Malcolm Fischer and K & S Freighters Pty Ltd

[2016] AATA 610

Fischer and K & S Freighters Pty Ltd (Compensation) [2016] AATA 610 (16 August 2016)

Division	GENERAL DIVISION
File Number	2014/6550
Re	Malcolm Fischer
APPLICANT
And	K & S Freighters Pty Ltd
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	16 August 2016
Place	Melbourne

The Tribunal sets aside the decision under review and substitutes its decision that Mr Fischer is entitled to compensation for his lumbar disc extrusion which became symptomatic on 26 July 2014, he having previously been compensated for similar symptoms diagnosed as back strain in September 2011. Liability is attracted under s 14 of the Rehabilitation and Compensation Act 1999 and compensation under s 16 and s 19.

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

Miss E A Shanahan, Member

WORKERS’ COMPENSATION – injury arising out of employment – significant contribution by employment to an ailment – compensable back/buttock injury in 2011- liability accepted and compensation paid – recurrence of symptoms 2014 – massive disc extrusion – surgical intervention required – s 14 liability found – decision set aside

Legislation

Safety, Rehabilitation and Compensation Act 1988

Cases

Goward v Commonwealth (1957) 97 CLR 355

Gregory v Comcare (1997) 72 FCR 196

Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473

Telstra Corporation Ltd v Bowden (2012) 206 FCR 207

Thom Or Simpson v Sinclair [1917] AC 127

REASONS FOR DECISION

Miss E A Shanahan, Member

16 August 2016

1. Mr Fischer lodged a claim for compensation on 4 August 2014, having suddenly developed severe lower back, right buttock and leg pain on 26 July 2014.  He claimed this arose from his work as a freight truck driver over the preceding six days.  In 2011 he had suffered a similar but shorter lived episode of pain in the right buttock and leg with some back pain which had been accepted as an injury, being a muscle strain, arising out of employment. Liability had been accepted and compensation had been paid for that injury. 

2. On 13 October 2014, the Senior Workers’ Compensation Manager of the Respondent determined that on the evidence then before him the Respondent was not liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of right sciatica, reported to have been sustained on 26 July 2014.  The basis for the determination appears to have been that the onset of symptoms occurred on a day that he was on leave and had not been complained of to Mr Fischer’s general practitioner who saw him on 28 July 2014. The Respondent further relied on the opinion of Associate Professor Steadman who considered the development of severe right sided sciatica was a natural progression of pre-existing pathology. 

3. At Mr Fischer’s request, the determination was reviewed. It was affirmed on 14 November 2014. Mr Fischer lodged an application for review by the Administrative Appeals Tribunal on 18 December 2014.

4. At the hearing Mr Fischer was represented by Mr Mark Carey of counsel instructed by Ms Irina Jovic of Maurice Blackburn solicitors. K & S Freighters was represented by Mr Mark Seymour of counsel instructed by Mr Paul Mentor of Clarke Legal. 

5. The Tribunal was provided with the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents) and both parties tendered exhibits a list of which is appended to this decision.  The Tribunal heard oral evidence from Mr Fischer. Mr Fischer called Mr Thomas Kossman to give evidence. K & S Freighters called Dr Anthony Kam, a radiologist, Associate Professor Peter Steadman, an orthopaedic surgeon, and Mr Jason Randall the National Line Haul Manager to give evidence for the Respondent. 

   BACKGROUND TO THE APPLICATION

6. Mr Fischer has worked as an interstate driver of B-Double freight haulage vehicles (trucks) for K & S Freighters since 2001.  His duties have included driving from Melbourne to Brisbane, Sydney and Adelaide. This has involved a daily minimum of nine hours driving but can involve up to 17 hours in the truck on any day.  These hours represent driving periods, rest breaks, waiting times at depots and times spent loading and unloading the trailer. 

