Mackay and Comcare (Compensation) - [2018] AATA 1244

Mackay and Comcare (Compensation) [2018] AATA 1244 (3 May 2018)
Division:GENERAL DIVISION
File Number: 2016/1449
Re:Mr Russell Mackay
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:3 May 2018
Place:Canberra

The Tribunal:
(a)sets aside the decision under review;
(b)determines that in, substitution, the Applicant has an entitlement to claim compensation for medical treatment under section 16 of the Act and for incapacity under section 19 of the Act for the accepted injury;
(c)remits the Applicant’s claim to the Respondent to calculate and pay compensation to the Applicant in accordance with this decision;
(d)directs that the Applicant is at liberty to apply for costs no later than 30 days from the date of this decision.

........................................................................
Deputy President J Sosso
Catchwords
COMPENSATION – whether medical treatment in relation to the Applicant’s compensable injury – whether medical treatment reasonable for the Applicant to obtain in the circumstances – whether the Applicant is incapacitated for work as a result of a compensable injury – whether the Applicant continues to suffer from the effects of his compensable low back injury of 1995 or whether the Applicant’s injury of 1995 had resolved itself – reviewable decision set aside and substituted.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Canute v Comcare (2006) 226 CLR 535
Comcare v Martin (2016) 258 CLR 467
D’Amico and Comcare [2018] AATA 54
Howes v Comcare [2016] FCA 1521
Kennon v Spry (2008) 238 CLR 266
Lees v Comcare [1999] FCA 753
Manns and Comcare [2012] AATA 462
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Moon and Telstra Corporation Limited [2006] AATA 996
Pratt and Comcare [2004] AATA 1281
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
Deputy President J Sosso
3 May 2018
INTRODUCTION

