Matthews and Military Rehabilitation and Compensation Commission (Compensation) - [2020] AATA 1728

Matthews and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 1728 (15 June 2020)
Division:GENERAL DIVISION
File Number:2017/3031
Re:Darroon Matthews
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:15 June 2020
Place:Brisbane

I affirm the decision under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) – claim for compensation for spinal injury – whether sequela of accepted condition – degenerative constitutional condition – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth)
CASES
Costello and Secretary, Department of Transport (1979) 2 ALD 934
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
15 June 2020
INTRODUCTION

Mr Darroon Matthews (“the applicant”) served in the Army Reserve from 15 August 1979 to 3 October 1994, when he voluntarily discharged holding the rank of Sergeant. In his civilian life the applicant was a painter, but ceased his employment in 2008 due to his physical injuries. The applicant is now 66 years of age. He is seeking review of his claim for “L3/4 injury trauma”, which the applicant claims is a sequela of his other accepted conditions.
The applicant’s conditions which have been previously accepted under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) include:[1]
·Chip fracture distal tibia, left foot;
·Chip fractures of the left distal anterior tibia and lateral talus, loose bodies and left ankle osteoarthritis;
·Aggravation of degenerative lumbar disc and facet joint disease;
·Chronic pain as a result of the aggravation of the degenerative lumbar disc and facet joint disease; and
·Chronic adjustment disorder with depressed and anxious mood.
[1] Exhibit A, T-Documents, T113, p. 447.
The applicant has also unsuccessfully claimed for conditions relating to his left shoulder, neck, headaches, left knee, left calf muscle, and pinched nerve of the lower back.[2]
[2] Exhibit A, T-Documents, T43.
CLAIM HISTORY
In January 2007 the applicant submitted a claim for “broken ankle and pain to lower back”.[3] The respondent accepted liability for the applicant’s left ankle condition, described as “chip fractures of the left distal anterior tibia and lateral talus, loose bodies and left ankle osteoarthritis”, in June 2007.[4] In August 2007 the respondent accepted liability for the applicant’s lower back condition, being an “aggravation of degenerative lumbar disc and facet joint disease”, secondary to his left ankle condition.[5]
[3] Exhibit A, T-Documents, T6.
[4] Exhibit A, T-Documents, T11.
[5] Exhibit A, T-Documents, T14.
In a reconsideration request of the applicant dated 4 September 2013 he attributed his recent accident to being “immobilized and… being transported to hospital by ambulance” and to his existing “agrivation [sic] of degenerative lumbar disc and facet joint disease”.[6]
[6] Exhibit A, T-Documents, T85.
On 31 August 2016, the applicant submitted a claim for the conditions under review.[7] He outlined his claim for “L3/4 injury trauma”, said to be connected by sequela to his other accepted physical disabilities.
[7] Exhibit A, T-Documents, T103.
On 23 January 2017, the respondent made a determination that the applicant’s claim was not capable of being considered and determined due to the 22 August 2007 determination to accept liability for the “aggravation of degenerative lumbar disc and facet joint disease” condition.[8]
[8] Exhibit A, T-Documents, T108.
On 20 March 2017, the respondent affirmed the determination of 23 January 2017.[9] On 14 June 2017, the applicant submitted an application for review to this Tribunal.
LEGISLATIVE FRAMEWORK
[9] Exhibit A, T-Documents, T3.
Transitional provisions and jurisdiction
The claim which ultimately lead to the decision under review was first lodged on 31 August 2016. On 23 January 2017, the respondent made its first determination in respect of the claim. On 20 March 2017, the respondent affirmed that determination. On 14 June 2017, the applicant filed the application which is the subject of this proceeding. On those dates the applicable legislative provisions were contained in the SRC Act.
It has been settled since the decision of this Tribunal in Costello and Secretary, Department of Transport that:[10]
… where the nature of the decision under review does not involve a consideration of accrued rights or liabilities but rather involves an investigation whether the applicant has a present entitlement to the grant of a right or privilege… unless the amending law otherwise provides we should apply the law as amended as at the date of our decision.
In my following remarks I explain why Parliament has provided that the current law is applicable to the determination of this application.
[10] (1979) 2 ALD 934, at 944.
On 12 October 2017, Schedule 1 (which is in two parts) and Schedule 2 of the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth) (“the Defence Force Amendment Act”) commenced operation.[11] With the commencement of those Schedules came two relevant changes in the law, namely:
(a)The enactment of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (“the DRC Act”); and
(b)The insertion of subsection 5(17) in the definition of “employee” in the SRC Act which provides:
(17)To avoid doubt, a member of the Defence Force is not an employee.
Note:For members of the Defence Force, see the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988.
[11] Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth) ss 2(1).
Item 64 of Schedule 1 of the Defence Force Amendment Act provides:
64Claims, applications, requests and other processes begun under the Safety, Rehabilitation and Compensation Act 1988
(1) This item applies if:
(a)a process begun (including by claim, application or request) under a provision of the Safety, Rehabilitation and Compensation Act 1988 before the first commencement time was not completed by that time; and
(b)immediately after the second commencement time, there is a corresponding provision in the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988.