7. Given the length of time involved in the delivery services, Mr Fischer takes with him a mattress, his personal belongings, clothing and a portable refrigerator weighing in the vicinity of 20 to 25 kilograms.  Mr Fischer has described in detail his duties on his interstate runs. These include a pre-trip inspection of the vehicle, loading of the vehicle and strapping down the load using various steel dogs, chains and straps.  The tightening of the latter is said to require considerable force. Throughout the entire procedure lifting appears, according to his statement (Exhibit A1), to be limited to 15 kilograms. 

8. Whenever vehicles are changed the driver is required to switch all his normal gear to the new truck. As previously stated this includes bedding, belongings, clothes and the refrigerator.  While Mr Fischer has performed various duties in runs to Brisbane and Sydney, it is the Mount Gambier/Adelaide/Melbourne run which is involved in his claim. 

9. Mr Randall has given evidence as to the details of Mr Fischer’s normal run between Melbourne and Mount Gambier.  Mr Randall said it was his understanding that Mr Fischer lived in Horsham. He would load or, as the case might be, unload his freight in Mount Gambier on a Friday. He would then travel to Horsham, were he stayed overnight and proceeded either back to Melbourne or, on reverse trips, to Mount Gambier on the Sunday.  There was however an arrangement whereby every second Friday Mr Fischer needed to return home to Horsham by 2.00pm so that he could spend the weekend with his daughter in accordance with a custodial direction. 

10. The freight transported between Mount Gambier and Melbourne was almost exclusively steel products produced by One Steel.  Mr Fischer gave evidence that while in Melbourne he stayed with his current partner in Blackburn South. He had earlier stayed with a former partner, from whom he separated in January 2012.  From that date Mr Fischer had shared custody of his daughter. Mr Fischer sought consideration from his employers’ to be placed on local delivery work as opposed to interstate work in order to spend more time with his child.  As this did not eventuate, despite K & S Freighters’ efforts, he endeavoured to return to Melbourne at a reasonable time on alternate Fridays. 

11. According to Mr Fischer (Exhibit A1) the more frequent changing of vehicles commenced in December 2013. This meant it was necessary for drivers to shift their refrigerators’ and personal effects more frequently as they were required to driver numerous different trucks.  The changes were introduced as K & S Freighters commenced tanker work involving the shifting of fuel and oil.  This work was more physically demanding in that it required drivers’ to climb on top of tanks to check dip levels before unloading could begin. 

12. In September 2011, Mr Fischer had developed pain in his right buttock of two weeks duration. On checking the seat in his truck, Mr Fischer discovered that a bolt in the seat was missing.  He lodged a workers’ compensation claim for muscle strain of the lower back and right buttock. The injury was accepted as work caused under K & S Freighter’s then insurance policy with CGU Self Insurance Services. 

13. The claim had been approved on the basis of a report from Mr Edward Schutz, general surgeon, dated 10 October 2011.  The actual determination was acceptance of a muscular tendon strain in the right buttock or hamstring sustained on 9 September 2011.  Mr Schutz had noted that Mr Fischer had prior to 2009 weighed 190 kilograms but having undergone Lap Banding surgery had at the time he was seen by Mr Schutz reduced his weight to 110 kilograms.  The evidence before the Tribunal is that Mr Fischer’s weight has remained at around 110 kilograms. 

14. Mr Fischer was off work for a period of about seven weeks, though this was said to be four weeks in the Respondent’s Statement of Facts and Contentions, and then returned to normal duties. Between early 2012 and July 2014 he noted only occasional short-lived episodes of minor back pain which did not impact on his capacity for work. 

15. It would appear from Mr Fischer’s statement that in the week commencing Sunday 20 July 2014 he drove from Melbourne to Mount Gambier and then back to Melbourne.  He states that on Wednesday 23 July he transported large rolls of paper from Melbourne to Murray Bridge. After unloading at Murray Bridge, he proceeded to Adelaide where he changed trucks.  On Thursday 24 July he drove back to Murray Bridge to pick up his trailers and then drove on to Mount Gambier where he shifted all his gear to his usual truck. Following this, Mr Fischer was supposed to drive on to Melbourne so that he could be with his daughter from 2.00pm on Friday, 25 July. 