Mr Russell Mackay (the Applicant) seeks a review of a determination of Comcare (the Respondent) of 3 March 2016 (Exhibit 3 T1 pp. 13 – 17) which affirmed an earlier determination of 27 October 2015 (Exhibit 3 T15 pp. 52-54) denying liability to pay medical treatment expenses and incapacity payments. The reviewable decision was determined under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
The Applicant was employed by ACTEW Corporation from January 1990 until being made redundant in August 2014 - Exhibit 2 paras 2, 35. He was initially employed as a cable laying labourer, which entailed installing cables into new subdivisions and digging up cables for repair – Exhibit 2 para 5. In 1991 he commenced a linesman traineeship on a permanent basis, and this position required physically intensive work, including pushing, pulling and lifting heavy cables – Exhibit 2 paras 6, 7.
In 1995 the Applicant was still working as a linesman. On 27 June 1995, due to inclement weather, the Applicant was indoors at work playing table tennis. At approximately 1:30 pm, when bending over to pick up a table tennis ball, he suffered the onset of pain in his lower back – Exhibit 3 T6 p. 29, T7 p. 30. The Applicant was given permission to return home where he states he suffered “significant agony” and when his partner returned home he was “lying on the floor crying and vomiting” – Exhibit 2 paras 9 – 14.
The Applicant was examined by Dr G J Harrison on 27 June 1995. In this report of 20 July 1995, Dr Harrison made the following observations and diagnosis – Exhibit 3 T9 p. 33:
“Mr Mackay presented to this surgery on 27/06/95. Whilst playing table tennis at work on that same day, he bent over and noticed a sudden onset of left sided lower back pain radiating into the left thigh anteriorly and posteriorly. Mr Mackay had a back injury thirteen years previously and thought that that injury may have been disc related.
I believe that the diagnosis for the current injury, however, is an acute lumbar disc protrusion on the left side impinging on the L5-S1 nerve roots. I also believe that this injury is related to the sudden movement of bending down at table tennis which caused the disc to prolapse. The condition is certainly consistent with the stated cause.
I feel that this current injury is a new one and not an aggravation of his old injury as Mr Mackay has not experienced any back pain in over thirteen years.
When seen on 03/07/95, Mr Mackay was still suffering from lower lumbar back pain which radiated into his left leg…”
The diagnosis of Dr Harrison was clinically based without the benefit of radiology.
On 5 July 1995, the Applicant made a claim for rehabilitation and compensation under the Act. The claimed injury was described as: “lower back acute disc lesion” – Exhibit 3 T4 p. 21. Following standard investigations, including obtaining the above report from Dr Harrison, the Respondent accepted liability under s 14 of the Act.
The Applicant states that Dr Harrison referred him for a six week physiotherapy course, at the end of which he was cleared to return to work on full duties – Exhibit 2 paras 20 - 21.
During the hearing two aspects of the Applicant’s account of events during this time were called into question.
First, in both of the Applicant’s statements (Exhibits 1 and 2) he claimed that he asked his partner to arrange for a medical Locum to examine him (Exhibit 2 para 13) at their home. The Applicant further claims that a Locum did examine him on the evening of 27 June 1995, gave him Valium and Pethidine to manage his pain and directed him to follow up by making an appointment with his GP (Exhibit 2 para 16). The Applicant claims that he did so and attended on his GP on 3 July 1995 (Exhibit 2 para 16).
Mr Woulfe, on behalf of the Respondent, drew the Tribunal’s attention to the dates in the medical report of Dr Harrison previously referred to. In that report, which is dated 20 July 1995, Dr Harrison states that the Applicant presented for treatment on 27 June 1995 – Exhibit 3 T9 p. 33. This is the date of the accident, and a week earlier than the time mentioned in the Applicant’s statement of 16 August 2017. Further, if Dr Harrison’s report is accurate, it potentially calls into question the Applicant’s version of events which involves the intervention of a Locum on 27 June 1995.
As the events of 1995 were 22 years prior to the Applicant’s statement, and nothing turns on whether the Applicant saw Dr Harrison on either 27 June, 3 July or some other date in-between, the Tribunal does not place much significance on this ostensible inconsistency. Further, the Applicant’s original (and undated) statement, which it was said during the hearing was prepared without the assistance of his legal advisors, contains no mention of the date he visited Dr Harrison – Exhibit 1.
The Tribunal found the Applicant to be a witness of credit, whose evidence was given in a direct manner without embellishment. He gave short answers to difficult questions and did not try to qualify answers in a self-serving manner. In short, he presented as an honest person who did not attempt to “guild the lily” or prevaricate.
Second, the Applicant stated that Dr Harrison referred him for a six week physiotherapy course, and only at the conclusion of the course did he return to work – Exhibit 2 para 21. Mr Woulfe also drew to the Tribunal’s attention historical records of the Respondent which indicate that the Respondent only reimbursed ACTEW for payments to the Applicant for the period 28 June 1995 until 7 July 1995 – Exhibit 8 p. 124. In short, a period of less than two weeks, and not the six weeks claimed by the Applicant.
This is, potentially, a much more serious discrepancy. As Mr Woulfe submitted during the hearing, if the Applicant’s injuries were such that he could return to work in less than two weeks, as distinct from six weeks, then they were of much less serious character.
Nonetheless, the Applicant, when giving evidence, was adamant that he did not work for six weeks after the accident. Further, the records of the Respondent that were admitted into evidence are not conclusive as to the length of time the Applicant was absent from the workplace. Finally, Dr Yanni Sergides, Neurosurgeon, when giving evidence, opined that his diagnosis of the Applicant would not have been materially affected by the circumstance of whether the Applicant returned to work in two weeks or six weeks after the June 1995 accident.
Consequently, the Tribunal does not have before it conclusive written evidence that the Applicant returned to work earlier than when he claims. Insofar as the written records of what occurred in 1995 are incomplete and the Tribunal has to place weight on the oral evidence presented, it finds that the account given by the Applicant is believable and is accepted.
The evidence presented from the Applicant indicates that he led an outdoor life which included golfing, water skiing and snowboarding, kept generally very fit, but he still experienced back “trouble” after performing heavy work – Exhibits 2 paras 21 – 22 and Exhibit 11 p. 1. Ms Sharon Allan, the Applicant’s partner since 1981, gave evidence on 19 February 2018 that he has long since given up golfing, water skiing and snowboarding.
The evidence presented discloses that the Applicant obtained the services of various chiropractors for his back condition since 1998 and he has also consulted with his treating general practitioners about the same condition.
The Tribunal was also presented with a written statement of Ms Allan dated 19 January 2017 – Exhibit 10. Ms Allan stated that she did not recall the Applicant complaining of back pain, or requiring any treatment for back pain, prior to the June 1995 accident.
Ms Allen stated as follows – Exhibit 10:
“3. Following the incident of 27 June 1995, Mr Mackay would often complain about the pain in his back.
4. Mr Mackay’s pain would vary, as well as the frequency of his complaints, depending on the intensity of his work that day.
5. The pain was worst when Mr Mackay was on call, and would work up to 16 hours per day.
6. To treat his pain, Mr Mackay tried various treatments including massage, acupuncture, hydrotherapy, exercises and chiropracty (sic).
7. Mr Mackay would still complain that his back would hurt after treatment.”
After being made redundant by ACTEW in August 2014, the Applicant commenced employment as a courier for AJ Logistics. His new employment entailed couriering, by minivan, small to very large objects. The Applicant claims that in April 2015 he experienced right-sided mid-thoracic back pain whilst at work lifting tyres and pushing a pallet on a truck – Exhibit 2 paras 36 – 38.
The Applicant claims that in June 2015 he experienced lower back pain after chopping and lifting a piece of wood weighing approximately 6 – 10 kg. On 30 July 2015, the Applicant reported to a physiotherapist that his lower back pain “flared up” and became severe when he bent over the previous day. Finally, on 26 October 2015, the Applicant reported to Dr Chan-Feng Lin, his GP, that his back pain had been exacerbated by carrying a 6 kg chainsaw and chopping wood. He also stated that his lower back pain had been exacerbated by bending down to pick up soap – Exhibit 2 paras 39 – 41.
Following the June 2015 incident, the Applicant worked with AJ Logistics for two weeks until he was unable to continue due to severe lower back, buttock and thigh pain. Due to the need to take time off work because of his condition, he became unemployed – Exhibit 2 paras 43 – 44.
The Applicant made a claim for an aggravation of the lumbar disc protrusion on the left side impinging on the L5-S1 nerve roots injury sustained on 27 June 1995 – Exhibit 3 T15 p. 52. The Delegate for the Respondent first referred to a CT scan of the Applicant’s lumbar spine of 22 July 2015 which:
“noted no disc protrusions of L/2, L2/3. There are minor annular bulging noted on L3/4 and L4/5. There is diffuse annular bulging noted on L5/S1. There is abutment of the existing L5 and the budding right S1 nerve root present. In conclusion there are multilevel disc protrusions with nerve root impingement noted, and evidence of previous Scheuermann’s disease, which is a skeletal disorder of childhood.”
The Delegate also referred to a report from the Applicant’s treating GP, Dr Lin of 4 October 2015, which was prepared at the request of the Respondent. The following comments were made by the Delegate – Exhibit 3 T15 p. 53:
“Dr Lin advised that you consulted with him with a one month history of low back pain from chopping and lifting wood. He states you described the pain as being the same as you experienced back in 1995 and that clinical examination was consistent with acute lumbar spine sprain.
A CT scan of lumbar spine was performed and showed multilevel disc protrusions with nerve root impingement on L3, L4, L5 and S1 nerve root impingement.
Dr Lin has advised that you have been symptom free since 1995 and that the pathology of nerve root impingement and disc protrusion do remain, it is ‘possible’ that the exacerbation of this condition can occur with further injury of trauma.
Dr Lin continues to observe that it is ‘possible’ that chopping wood in June 2015 may have aggravated your previous compensable injury of 27 June 1995?
Dr Lin states that the sedentary nature of your formal position as a courier is likely to be a factor to this injury given that you live a very active physical life.
Dr Lin notes the prognosis of your ‘current condition is excellent and one expects complete resolution of the symptoms over the next few weeks’.
Dr Lin goes on to state ‘Unfortunately insufficient information is available from the injury in 1995, the only association linking the two injuries are the reported similar symptoms’’. Again Dr Lin states ‘It is a possibility that the injury in June 2015 was an aggravation of the previous injury sustained on 27 June 1995.”
The Delegate then gave the following reasons for not accepting liability to pay for medical treatment – Exhibit 3 T15 p. 54:
“I have given consideration to a number of factors in order to make my determination. These are the fact that you were outside the workplace on the occasions this year when you injured yourself, those being chopping wood and in the shower.
You appear to have been symptom free from 1995 to the occasion of chopping wood in 2015, this you say due to your very physical lifestyle.
I have also taken into consideration Dr Lin’s report. He states it is ‘possible’ that there is a connection. However, his report does not confirm the connection between your injury of 1995 and your injury of 2015…”
This decision was reconsidered on 3 March 2016. In the reviewable decision the Review Officer varied the above determination by deciding that the incapacity entitlements fell under s 19 of the Act and not s 14 as was stated by the Delegate.
The Review Officer was not satisfied that the Applicant had a present entitlement to claim compensation for medical treatment under s 16 or for incapacity under s 19, as neither the medical treatment or incapacity were related to his accepted condition. Instead, the Review Officer found that the medical treatment and incapacity were in relation to the incident in June 2015 – Exhibit 3 T1 p. 16.
In reaching this conclusion the Review Officer referred to reports provided by the Applicant’s GP, Dr Lin, and his physiotherapist, Mr Sempf, and to inconsistencies in those reports – Exhibit 3 T1 p. 15:
“In relation to your condition, I note that your general practitioner, Dr Lin, states that it is possible the chopping and lifting wood in June 2015 may have aggravated your previous compensable injury based on the symptoms that you reported at the consultation. In his opinion the most significant issue is the fact that you lost your job due to this episode of injury. He also states that the only association linking the two injuries are the reported similar symptoms.
Your physiotherapist, Mr Sempf, states that your current condition is as a result of your level of activity secondary to a more sedentary lifestyle and style of work.
Your chiropractor, Mr Small, states that your symptoms are of discogenic and facet derived pain patterns secondary to the progressive degenerative changes noted in your low lumbar spine.
I note inconsistencies with the findings and opinions between Mr Sempf and Dr Lin. Mr Sempf has stated that your multilevel disc protrusions with significant bulge at L5/S1 are consistent with your previous injury, and he also notes reduced level of activity secondary to a more sedentary style of work is likely to have contributed to your deconditioning and been a cause of stiffness, while Dr Lin has stated that your former position as a courier is unlikely to be a factor to this injury, given that you have a very active physical lifestyle.
In regards to the reports from Mr Sempf and Dr Lin, I have preferred the opinion of Dr Lin as a legally qualified medical practitioner, his area of expertise, and the comprehensive report that he has provided in respect of this injury.”
A hearing was convened in Canberra between 19 – 20 February 2018. The Applicant was represented by Mr Pattenden of Counsel, instructed by Slater & Gordon Lawyers. The Respondent was represented by Mr Woulfe of Counsel, instructed by the Australian Government Solicitor (AGS). Both the Applicant and his partner, Ms Allan, gave evidence and were cross-examined. Further, concurrent medical evidence was provided on 20 February 2018 by Dr Sergides and Dr Khurana who were both connected by telephone.
Mr Pattenden and Mr Woulfe agreed on seven questions which were each asked of Dr Sergides and Dr Khurana for the purposes of concurrent evidence:
(a) On 27 June 1995, did Mr Mackay suffer an injury?
(b) If the answer to Question 1 is “yes”, what injury did Mr Mackay suffer?
(c) What are the likely sequelae of that injury?
(d) What is the likely duration of any such sequelae?
(e) If the answer to Question 1 is “no”, what (if anything) did Mr Mackay experience in the “lunchroom” incident of 27 June 1995?
(f) What is the diagnosis of the current condition in the lumbar spine (if any) from which Mr Mackay is suffering?
(g) What are the causes of that condition (if any)?
MEDICAL EVIDENCE
Before turning to the specific medical evidence, it is important to note that while lower back pain is a common condition, its causes are numerous. The term “discogenic pain” means that one or more intervertebral discs are the pain source. Discs are comprised of two parts: the annulus fibrosus (outer ring-like structure) and the nucleus pulposus (gel-like interior). While the nucleus pulposus is devoid of nerves, the outer third of the annulus fibrosus contains nerve fibres. When the annulus fibrosus experiences a tear, normally this results in an irritation of the nerves causing an inflammatory response and pain.
A prolapsed (herniated) disc occurs when the annulus fibrosus is injured and the nucleus pulposus bulges out beyond the damaged outer rings. This can result in nerve root compression. A disc protrusion is a condition when the outermost layers of the annulus fibrosus while still intact bulge when the disc is under pressure. In contrast with herniation, none of the central portion escapes beyond the outer layers. Most minor herniations heal within a number of weeks.
“Imaging” is a term that comprises a number of different technologies, including X-ray, computed tomography scan (CT or CAT scan) and magnetic resonance imaging (MRI). An MRI performed with high magnetic field strength usually provides the most conclusive evidence for diagnosis of a disc injury. In comparison, an X-ray is limited in its ability to image soft tissues such as discs, muscles and nerves. However, an X-ray can play a role in confirming the suspicion of the presence of a herniated disc.
As indicated, the Tribunal had the benefit of listening to the evidence of both Dr Sergides and Dr Khurana, both of whom are Neurosurgeons.