(2)Without limiting its effect apart from this item, the process is also taken, after the second commencement time, to have been begun under the corresponding provision.
Item 62 of Schedule 1 of the Defence Force Amendment Act defines the first and second commencement times as:
first commencement time means the time when Part 1 of this Schedule commences.
second commencement time means the time when this Part commences.
Part 1 of Schedule 1 of the Defence Force Amendment Act provides for the enactment of the DRC Act, while part 2 of Schedule 1 of the Defence Force Amendment Act provides for amendments and transitional provisions which affect the DRC Act. As outlined above, Schedule 1, including parts 1 and 2 thereof, of the Defence Force Amendment Act commenced on 12 October 2017.
I have earlier stated that this application for review was made on 23 June 2017. By virtue of the operation of item 64 in Schedule 1 of the Defence Force Amendment Act, the claim of the applicant and this application for review are taken to have been begun under the DRC Act.
Under section 64 of the DRC Act this Tribunal has jurisdiction to determine this application for review.
The DRC Act
The claim was first determined by the respondent in accordance with section 14 of the SRC Act. The corresponding provision in the DRC Act relevantly provides:
14Compensation for injuries
(1)Subject to this Part, the Commonwealth 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…
An “employee” is defined in subsection 5(1) of the DRC Act which relevantly provides:
employee means a member of the Defence Force…
As to the definition of an “injury”, subsection 5A(1) of the DRC Act provides:
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.
A “disease” is defined in section 5B the DRC Act which provides:
5BDefinition 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.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth, the following matters may be taken into account:
(a)       the duration of the employment;
(b)       the nature of, and particular tasks involved in, the employment;
(c)       any predisposition of the employee to the ailment or aggravation;
(d)       any activities of the employee not related to the employment;
(e)       any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)       In this Act:
significant degree means a degree that is substantially more than material.
An “ailment” is defined in subsection 4(1) of the DRC Act which provides:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether or sudden onset or gradual development).
Sections 6 and 6A of the DRC Act provide guidance in determining whether an injury or disease has arisen “out of or in the course of employment”.
EVIDENCE
The applicant’s evidence
The applicant has provided several statements in support of his application. In a statement dated 31 August 2017, the applicant described his claim as, “being for damage to the L3/4 and left L3 nerve root brought on by a fall. The fall occurred when my left ankle (damaged previously and is an already accepted condition), gave way while I was standing on the back of a trailer. This caused me to fall to the ground.”[12] The applicant stated that the L3/4 and L3 nerve root injury “affects [him] greatly at present”.
[12] Exhibit B.
The applicant gave a further statement dated 11 October 2017, in which he responded to questions put to him by the respondent.[13] He stated that the approximate date of his fall was 24 August 2013, and described the fall as follows: “I was standing on the trailer when my ankle went numb and gave way under me”. He remarked, “I fell landing on the flat of my back on a semi grassed surface” and “I felt like I had just winded myself and there was some slight momentary pain”. The applicant also remarked that, “I thought I would be ok from the fall”, but he went to hospital via ambulance two days later after another incident. He described the incident on 26 August 2013 as follows: “As I went to get off the ride on mower I felt a severe pain in my back causing me to collapse onto the ground. I was unable to move any part of my body because of the pain”. The applicant stated that he was at the hospital for several hours and, once the pain eased, he was allowed to leave. The applicant was subsequently referred to Dr David Johnson, Neurosurgeon.
[13] Exhibit B.
The applicant gave evidence at the hearing of this application. He described the trailer incident as involving a “sharp pain in the ankle” which caused him to overbalance and fall backwards. He also highlighted that his claim relates to both the L3/4 disc and the L3 nerve root, as a piece of the disc broke off and pressed against the nerve root.
Mrs Gayle Matthews
The applicant’s wife, Mrs Gayle Matthews, also gave a statement in support of the applicant’s claim. This statement outlined the difficulties the applicant experiences with his chronic pain, and the consequences of this. Mrs Matthews was not called to give oral evidence at the hearing.
Radiology and medical evidence
An x-ray of the applicant’s left ankle was conducted on 21 November 2003, it was reported: “the ankle joint space is quite well preserved. A healed fracture of the lower fibula is noted.”[14]
[14] Exhibit B.
Dr Phillip Vecchio, Rheumatologist, provided a report dated 16 May 2007 regarding the applicant’s left foot condition.[15] This report stated that the applicant sustained a significant injury to his left ankle on 22 February 1981. It was noted that the applicant experiences a “consistent ache in the left ankle”. Dr Vecchio reported that the correct diagnosis for the applicant’s condition was: “fractured left distal anterior tibia and lateral talus, loose bodies and left ankle osteoarthritis”.
[15] Exhibit A, T-Documents, T10.