16. On Thursday 24 July, Mr Fischer was informed that contrary to his plans his truck would not be reloaded until Friday morning. As a result he would not return to Melbourne until late on Friday.  He says he was terribly upset as a result of this change as it meant he could not see his daughter that weekend.  He took his gear from the truck and arranged for a friend to pick him up and drive him to Melbourne.  He stopped at his home in Horsham to unload his gear and then left Horsham at 12.45am on Friday 25 July. He was then driven to Melbourne. 

17. Mr Fischer freely admits that at this time he was emotionally distraught as he was not going to be able to meet his commitments with regard to custody of his daughter for that weekend.  On arriving in Melbourne in his state of distress, Mr Fischer consulted Dr Shaista Khan in Deer Park. Dr Khan provided Mr Fischer with a medical certificate stating he was unfit for work on that day.  He remained greatly distressed and completed a notice of resignation which stated that unless he was transferred to a local division he required his employment to be terminated after four weeks (Exhibit A2).

18. On Saturday 26 July 2014, having had very little sleep in the previous 24 hours, Mr Fischer awoke with severe lower back and right buttock and leg pain.  He states these symptoms were identical to those he had experience in 2011.  On 28 July 2014 he attended his general practitioner Dr John Wong.  This consultation involved both his acute anxiety/depressive state resulting from his failure to have access to his daughter for the weekend and the back pain radiating to his right leg.  According to Mr Fischer, Dr Wong suggested his right lower limb pain could be work related. This led to Mr Fischer lodging a claim for compensation.  Mr Fischer completed his incident report on Monday 4 August 2014.

19. Dr Wong’s clinical notes of 28 July 2014 do not refer to back pain. In his evidence by telephone to the Tribunal on 2 June 2016, Dr Wong stated that he had excellent recall of Mr Fischer complaining of back pain.  Dr Wong had referred Mr Fischer to Mr Chris Woodman, a physiotherapist, on 7 August 2014. At that point, Dr Wong had obtained by a full history of Mr Fischer’s back pain radiating down the back of his right thigh to the level of the knee, the pain being aggravated by all activity and relieved by rest.  The actual clinical notes are very brief and state, in terms of examination, that Mr Fischer could only flex his spine sufficient to touch his knees.

20. Mr Woodman, the treating physiotherapist, saw Mr Fischer on 11 August 2014. Mr Woodman made a diagnosis of disc prolapse resulting in sciatica in the distribution of the first sciatic nerve.  Mr Woodman informed Dr Wong of his opinion. Dr Wong arranged for an MRI to be performed, which was undertaken on 13 September 2014. The MRI showed a massive right paracentral disc extrusion at L5/S1, compressing the right S1 nerve root.  Mr Woodman in his examination had found tenderness on the right side of the lumbar spine with reduced lumbar flexion due to leg pain and diminution of straight leg raising to 45 degrees on the right. 

21. Mr Fischer has not worked since 25 July 2014.  Mr Fischer lodged an incident report on 4 August 2014 for pain in the right buttock down through the hamstring to the back of the knee. On the same date, Mr Fischer lodged a claim for workers’ compensation for the injury date of onset 26 July 2014. 

22. Mr Fischer was seen by Associate Professor Peter Steadman on 30 September 2014.  A report was provided dated 8 October 2014.  Associate Professor Steadman opined that Mr Fischer’s symptoms were due to the natural progression of a pre-existing condition arising from activities of personal living.  He considered Mr Fischer unfit for any work. Associate Professor Steadman also noted that, subject to further investigation, Mr Fischer might require surgical intervention.  He advised ongoing physiotherapy and considered the prognosis to be guarded. 

23. As a result of Associate Professor Steadman’s report, K & S Freighters determined that there was no liability arising from Mr Fischer’s employment with them.  On 14 November 2014, K & S Freighters affirmed the decision that Mr Fischer’s right sciatica was not work related.