The Tribunal was also provided with written reports from both Doctors, as well as two medical reports from Dr Mills, Consultant Orthopaedic Surgeon. Further, the Tribunal was also provided with extensive material from various sources including the Kambah Chiropractic & Natural Health Clinic, Annie Lim Family Practice Pty Ltd, the Sports Medicine Centre and the Kambah Spinal Health Centre.
As considerable reliance was placed on the medical opinions of Doctors Sergides, Khurana and Mills, substantial extracts from their reports are set out below.
Dr Yanni Sergides
Dr Sergides prepared a report dated 28 March 2017 at the request of Slater & Gordon. The letter briefing Dr Sergides was tendered (Exhibit 11) which disclosed he was briefed with most of the then extant medical documents relevant to the matter.
Dr Sergides examined the Applicant in his Roseville offices on 28 March 2017.
Dr Sergides provided a history of the Applicant’s condition from 1995. After outlining and discussing the 1995 incident, he made the following observations – Exhibit 11 p. 3:
“The severe pain which occurred on the 27^th June 1995 eventually settled down of its own accord and he continued to work at ACT Electricity and Water. However, following this episode, he had intermittent flare ups of low back pain over the next twenty years. Over this period, the pain would largely be in his back though he did have intermittent periods of pain down his left leg. The episodes would occur approximately four times a year and the pain would last a week or so each time. He saw a chiropractor many times of this 20 year period. Although he continued to work, he found the physical work over the years more difficult because of back pain and he would delegate the heavier side of his job as he became more senior.
I note from your letter three discrete presenting events of his back pain, in 2012, 2013 and 2014. The events in 2013 and 14 were brought on by activities whilst he was not at work but these episodes appear to be consistent with the trend of his pain over the previous 19 years or so. Each of these three episodes settled after a week or two as did the episodes in the preceding 19 years. In April 2015, in his new employment, he developed a right-sided thoracic pain after pushing a palette onto a truck and lifting tyres earlier that day but he described this as a muscular pain and it also settled within a few days.
In June 2015, Mr Mackay reaggravated his low back pain and has been unable to recover. He tells me he was collecting and lifting wood for the fire at his home and noticed a severe low back pain radiating to his left thigh again. He saw a physiotherapist but continued to be in pain over the new few weeks. On July 30^th, 2015 he reported to a physiotherapist that his low back pain became severe when he bent over and a further episode of carrying wood in July led to another exacerbation. He continued to work in his new employment for two weeks following his exacerbation in June 2015 and then he lost his job because he needed to take so much time off.”
After outlining the Applicant’s current symptoms, treatment to date, activities of daily living and investigations, Dr Sergides provided his general and clinical summary and recommendations as follows – Exhibit 11 p. 3:
“SUMMARY
Mr Mackay was a previously well gentleman until an injury to his back on the 27^th June 1995. No imaging was performed at the time but he suffered acute low back pain and sciatica suggesting a prolapsed lumbar intervertebral disc. He subsequently suffered intermittent exacerbations of predominantly low back pain over the next 20 years requiring chiropractic visits, each lasting a week or so. This trend continued until reaggravation of his injury in June 2015.
CLINICAL SUMMARY AND RECOMMENDATIONS
Mr Mackay has axial low back pain which may have a discogenic component. He also has sacroiliac joint dysfunction, which is the most likely cause of the left thigh and intermittent leg pain. I think he should have a specialist spinal surgeon review following which an MRI scan is likely to be requested. I think he would also benefit from review by a musculoskeletal physician or other practitioners such as a physiotherapist with specialist interest to treat the left sacroiliac dysfunction.”
Dr Sergides subsequently opined that the Applicant’s condition (p. 4):
“was contributed to a significant degree by Mr Mackay’s employment. I have detailed my opinion in the text above, that he had an injury in 1995 which has led to recurrent episodes of low back pain over 20 years and a subsequent reaggravation in June 2015.”
During both the concurrent evidence, and in subsequent cross-examination, Dr Sergides stood by the above diagnosis. He opined that the Applicant was suffering from discogenic back pain which flowed from the injury he sustained in 1995. Dr Sergides testified that the Applicant had suffered a traumatic rupture of his disc resulting in devascularisation. When questioned, he opined that in his opinion the injury sustained in 1995 had never resolved itself. Further, he testified that the 2015 incident re-aggravated the underlying and unresolved condition brought about by the 1995 incident.
Dr Gautam Khurana
The Respondent provided the Tribunal a copy of Dr Khurana’s briefing letter of 28 February 2017. Dr Khurana was not only briefed with the same material as Dr Sergides, but with additional material including, inter alia, the Applicant’s dated witness statement, the Applicant’s sick leave records for 2007 – 2012 and the Applicant’s claims history.
Whilst briefed with additional material, Dr Khurana did not examine or otherwise have any personal interaction with the Applicant prior to the preparation of his report – Exhibit 12 p. 3.
Dr Khurana’s report is very detailed and is 13 pages in length. In the first part of his report Dr Khurana summarises the voluminous material he was briefed with and makes comments on the various findings by other persons. In the second part of his report he responds to the seven questions posed by AGS.
The first Question concerned the Applicant’s current condition and its relation to the 1995 injury. The Question was comprised of six discrete sub-questions, however for present purposes it will suffice to set out Dr Khurana’s response – Exhibit 12 pp. 9 – 10:
“The current condition suffered by Mr Mackay appears to be symptomatic multilevel lumbar spondylosis and I do not believe there is any proper relationship between the current condition and the 1995 reported injury.
The condition that he currently suffers based on all the information that I have been provided with and which I have reviewed, is more likely than not associated with the effects of congenital factors (thoracolumbar scoliosis, predisposition from Schueremann’s disease) and acquired/lifestyle factors (contribution from smoking, contribution by regular activities such as snowboarding, water skiing, collecting firewood) and other physical activities such as working in other physical jobs, in addition to natural ageing on the spine. I note that there was no relevant imaging undertaken at the time of the original diagnosis in 1995 which I gather was based on history and clinical findings only. Subsequently the imaging has indicated multilevel spondylosis, see for example the CT scan lumbar spine reported on 22 July 2015, as referred to above. The documentary material provided to me, including the statement of Mr Mackay and various reports and records of general practitioners, chiropractors, physiotherapists and IME orthopaedic surgeon reports (Dr Mills), does not substantiate a proper relationship between the 1995 injury and the current presentation but rather suggests a new injury has occurred in or around 2015 on top of chronic multilevel lumbar spondylosis.”
Later in his report Dr Khurana opined what he believed the Applicant was currently suffering from – Exhibit 12 p. 12:
“He is suffering from a more recent injury to the lumbar spine, probably related to activities outside of work, inasmuch as they are probably equally related to the effects of natural aging (sic) and constitutional progression of multilevel, multiregional spondylosis consistent with imaging data over the years, albeit limited imaging data. It is more likely than not that the reported 2015 and onwards episodes, unrelated to the 1995 episode of 20 years previously, are the culmination of constitutional progression of multilevel, multiregional spondylosis and cannot be properly attributed to a specific work-related injury such as that reported in 1995 during a game of table tennis.”
Dr Khurana, both in his report and during his testimony, opined that the Applicant was no longer suffering from the effects of the 1995 injury – Exhibit 12 p. 12.
Dr Craig Mills
Dr Mills is an Orthopaedic Surgeon who was originally briefed by AGS on 27 July 2016 to examine the Applicant and was asked to address seven questions which were contained in Annexure 1 of the briefing letter. Dr Mills was also briefed with extensive material, but not with all of the material provided to Dr Khurana. Nonetheless, he was briefed with a copy of the Applicant’s dated witness statement.
Unlike Dr Khurana, Dr Mills examined the Applicant.
Dr Mills prepared a comprehensive report dated 2 August 2016 which was admitted into evidence as Exhibit 13.
After outlining the Applicant’s occupation, work duties and the mechanism of the alleged injury/sequence of events, Dr Mills opined – Exhibit 13 p. 4:
“The issues for consideration in the report are whether Mr Mackay’s current back condition is related to his accepted condition. After review of Mr Mackay’s history and his associated documents and having performed an examination and review of the reports of the radiology as summarised in previous correspondence without access to the actual radiographs, I note that his back pain commenced in 1995 as a result of a forward flexion episode whilst at work but in the setting of a very heavy occasional lifting role such that the regional determination for a work-related back injury in my opinion from the history given, relates not only to the forward flexion episode but also the repetitive heavy lifting of cables and for example 36 foot ladders.