On 12 July 2007, an x-ray of the applicant’s lumbar spine was conducted, it was reported that there was: “disc space narrowing at the L4/5 and particularly at the L5/S1 level”.[16] It was also noted: “There is sclerotic change at the facet joints in the lower two levels. There is gas in the intervertebral disc at the L5/S1 level in keeping with degenerative change”.
[16] Exhibit A, T-Documents, T12.
On 13 July 2007, Dr Vecchio provided a report regarding the applicant’s lower back condition.[17] Dr Vecchio reported that the applicant had “degenerative lower lumbar discs and facet joints, which are partly constitutional and partly contributed to by his 15 years of reservist/part-time military employment”. Dr Vecchio referred to the left ankle osteoarthritis condition as having “permanently aggravated, over a long period of time, the degenerative lumbar condition… and induced its symptomatic status”. Therefore the lumbar condition was determined by Dr Vecchio to be a “sequela condition”. Dr Vecchio diagnosed the applicant as suffering from an “aggravation of degenerative lumbar disc and facet joint disease”.
[17] Exhibit A, T-Documents, T13.
An x-ray of the applicant’s lumbar spine was undertaken on 2 May 2008. The report made reference to “reduction in disc height at the L5-S1 level… in keeping with disc degenerative change” and “milder disc degenerative changes are seen at L2-3 and L3-4 levels. L4-5 disc space remains normal.”[18]
[18] Exhibit A, T-Documents, T26.
On 8 May 2008, Dr Vecchio provided a further report regarding both the left ankle and lumbar spine conditions after the applicant submitted claims for further review of these conditions.[19] In his report Dr Vecchio stated that the applicant has “a definable aggravation of his lumbar spondylosis as a consequence of left ankle condition as a sequela…”
[19] Exhibit A, T-Documents, T27.
An x-ray of the applicant’s lumbar spine was undertaken on 29 July 2008, it was reported that there was a “marked degenerative change involving the left L5/S1 facet joint”.[20]
[20] Exhibit A, T-Documents, T30.
On 6 August 2008, a CT of the applicant’s lumbar spine was undertaken, it was reported:
At the L3-4 level there is a mild degree of central canal and lateral recess stenosis resulting from a broad based disc bulge, hypertrophy of the ligamentum flavum and mild facet joint degenerative change. The L3 nerves emerge bilaterally without impingement.[21]
[21] Exhibit A, T-Documents, T31.
On 5 February 2009, an x-ray of the applicant’s cervical spine was undertaken, it was reported that there was “moderate to severe degenerative disc narrowing at C6-7”.[22]
[22] Exhibit A, T-Documents, T38.
At the request of the respondent, Dr Anthony Webster, Occupational Physician, provided a report dated 17 February 2009 addressing several of the applicant’s medical conditions.[23] Dr Webster concluded that the pinching nerve of the applicant’s lower back is a symptom, and “is the aggravation of degenerative lumbar disc and facet joint disease, it is not a new condition”. He noted that the applicant “has referred pain in the left calf muscle most likely from his lumbar discs and facet joint disease … this is aggravation of degenerative lumbar disc and facet joint disease, it is not a new condition”.
[23] Exhibit A, T-Documents, T39.
A CT of the applicant’s lumbar spine was undertaken on 24 July 2012.[24] The report referred to the following:
·“At L3/4 level there is a mild diffuse bulging of the disc annulus slight more prominent on the left side…there is no impingement upon the exiting L3 nerve root”;
·“At L4/5 level there is a moderate diffuse disc bulge… the exiting L4 nerve roots are unaffected however there is probably impingement upon the proximal descending L5 nerve roots on each side”; and
·“At L5/S1 level… there is evidence of disc degeneration”.
These were described as “degenerative changes”.
[24] Exhibit A, T-Documents, T74.
On 14 June 2013, an x-ray of the left ankle was undertaken.[25] It was reported that there was a “bony irregularity noted associated with the distal fibula” and “slight bony irregularity at the anterior margin of the tibial plafond”, both thought to be secondary to an old injury. It also noted that “minor degenerative joint change” was visible.
[25] Exhibit A, T-Documents, T80.
On 2 October 2013, an MRI of the applicant’s lumbar spine was undertaken, it was reported that there was a left neuroforaminal annular fissure at the L3/4 level “with a probable sequestered disc fragment lying immediately adjacent to an inflamed left L3 nerve”.[26]
[26] Exhibit A, T-Documents, T87.
Associate Professor Dr Iulian Nusem gave a report dated 2 December 2013.[27] He recorded: “In October 2013 while walking in his backyard [the applicant] stepped to climb on a trailer and felt an immediate sharp pain in his ankle which caused him to fall backwards on his back and on his left side.” Dr Nusem noted that the applicant attended the emergency department at Nambour General Hospital and was discharged on the same day with a recommendation of rest and analgesics.
[27] Exhibit A, T-Documents, T91.
In his report Dr Nusem stated that the applicant “complains of constant pain” and “has difficulties with any physical activity”. He diagnosed the applicant as suffering from the following back conditions:
·Lumbar spondylosis – stand alone;
·Mild central canal stenosis at L4/5 – sequela; and
·Sequestrated disc L3/4 with left L3 nerve root compression – sequela.