24. After considerable delay, Mr Fischer has undergone a micro-discectomy for the extruded disc.  The procedure of L5/S1 micro-discectomy was performed at Casey Hospital, part of the Monash Health System, by Mr Craig Timms, neurosurgeon. Mr Timms had provided a report to Dr Wong opining that Mr Fischer’s back injury was work related.  Mr Fischer’s operative procedure and post-operative recovery were uncomplicated. He was discharged on the second post-operative day.  His sciatica symptoms had greatly improved even at that early stage.

25. It is freely admitted and must be noted that in the early 2000’s Mr Fischer was morbidly obese, weighing 190 kilograms.  In 2009 he underwent a gastric lap banding procedure following which he lost 90 kilograms. By the time of his first reported back strain in 2011, Mr Fischer weighed 110 kilograms. He has remained between 105 and 115 kilograms since that date.

26. In his claim for compensation Mr Fischer has identified the work related contributing factors as being the lifting of weights, in particular transferring his gear and portable refrigerator from truck to truck as required, the tying down and fitting of loads. He also identified the lack of comfort and support in the seats of some of the trucks he was required to drive these having deteriorated with the passage of time.

27. As noted above, Mr Fischer could be required to be in the truck for up to 17 hours in a stretch.  He has been particularly aware of more recent problems with the seating in various trucks he has driven. This he said commenced in early July when a faulty seat in his vehicle had to be replaced. In the week leading up to the onset of the right sciatica, Mr Fischer having been required to he drive at least three different trucks in the course of that week.  He has described the seating as being uncomfortable, worn and the padding frayed, dislodged and poor in terms of support.

    EVIDENCE BEFORE THE TRIBUNAL

    Mr Fischer

28. Mr Fischer’s evidence has been summarised under BACKGROUND TO THE APPLICATION. Only the evidence relevant to the claim has been included.  Other health issues alleged by the Respondent such as sleep apnoea and treated hypertension are not relevant.  

    Mr Thomas Kossman, orthopaedic spinal surgeon

29. Mr Kossman saw Mr Fischer on 23 May 2015 at the request of his solicitors. He provided a report made on the same date (Exhibit A3).  Mr Kossman obtained the same medical history that Mr Fischer gave to the Tribunal including the past history of a similar bout of pain occurring in September 2011.  At the time of the appointment Mr Fischer was still suffering from lumbar back pain radiating to his right leg that varied in intensity depending on his level of activity. 

30. Mr Kossman did not have access to the actual MRI scans which had been provided with the report of 13 September 2014, showing a massive paracentral disc prolapse impinging on the right L5/S1 nerve roots.  At the time of the appointment Mr Fischer’s symptoms were partially controlled with the use of analgesics in the form of Panadeine Forte and Endone. 

31. Mr Kossman considered Mr Fischer’s prognosis to be guarded given his persisting debilitating symptoms then of more than 9 months duration.  He opined that Mr Fischer would require a surgical L5/S1 discectomy.  Mr Kossman was of the opinion that Mr Fischer’s employment as a truck driver, the repetitive handling of heavy goods and long haul driving in ergonomically poorly designed truck seats had led to his disc degeneration and extrusion.  It was recommended that Mr Fischer be referred to a spinal surgeon for discectomy.

32. In his oral evidence before the Tribunal Mr Kossman confirmed his written opinion. In addition, Mr Kossman gave evidence that the delay in symptom production from the last day of active work on 24 July 2014 until the onset of back, buttock and right leg pain on 26 July was of no significance in terms of the causal relationship.

33. Mr Kossman considered the nature of Mr Fischer’s occupation and the required sitting for hours, associated with heavy lifting intermittently, resulted in the loss of core strength and rendered Mr Fischer more vulnerable to disc damage.  He was also of the opinion that had Mr Fischer undergone an MRI in 2011 it was highly likely this would have shown at least an annular tear in the L5/S1 disc. Mr Kossman said that had he seen Mr Fischer with those results in 2011, he would have instructed him to change his job. 

34. The Tribunal asked Mr Kossman if Mr Fischer’s emotional and psychological distress on 25 July 2014 would this impact on his pain appreciation.  Mr Kossman was of the opinion that this was very much a factor, as the co-existence of psychological symptomatology alters pain perception.