On a historical basis he has never had an extended period since that time of pain-free heavy activities. The longest period without major symptoms over that period he estimates at six months and there is documentary evidence of occasional visits to his general practitioner but from a historical perspective, he describes self-management of his low back pain. On this basis, he has had an aggravation of a lumbar spine condition that has failed to resolve since the original injury and on this basis, his current back condition is related to his accepted condition of 1995.”
Following receipt of Dr Mills’ report, AGS sought a supplementary report. In the briefing letter of 29 September 2016, five very detailed questions were posed.
The first Question related to Dr Mills’ diagnosis that the Applicant had suffered an aggravation of his lumbar spine which had not resolved since the original injury in 1995, and that his current back condition was therefore related to his accepted condition of 1995. AGS drew to Dr Mills’ attention he stated in his first report that the Applicant had undergone a CT scan after the original accident, whereas that was not the case. Dr Mills response was as follows – Exhibit 14 p. 3:
“He has a tear in the annulus fibrosus of the LT/S1 disc, he has as disc protrusion of the nucleus pulposus through the annular tear, he has neural impingement of L5 and S1 nerve roots, he has disc desiccation of the intervertebral disc, he has developed facetal tenderness L5/S1 with some evidence on CT for degenerative arthrosis (2015), he has fluctuating core stabiliser muscular dysfunction.
There is a loss of discal (and overall body) height at L5/S1.
There is mild (fluctuating) hamstrings tightness and reduced flexibility.
These diagnoses are supported from the CT made in 2015.
The GP notes the original diagnosis of his acute lumbar spine condition was clinical, not CT based, and that is a testament to the excellent clinical skills of Dr Harrison, that he made a correct level diagnosis, confirmed on a CT scan 20 years later.”
Dr Mills was asked to provide a detailed explanation of how the accepted condition is related to the Applicant’s current condition. His response was as follows – Exhibit 14 p. 3:
“His current symptoms and dysfunction related to dysfunctional, degenerate LT/S1 disc, neural impingement, reduced flexibility and stability of the lumbar spine and chronic fluctuating pain from those Structural elements.
This is the disc that protruded through the annular tear in 1995 has remained damaged, (and the level of damage has increased), the neural impingement remains an intermittent issue, despite damage related atrophy of the nerve roots.
There has been increased load on the facet joints which have become degenerate.
This occurs with gravity and continued use of the lumbar spine.”
Dr Mills was then asked why the Applicant’s employment with AJ Logistics as a courier was not causative of his current position. His response was – Exhibit 14 p. 4:
“Here ‘causative’ means original cause of. The back condition already exists and further exacerbations caused by lifting are not causing a new back problem to arise after a complete healing of the condition. The condition continues to exist and is not caused to arise anew. The condition is exacerbated and this is caused by the lifting, or aggravated in the sense of increased symptomatology.”
Finally, Dr Mills opined that it was the Applicant’s work as a linesman that was the causative activity for the accepted condition. He said (Exhibit 14 p. 5):
“In my opinion the forward flexion when playing table tennis was a ‘small straw that broke the camel’s back’. In other words his very heavy lifting as a linesman had initiated the annular tearing, and the final tear through the annulus, was in the setting of the table tennis activity.”
Although the Respondent sought and obtained the above expert opinions of Dr Mills, it specifically refused to call him to give evidence. This was despite the fact that the Direction made by Deputy President Humphries of 8 November 2017 for the agreed questions, envisaged that Dr Mills would be a participant in the “hot tubbing”.
Clearly, it is open to a party who has obtained a written report from an expert to decline to call that person to give oral evidence. Whilst there is no property in a witness, and, in theory, the Applicant could have called Dr Mills, the logistics in terms of time and cost precluded that course of action. In any event, the Tribunal has received into evidence the reports of Dr Mills and they have been accorded appropriate weight in the context of an expert who, through no fault of his, was not given the opportunity to give oral evidence.
Concurrent evidence
Doctors Sergides and Khurana were linked in by telephone to give concurrent evidence on 20 February 2018. The format adopted was that the Tribunal asked the Doctors to respond to each of the seven questions posed, with an opportunity for each of the Doctors to engage in a dialogue on areas of agreement/disagreement. As Question 5 was dependent on a negative answer to Question 1, and both Doctors answered in the affirmative, it was not posed. At the conclusion of this part of the evidence, the Tribunal gave both Mr Pattenden and Mr Woulfe an opportunity to ask further questions of the Doctors, with each being given a set period of time in which to do so.
As there is no transcript of the proceedings, the following account of the evidence given is based on notes taken at the time. Consequently, the following account is intended to provide an overview of the evidence and is not a verbatim record of proceedings.
Both Doctors were in agreement that the Applicant suffered an injury on 27 June 2015.
As to the injury that the Applicant suffered, Dr Sergides said that this was difficult to answer as there was not any imaging performed at the time. Nonetheless, he opined that the injury was a severe one, the Applicant was in great pain and needed six weeks to recover. In short it was not a minor injury, and he testified that he believed it was an acute lumbar disc prolapse. Dr Khurana agreed with Dr Sergides, and said that, based on historical information, the Applicant presented with lumbar disc prolapse. He noted, however, that the only historical evidence was the clinical diagnosis of Dr Harrison.
Question three concerned the likely sequalae of the injury. Dr Sergides testified that this was the strongest argument of the Applicant. He said that people suffering such an injury exhibited no consistent clinical path. Most people improve and never experience pain and related symptoms again. However, other people continue to experience pain, which can at times be disabling. In this instance Dr Sergides posed the question: does the Applicant fit the sequalae of lumbar disc prolapse?; and he answered in the affirmative. Dr Khurana again agreed with Dr Sergides, testifying that injuries of this type mostly resolve within 6 – 8 weeks; but some do not. In this matter the Applicant reported that he was able to undertake physical activities such as skiing and wood chopping and Dr Khurana thought that this may indicate it was a manifestation of recovery. Dr Khurana also said that he found it hard to reconcile the Applicant’s history of engaging in skiing and snowboarding, with his claim that he had been in pain consistently since his June 1995 injury. In short, Dr Khurana opined that he believed the Applicant had recovered from his June 1995 injury.
Dr Sergides responded that it is sometimes the case with lumbar disc prolapse that a person will be in consistent low-level pain and live a miserable existence. However, in other cases people can live normal lives but suffer intermittent back pain. Not all sufferers are chronically miserable. In short, Dr Sergides, without using these words, opined that some persons with lumbar disc prolapse have good and bad days, rather than each day being a bad day.
Question four was the likely duration of such sequelae. Dr Sergides testified that the Applicant could be suffering the same pain problem 20 years later. He opined that a lot can happen in 20 years, including degenerative changes in the spine. The spine of a 46 year old man is different to that of a 26 year old. He stated that the Applicant is suffering from the same lumbar disc prolapse as in 1995. Dr Khurana noted that there was deficient imaging, and reliance had to be placed on the clinical opinions and notes of Dr Harrison. Dr Khurana referred to Dr Mills’ diagnosis of an annular tear, and noted the problem with presenting delayed consequences of an initial injury. Dr Khurana opined that in this instance, the evidence suggested the sequelae of multifactorial pathology, with the initial injury likely to have resolved itself within six weeks.
Question six was the diagnosis of the current condition in the lumbar spine, if any, from which the Applicant suffers. Dr Sergides opined that the Applicant suffered from discogenic back pain and observed that this condition had also been diagnosed by Dr Mills. He stated that discogenic back pain could be triggered by prolonged sitting and bending forward. Further, he testified that the pain in the Applicant’s thigh was sciatica. Dr Khurana testified that the Applicant’s lumbar spine condition was produced by congenital factors, in particular multilevel lumbar spondylosis. He was of the view that there was a natural ageing of the lumbar spine with issues resulting therefrom. In short, Dr Khurana was of the view that the Applicant presented with a multilevel, multiregional progression as distinct from a specific pathology from 1995.
The final Question posed was: what were the causes of the Applicant’s lumbar spine condition? Dr Sergides again testified that the Applicant was suffering from discogenic back pain. He stated that in his opinion the Applicant suffered, in 1995, a traumatic annular tear. Over the years there have been further tears with consequent “flare-ups”. The Applicant suffered pain in the same place and he has followed a predictable course. Dr Sergides stated that the Applicant suffered a traumatic rupture of the disc in his lumbar spine with consequent devascularisation of the affected disc. Dr Khurana agreed that if the Applicant suffered from a discogenic issue, the prognosis of Dr Sergides could not be disputed. However, Dr Khurana said that the preferable diagnosis was that the Applicant was suffering the effects of constitutional degeneration of the spine and not “flare ups” brought about by the injury he suffered in 1995.