Dr Nusem also noted that the sequestrated disc L3/4 with a left L3 nerve root compression condition was not permanent.
On 20 January 2014, Dr Ian Home, clinical assistant to Dr Johnson, wrote a letter which stated that the applicant “has two separate issues with his lumbar spine. He has degenerative changes at L5/S1. He also has a disc prolapse at L3/4.”[28]
[28] Exhibit A, T-Documents, T93.
On 23 April 2014, Dr Nusem provided a supplementary report, which he completed after having reviewed the letter of Dr Home.[29] Dr Nusem reported: “The sequestrated L3/4 disc is an aggravation of the pre-existing degenerative lumbar disc disease”. Dr Nusem also noted that he considered there was treatment that could improve the sequestrated disc L3/4 with left L3 nerve compression; however, there was no treatment that would improve the accepted condition (i.e. the aggravation of degenerative lumbar disc and facet joint disease).
[29] Exhibit A, T-Documents, T98.

On 10 March 2017, Dr Meyerowitz, departmental medical adviser, reported:
In my opinion the sequestrated disc at L3/4 is a degenerative disc and this would be covered by the diagnosis of aggravation of degenerative disc disease. There is no stand alone condition.[30]
[30] Exhibit A, T-Documents, T112.
Dr David Johnson, Brain and Spinal Neurosurgeon
The applicant was referred to Dr Johnson in 2013 following his hospital admission. In his letter dated 22 October 2013, Dr Johnson remarked that the applicant had experienced “chronic low back pain for 20 odd years”.[31] Dr Johnson reported that in the last two months the applicant had experienced an “increase in back pain and spasms”, and described “typical left sided L3 radiculopathy with weakness of the quadriceps and burning neuropathic pain in the anterior thigh towards the knee”. Dr Johnson also reported that the applicant’s MRI imaging was “consistent with his symptoms with a left L3/5 foraminal disc prolapse impinging on the left L3 nerve root”. Dr Johnson remarked that treatment options included surgical treatment; i.e. a left sided L3/4 transforaminal lumbar interbody fusion, which is major spinal surgery.
[31] Exhibit B.
Dr Johnson also wrote a letter dated 27 February 2018 in which he reported that the applicant’s symptoms had “progressed and changed somewhat over the last 5 years. When assessed in 2013 he was suffering from a symptomatic left L3/4 disc prolapse. This is not active anymore.”[32] Dr Johnson reported: “His current presentation is one of symptomatic L4/5 stenosis and in particular the lateral recess where the traversing L5 nerve roots, in particular the left hand side, are being compressed and causing symptoms.” Dr Johnson reported that the applicant describes “persistent throbbing left sided lower limb pain from the back, to the gluteal region, to the leg.”
[32] Exhibit B.
Dr Johnson stated that he had spoken to the applicant about a structural remedy with subsequent functional rehabilitation likely giving the applicant the most favourable prognosis. The surgical option was outlined to be an L4/5 decompression laminectomy with rhizolysis.
On 23 February 2018, an MRI of the applicant’s lumbar spine was undertaken, upon the request of Dr Johnson, with a subsequent report provided by Dr Sean O’Connor.[33] Dr O’Connor reported that there was a “left sided radiculopathy affecting whole leg”. Regarding the L3/4, Dr O’Connor also reported: “Loss of disc height is present with circumferential marginal disc bulging which extends into the lateral recesses bilaterally and is causing marked effacement of the left descending L4 nerve root” and “mild degenerative change of the facet joints is present bilaterally”. Dr O’Connor reported on the L2/L3 and L5/S1, Dr O’Connor noted: “mild degenerative change of the facet joints is present bilaterally”. Dr O’Connor commented: “multilevel lateral recess stenosis at L3/L4, L4/L5 and L5/S1”.
[33] Exhibit B.
Associate Professor Dr Peter Steadman, Orthopaedic Surgeon
On 5 January 2018, Dr Steadman made his report at the request of the respondent.[34] In his report Dr Steadman referred to the applicant’s ankle injury and noted the applicant’s comment that “over the years the ankle has never been satisfactory”. He stated:
The issue now is that he is suffering from an L3 nerve root compression which he relates to a fall from a trailer that apparently occurred when the left ankle gave way. He describes that he was fixing the trailer and standing on the drawbar. He said that his leg was playing up as usual and he experienced a sudden sharp leg pain and then fell off the drawbar and flat on to his back.
Dr Steadman noted that the applicant recovered but three days later was getting off a ride-on mower when he experienced a severe pain in his leg and had to go to hospital by ambulance. He further noted that the applicant was sent to Dr Johnson, Neurosurgeon, who diagnosed left thigh pain from compression by the L3 nerve.
[34] Exhibit C.
Dr Steadman detailed the applicant’s experience of “pain in his low back that goes to his left leg and groin (i.e. consistent with ongoing L3 compression). He feels it also radiates upwards.” Dr Steadman noted: “Recent MRI confirms significant residual left ankle pathology that could have caused pain most likely chronic rather than acute”.
