pain and 11 out of 100 for left leg pain and his RMDG and ODI scores continued to represent a severe disability perceived by the applicant. Prior to seeing Dr McEntee in February 2017, the applicant completed further VAS, RMDG and ODI questionnaires. These resulted in VAS scores of 84 out of 100 for back pain, 88 out of 100 for right leg pain and 0 out of 100 for left leg pain, and his RMDG and ODI scores continued to represent a severe disability perceived by the applicant.
Dr McEntee opined that the applicant’s employment was a significant contributing factor to the onset of his condition. Dr McEntee observed that the applicant had no back or leg symptoms prior to 2008 and developed symptoms due to heavy lifting in the course of his employment. Dr McEntee considered that the applicant may have had asymptomatic degenerative changes in his lumbar spine prior to the onset of the condition, however, any underlying condition became symptomatic in the course of his employment.
Dr McEntee considered there had been no improvement in the applicant’s symptoms. Dr McEntee opined that “There is a reasonable chance that his clinical presentation would not be the same at this stage had he not injured his back in the course of his employment”. Dr McEntee considered the applicant’s employment to be both a significant initiating factor and an ongoing contributing factor in his current condition.
As to the applicant’s capacity to work, Dr McEntee considered that the applicant had no capacity for employment and it was “very unlikely” that he would have any such capacity in future.
Dr McEntee considered the prognosis of the applicant’s condition to be poor. And remarked:
This however, does not suggest that his symptoms would not benefit significantly from surgical intervention as has been proposed in the past. It is my opinion that even at this late stage he would likely gain some reasonable benefit from the previously proposed lumbar hybrid procedure…
Dr McEntee considered that the proposed surgery was “reasonable medical treatment” in relation to the applicant’s work-related condition.
Dr McEntee was asked to comment specifically on a number of reports made available to him for the purpose of preparing his 4 April 2017 report, in particular in regard to various opinions as to the reasonableness of the proposed surgery:
(a)As to the report of Dr Boys dated 4 March 2009, Dr McEntee remarked that in 2009 there was no evidence of significant associated radiculopathy and that, unlike Dr Boys, Dr McEntee considered the underlying degenerative condition of the applicant to be asymptomatic until it was permanently aggravated by the 2009 back injury.
(b)Dr McEntee considered the request by Dr Cleaver for approval of the proposed surgery in 2009 to be reasonable. Dr McEntee agreed that the opinion of Dr Cleaver in September 2010 that surgery was warranted, the work related injury had led to a permanent aggravation of an underlying, asymptomatic condition, and the effects of the work-related aggravation were on-going. Dr McEntee, however, remarked that Dr Cleaver considered the symptomatic levels of the applicant’s spine to be L5/S1 and S1/S2, as opposed to L4/5 and L5/S1 which were the symptomatic levels in Dr McEntee’s opinion.
(c)Dr McEntee agreed with the diagnosis given by Dr Day in 2010 of “aggravation of pre-existing lumbar spondylosis”. In 2010, Dr Day opined that the proposed surgery was contra-indicated given the DVT condition of the applicant; Dr McEntee considered this to be a reasonable opinion “at that stage”. Dr McEntee went on to remark that “this would not necessarily preclude anterior procedures in the future as, certainly in my hands, these are generally performed with the patient on prophylactic Clexane”.
(d)As to the opinion of Dr Licina In 2010 that there was no indication for surgery, Dr McEntee remarked it was “not an unreasonable opinion and would be held by many other surgeons also”, and observed it was unclear whether the opinion of Dr Licina took into account investigations previously undertaken by Dr Cleaver. Dr McEntee remarked that many spinal surgeons would consider reasonable the opinions of Dr Licina in October 2010 that: the applicant showed signs of abnormal illness behaviour; there were no significant spinal problems other than reported pain; the work-related aggravation had ceased; and surgery did not have a role to play. However, Dr McEntee again observed that it was unclear whether Dr Licina had regarded the findings of the discography investigations undertaken.
(e)As to the opinion of Dr Cochrane in August 2010 that the applicant would benefit from the proposed surgery, Dr McEntee considered that opinion “not unreasonable given the patient’s condition”. Dr McEntee observed that in September 2010, the opinion of Dr Cochrane focused on the L4/5 level in isolation in the form of a minimally invasive transforaminal lumbar interbody fusion procedure.