Concurrent evidence has been a feature of the Tribunal’s proceedings for almost two decades. In a number of the earlier determinations where it was utilised, the relevant Members noted how useful this procedure was in resolving divergent opinions of expert witnesses – e.g. Temple and Repatriation Commission [2001] AATA 490. While there was no reconciliation of the opinions of the experts in this matter, the Tribunal found the exercise extremely useful. There can be tendency in Tribunal proceedings for counsel to focus on the brevity or length of expert reports and submit that less or greater weight should be placed on the opinions expressed therein. The giving of concurrent evidence in this case allowed the Tribunal to hear how the two experts responded to written and oral questions. In so doing, the Tribunal was able to form a better and more refined view about the strength and weaknesses of the reasoning and conclusions of the respective expert witnesses. Insofar as Tribunal proceedings are designed to be inquisitorial and not adversarial, the “hot tubbing” exercise in this matter was of great assistance.
Other medical evidence
The Tribunal has been presented with a plethora of medical and radiological reports. Where relevant, these are referred to later in this determination.
A CT of the Applicant’s lumbar spine was performed by Dr S W Van Der Merwe on

22 July 2015 – Exhibit 3 T 10 p. 36. In his report of the same date, Dr Van Der Merwe found minor annular bulging with abutment of the nerve roots at the L3/4 and L4/5 levels. At the L5/S1 level he found diffuse annual bulging with a focal central disc protrusion. He also noted that there was abutment of the exiting L5 and budding right S1 nerve root present. He found no presence of spondylolysis, spondylolisthesis or facet joint degenerative changes. Finally, he found evidence of previous Scheuermann’s disease.
The Applicant’s GP, Dr Lin, prepared a report at the request of the Respondent

(Exhibit 3 T12 pp. 40 – 44) which is dated 4 October 2015 – Exhibit 3 T13 pp. 45 – 49. The report was referred to by Delegate as set out in [25] above. Dr Lin was asked a series of questions. Dr Lin first described how the Applicant presented in July 2015 – p. 45:
“Mr. Mackay presented to me on 22 July 2015 with one month history of low back pain following chopping and lifting wood. He had undergone massage and chiropractic therapies without much success.
He described back pain as left sided low back pain radiating to left hip and it hurt to cough and the pain he experienced is similar to the symptoms of previous low back injury from work injury on 27 June 1995.
Clinical examination was consistent with acute lumbar spine sprain. As Mr. Mackay was not able to afford the cost of an MRI of lumbar spine which provided better imaging of nerve root impingement, a CT scan of lumbar spine was performed and showed multilevel disc protrusions with nerve root impingement on L3, L4, L5 and S1 nerve root impingement.”
The next question was whether the Applicant’s “claimed” lack of symptoms since the June 1995 accident, in the context of an active physical work and social life, was consistent with an assumption that his 1995 injury had healed. Dr Lin’s response was as follows – p. 46:
“Reports for Mr Mackey’s (sic) previous imaging in 1995 were not available.
Dr Graeme Harrison wrote to Comcare on 20 July 1995 stating ‘I believe that the diagnosis of the current injury is an acute lumbar disc protrusion on the left side impinging on the L5-S1 nerve roots.’
Mr Mackay has been symptom free since then. However as the back pathology of nerve root impingement and disc protrusion do remain, it is possible that the exacerbation of this condition can occur with further injury or trauma.”
The third Question was what, on the balance of probability, as opposed to possibility, was the likelihood of the Applicant’s current injury being related to his June 1995 injury. Dr Lin responded as follows – p. 46:
“It is possible that chopping and lifting wood in June 2015 may aggravate previous compensable injury on 27 June 1995 based on the symptoms reported by Mr Mackay. Comparison of current imaging to previous imaging in 1995 may assist in association of the 2 injuries. MRI of the lumbar spine is helpful in linking the possible association of the 2 injuries as CT lumbar spines on 22 July 2015 did not show the left sided symptoms (L5/S1 Level: diffuse annular bulging noted with a focal central disc protrusion. There is abutment of the exiting L5 and the budding right S1 nerve root present).”
In response to a series of questions posed concerning the severity of the Applicant’s injuries and his prognosis, Dr Lin stated – p. 47:
“On consultations with Mr Mackay on 5 August 2015 and 31 August 2015, he reported continuing improvement with his low back pain. Given the reported symptoms of this episode of low back are similar to those reported in 1995, it is possible that chopping and lifting wood in June 2015 may aggravate previous compensable injury on 27 June 1995.”
The Applicant also sought physiotherapy treatment in 2015 at The Sports Medicine Centre. In a report dated 17 November 2015, Mr Tim Sempf, Physiotherapist, stated – Exhibit 3 T16 p. 55:
“Russell has been attending The Sports Medicine Centre for rehabilitation of his Lower Back Injury. He explains having suffered a L5-S1 disc injury while at work 1995 for which he built up strength which was considered adequate for his return to work. Once he returned to work he explained he was moved to an office role. He explained following being moved to the office duties his activity levels decreased and his back became tighter.
Initial examination on 30 July 2015 in our clinic revealed significant restriction in range limited by pain and spasm. He displayed significate neural tension fitting with MRI, date 22 July 2015, findings showing multilevel disc protrusions with the most significant bulge at L5/S1.
Examination dated 10 November 2015 shows moderate levels of quadratus lumborum and glute medius and piriformis spasm. His range on examination on revealed to fingers to the floor for flexion, lateral flexion half that of a healthy individual limited by a ‘grabbing sensation and pain’. Neural tension testing shows moderate lower limb restriction with a straight leg raise of 60 degrees left and right. He is very stiff in mildly sensitive through his L4 to S1 joints bilaterally. He also has a moderate level of muscle atrophy in his lower lumbar.
The aforementioned findings in my professional opinion are consistent with his previous injury. The reduced level of activity secondary to more sedentary style work is likely to have contributed to his deconditioning and been a cause of stiffness.”
Finally, the Applicant also obtained chiropractic treatment from at least two clinics in the periods 1998 – 2000 and 2003 to the present. Mr Newton Small, Chiropractor of the Kumbah Chiropractic Clinic, in a report dated 11 January 2016, stated – Exhibits 3 T18 p. 58 and 6 p. 2:
“Please be advised that Mr Mackay has been attending this clinic for assessment and treatment for ongoing Low Lumbar symptoms at variable frequency since August 2003.
His symptoms are of discogenic and facet derived pain patterns secondary to the progressive degenerative changes noted in his low lumbar spine.
With this in mind, I have recommended that he continue to receive ongoing management in conjunction with prescribed self-help routines.”
LEGAL PRINCIPLES
Subsection 14(1) of the Act provides that, subject to the provisions in Part II, the Respondent is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
“Injury” is defined in s 4(1) of the Act. The High Court considered that definition and provided detailed guidance on how to apply it in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at [41] – [56]/479 – 483.
While s 14 is the central provision in the Act so far as the liability of the Respondent to pay compensation, it does not cover the field – Lees v Comcare [1999] FCA 753; 56 ALD 84 at [27].
It was pointed out in Lees that other provisions in Part II are also critical, in that the amount of compensation payable, the nature of the compensation, the person(s) to whom compensation is payable and the time(s) at which liability will give rise to a present obligation to make payments also may need to be determined.
The first provision of importance in this matter is s 16. The Respondent is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, being treatment that is reasonable for the employee to obtain in the circumstances, such amount that the Respondent determines is appropriate to that medical treatment.
It will be seen that the threshold question posed by s 16 is whether the medical treatment is in relation to the compensable injury. It is only when this is positively determined that the reasonableness of the treatment is addressed.
The phrase “in relation to” has been given a broad and expansive interpretation. In Kennon v Spry (2008) 238 CLR 266 Kiefel J (as she then was) said (at [217]) “in relation to”:
“is of wide and general import and should not be read down in the absence of some compelling reason to do so…the words are prima facie broad and designed to catch things which have a sufficient nexus to the subject. The question of nexus is dependent upon statutory context.”
Mr Woulfe drew the Tribunal’s attention to the recent Federal Court decision of Howes v Comcare [2016] FCA 1521.
The notice of appeal in that case identified for the Court three questions of law. The first two of those questions are as follows (at [23]):
“1. Whether the Tribunal misconstrued section 16 of the Safety Rehabilitation and Compensation Act 1988 (‘SRCA’) in holding that surgery undertaken on the advice of treating medical practitioners for the express purpose of ameliorating pain associated with an accepted injury, is not surgery undertaken in ‘relation to the injury’ as those words appear in section of the SRCA.
2. Whether the Tribunal misconstrued section 16 of the Safety Rehabilitation and Compensation Act 1988 (SRCA) in holding that the words ‘in relation to the injury’ as they appear in section 16 of the SRCA bear no purposive connotation, whether the purpose be that of the patient or the medical practitioners or both.”
His Honour Justice Griffiths dealt with both questions together, and said:
“53 It is evident from the AAT’s reasons in the proceedings here that, in determining whether or not the breast reduction surgery was ‘in relation to’ the applicant’s compensable injuries, consideration was given inter alia to the evidence of the applicant’s various medical advisors, as well as the evidence of Dr Maxwell. This is reflected in the AAT’s findings…in particular…where a finding was made that all five of the applicant’s doctors advised her that breast reduction surgery might reduce the pain…It is not the case that the Senior Member did not consider the applicant’s medical evidence or regard it as being irrelevant to the question whether the surgery was in relation to the compensable injuries. He plainly did view it as relevant, but he preferred to accept Dr Maxwell’s evidence, which was to the effect that breast reduction surgery could not have affected he symptoms of the applicant’s compensable injuries…Dr Maxwell’s opinion was heavily influenced by the fact that the applicant’s spinal injuries related to her cervical spine and not her thoracic spine and his view that the weight of the applicant’s breasts was borne by her thoracic spine and not the cervical spine. He also explained that the neck pain would not be affected by the breast reduction surgery.
54 …The AAT approached the central issue on the basis that the relational connexion between the surgery and the compensable injuries had to be determined objectively and by reference to all relevant evidence. I accept Comcare’s submission that, in order to determine whether the relational connexion existed, it was necessary for the AAT to consider the nature of the compensable injuries…Contrary to the applicant’s contention that Dr Maxwell’s evidence was only relevant to the issue of ‘reasonableness’, I consider it was relevant to the prior question whether the surgery was in relation to those injuries. It was open to the AAT to prefer his evidence on this question. I do not consider that this simply involved a finding of fact, as suggested by Comcare. The AAT’s conclusion that the surgery was not in relation the injuries is more accurately described as ‘an evaluative conclusion’ based on primary facts…The subjective views of either the applicant or her medical advisors were not determinative…
55 It was a matter for the AAT to consider and weigh the conflicting medical evidence…”
Apart from Howes, reference can also be made to three AAT determinations which provide guidance on the proper interpretation, and application, of “in relation to” – Pratt and Comcare [2004] AATA 1281, Manns and Comcare [2012] AATA 462 and D’Amico and Comcare [2018] AATA 54.
Section 19 provides for the payment of compensation to an employee who is incapacitated for work as a result of an injury.
Subsection 4(9) provides that a reference in the Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged immediately before the injury happened.
In this matter attention is directed to paragraph (b), which has been the subject of numerous Tribunal determinations. For present purposes reference can be made to the following observations by the Tribunal in Moon and Telstra Corporation Limited [2006] AATA 996:
“21. The definition of ‘incapacity for work’ in ss 4(9) refers to an incapacity to engage in work ‘at the same level’; it does not require a return to precisely the same duties…I am satisfied Ms Moon was engaged in work at the same level when she retired even though she may not have been carrying out one of her pre-injury duties, namely the taking of calls from technicians. On the facts before me, the floor of the building on which Ms Moon was working and the identity of her supervisor are totally irrelevant to the determination of the level at which she was working.”
Mr Woulfe drew the Tribunal’s attention to the recent High Court decision of Comcare v Martin (2016) 258 CLR 467, for guidance on the proper interpretation of the phrase “as a result”.
French CJ, Bell, Gaegler, Keane and Nettle JJ said (479/[42]):
“Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm.”
Their Honours then provided the following guidance on the practical application of “as a result” in the context of the definition of injury in s 5A in a case involving reasonable administrative action ([45], [47]/479 – 480):
“45…an employee has suffered a disease ‘as a result of’ administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.
47…the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.”
Mr Woulfe submitted (Comcare’s Outline of Submissions (COS) at para 12), and the Tribunal agrees, that the above cases and statutory provisions require the Tribunal to take into account the following:
(a)in deciding, pursuant to s 16, whether the Applicant obtained medical treatment in relation to the accepted lower back injury of 27 June 1995, in the period from that time to the present, the Tribunal must:
(i)take into account the nature of the previously accepted lower back injury; and
(ii)by reference to all relevant evidence, which permits the Tribunal to prefer the evidence of one expert witness to the evidence provided by another expert witness; and
(c)in deciding the claim under s 19, it is necessary for the Tribunal to consider whether the previously accepted injury was an event without which the Applicant would not have suffered incapacity for work in the period from June 1995 to the present.
CONSIDERATION
Introduction
The Respondent has not submitted that the Tribunal make findings of fact contrary to those accepted in 1995 which underpinned acceptance of liability pursuant to ss 16 and 19. In short, there is no suggestion that this is a Telstra Corporation Limited v Hannaford (2006) 151 FCR 253 matter.
Respondent’s contentions
The Respondent submits (COS paras 13 – 14) that the Tribunal should prefer the evidence of Dr Khurana which establishes, it is said, that on the balance of probabilities the Applicant did not obtain medical treatment in relation to, or suffer incapacity for work, as a result of, the previously accepted lower back injury of June 1995.
In particular, the Respondent contends that the evidence of Dr Khurana supports the following findings of fact:
(a)the current condition suffered by the Applicant is symptomatic multilevel lumbar spondylosis;
(b)there is no relationship between that condition and the previously accepted low back injury of June 1995;
(c)the Applicant’s current condition is associated with the effects of:
(i)congenital factors (such as thoracolumbar scoliosis, and predisposition from Scheuermann’s disease);
(ii)acquired/lifestyle factors (smoking, snowboarding, water skiing and collecting firewood);
(iii)other physical activities (such as working in other physical jobs); and
(iv)natural ageing on the spine.
The Respondent, therefore, contends that the Applicant’s current condition is the result of a more recent injury to the lumbar spine, caused by the culmination of constitutional progression of multilevel, multi-regional spondylosis and activities outside of his employment.
The Respondent also contends (COS para 15.1 - 15.3) that Dr Khurana’s evidence should be preferred to that of Dr Mills and Dr Sergides, because Dr Khurana’s evidence is supported by:
(a)a detailed, thorough and proper consideration of the contemporaneous clinical record of the Applicant’s treating practitioners;
(b)the relevant imaging reports; and
(c)the inherent likelihood that the Applicant would have claimed compensation for medical treatment and/or incapacity for work much sooner than mid-2015 if he relevantly remained troubled by the previously accepted low back injury.
The Respondent further contends (COS para 15.4) that the evidence of Dr Sergides should be given less weight than the evidence of Dr Khurana because Dr Sergides’ evidence:
(a)in his medical report rises no higher, or little higher, than assertion. It is submitted that his report is cursory;
(b)is not supported by a detailed, thorough and proper consideration of the contemporaneous clinical records of the Applicant’s treating practitioners;
(c)is not supported by relevant imaging;
(d)proceeds on the incorrect assumptions that:
(i)the Applicant experienced symptoms radiating into his foot on 27 June 1995;
(ii)the Applicant took six weeks from work immediately after suffering the previously accepted lower back injury; and
(iii)the Applicant’s symptoms were essentially unchanged following the previously accepted lower back injury.