When discussing his opinion of the applicant’s condition, Dr Steadman referred to the applicant’s belief that his fall from the trailer and the events relating to riding the mower were both the cause of the L3/4 nerve root compression. Dr Steadman commented that he would “tend to agree with the proposed clinical algorithm and have difficulty clinically excluding a causative link to the disc prolapse”. Dr Steadman noted that factors against the fall causing the acute protrusions include that upper lumbar protrusions are common in older people and the applicant has significant spine degeneration.
Dr Steadman diagnosed the applicant with “multilevel disc protrusions and residual clinical signs of left L3 nerve compression”. Dr Steadman confirmed that the applicant has restricted range of motion of his back which is “presumably due to multilevel degenerative disease”. He also stated that the applicant has “some mild clinical signs of the sequestrated L3/4 disc with L3 nerve compression”.
Dr Steadman was asked to provide his view on whether the applicant’s diagnosed L3/L4 back injury developed as a consequence of his claimed fall from a trailer in 2013, and whether the applicant’s accepted left ankle condition contributed in any way to his fall. Dr Steadman’s response was: “On the basis of probability the most likely clinical scenario for the onset of his current back condition is an evolution of degenerative disease from the incident of [2013].”
Dr Steadman referred to a history of examinations and degenerative changes in the applicant’s back, and commented that it was only on the 9 October 2013 scan that the left L3 nerve appeared compressed by a piece of sequestrated disc.
Dr Steadman stated that it was “feasible” that the shooting pain the applicant suffered before falling from the back of the trailer “may represent L3 symptoms in the nerve root”, and caused him to fall, as opposed to his fall being caused by the left leg, which caused the left L3 sequestrated disc to occur. Dr Steadman noted that ambulance and emergency department reports of 26 August 2013 describe the applicant as reporting “left leg numbness”, which the applicant indicated had been going for a period, and that the most reported pain at that time appeared to be low back pain. Dr Steadman hypothesised that it appeared “more certain from the radiology” that significant change occurred to the relevant area between 24 July 2012 and 9 October 2013, because in 2013 a sequestrated disc was noted to be compressing the left L3 nerve.
Dr Steadman’s conclusion was outlined as follows:
The sharp pain he had in his leg may have been due to the protrusion then without his ankle giving way causing him to fall. In my opinion it is more likely that he suffers from multilevel degenerative disease and that the L3/4 disc protrusion represents a constitutional disorder. When he was on the back of the trailer it seems more likely that the leg pain described could have been due to a shooting nerve root symptom… This means that the ankle, and the ankle symptoms… are less likely to be the cause.
Dr Steadman noted: “L3/4 disc protrusions and those affecting the femoral nerve are predominantly the domain of older people in [the applicant’s] age group. This means that the condition could just occur anyway.” With respect to treatment Dr Steadman commented: “I support the fact that he has disc prolapse and may benefit from treatment. However, it is unlikely to be causally linked to any pathology in the left ankle.”
On 12 February 2018, Dr Steadman provided a supplementary report. In his report Dr Steadman confirmed that the applicant suffers from multilevel degenerative disc disease and the L3/4 protrusion represents a constitutional disorder – i.e. the applicant’s symptoms are the progression of a degenerative disc disease. Dr Steadman also discussed the “small possibility” that there was a radiological reading error which explained why the sequestrated disc was not evident in the CT scan performed on 24 July 2012 but was seen in the CT scan undertaken on 9 October 2013. Alternatively, he put forward his opinion that the more likely possibility was that the sequestrated disc had “progressed from the bulge identified before to pop out and compress the left L3 nerve”.
Dr Steadman also gave evidence at the hearing. He confirmed that since writing his reports he had reviewed the actual radiology scans relating to the applicant, and this had changed his position on when the applicant’s condition had developed. Dr Steadman referred to his response in the supplementary report, where he outlined the “small possibility” of a radiological reading error and stated that he no longer believes it to be a small possibility. He instead considered it “the distinct possibility”, meaning that it “fits with his clinical symptoms at that time and that’s what the radiology shows”. Dr Steadman explained that the applicant had some clinical symptoms at the time of the 2012 CT scan that were similar to the ones that he ultimately suffered about a year later, including a painful left side. He highlighted that MRI scans are much more accurate than CT scans. He stated that after reviewing the 2012 CT scan his impression was that there was a suggestion that the bulge that subsequently became more symptomatic and was identified the following year, was there then in 2012. The 2013 MRI scan, which clearly showed the protrusion, allowed him to retrospectively view the 2012 CT scan and see the suggestion of it being there. Dr Steadman agreed that this was not consistent with the 2012 radiological report, which described a “mild bulge”, and that it appears the radiologist may have understated what was present on the scan or missed part of the pathology. Dr Steadman commented that it is a regular occurrence that radiologists understate findings or make mistakes, particularly because they don’t have the benefit of correlating their impressions with clinical symptoms.