    Dr Wong, the treating general practitioner

35. Dr Wong provided a report dated 1 May 2016 (Exhibit A4). The report included information regarding various visits between 2011 and 2014. It concluded that Mr Fischer’s work duties had contributed to a significant degree to the production or aggravation to his lumbar spinal condition. Dr Wong opined that this could be related to the heavy lifting Mr Fischer’s work entailed and the bouncing motion of the vehicle during long journeys. Mr Fischer was said to be in the process of recovering from his lumbar disc extrusion.

36. Dr Wong’s examination-in-chief has been summarised under BACKGROUND TO THE APPLICATION.  As previously noted, Dr Wong had not made any entries regarding the presence of back, buttock and leg pain when he saw Mr Fischer on 28 July 2016, but in his oral evidence stated he well recalled being told of these symptoms. 

37. In cross‑examination by Mr Seymour, Dr Wong stated that he was particularly worried by Mr Fischer’s mental state on 28 July 2014 and did not appreciate the severity of his back pain until he saw him again on 29 July 2014. At that time Dr Wong had encouraged Mr Fischer to lodge a workers’ compensation claim.  All entries in Dr Wong’s history related to the presence of back, buttock and right leg pain.

    THE RESPONDENT’S EXPERT WORK RELATED WITNESSES

    Dr Anthony Kam, consultant radiologist

38. Dr Kam had reviewed Mr Fischer’s radiological investigations conducted between 5 August 2014 and 22 May 2015 and provided answers to a series of questions posed by Clarke Legal.  Dr Kam is an expert in spinal neurological imaging.  Essentially in his report on 2 February 2016 (Exhibit R5) Dr Kam confirmed the previous radiological investigations as being appropriate and agreed with the reporting radiologists’ opinions.  In particular he stated that he believed that “the injury” becoming overt on Saturday 26 July 2014, might be the same injury documented as a muscular tendon strain on 9 September 2011. 

39. In his evidence to the Tribunal Dr Kam agreed that obesity and smoking were reported in various epidemiological studies as being risk factors for the development of disc degeneration which he believed was of multifactorial causation. This included lifting work and sitting for long periods. In cross‑examination, Dr Kam agreed that he was not in a position to provide general medical opinion as his expertise was confined to the interpretation of the radiological imaging. 

    Mr Jason Randall

1. Mr Randall was Mr Fischer’s direct manager at K & S Freighters Pty Ltd.  Mr Randall outlined the procedure that existed when drivers found seats to be defective.  They were required to report them immediately. It was policy to have the seat fixed before the trucks left the depot.  Mr Randall stated that all K & S Freighters depots are capable of replacing a seat. 

2. Mr Randall gave evidence that he was aware of Mr Fischer’s responsibilities in relation to his daughter and the need for him to be home by 2.00pm every second Friday in order to fulfil his responsibilities in terms of custody of his daughter.  Mr Randall had made efforts to accommodate these requirements, but had been unable to do so on 24 July 2014.

3. In terms of the life of the Double-B trucks, Mr Randall said that all trucks were leased for a period of four years at a cost up to $800,000. The lease could be extended for a period of four to six weeks or another 50,000 kilometres if there was a delay in the provision of a new truck.  The company relied on the drivers to report any faults but it was not a requirement to report worn seats. 

   Associate Professor Peter Steadman, orthopaedic surgeon

4. Associate Professor Steadman saw Mr Fischer at the request of K & S Freighters on 8 October 2014.  He had obtained the previously reported history and details of Mr Fischer’s work.  On examination he noted reduced extension and flexion of Mr Fischer’s lumbar spine, with these movements producing leg pain.  Reflexes in the right lower limb were either absent or diminished. Associate Professor Steadman detected weakness of Mr Fischer’s right foot movements consistent with S1 nerve root compression. 

5. Associate Professor Steadman also noted the MRI performed on 12 September 2014. In his opinion this showed a large L5/S1 disc protrusion, taking up about 60 per cent of the spinal canal to the right side.  Given the size of this protrusion Associate Professor Steadman considered that it was luck Mr Fischer had not already required surgery. 