Finally, the Respondent contends (COS para 15.5) that the Tribunal should give the evidence of Dr Mills less weight than that of Dr Khurana because Dr Mills’ evidence:
(a) is not supported by a detailed, thorough and proper consideration of the contemporaneous clinical records of the Applicant’s treating practitioners;
(b) is not supported by the relevant imaging; and
(c) proceeds on the incorrect assumption that the Applicant’s symptoms were essentially unchanged following the previously accepted lower back injury;
Did the Applicant experience/report symptoms after 1995?
One key issue before the Tribunal is whether there is a history of the Applicant reporting low back pain since June 1995, or whether there has been an absence of self-reporting until much more recently.
As previously noted, it is usually the case that most disc herniations heal within several weeks. In the questions posed to Dr Lin by the Respondent it was claimed that the Applicant had not advised the Comcare Delegate of any symptoms with regard to his compensable injury since 1995 – Exhibit 3 T13 p. 46.
Dr Lin proceeded on this basis, and said (Exhibit 3 T13 p. 46):
“Mr. Mackay has been symptom free since then (i.e. 1995)”
Dr Lin was not in a position to draw such a conclusion. In the period 2011 – 2014, the Applicant visited the Annie Lim Family Practice and was examined by Doctors Ratnasingham, Carver, Anderson, Lim and Norgrove, but was not seen by Dr Lin until

22 July 2015 – Exhibit 8 pp. 3 – 4. In short, there was no lengthy history of Dr Lin treating the Applicant. Their professional relationship at the time he wrote his medical report of

4 October 2015 was only slightly over three months in duration.
Further, the claim by the Comcare Delegate is extremely problematic. Whilst the Tribunal is unaware of what the Applicant may or may not have said to the Comcare Delegate who communicated with Dr Lin (she was not called to give evidence), it is in a position to draw conclusions from the medical history admitted into evidence.
Mr Small stated in his letter of 11 January 2016 that the Applicant had been attending the Kambah Chiropractic Clinic since August 2003 for assessment and treatment for ongoing low lumbar symptoms.
Exhibit 6 contains a list of visits that the Applicant made to the Kambah Chiropractic Clinic during the period 5 August 2003 until 21 January 2016 – Exhibit 6 pp.4 – 5. The Applicant presented on approximately 25 occasions, the majority of these were in the periods

2003 – 2005 and 2008 – 2012. Whilst it is not clear what was the reason for each of those visits, the documents reveal that the stated reason for his first visit on 5 August 2003 was – Exhibit 6 p. 7:
“BAD BACK (L)…”
Mr Newton Small on 11 January 2016 stated – Exhibit 3 T8 p. 58:
“Mr Mackay has been attending this clinic for assessment and treatment for ongoing Low Lumbar symptoms at variable frequency since August 2003.”
The Applicant was also a patient of the Kambah Spinal Health Centre in the period March 1998 to June 2000. Although the relevant patient files were destroyed in circa 2008 (Exhibit 8 p. 60), a summary visit history discloses that he underwent spinal adjustments on 15 occasions during that period – Exhibit 8 pp. 61 – 62.
Consequently, the evidence discloses that the Applicant received numerous chiropractic interventions in the period from at least 1998 to the present, and it would appear that the focus of at least some of those visits was lower back problems.
Further, the records of the Applicant’s attendance at the Annie Lim Family Practice also illustrate ongoing lower back pain problems. For example, there is a record of a surgery consultation with Dr Lincoln Ratnasingham on 6 March 2012 – Exhibit 7 p. 5. The stated reason for the visit was “Low back pain”. The notes record: “LBP at sacralarea - 2/52+) with “no response to massage/acupuncture”.
On 31 October 2012 the Applicant was examined by Dr Jane Carver. The Applicant was complaining of sinusitis, but as part of her examination, Dr Carver noted