Dr Steadman was asked about his proposition that the applicant suffered from a multi-level degenerative disc disease, and that the protrusion seen at the L3/4 level represented a constitutional disorder. He stated that the radiology demonstrated certain features of “degeneration”, meaning “change in the discs and the vertebrae as you get older”, and degenerative disease was considered to be constitutional as it was “not the result of a particular injury”. Dr Steadman commented that the 2013 MRI report makes reference to the lower four discs of the applicant’s lumbar spine having collapsed; they all have “gentle bulges at the back” and there is bony overgrowth. He stated that the L5/S1 and L4/5 are the most affected, but 2/3 and 3/4 show the same features, just to a lesser extent. Dr Steadman stated that part of the reason for this is “when degenerative disease occurs, it makes the area of the spine that is deteriorating, wear out and become stiffer and that puts further forces further up the spine… it becomes an incremental march upwards up the spine”. Dr Steadman described this cycle in the spine as “well documented”.
Dr Steadman confirmed his opinion that what has taken place with respect to the applicant’s claimed condition is the progression of natural degeneration in his spine. Dr Steadman stated that there is evidence back in 2008 of degeneration, and that was recognised as a condition. Dr Steadman described the new symptoms as “just a continuing march from that point”.
Dr Steadman was asked several questions under cross-examination. The applicant sought to clarify with Dr Steadman the reason for his references to his leg in Dr Steadman’s report, when it was the ankle that the applicant claimed as being the reason for his fall. Dr Steadman explained that he considered the probability that the applicant’s fall was caused by his ankle, but an MRI of his ankle didn’t seem to indicate that the ankle had an instability; so the other hypothesis he investigated was that the applicant’s left quadriceps muscle was weak because of the nerve being pinched, and as a consequence caused his leg to give way.
The applicant asked Dr Steadman if the pinched nerve at L5/S could have caused the pain to radiate down that nerve, and Dr Steadman stated that that was the “least likely” possibility. Dr Steadman gave evidence that the most probable event was that something caught in the applicant’s ankle and he fell; however, he also noted that he did not find any obvious or treatable issues in the ankle.
Dr Steadman also remarked that the way the applicant described the fall (i.e. falling flat onto his back) did not align with what would traditionally cause a disc protrusion at L3/4. Dr Steadman stated that the most common thing to cause a protrusion in the spine is bending over and lifting a heavy weight, or sneezing or coughing.
Dr Steadman stated that the other factors that informed his opinion were that the applicant had experienced symptoms in his left leg and had thigh pain the year prior to the fall, and that there was more than likely a bulge already present on the 2012 CT scan but the radiologist perhaps “just under-called it”. The applicant sought to clarify whether Dr Steadman could say definitively whether the bulge was there on the CT scan or not, and Dr Steadman agreed that there was no way to be 100% sure, but his opinion was based upon his experience.
The applicant put to Dr Steadman that he experienced a pain in his back after the ride on mower incident, and he did not say that he had leg pain. Dr Steadman accepted that, however, he noted that the ambulance records indicated that the applicant’s leg was in severe pain. He also stated that usually if a disc is causing a problem it doesn’t just cause back pain.
The applicant asked Dr Steadman if it was possible that when he fell it caused the L3/4 disc to break away and press up against the L3 nerve. Dr Steadman stated that it was impossible to say, however he also stated that that is a recognised process that occurs with a disc; you get a bulge, then a prolapse, then a sequestration.
SUBMISSIONS
Applicant submissions
The applicant submits that the claimed L3/4 condition is separate to the accepted degenerative lumbar disc condition. He referred to the report of Dr Vecchio dated 13 July 2007, which only diagnosed the condition at the L4/5 and L5/S1. The applicant also referred to the letter of Dr Home, assistant to Dr Johnson, who stated that the two issues were separate: degenerative change at L5/S1, and a disc prolapse at L3/4 and impingement of the L3 nerve root.
The applicant submits that Dr Steadman failed to show that the pain felt in the applicant’s ankle which caused the fall, did not happen or contribute to the fall, and thus cause the injury to the L3/4 and L3 nerve root.
The applicant submits that the 2012 CT scan reported no impingement upon the exiting L3 nerve root, and it is impossible to say for certain, and is indeed unlikely, that a disc prolapse and impingement of the nerve was missed in this scan. The applicant submits that the claimed injury only became apparent on the radiology after his fall in 2013, and the extent to which the condition had developed between 2012 and the time of his fall in 2013 is difficult to determine due to the constant pain he was experiencing from his back, hip, leg and ankle during that time.
The applicant referred to Dr Johnson’s letter dated 27 February 2018, in which he stated that the applicant’s symptoms have “progressed and changed somewhat over the past 5 years”. The applicant submits that it is due to the surgery he underwent that his L3/4 prolapse is no longer active; however, the pain and suffering he has endured during the review process cannot be discounted.
The applicant referred to Dr Nusem’s report where he listed the L3/4 and L3 nerve root as a sequela with a WPI of 20%, and stated that if the L3/4 and L3 nerve root were treated or changed by other means he would change his assessment from 20% to 10%. The applicant submits that he should be awarded a WPI of 10% on this basis.