6. Associate Professor Steadman concluded that on the balance of probabilities Mr Fischer’s disc degeneration and protrusion represented the natural progression of a pre-existing condition that had never been work related.  He also opined that should Mr Fischer return to the same type of work as an interstate driver he would be at risk of further injury.

7. Associate Professor Steadman provided a further report dated 7 March 2016 (Exhibit R7).  In the interim he had been provided with further data and a more recent MRI scan report.  Again, he expressed the opinion that morbid obesity may be one of many contributory factors.  He expressed the opinion that given the symptoms it was probably likely that the protrusion, perhaps to a lesser degree, had existed since September of 2011.  Associate Professor Steadman did comment on Mr Fischer’s capacious spinal canal and postulated that this was the factor responsible for him not having developed either radiculopathy or a cauda equina syndrome necessitating urgent operative intervention. 

8. In his evidence to the Tribunal, Associate Professor Steadman confirmed that while obesity and cigarette smoking had been shown to have an effect in terms of disc degeneration, they were not the only factors operative.  On being informed that Mr Fischer had undergone surgical resection of the disc, Associate Professor Steadman expressed his pleasure as on the history and information he had been given he had thought surgery was indicated when Mr Fischer first presented to Monash Medical Centre in May 2015 with symptoms suggestive of cauda equina compression.  Associated Professor Steadman told the Tribunal that people of Polynesian heritage although of large physical build as is Mr Fischer have very small spinal canals such that a small protrusion will frequently give results to acute severe sciatica.   This contrasts with Mr Fischer’s situation where a capacious spinal canal has according to the experts delayed the presentation of sciatica.

9. In cross-examination Associate Professor Steadman agreed that driving for a period of nine hours without a stop in a Double-B freight hauler resulted in the application of high force to the spine, as did the lifting required both in terms of the load carried and the changing of personal gear and a refrigerator from truck to truck.  These particular work related requirements were in his opinion part of the multifactorial setting of disc degeneration.

   DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

10. The incident report and claim for workers’ compensation relating to the development of right buttock and lower back pain which occurred in September 2011 was provided including, the opinion of Mr Edward Schutz, general surgeon. This report had resulted in Mr Fischer receiving workers’ compensation payments for a period of several weeks. 

11. Mr Fischer had given Mr Schutz the history that in the week preceding the onset of pain on 9 September 2011, he had noted the seat adjustment was faulty and later found there was a bolt missing.  Over the course of one week, Mr Fischer had developed increasing discomfort in the right buttock and posterior aspect to the right thigh.  The facility medical practitioner had diagnosed right lower back pain. Physiotherapy had been commenced.  Physical examination on 5 October 2011 was reportedly normal with only slight discomfort on palpation in the right buttock and normal muscle tone in the lower limbs with normal reflexes, although these were thought to be weak and diminished.  No sensory deficit was detected. 

12. Mr Schutz made a diagnosis of probable muscular or tendon strain in the right buttock and/or hamstring region. He considered that the symptomatology was consistent with prolonged driving in an abnormal posture.  No investigations were performed.

    RELEVANT LEGISLATION

    Section 14 of the SRC Act relates to liability for an injury claimed to have been suffered by an employee and states:

    14Compensation for injuries

    (1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

    (2)Compensation is not payable in respect of an injury that is intentionally self inflicted.

    (3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self inflicted, unless the injury results in death, or serious and permanent impairment.

13. An injury and a disease are both defined in s 5A and s 5B of the SRC Act as follows:

    5A  Definition of injury

    (1)       In this Act:

    injury means:

    (a)a disease suffered by an employee; or

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

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

    employment), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

    (2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

    (a)a reasonable appraisal of the employee’s performance;

    (b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

    (c)a reasonable suspension action in respect of the employee’s employment;

    (d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

    (e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

    (f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

    5B  Definition of disease

    (1)In this Act:

    disease means:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

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

    (2)Not relevant.

    (3)In this Act:

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

14. Section 16 of the SRC Act provides for the provision of payment for reasonable medical treatment. Section 19 relates to weekly compensation payments based on normal weekly earnings. 