(f)Dr McEntee disagreed with the report of Dr Cameron in 2010, based on a MRI undertaken of the applicant, that the applicant did not have any structural disturbance in his lumbar region, having regard to the discography investigations undertaken by Dr Cleaver.
(g)As to the opinion of Dr Coyne in 2014, Dr McEntee disagreed that the applicant would not benefit from the proposed surgery, however, he agreed with Dr Coyne that there are many differing opinions as to the most appropriate treatment for chronic lumbar spine symptoms for which no objective neurological compromise has been demonstrated radiologically. Dr Coyne opined that any ongoing treatment was directed to the underlying condition of the applicant. Dr McEntee Observed that it was not apparent that Dr Coyne possessed or had reviewed the Electromyography (“EMG”) investigations undertaken of the applicant which, in the opinion of Dr McEntee, “confirmed objective evidence of neurological damage, ie bilateral L5 radiculopathies”. Dr McEntee went on to opine:
I am of the opinion that when patients have EMG proven radiculopathies and their symptoms have not improved with an appropriate period of non-operative treatment then surgical intervention can be of significant benefit in these individuals.
(h)Finally, as to the opinion of Dr Gatehouse in May 2016, Dr McEntee observed that, although Dr Gatehouse opined that the applicant’s work-related aggravation had ceased and he would not benefit from surgery, Dr Gatehouse did not seem to have taken into consideration the findings of the bilateral L5 radiculopathies on the EMG testing arranged by Dr McEntee himself, nor did he seem to have regarded the results of the discography investigations.
Dr McEntee included with his report a number of enclosures.[68] These included various reports resulting from medical investigations undertaken of the applicant, pain diagrams completed by the applicant, and in particular, the EMG results referred to by Dr McEntee in his report. On 11 June 2013, Dr Ken Johnston, Surgeon, reported on an EMG investigation undertaken of the applicant. By way conclusion, Dr Johnston remarked “The EMG is ABNORMAL… There is electrophysiological evidence that is consistent with BILATERAL CHRONIC L5 RADICULOPATHY. Very animated response to testing”.[69]
[68] Exhibit A, T-Documents for 2017/4565, T7, pp. 48-56.
[69] Exhibit A, T-Documents for 2017/4565, T7, p. 51.
Initial determination – 12 May 2017
On 12 May 2017, the respondent made a determination that the applicant ceased to suffer from the effects of the “compensable injury ‘Aggravation of Pre existing Degeneration within Lumbar spine’. On 12^th May 2017”.[70] The respondent consequently determined there was no present liability to pay compensation for medical treatment or incapacity for work to the applicant under section 16 and section 19 of the Act in respect of the applicant’s condition.
[70] Exhibit A, T-Documents for 2017/4565, T8.
Relying upon the report of Dr Gatehouse on 20 March 2017, the respondent considered that the underlying degenerative condition of the applicant was the cause of the applicant’s ongoing pain. Consequently, the respondent was not satisfied that the applicant continued to suffer from the work-related injury as it was no longer the cause, in the opinion of Dr Gatehouse, of the applicant’s incapacity or impairment. Although the determination contains at one point the following phrase: “Having reviewed all available evidence…”, the report of Dr McEntee dated 4 April 2017 was not specifically mentioned.
Request for reconsideration – 11 June 2017
On 11 June 2017, the applicant’s solicitors wrote to the respondent to request reconsideration of its determination dated 12 May 2017 pursuant to section 62 of the Act.[71] The applicant drew the respondent’s attention to the report of Dr McEntee dated 4 April 2017 and contended that the respondent had made its determination without placing sufficient emphasis on that report. The applicant contended in reliance upon the report of Dr McEntee dated 12 May 2017 that the applicant still suffered from the compensable work-related injury and that the opinion of Dr McEntee should be preferred given his reliance upon radiological reports and pathological findings and that he was the applicant’s treating orthopaedic surgeon.
[71] Exhibit A, T-Documents for 2017/4565, T9.
Reconsideration determination dated 12 July 2017
On 12 July 2017 the respondent affirmed its earlier determination dated 12 July 2017 that the applicant did not continue to suffer the effects of the 2009 back injury and was therefore not entitled to compensation under sections 16 and 19 of the Act.[72] This determination is the decision under review in application no. 4565 of 2017. The respondent was satisfied that the applicant had degenerative changes in his lumbar spine which pre-dated the 2008 and 2009 back injuries. The respondent considered that the 2008 and 2009 back injuries represented only in aggravations of the underlying degenerative condition.