Respondent submissions
The respondent’s position is that the applicant’s claimed condition is not an aggravation of the L3/4 disc but the degeneration of the previously accepted lumbar disc condition. The respondent submits it is liable to treat the effects of an aggravation but not the underlying degenerative effects themselves.
The respondent submits that the medical evidence supports a finding that the applicant suffered from multilevel disc disease and several disc prolapses prior to the alleged incident in August 2013. In 2007 Dr Vecchio reported that radiology of the lumbar spine revealed degenerative disc disease at multiple levels. A 2008 CT scan of the applicant’s lumbar spine showed a mild degree of central canal and lateral recess stenosis. A 17 February 2009 report of Dr Webster confirmed that the applicant suffered from lower back problems relating to degenerative lumbar disc and facet joint disease. On 4 May 2009 Mr John O’Brien, Orthopaedic Surgeon, reported that the applicant’s lumbar symptoms related to symptomatic lumbar spondylosis, which was “definitely disabling”. A CT scan of the applicant’s lumbar spine conducted on 24 July 2012 noted mild diffuse bulging of the disc annulus at L3/4.
The respondent submits that the actual CT scan performed on 24 July 2012 demonstrates different pathology than what was reported by the radiologist, who understated the findings. During his evidence-in-chief Dr Steadman indicated that since producing his report he had viewed the actual CT scan of this date, which, in his opinion, showed that the protrusion seen on the MRI of 2 October 2013 was already present in 2012. His view was that it was a “distinct possibility” that the radiologist had incorrectly recorded the pathology and the applicant was already suffering from the disc bulge at L3/4 prior to his fall in August 2013; indeed, he commented that it appeared the applicant “had more than a bulge” and that he had “a bigger protrusion… that would fit… with his clinical symptoms” at the time.
The respondent submits that the MRI conducted on 2 October 2013 reports what already existed at the time of the CT scan in 2012, and the applicant’s condition is nothing more than a progression of the degeneration previously identified in the applicant’s lumbar spine. Therefore, any fall which took place in August 2013 could not be the cause of what was identified in the October 2013 MRI. Dr Steadman’s evidence was that the applicant suffers from multilevel degenerative disc disease and the disc protrusion at L3/4 represents a constitutional disorder.
The respondent submits that the medical evidence, particularly that of Dr Steadman, fails to support a finding that any L3/4 back condition could have developed as a consequence of a fall in August 2013. During Dr Steadman’s cross-examination he expressed his opinion that the fall as described by the applicant, particularly falling flat on his back, was not generally causative of an L3/4 disc protrusion. The respondent also submitted that there is no medical evidence that supports a correlation between the applicant’s L3/4 back condition and the fall from a trailer in August 2013.
The respondent submits that the medical evidence from the applicant’s treating surgeon, Dr Johnson, does not support the applicant’s position, as Dr Johnson considers that the applicant no longer suffers from any issues relating to L3/4. Therefore, there is no longer a symptomatic condition which could attract compensation.
CONSIDERATION
The claim form of the applicant states that the trauma at L3/4 occurred in 2014. The claim form was lodged on 31 August 2016. The applicant stated that he did not submit the claim form until then because of other medical reasons. I appreciate that at this time the applicant was being treated for several conditions. However, I consider that the applicant had informed the respondent before 2016. This was done in his undated letter which was received by the respondent on 7 February 2014[35] in which the applicant had stated that the sequestrated disc L3/4 with L3 nerve root compression was “only a recent injury that has happened in the last six months and it occurred after a fall due to my accepted left ankle condition”.
[35] Exhibit A, T-Documents, T94.

The applicant in giving evidence clarified that the trauma occurred in 2013 and not 2014. In a letter dated 11 October 2017 the applicant informed the respondent that an approximate date of the incident was 26 August 2013. At that time, he stated that he was standing on a trailer when his ankle went numb and gave way under him and he “fell landing on the flat of his back on a semi grassed surface”.
There is evidence that the applicant suffered from degenerative disc disease and disc prolapse for some years prior to the incident of August 2013. There is evidence from specialists that this is the case. On 13 July 2007, Dr Vecchio, Rheumatologist, reported upon the applicant’s degenerative lower lumbar discs and facet joints. On 17 February 2009, Dr Webster, Occupational Physician, reported on the degenerative lumbar disc and facet joint disease. On 4 May 2009, Mr John O'Brien, Orthopaedic Surgeon, reported on the symptomatic lumbar spondylosis condition of the applicant; Mr O’Brien could “not find any specific activity for this pathology”. Dr Steadman, Orthopaedic Surgeon, in giving evidence stated that the applicant suffers from multilevel degenerative disc disease and that the disc protrusion at L3/4 represents a constitutional disorder. I conclude in reliance on the evidence of Dr Steadman that the disc protrusion at L3/4 is a constitutional condition.