    SUBMISSIONS

    The Applicant

15. Mr Carey submitted that Mr Fischer’s 2014 disc protrusion giving rise to severe right sided sciatica as a result of S1 nerve root compression was identical in its presentation to the so called right buttock strain of 2011. The evidence and opinions of both Mr Kossman and Associate Professor Steadman was that the two were related. Both agreed that while the cause of disc degeneration was multifactorial it included forces on Mr Fischer’s spine resulting from prolonged seating while driving trucks, lifting moderately heavy weights and performing work in the loading phases of his occupation requiring rotation, climbing and seating in non‑ergonomic, uncomfortable and worn truck seats. 

16. Mr Carey contended that this was an injury arising out of employment or in the alternative given the evidence relating to the 2011 episode an ailment significantly contributed to by Mr Fischer’s employment. 

    Mr Carey distinguished the High Court of Australia decision in Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473, on which the Respondent relied, as Hatzimanolis concerned the temporal relationship of the injury/disease to work not that it arose out of employment. In Mr Fischer’s case the claim was that it was arising out of work. As determined in Thom Or Simpson v Sinclair [1917] AC 127, arising meant or equated to the type and duration of the work that the employee was actually employed to undertake.

17. At 142 of the decision of Thom or Simpson v Sinclair, Lord Shaw noted that:

    ... the expression, in my opinion, applies to the employment as such — to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute “arising out of the employment” apply.

    Mr Carey also referred to the High Court decision of Goward v Commonwealth (1957) 97 CLR 355 wherein the Court cited with approval Lord Shaw’s opinion expressed above.

    The Respondent

18. Mr Seymour submitted that Mr Fischer’s condition did not fall within the definition of injury found in s 5A(1), but was a pre‑existing condition subject to aggravation. It was submitted that, in Mr Fischer’s case, the condition had become symptomatic during an interlude in normal work, given that Mr Fischer’s symptoms had occurred on a Saturday, some 36 hours after he had last performed any of his work duties.

19. Mr Seymour referred the Tribunal to the decision in Re Winsall and Comcare (2003) 73 ALD 696, where the Tribunal found that prolapse of a lumbar disc was an injury, despite Mr Winsall having earlier suffered a compensable annular tear and that the onset of symptoms had occurred outside of work. Mr Seymour distinguished this on the basis that Mr Winsall had been observed to limp at work and had complained of pain before leaving working. It was contended this was not the case with Mr Fischer.

20. In addition Mr Seymour submitted that the Tribunal should note the absence of any complaint of back pain on 28 July 2014, when Mr Fischer attended his general practitioner Dr Wong and was diagnosed with depression. This was despite Dr Wong giving oral evidence that he well recalled Mr Fischer’s back pain complaint but had failed to record it on that day in his notes. 

21. The Respondent contended that Mr Fischer’s L5/S1 massive disc extrusion was the consequence of wear and tear leading to degenerative changes unrelated to any employment.

TRIBUNAL’S DELIBERATIONS

1. Mr Fischer’s massive L5/S1 disc extrusion compressing his right first sciatic nerve root and the subsequent surgical intervention is well documented.  The delay of 14 months in accessing surgical intervention is, in the Tribunal’s opinion, outside normal acceptable treatment timing.

2. The Tribunal agrees with the Applicant’s alternative submission that the condition in question falls within the s 5B definition of an ailment that has been aggravated to a significant degree by his employment with the Commonwealth licensee.  This is based on the fact that in 2009, Mr Fischer had identical symptoms that resolved with rest, physiotherapy and analgesia but were accepted as a compensable injury arising out of employment.  The aggravation in 2014 has resulted in incapacity for work and necessitated surgery. 

3. Both parties’ expert witnesses agreed that the delay in symptom onset be some 36 hours after Mr Fischer last performed any work duties was irrelevant in terms of a causal connection to employment.  Both opined that the anatomical fact that Mr Fischer has a very capacious spinal canal impacted on his 2011 rapid recovery. Both agreed that this could have delayed the onset of further symptoms until a massive extrusion occurred. 