[72] Exhibit A, T-Documents for 2017/4565, T10.
The respondent had regard to a report following an MRI undertaken of the applicant dated 11 September 2008 in which Dr Julie Bradford reported that the applicant presented with “Prominent posterior disc bulge with small right lateral… disc protrusion at L4/5 level”. The respondent drew attention to a further report following an MRI undertaken of the applicant in May 2010 in which Dr Kieran Frawley reported “minor degenerative changes are noted at the L4/5 disc and minor degenerative changes are noted in the lower lumbar facet joints”. The respondent placed emphasis on the report of Dr Boys dated 4 March 2009, along with the report of Dr Gatehouse dated 20 March 2017. The respondent had regard to the opinion of Dr Gatehouse
Application no. 4566 of 2017: review of determination dated 17 July 2017 that the respondent was, as at that date and to the present date, not liable to pay compensation to the applicant under section 16 and section 19 of the Act in regard to applicant’s “adjustment disorder/depression” condition
On 24 February 2011, The applicant made a claim (“the psychiatric claim”) for compensation from the respondent for a secondary injury, being: “Adjustment disorder with mixed anxiety and depressed mood” (“the psychiatric condition”).[73] In support of the psychiatric claim, the applicant provided a medical certificate from his General Practitioner, Dr Chui, and a report from a psychologist, Mr Robert Holmes.
[73] Exhibit A, T Documents for 2017/4566, T4, T16.
From the evidence, the psychiatric condition was first documented on 31 May 2011 in a report authored by Mr Holmes.[74] This report was the result of a referral from Dr Chui, however, Dr Chui recounted that in an earlier consultation the applicant had presented with depressive symptoms on 12 October 2009.
[74] Exhibit A, T Documents for 2017/4566, T5.
In his report, Mr Holmes suggested that the applicant was suffering from depression and Post Traumatic Stress Disorder from 4 November 2009 when he first presented to Mr Holmes for analysis.[75] Mr Holmes opined that the cause of the psychiatric condition of the applicant was the protracted demonisation the applicant suffered from his workplace colleagues and insurer case officers, along with the general incompetence of the medical profession in failing to accurately diagnose and treat his back condition.[76]
[75] Exhibit A, T Documents for 2017/4566, T5, p. 34.
[76] Exhibit A, T Documents for 2017/4566, 36.
The findings of Mr Holmes contrasted with those in the report of Mr Clinton Laurence, Clinical Psychologist, dated 6 July 2011.[77] Mr Laurence’s report was requested by the respondent on 4 July 2011. He recalled that when he saw the applicant in mid-2009, the applicant did not present with symptoms of depression and was mainly concerned with his financial woes as a result of his medical treatments and the loss of his ability to carry out certain physical tasks such as playing with his children and completing household chores. However, Mr Laurence did emphasise that, at the time of drafting his report, he had not seen the applicant in over two years and was therefore unable to respond to several of the questions posed to him.[78]
[77] Exhibit A, T Documents for 2017/4566, T6.
[78] Exhibit A, T Documents for 2017/4566, T6.
In his report dated 8 July 2011, Professor Harvey Whiteford, Consultant Psychiatrist, opined that the applicant was suffering from an adjustment disorder as it is defined in what was then the DSM IV.[79] Professor Whiteford had the benefit of reviewing extensive written material concerning the applicant which he outlined at the outset of his report, and conducting an examination of the applicant in person. At the conclusion of his report, which analyses the applicant’s symptomatology and personal history, Professor Whiteford concluded that:[80]
Craig McFarlane meets the American Psychiatric Association’s Diagnostic and Statistical Manual, Fourth Edition (DSM IV) diagnostic criteria for an adjustment disorder with depressed mood… from the information available to me, the adjustment disorder arose because Mr McFarlane can not work and because the pain has disrupted his quality of life.
[79] Exhibit A, T Documents for 2017/4566, T7.
[80] Exhibit A, T Documents for 2017/4566, T7, 53.
Professor Whiteford then recommended that the applicant return to work as this would assist with his recovery and that there were no psychiatric impairments preventing him from returning to work. Professor Whiteford acknowledged that he was not in a position to comment on the applicant’s physical impairments. Further, he suggested that there may be other factors contributing to the applicant’s impairment that were not before him.