“BP sitting” – Exhibit 7 p. 6.
The Applicant was again examined by Dr Ratnasingham on 14 May 2013 and the reason for the visit is recorded as back pain. The Doctor made the following notes – Exhibit 7 p. 6, Exhibit 8 p.7:
“WAS HELPING MATE WITH TILING – rdo (rostered day off)
WOKE UP WITH lbp (lower back pain) AT I/LUMBAER AREA”.
One month later (14 June 2013) the Applicant was examined by Dr Laurence Anderson, and he complained, amongst other things, of “bowel and back probs.” – Exhibit 7 p. 7.
The Applicant was examined by Dr John Norgrove on 11 February 2014. The stated reason for visiting the surgery was “back pain” – Exhibit 7 p. 11, Exhibit 8 p. 12. Amongst a number of matters raised with Dr Norgrove was the following:
“LBP since the weekend.
shifting large piece of timber
bilateral buttock and posterior thigh pain also
exacerbated by sitting…
likely mechanical LBP”.
On 24 February 2014 the Applicant was examined by Dr Annie Lim who recorded two weeks of neck pain and “felt back pain and the next day felt neck pain”. Dr Lim records that the back pain “got better” but the “neck pain persisted and got worse”- Exhibit 7 p. 11, Exhibit 8 p. 12.
Accordingly, it is not correct to state that the Applicant did not complain of, and seek assistance for, lower back pain in the period following June 1995.
Conversely, a perusal of the Applicant’s sick leave application forms while he was working with ACT Electricity & Water in the period 5 September 2007 until 22 May 2012 fails to disclose any period of sick leave which was based on low back problems – Exhibit 8 pp. 87 – 121.
Mr Woulfe also drew to the Tribunal’s attention the fact that Comcare records for the period 1995 to 2015 fail to disclose any claims related to low back problems – Exhibit 8 pp. 125 – 126. He further submitted that if the Applicant was troubled by lower back pain he would have made a Comcare claim. In short, he submitted, that the symptoms the Applicant experienced after 1995 were unrelated to the accepted injury.
When the Applicant first attended at Kambah Chiropractic Clinic on 5 August 2003 a medical history form was completed. A series of questions were posed about potential conditions, including neck, shoulder, mid back and lower back pain. The treating Chiropractor, though “ticking” a number of other boxes to indicate potential problems

(e.g. eye disorders, headaches, sinus trouble, digestive malfunction), failed to tick any boxes indicating back problems – Exhibit 8 p. 38. However, the Applicant’s own self-reporting in the Patient Information Form of the same date is somewhat different, and will be discussed below.
Further, in a pre-employment medical check form with ACT Electricity & Water, which appears to have been completed on or about 15 February 1999, the Applicant, in response to a question whether he had ever had any back or neck problems (e.g. lumbago, sciatica, disc trouble or whiplash injury) or any joint condition such as arthritis or any broken bones, answered as follows – Exhibit 8 p. 84:
“BROKEN BONES. FINGERS”.
In short, in neither the sick leave application forms in the 2007 – 2012 period, the earlier (1999) pre-employment medical check or the Kambah Chiropractic Clinic initial presentation in 2003, were lower back problems noted.
To sum up, the Applicant repeatedly sought assistance for lower back issues in the period following his 1995 injury. However, during that period he did not claim any sick leave on those problems and some of the forms he completed fail to mention lower back pain. While the latter matters raise issues for the Applicant, the clear weight of evidence discloses that the Applicant was complaining of lower back pain over an extended period of time, and regularly sought medical and other assistance for the relief of that pain.
Are there inconsistencies in the findings of Mr Sempf and Dr Lin?
The Review Officer in the reviewable decision claimed there were inconsistencies with the findings and the opinions of Mr Sempf and Dr Lin – Exhibit 3 T1 p. 15.
While the suggested differences of opinion are not a significant issue in determining this matter, they nonetheless should be addressed.
A fair reading of both of Mr Sempf’s reports suggests that he believed that the Applicant’s lower back condition in 2015 was “consistent with his previous injury”, namely his 1995 injury, and that his reduced level of activity was related to his sedentary life style work which was likely to have contributed to his deconditioning and been a cause of stiffness.
Dr Lin was also of the view that it was “possible that chopping and lifting wood in June 2015 may aggravate previous compensable injury on 27 June 2015” (Exhibit 3 T13 pp. 46, 47).
The difference of opinion between Mr Sempf and Dr Lin is therefore, in my opinion, relatively unimportant. On the key issue of whether the Applicant’s 1995 injury may be a contributing cause of his current pain, both answered in the affirmative. Clearly the views of either Mr Sempf or Dr Lin, are not as significant of those of the three specialist doctors. However, as I read the reports of each of the Physiotherapists, Chiropractors and GP’s who have treated the Applicant, none has stated that his 1995 injury resolved itself and that his current condition is therefore unrelated to it.
Has the Applicant’s original injury resolved?
Mr Woulfe forcefully and correctly pointed the Tribunal to various gaps and changes in the evidence of the Applicant’s condition from 1995 to the present time. He contended that the Applicant’s symptoms have changed over time and broadened. Consequently, he submitted it would be incorrect for the Tribunal to attribute his current condition to the events of June 1995.
Mr Woulfe also referred the Tribunal to the reports of various treating Doctors, including a surgery consultation by Ms Gabby Schniztler on 26 October 2015. It is not clear from reading Exhibit 8 if this was the correct date, but in any event on either that date or 9 February 2016 it is recorded that the Applicant visited the Annie Lim Family Practice complaining of thoracic back strain – Exhibit 8 p. 16. Similarly, the Annie Lim Family Practice documents reveal that the Applicant was also treated by Dr Norgrove on 10 April 2015 for “right sided mid thoracic back pain” – Exhibit 8 p. 18.
Mr Woulfe referred to the documentation of the Kambah Chiropractic Clinic, including the Patient Information Form which was completed by the Applicant and which refers to pain around the chest (but not to the legs) and to falls due to snowboarding – Exhibit 8 pp. 42 – 43. However, the key element in that document is the Applicant’s explicit statement in the section headed “REASON FOR VISIT” as “BAD BACK (L) SIDE AROUND TO CHEST”.
In short, the Applicant was very explicit that the reason he was seeking chiropractic assistance was for lower back pain. The absence of reference to leg pain is, in the circumstances, not critical, as the focus of the pain at that particular point of time was his lower back.
This leads to the report of Dr Khurana who also referred to the Kambah Chiropractic Clinic notes. Dr Khurana made the following observations – Exhibit 12 p. 8:
“Records from the Kambah Chiropractic Clinic are noted. In the entry from 5 August 2003, a diagram filled out by the chiropractor does not refer to any low back pain and the area of the items ticked or marked by the chiropractor does not include any marking against neck pain, shoulder/arm pain, mid-back pain, low back pain, hip pain or leg pain. (Comment: Indicating an asymptomatic state at that initial visit of 5 August 2003). In additional information recorded by the chiropractor it states, “Landed on head in surf…neck very sore? 17 yoa”. Other notes from the chiropractor are difficult for me to read based on poor legibility, but I cannot see any entry in 2003, 2004 or 2005 pertaining to any low back pain despite more than a dozen visits during those years. There is reference during those years to shoulder symptoms, ‘rotator cuff’, and symptoms involving the ‘inerossei’. (Comment: This would suggest treatments between 2003 and 2005 inclusive were not for lower back symptoms: that is indicative of no significant lumbar issue during that time)”.
It will be noted that Dr Khurana does not refer to the Applicant’s stated reason for commencing treatment at the Clinic, which in his Patient Information form is stated explicitly to be for problems with his lower back. In short, the premise upon which