4. The Tribunal acknowledges that in 2011 no investigations, in particular imaging, were undertaken to prove an L5/S1 disc prolapse However, the unanimous expert opinion that this was the case is accepted by the Tribunal. 

5. In his written report, Associate Professor Steadman attributed Mr Fischer’s disc extrusion to non-work related natural progression of the degenerative process.  However in his oral evidence he stated the disc damage/degeneration was multifactorial in origin. A statistical relationship had been shown with smoking and obesity. Associate Professor Steadman opined that the nature of Mr Fischer’s work, particularly the lengthy periods of truck driving, was also a contributing factor in this case.  Mr Kossman considered the nature of the employment to be a major factor.

6. Dr Wong, the treating general practitioner, had not made any entries in Mr Fischer’s clinical record regarding back and leg pain on 28 July 2014. In his oral evidence he said this had been an oversight due to him concentrating on Mr Fischer’s depressive symptoms on the day.  From 29 July 2014, all of Dr Wong’s entries have related to Mr Fischer’s back pain.  The actual diagnosis of a disc protrusion with right sciatica was made by the physiotherapist, Mr Woodman, in early August 2014.  It was on Mr Woodman’s recommendation that Dr Wong proceeded to request the necessary radiological imaging.

7. The medical evidence is such that the Tribunal considers that the nature and incidents of Mr Fischer’s employment (see Thom) were causally related, although not the sole cause, of the initial 2011 and the subsequent 2014 symptoms relating to disc prolapse and/or extrusion.  The Tribunal’s determination is enforced by the evidence of Mr Kossman who said that had he seen Mr Fischer in 2011 he would have advised him to change his job and Associate Professor Steadman’s opinion that Mr Fischer, should he return to interstate truck driving would be at risk of further injury to his spine.

8. Had the opinions of Mr Kossman and Associate Professor Steadman not been essentially in agreement, the Tribunal given the absence of objective evidence in the form of radiological imaging in 2011, would have considered the claim under s 5A(1)(b) or (c).

   CONCLUSION

9. For these reasons, the Tribunal sets aside the decision under review. In substitution, the Tribunal determines that:

   (a)Mr Fischer’s massive L5/S1 disc extrusion is an aggravation of a pre-existing work related disc injury which has been significantly contributed to by his employment.

   (b)The Respondent is liable to pay:

   (i)Compensation pursuant to s 14 of the SRC Act; and

   (ii)The costs of medical treatment expenses pursuant to s 16 of the SRC Act; and

   (iii)Weekly payments of compensation in respect of incapacity pursuant to s 19 of the SRC Act. 

10. The Respondent is ordered to pay the Applicant’s costs and disbursements in respect of the proceedings pursuant to s 67 of the SRC Act.

71.     I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated   16 August 2016

Date of hearing	2 June 2016 – 3 June 2016
Counsel for the Applicant	Mr Mark Carey
Solicitors for the Applicant	Maurice Blackburn Lawyers
Counsel for the Respondent	Mr Mark Seymour
Solicitors for the Respondent	Clarke Legal

APPENDIX - EXHIBITS

APPLICANT

A1Statement of Malcolm Fischer dated 22 May 2015.

A2Letter of resignation of Malcolm Fischer dated 25 July 2014.

A3Report of Dr Thomas Kossman dated 23 May 2015.

A4Report of Dr John Wong 2016 dated 1 May 2016.

RESPONDENT

R1Section 37 Documents (T-Documents)

R2Medical Records of Sonic Health Plus.

R3Clinical Notes of Dr John Wong.

R4Medicare Notice dated 24 January 2016

R5Report of Dr Anthony Kam dated 2 February 2016.

R6Statement of Jason Randall dated 19 May 2015.

R7Report of Associate Professor Peter Steadman dated 7 March 2016.

R8 Statement of Ms Belinda Bos dated 7 May 2015.

R9 Medical Records of Eastern Health, Maroondah Hospital.

R10Medibank Health Solutions Records, Treatment for 2011 Conditions.