On 23 August 2011, the respondent refused to accept liability for the psychiatric condition for the purposes of section 14 of the SRC Act.[81] That determination was subsequently affirmed by the respondent on 6 October 2011 and ultimately brought before this Tribunal for further review.
[81] Exhibit A, T Documents for 2017/4566, T8.
Liability for the psychiatric condition was accepted by the respondent on 9 July 2012 when this Tribunal made a decision, by consent of the parties pursuant to section 34D of the AAT Act, that the respondent was liable to pay compensation to the applicant in respect of the psychiatric condition. As a consequence of this decision, the applicant was entitled to receive compensation for medical treatment in relation to the psychiatric condition. In accordance with the terms of agreement filed by the parties, the decision of the Tribunal:[82]
[82] Exhibit A, T Documents for 2017/4566, T10.
(a)set aside the reviewable decision of the respondent insofar as it affirmed a determination dated 23 August 2011 which denied liability for ‘adjustment disorder/depression’, and
(b)in substitution decided that:
(i)pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act), the respondent is liable to pay compensation to the applicant for ‘adjustment disorder/depression’, date of injury 8 February 2011 (Injury).
(ii)pursuant to section 16 of the SRC Act, the applicant is entitled to receive compensation for the cost of medical treatment obtained in relation to the Injury, this treatment being counselling, upon provision of accounts/receipts.
(iii)pursuant to section 19 of the SRC Act, the applicant is entitled to receive compensation for the cost of medical treatment obtained in relation to the Injury, this treatment being counselling, upon provision of accounts/receipts.
(c)The Tribunal affirmed the reviewable decision insofar as it affirmed a determination dated 23 August 2011 which denied liability to pay compensation to the applicant for permanent impairment as a result of the Injury, pursuant to sections 24, 25 and 27 of the Act.
The text of paragraph b(iii) above appears to conflate with medical treatment with the compensation for incapacity provided for in section 19 of the Act. This may have been an error in the decision text, however, a copy of the text of the original agreement was not before the Tribunal in these applications, nor was there any suggestion that the Tribunal had been requested by either party to make a direction under section 43AA of the AAT Act to alter the text of the decision. In any event, this does not bear on the outcome of this application.
There is a paucity of evidence between the years 2012 and 2015. The next report the Tribunal has before it is dated 20 October 2015. The author, Dr Trevor Lotz, Consultant Psychiatrist, noted that he had been seeing the applicant regularly for the prior two years at the time of drafting his report.[83]
[83] Exhibit A, T Documents for 2017/4566, T11.
In his report, Dr Lotz alludes to a worsening of the applicant’s condition. He considered that the applicant suffered from Major Depressive Disorder and expressed suicidal ideation. This was a symptom that was expressly not a feature of the applicant’s condition in the previously considered medical reports.[84] Dr Lotz opined that:
The injury [the applicant’s physical injuries] occurred at work, and the psychological features are secondary to the physical injury.
From his history, it appears that the psychological and physical injuries are 100% related to his employment.
…hypothetically, should he have no pain and be fully mobile, he will be able to return to full time employment, the psychological consequences of his claim will not affect his ability to function in the workplace and in his personal life.
[84] Exhibit A, T Documents for 2017/4566, T11, p. 71.
Dr Lotz further elaborated that the applicant’s psychiatric condition was the result of his inability to work which was in turn a result of his physical injuries. He recommended that the applicant be given access to the requested surgical intervention which would resolve all the issues causing the psychiatric impairments.[85] Setting aside Dr Lotz’s qualifications to recommend surgical treatments for the applicant’s spinal injuries, he strongly affirmed the belief that these ongoing physical impairments were sole cause of the applicant’s psychiatric injuries. In any event, this suggested that the applicant’s psychiatric condition was persistent throughout the time period where there was a lapse in reporting.
[85] Exhibit A, T Documents for 2017/4566, T11, p. 73.