There have been investigations which confirm the condition of the lumbar spine of the applicant over time. On 6 August 2008, a CT scan was undertaken, it was reported that there was evidence of a mild degree of central canal and lateral recess stenosis resulting from a broad-based disc bulge, hypertrophy of the ligamentum flavum and mild facet joint degenerative change at L3/4. On 24 July 2012, a CT scan reported evidence of mild diffuse bulging of the disc annulus at L3/4. On 2 October 2013, an MRI was undertaken, in the resulting report it referred to left neuroforaminal annulus fissure, with a probable sequestrated disc fragment lying immediately adjacent to an inflamed left L3 nerve, within the neural foramen/lateral recess.
Dr Peter Steadman when giving evidence indicated that he viewed the report of the CT scan dated 24 July 2012 which showed that the protrusion seen in the MRI of 2 October 2013 was present in 2012. Dr Steadman has concluded that the applicant had a disc bulge at L3/4 before the incident in August 2013. Dr Steadman remarked that the applicant "had more than a bulge" and that he had "a bigger protrusion...that would fit ...with his clinical symptoms of the pain in the left leg at that time”.
I have earlier mentioned that the applicant stated that in about August 2013 he fell backwards off a trailer as a result of experiencing a sharp pain and instability in his left ankle. Dr Steadman on being cross-examined by the applicant stated that this incident “wasn't quite right with the potential mechanism for causing the L3-4 disc protrusion as well." Having regard to the evidence from Dr Steadman I conclude that the applicant already had a L3-4-disc protrusion before the incident on 26 August 2013.
The applicant was examined on 27 February 2018 by Dr Johnson, Neurosurgeon, who issued his report to Dr Peter Jacobs, General Practitioner on that date. Dr Johnson has been the treating surgeon of the applicant. Dr Johnson reported:
When assessed in 2013, he was suffering from a symptomatic L3-4 disc prolapse. This is not active anymore…
The report of Dr Johnson was admitted into evidence.[36] This report that there are no longer symptoms is uncontradicted evidence. The respondent submits that there is no basis for an award of compensation.
[36] Exhibit B.
I accept the submissions of the applicant that the L3-4 disc condition caused him pain but the evidence before the Tribunal is that cause of his pain condition certainly preceded the incident of August 2013. For instance, on 4 May 2009, Mr O'Brien reported that the level of symptomatic lumbar spondylosis condition was then “definably disabling”. I consider that Dr Steadman has fairly investigated whether the ankle condition of the applicant had contributed to the incident of August 2013. I accept his assessment, which was based on a MRI, that there was no instability of the ankle and that the weakness of the left quadriceps muscle because of a pinched nerve would have caused the leg to give way. Dr Steadman had regard to contemporaneous ambulance records which recorded that the applicant reported severe leg pain at the time of the incident.
I have therefore concluded that the claimed degenerative lumbar disc condition of the applicant was not caused by his accepted conditions and that it does not satisfy the definition of a disease under section 5B of the DRC Act. While I accept that the degenerative lumbar disc condition is an “ailment” within the definition in section 4 of the DRC Act as it is a “physical… ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development”, the lumbar disc condition is a constitutional condition and not an ailment that was “contributed to, to a significant degree, by the employee’s employment by the Commonwealth”. The condition therefore does not come within the definition of a “disease” under section 5B of the DRC Act. The lumbar disc condition is not an “injury” under section 5A of the DRC Act: it is not a disease under section 5A(1)(a) or an injury or aggravation under sections 5A(1)(b)-(c) of the DRC Act as it did not arise out of or in the course of the applicant’s employment with the Commonwealth The respondent is therefore not liable to pay compensation in respect of that condition under section 14 of the DRC Act.
CONCLUSION
I acknowledge the contribution that the applicant has made to the defence of Australia by his dedicated service. The respondent has quite properly accepted that it is liable to treat the effects of an aggravation of the degenerative condition of the applicant. This is in accord with the opinion of Dr Vecchio, Rheumatologist, and Mr O’Brien that the left ankle condition of the applicant has previously aggravated the lumbar disc condition of the applicant. However, I have explained why, in my opinion, the ankle condition of the applicant did not contribute to the incident of August 2013. I accept that the applicant was truthful in stating that he was in pain after the ride-on mower incident. However, there is cogent evidence that the degenerative lumbar disc condition of the applicant was in existence for several years and caused disabling pain before the incident in August 2013. The applicant was honest in 2013 in informing Dr Johnson that he had suffered chronic lower back pain for 20 years. There is no evidence which would enable me to make an award of compensation for 10% WPI in respect of a constitutional condition, which, in my opinion, was not aggravated by an accepted condition.
DECISION
I affirm the decision under review.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate
Dated: 15 June 2020

Date of Hearing: 23 August 2018

Final Submissions Received: 14 November 2018

The Applicant: In person

Solicitor for the Respondent: Mr Peter Crethary, Moray & Agnew Lawyers

Date of Hearing:	23 August 2018
Final Submissions Received:	14 November 2018
The Applicant:	In person
Solicitor for the Respondent:	Mr Peter Crethary, Moray & Agnew Lawyers