Dr Khurana proceeds is problematic. Although the Chiropractor does not refer to back or leg pain, the Applicant not only mentioned it, but stated it to be the reason for commencing chiropractic treatment.
Further, both Dr Khurana and the Tribunal were provided with a lumbopelvic spine X-ray report dated 21 February 2003. The X-ray was performed by Dr Price who noted – Exhibit 9:
“Minor spondylotic changes are noted with minimal traction spurring and slight narrowing of the L4/5 disc.”
This X-ray is potentially important, because it highlights that in the period February to August 2003, the Applicant was either self-reporting or being examined for lower back problems.
The X-ray was requested by Dr S Campbell, who, apparently, was treating the Applicant in 1998 and who referred him to an X-ray of the spine in March 1998 – Exhibit 4.
Mr Woulfe correctly submitted that a person is not limited, when pursuing a claim under the Act, to a diagnostic label attached to a condition at a particular point in time. Clearly over time, such a label may change with advances in medical science, or simply with custom. For example, in the last 30 years there has been a significant change in the field of psychiatry with respect to the acceptance and diagnosis of post-traumatic stress disorder (PTSD). A soldier diagnosed with “shell shock” in 1918 would now most probably be diagnosed with PTSD.
However, while a claimant is not restricted by diagnostic labels, the medical treatment for the new claim must be obtained in relation to the original injury and the compensation for incapacity arose as a result of the original injury.
Further, as the High Court explained in Canute v Comcare (2006) 226 CLR 535 at 540/[10]:
“the term ‘injury’ is not used in the Act in the sense of ‘workplace accident’. The definition of ‘injury’ is expressed in terms of resultant effect of an incident or ailment upon the employee’s body.”
A diagnosis of an injury by a treating doctor, particularly when that doctor is not a specialist, is no more or less than an informed opinion of the aetiology of the injury. In this matter the original diagnosis was made by a GP without the benefit of imaging. Clearly, over time, with improvements in medical science and, in this case, with the benefit of imaging, the diagnosis may change, or, at least, become more nuanced.
Also, as the High Court explained in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at483/[57]:
“The Full Court concluded that the inquiry demanded by the statutory definition of ‘injury’ was ‘whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind’…To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.”
In short, “injury” as used in the Act requires physiological or psychiatric change, and, accordingly, it not sufficient for a claimant employee to simply feel unwell or experience pain.
Conversely, an original injury may evolve over time. It may evolve into other injuries, or a supervening event may result in an exacerbation of the original injury. Provided the secondary injuries are causally related to the original injury, the resultant medical expenses or compensation are payable by the Respondent.
In this matter, like many others where the claimed aggravation has occurred some decades later, medical records are often destroyed, memories become frayed and the natural vagaries of ageing come into play.
A tribunal of fact in such circumstances has to carefully weigh the evidence placing a premium on contemporaneous records (where available), but also injecting into the process contextual factors, such as age, location, position, the nature of the original medical diagnosis, interpersonal issues, employment issues and the like. In short, the decision maker must be careful not to “cherry pick” omissions, or particular events, and fail to evaluate them contextually.
Mr Woulfe drew the Tribunal’s attention to various reports where, it was said, the Applicant’s symptoms had changed. A particular focus was the submission that the Applicant’s pain had morphed from radiating into this left leg, to this right leg, or, at least, bilaterally.
Thus, Mr Woulfe referred to the original report of Dr Harrison, where he referred to left sided lower back pain radiating into the left thigh anteriorly and posteriorly. Dr Harrision reported that between 27 June 1995 and 3 July 1995, the Applicant was still suffering from lower lumbar back pain, but now it was radiating into his left leg – Exhibit 3 T9 p. 33.
Reference was then made to the report of Dr Norgrove of 11 February 2014, where he reported the Applicant was suffering from bilateral buttock and posterior thigh pain – Exhibit 8 p. 12.
Finally, Mr Woulfe highlighted the report of Dr Lin of 26 October 2015, wherein he reported the Applicant suffering pain in both legs, but worse in the right leg – Exhibit 8 p. 15.
Mr Woulfe submitted that this suggested, together with Dr Norgrove’s report of 10 April 2015 of right sided mid thoracic pain (Exhibit 8 p. 18), that the Applicant was suffering symptoms different to those suffered in 1995.
Leaving aside for the moment the issue of whether the symptoms of the original injury may have evolved over time, it is the case that most of the medical evidence supports the diagnosis that the predominant pain suffered by the Applicant radiated from the lumbar spine into the left thigh and left leg.
Thus, in the surgery consultation notes of 22 July 2015, the Applicant is recorded to have complained of left lumbar back pain, that an imaging request was prepared for a CT of the lumbar spine and it was noted: “persistent left lumbar back pain with radiation to left hip”.
The notes of The Sports Medicine Centre of 30 July 2015 record central lower back pain, with the pain radiating into the left leg – Exhibit 8 p. 47.
Ms Alexia Missen, Principal Physiotherapist at the Sports Medicine Centre reported on 31 July 2015 – Exhibit 8 p. 49:
“He was extremely tender from L2 – L5, left worse than right and associated muscle spasm in his piriformis, erector spinae and quadratus lumborium muscles.”
Accordingly, a fair reading of all the evidence does not support the submission of Mr Woulfe that the symptoms of the Applicant’s 1995 lower back injury had substantially changed. Indeed, there is a fairly constant thread over time linking the symptoms of the June 1995 injury to the symptoms he continues to experience.
To sum up then, the evidence before the Tribunal, like in many workers’ compensation matters, paints a less than clear picture. Mr Woulfe has forcefully and persuasively drawn the Tribunal’s attention to the gaps and the seeming contradictions in the Applicant’s evidence. But, as Mr Pattenden submitted, for each seemingly significant gap in the Applicant’s case, there are other threads of evidence that support his basic proposition that the effects of his original injury continue to afflict him, albeit compounded by the natural process of ageing.
In addition, as was previously noted, the Tribunal found the Applicant to be an honest and straightforward witness. His testimony weighs heavily in his favour. So too was the evidence given by his partner, Ms Allan. She also presented as a thoroughly honest and straightforward witness, and, insofar as she has lived with the Applicant since 1981, is in a unique position to provide information on the Applicant’s lower back condition over the past 37 years.

Mr Woulfe’s submissions on why the Tribunal should prefer the opinions of Dr Khurana have been set out at length.
A number of reasons weigh against preferring the opinions of Dr Khurana over those of Doctors Sergides and Mills:
(a)with the exception of Dr Khurana, all of the other medical, Chiropractic and Physiotherapy evidence supports, or at least does not discount, the proposition that the Applicant’s 1995 lower back injury did not resolve and continues to afflict him;
(b)Dr Khurana is the only person providing medical evidence who did not speak to, or examine, the Applicant. It is usually the case that a medical expert is in a better position to formulate an opinion having examined the person who is the subject matter of a report;
(c)some of Dr Khurana’s reasonings are based, in part, on problematic assumptions, in particular the reason for the Applicant seeking treatment at the Kambah Chiropractic Clinic;
(d)Dr Khurana notes at page 4 of his report, the CT scan of the Applicant’s lumbar spine performed by Dr Van Der Merwe on 22 July 2015 – Exhibit 3 T10 p. 36. As previously noted, Dr Van Der Merwe concluded: “No spondylolysis or spondylolisthesis noted”. Yet at page 10 of his report, Dr Khurana states: “Subsequently the imaging has indicated multilevel spondylosis, see for example the CT scan lumbar spine reported on 22 July 2015 as referred to above.” In short, there is an inherent inconsistency in the report;
(e)while Dr Khurana’s report is longer and more detailed than the reports of the other two specialists, it would be an error to equate length and detail with a preferable diagnosis; and
(f)the Tribunal carefully listened to the evidence of Dr Sergides and Dr Khurana. While both presented as thoroughly professional witnesses, the Tribunal formed a more positive view of the tenor of evidence given by Dr Sergides. He presented as more of a dispassionate professional, whereas Dr Khurana presented as more of an advocate of his diagnosis. This is no criticism of Dr Khurana, as it was clear he strongly believed in the correctness of his diagnosis. However, for the purposes of these proceedings, the Tribunal formed the view that the opinions expressed by Dr Sergides were more objective.
CONCLUSION
Having carefully considered all of the evidence the Tribunal finds:
(a)the Applicant continues to suffer from the effects of his June 1995 injury;
(b)the Applicant continues to require medical treatment for the claimed condition; and
(c)the Respondent is liable to compensate Applicant pursuant to ss 16 and 19 of the Act.
DECISION
The Tribunal:
(e)sets aside the decision under review;
(f)determines that in, substitution, the Applicant has an entitlement to claim compensation for medical treatment under section 16 of the Act and for incapacity under section 19 of the Act for the accepted injury;
(g)remits the Applicant’s claim to the Respondent to calculate and pay compensation to the Applicant in accordance with this decision;
(h)directs that the Applicant is at liberty to apply for costs no later than 30 days from the date of this decision.

I certify that the preceding 165 (one hundred and sixty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

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Associate
Dated: 3 May 2018

Date(s) of hearing: 19-20 February 2018

Date final submissions received: 20 February 2018

Counsel for the Applicant: Mr Karl Pattenden

Solicitors for the Applicant: Slater & Gordon Lawyers

Counsel for the Respondent: Mr Peter Woulfe

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	19-20 February 2018
Date final submissions received:	20 February 2018
Counsel for the Applicant:	Mr Karl Pattenden
Solicitors for the Applicant:	Slater & Gordon Lawyers
Counsel for the Respondent:	Mr Peter Woulfe
Solicitors for the Respondent:	Australian Government Solicitor