There is evidence that there is some risk if the applicant was to undertake the proposed surgery. Professor Day in his report dated 15 January 2010 referred to the significant risk of the applicant developing DVT, pulmonary embolism after a two-level anterior procedure in the lower spine. Dr McEntee also accepts that there is a risk of DVT following such surgery. While Dr McEntee has properly acknowledged that there are risks in the applicant having the proposed surgery, in giving evidence he stated that steps would be taken to minimise risk. In his evidence-in-chief Dr McEntee remarked: “In my opinion the history of deep vein thrombosis wouldn’t necessarily preclude an anterior lumber procedure. Certainly, when I’m doing an anterior lumber procedure the patient gets preoperative Clexane or blood thinners and continues on these post-operatively. So in my hands a previous DVT would not be a contraindication to doing an anterior lumber procedure.” Under cross-examination Dr McEntee remarked: “DVT is always a risk with any surgery and obviously in particular anterior lumbar surgery when you do need to mobilise the great vessels but hence which is why we use Clexane pre-operatively and continue it post-operatively”. I am prepared to accept that if the proposed surgery was to proceed then Dr McEntee would ensure that the risk of the patient developing DVT would be reduced using Clexane or some other medication.
I reiterate again that it is important to consider whether the proposed surgery would benefit the injured worker.[194] In giving evidence, Dr McEntee has referred to what he considers would be positive aspects of the surgery. Dr McEntee remarked that nothing else had helped the applicant. Dr McEntee stated that it was reasonable to look at surgery because there was a high chance that the surgery would make him “better, not cured - not necessarily pain free but make him better than he was.” Dr McEntee has recognised that there is always a small chance that any surgery would not make him better after the surgery, but in giving evidence he remarked that there is a higher likelihood than not that surgery would “make him better than he was”.
[194] Comcare Australia v Rope [2004] FCA 540 (Stone J); Alamos and Comcare [2014] AATA 629 at [24] (DP Constance).
The respondent has submitted that that the applicant has not taken steps to have the proposed surgery done by other means. The respondent has pointed out that the applicant has under cross-examination admitted that he could have paid for the surgery himself. However, in making this admission it is not clear that the applicant was aware of the actual cost of the proposed surgery. Dr Shaw in giving evidence explained that the estimates from Dr McEntee of the cost of surgery would not include the costs of hospital, the prosthesis for disc replacement and the fusion cages. In 2009, the applicant was advised by Dr Cleaver that he would perform the surgery once the private health insurance waiting period of 12 months had expired but he did not take up this offer. I am conscious that even if the applicant had private insurance there are several out-of-pocket expenses which he may have had difficulty in affording even if he had private health insurance. In 2011, Dr Cochrane placed the applicant on the elective surgery waiting list but the applicant has not enquired into whether he could have the surgery done. The fact that the applicant has psychological difficulties may explain why he has not taken such alternative avenues to having treatment. I consider that the applicant certainly wants to have the surgery having regard to the fact that he sought reconsideration of the decision to refuse the request of Dr McEntee to perform the proposed surgery. No other plausible motive of the applicant has been said to exist for the applicant seeking compensation for the cost of the proposed surgery in this way and it is his right to exercise his rights of appeal of the respondent’s determination through internal and external merits review.
In Lock and Comcare,[195] Deputy President Boyle, at [194], has pointed out that in considering whether proposed surgery is reasonable in the circumstances, it is obviously relevant to consider what are the alternatives to the proposed surgery. I agree with the opinion of Dr McEntee that “all non-operative care has been exhausted”.[196]
[195] (2018) 163 ALD 361.
[196] Exhibit K, reports of Dr McEntee dated 28 September 2018, p. 2.
Dr Gatehouse has recognised that the rehabilitation of the applicant has been “fairly haphazard and scattered”.[197] Dr Shaw and Dr McEntee who were called by the applicant both accept that the applicant should undertake a course of physiotherapy before undertaking the proposed surgery. However, Dr Shaw and Dr McEntee differ on the appropriate period of physiotherapy which is required. Dr Shaw considers that a period of at least 12 months of physiotherapy would be required if at the time there was no verifiable radiculopathy. Dr McEntee considers that the period of physiotherapy treatment should be from 6 to 12 months. Dr McEntee remarked that “in the absence of diverse weakness or severe neurological dysfunction you would always advise a period of rehabilitation first”. I consider that it would be reasonable for the applicant to undergo the proposed surgery and to undertake any necessary course of treatment of physiotherapy for up to 12 months prior to the surgery. There is also a need for post-operative physiotherapy sessions once to twice per week as recommended by Dr McEntee.[198]
[197] Transcript, p. 93.
I note that Dr Gatehouse has remarked in his report dated 16 May 2016 that the applicant undertook a continued gym program and physiotherapy in 2010. Dr Shaw also noted that physiotherapy had been trialled with “little benefit”.[199] Dr McEntee stated that the applicant had undergone multiple physiotherapy programs.[200] However, it became apparent at the hearing during the questioning of various doctors that the applicant had not undertaken any consistent, uninterrupted period of physiotherapy.
[199] Exhibit H, p. 4.
[200] Exhibit K, report of Dr McEntee dated 28 September 2018, p. 2.
I am conscious of the need for specificity in administering section 16 of the Act. In the judgment of the Federal Court in Comcare v Lofts, Mortimer J observed that “The liability for compensation is identified as being “such amount as Comcare determines is appropriate” to that medical treatment. Use of the phrase “amount of compensation” indicates the provision is directed at compensation by way of specific sums”.[201] Her Honour then made the following remarks:[202]
14. Properly construed, s 16 deals with specific and identifiable amounts of compensation for specific and identifiable medical treatment, in relation to an “injury” as the SRC Act defines that term. The provisions dealing with transport costs descend to a level of particularity which is incompatible with a construction of the whole of this section that allows for some ambit or general claim for medical treatment in relation to an injury. It would not be possible for Comcare to carry out the task s 16 requires — an assessment of the relationship between the injury and the medical treatment, an assessment of reasonableness, and a determination of appropriateness — if there were not specific sums of compensation claimed in relation to particularised medical treatment for a specific injury.
15 That is not to say the claimed costs must relate to the past: see Australian Telecommunications Corporation v Davis (1991) 30 FCR 467. However, they must have the requisite level of specificity attached to them to enable Comcare to perform the task s 16 requires. Decisions of this Court on appeal from the Tribunal under s 44 of the AAT Act have approached the construction and application of s 16 on this basis. The approach to the concept of “reasonableness” taken in these cases illustrates the need for specific costs of medical treatment to be identified: see Comcare v Rope (2004) 135 FCR 443; Comcare v Holt (2007) 94 ALD 576.
[201] (2013) 217 FCR 220; [2013] FCA 1197, at [13].
[202] Comcare v Lofts (2013) 217 FCR 220; [2013] FCA 1197, at [14]-[15].
Having regard to the comments of the Federal Court in Comcare v Lofts, I consider it appropriate to remit the application under section 42D of the AAT Act so that there is accurate estimate costs, and having regard to my comments below in the conclusion.
The psychiatric condition
The Tribunal made a decision on 9 July 2012 that under s 14 of the Act the respondent is liable to pay compensation to the applicant for “adjustment disorder/depression, date of injury 8 February 2011”.[203] The Tribunal was satisfied that it was both within its powers and appropriate to make the decision in response to the application by the parties. Dr Shaikh in his report dated 28 April 2017 has reported that in the aftermath of the physical injury and reported distress of the applicant that he has developed psychological complaints reflective of an adjustment disorder. The respondent accepts that the applicant suffers from a psychiatric condition. This concession was properly made by the respondent. There are reports from Dr Mathew and Dr Lotz that the applicant has a condition of major depressive disorder. I accept the diagnoses of these specialists that the applicant has Major Depressive Disorder. For the reasons that follow, I am satisfied that the Major Depressive Disorder condition of the applicant continues to be contributed to, to a significant degree, by the applicant’s employment with the respondent.
[203] Exhibit A, T-Documents for 2017/4566, T10.
As earlier mentioned, Dr Shaikh in his supplementary report opined that: “If there is an ongoing causation from work injury towards his physical complaints, then the same applies to the psychological complaints/condition, and it can be deemed that he suffers an ongoing work related psychiatric injury”. As I consider that the 2009 back injury continues to contribute, to a significant degree to the applicant’s physical complaints, it follows that the psychiatric condition is work-related. This is in accordance with the opinion of Dr Lotz and Dr Mathew.
What is in issue is whether the employment of the applicant continues to contribute, to a significant degree, to the psychiatric condition of the applicant. Dr Lotz in his report dated 11 July 2018 has given his opinion:
Employment with TNT is a significant contributing factor to his initially physical injury and subsequent psychiatric injury.
In giving evidence Dr Lotz gave reasons for his conclusion:
Well, the initial physical injury took place while he was working with TNT, so that is where the physical injury came from, and then he developed subsequent adjustment disorder with the features of anxiety and depression which then developed into a major depressive disorder. By definition adjustment disorder has a finite limit and then if it goes on beyond the certain period of time it becomes major depressive disorder. That is probably more semantics because the symptoms are exactly the same.
Dr Lotz gave evidence concerning the ability of the applicant to engage in employment due to his psychiatric condition. Dr Lotz remarked:
I think it’s severely limited. Cognitively, people who have major depressive disorder struggle with forgetfulness, organisation, just generally are not functioning as well as they could. This would certainly have limitation on any kind of administrative job which, of course, Mr McFarlane is now only capable of doing, so physically he’s obviously limited by his injury and then, again, with the psychological component he’s limited in his ability to work in an office administration environment.
Dr Lotz gave evidence that the psychiatric symptoms attributable to a work injury do not cease when the work injury ceases. Dr Lotz explained:
No. And then there’s also the complications that follow that. A lot of times people are left on a limb, they don’t get adequate treatment, the employer lets them down, doesn’t follow-up. In this case with Mr McFarlane, he’s been asking for surgery, he hasn’t got it. He’s spoken to people who have had surgery and have had good recovery and have in fact gone back to work, and this has then added more to his frustration in the sense that he has just been rejected and not believed that he has a genuine physical complaint and this needs to be resolved. So again this adds to the psychological part of frustration.
The opinion of Dr Lotz that the cessation of a work injury does not result in the cessation of psychiatric symptoms attributable to that work injury is in accord with the concession of Dr Shaikh that there could be residual psychiatric symptoms following a recovery of a physical injury.
Dr Lotz was asked about his answer to question 7 in his report in which he stated that applicant will require ongoing psychiatric treatment. Dr Lotz remarked:
Well, it’s going to take a long time, as I’ve mentioned there, a further two years of treatment for him to adjust to the fact that, firstly, he’s had to suffer for several years, he’s been belittled, rejected and has been unable to go and find himself a job, which again has affected him as a person, as a husband, as a father, and these kind of existential shocks do take time to recover from.
There are different assessments before the Tribunal as to the degree of permanent impairment (WPI). The assessment by Dr Shaikh was based upon the criteria in the Guide and the information based to him. The assessment by Dr Mathew contained conclusions which were not supported by objective evidence. If I was to prefer an assessment it would be the reasoned assessment of Dr Shaikh. However, as I consider that the psychiatric condition of the applicant Is linked to the lumbar spine condition it is not appropriate that an assessment of the degree of permanent impairment is undertaken unless and until the applicant has undertaken all reasonable rehabilitative treatment for both impairments.[204] I accept the evidence of Dr Shaikh that the applicant has not received maximum medical improvement in the sense that all treatment must have been attempted. Therefore, having regard to paragraph 24(2)(c) of the Act, the psychiatric condition of the applicant does not yet meet the criteria to be regarded as permanent.
[204] Safety, Rehabilitation and Compensation Act 1988 (Cth) paragraph 24(2)(c).
CONCLUSION
The medical condition of the applicant is certainly complex. Dr Gatehouse recognises that the applicant is a person who is in genuine pain. While the aggravation injury of January 2009 might have been expected to resolve within a short term, Dr Boys who examined the applicant had in 2009 recognised that there may be the persistence of symptoms which relate to “specific impairment related to described injury”. During the hearing there was a comment by Dr Gatehouse that these qualifying remarks may relate to a psychological condition. However, Dr Boys being an orthopaedic surgeon would not in my opinion be making observations concerning a medical condition that was not his specialty, without at least qualifying his observations. On my review of the material, it was only in October 2009, several months after the report of Dr Boys, that there is an indication that the applicant had presented with depressive symptoms. I give some weight to the contemporaneous medical report of Dr Boys who recognised in 2009 that there could be an impairment related to the injury. It is clear that the decision of this Tribunal that was made on 9 July 2012 could only award compensation under section 24 of the Act in the case of a permanent injury, being an aggravation of an ailment which was substantially contributed to by the 2009 back injury. There was medical evidence at the time that the applicant had a permanent injury. I accept the considered assessment of both Dr Shaw and Dr McEntee that the applicant continues to suffer the effects of the 2009 back injury. As the 2009 back injury made a substantial contribution to the lumbar spine condition of the applicant, and it has resulted in a permanent injury of the applicant.
Having regard to the considerable medical evidence before the Tribunal, I am satisfied that the applicant is unable to engage in work at the same level at which he was engaged by the respondent immediately before the injury happened. This finding is supported by the evidence of Dr Edwards, Dr McEntee and Dr Shaw. It is unfortunate that the capacity of the applicant to undertake work has declined sharply since the 2009 back injury and has not returned. There is evidence before the Tribunal that he can no longer drive a vehicle without special modifications and cannot stand for extended periods of time. The applicant certainly has limited capacity to lift objects. The continual pain and impaired mobility of the applicant caused by the 2009 back injury has resulted in an incapacity of the applicant to undertake work. Therefore, the applicant has an incapacity for the purposes of subsection 4(9) of the Act. Therefore, the respondent is liable to pay compensation to the applicant in accordance section 19 of the Act.
While I am minded to decide that the proposed surgery is reasonable, I have decided to remit the application no. 6532 of 2015 to the respondent for reconsideration under section 42D of the AAT Act. An up-to-date estimate of medical costs needs to be provided to the respondent for a number of reasons. Dr McEntee indicated that it would be necessary for him to make a final assessment including imaging and other tests before deciding whether surgery is warranted. The estimates of costs that were provided by the applicant do not include post-operative expenses. There is a need for the applicant to undertake any necessary physiotherapy treatment prior to and after undergoing surgery and the costs thereof need to be disclosed; these costs must be addressed in the decision. There is also the chance that by exhausting physiotherapy as a non-surgical treatment option, the applicant’s condition may improve so much that he no longer needs to undergo the proposed surgery; I note the expert opinions before the Tribunal vary as to the likely benefit, if any, from undergoing physiotherapy treatment. There is also a need to consider the impact, if any, of the COVID-19 pandemic on the cost of any proposed medical treatment and the applicant’s ability to undertake that treatment. I would hope that the respondent would act as expeditiously as possible to ensure that the applicant receives the reasonable medical treatment to which he is entitled. There has in the past been some unfortunate process delays in responding to requests for medical treatment. The application is therefore remitted to the respondent under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) to reconsider its decision within 60 days. I would sincerely hope that a decision could be made earlier.
I wish to express my appreciation to Mr Seymour and Ms Slack of Counsel for their assistance to the Tribunal
DECISION
In application no. 6532 of 2015 I remit the decision under review to the respondent for reconsideration under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) having regard to these reasons, in particular at paragraph 307 above, within 60 days of receiving this decision. Costs cannot yet be determined in respect of this application.
In application no. 4565 of 2017 I set aside the decision under review and substitute a decision that the applicant’s lumbar spine condition continues to be contributed to, to a significant degree, by the applicant’s employment with the respondent and therefore, the respondent was, and continues to be, liable to pay compensation under section 16 and section 19 of the Act in relation to the 2009 back injury. Costs in respect of this application are to be agreed or taxed by the Registrar or an officer of the Tribunal.

In application no. 4566 of 2017 I set aside the decision under review and substitute a decision that the applicant suffers from a Major Depressive Disorder condition which continues to be contributed to, to a significant degree, by the applicant’s employment with the respondent and therefore, the respondent was, and continues to be, liable to pay compensation under section 16 and section 19 of the Act in relation to the Major Depressive Disorder condition. Costs in respect of this application are to be agreed or taxed by the Registrar or an officer of the Tribunal.
I affirm the decision under review in application no. 5519 of 2017, being a decision that the respondent was not liable to pay compensation to the applicant for permanent impairment under section 24 of the Act in respect of the applicant’s psychiatric condition. Costs are not payable by the respondent in respect of this application as the decision has been affirmed.

314. I certify that the preceding 313 (Three hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

…………………………………………..
Associate
Dated: 21 September 2020

Dates of Hearing: 30, 21 October 2018, 1, 2 November 2018

Final Submissions Received: 2 April 2019

Solicitor for the Applicant: Ms Kelly Morrow, Maurice Blackburn Lawyers

Counsel for the Applicant: Mr Mark Seymour

Solicitor for the Respondent: Ms Matylda Gostylla, Sparke Helmore Lawyers

Counsel for the Respondent: Ms Kate Slack

Dates of Hearing:	30, 21 October 2018, 1, 2 November 2018
Final Submissions Received:	2 April 2019
Solicitor for the Applicant:	Ms Kelly Morrow, Maurice Blackburn Lawyers
Counsel for the Applicant:	Mr Mark Seymour
Solicitor for the Respondent:	Ms Matylda Gostylla, Sparke Helmore Lawyers
Counsel for the Respondent:	Ms Kate Slack