Neuendorf and Australian Postal Corporation (Compensation)

Neuendorf and Australian Postal Corporation (Compensation) [2019] AATA 2430 (6 August 2019)
Division:GENERAL DIVISION
File Numbers: 2018/0049, 2018/2010, 2018/4076, 2018/4078, 2018/4079
Re:Trevor Neuendorf
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso

Date:06 August 2019
Place:Brisbane

The Tribunal affirms the following decisions under review:
(a)Application 2018/0049;
Application 2018/2010;
Application 2018/4076;
Application 2018/4078; and
Application 2018/4079.

.........................................[SGD]...............................
Deputy President J Sosso
Catchwords
COMPENSATION – accepted injury of lumbar strain – whether the accepted condition has resolved – Respondent no longer liable in respect of medical expenses under s 16 or for injury resulting in incapacity under s 19 – Applicant not suffering from a work-related annular tear – Applicant not suffering from WPI of 10% or more and not liable to pay compensation for permanent impairment under ss 24 and 27 – Applicant not suffering from a work-related disease pursuant to s 5B – decisions under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Bessell and Telstra Corporation Ltd (1994) 35 ALD 660
Boggs and Comcare [2019] AATA 221
Brice and Comcare (2007) 96 ALD 171
Canute v Comcare [2005] FCA 299
Canute v Comcare (2006) 226 CLR 535
Comcare v Mooi (1996) 69 FCR 439
Funk and Military Rehabilitation and Compensation Commission (2008) 49 AAR 306
Howard v Comcare [2019] FCA 1031
Howes v Comcare [2016] FCA 1521
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Mutton and Linfox Armaguard Pty Ltd [2009] AATA 353
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Steele and Pacific National Pty Limited [2009] AATA 321
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110
Secondary Materials
Waddell et al, “Nonorganic Physical Signs in Low-Back Pain: Spine (1980) Vol 5(2)
REASONS FOR DECISION
Deputy President J Sosso
06 August 2019

Trevor Robert Neuendorf (the Applicant) seeks review of five reviewable decisions of the Australian Postal Corporation (the Respondent), namely:
Application 2018/0049. The reviewable decision of 6 November 2017 affirmed a Determination of 18 August 2017 that denied liability to pay compensation for permanent impairment under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of the Applicant’s accepted lumbar strain condition;
Application 2018/2010. The reviewable decision of 17 January 2018 affirmed a Determination of 6 October 2017 that denied liability to pay compensation under s 14 of the Act for a claimed depression and anxiety condition secondary to the Applicant’s accepted lumbar strain condition;
Application 2018/4076. The reviewable decision of 27 June 2018 affirmed a Determination of 7 June 2018 that determined that the Applicant’s lumbar strain condition is to remain unchanged;
Application 2018/4078. The reviewable decision of 26 June 2018 affirmed a Determination of 8 June 2018 that determined there was no present liability to pay compensation under ss 16 and 19 in relation to the Applicant’s accepted lumbar strain condition; and
Application 2018/4079. The reviewable decision of 3 July 2018 affirmed a Determination of 25 June 2018 that denied liability to pay compensation for permanent impairment under ss 24 and 27 of the Act in relation to “L4/5 bulging discs with annular tear”.
At the time of the Hearing the Applicant was 43 years of age. After leaving school the Applicant worked:
(a)at a fishing tackle warehouse as a storeman for 2 – 3 years;
(b)as a driver for an exhaust company for 2 years;
(c)with his uncle restoring classic motor vehicles;
(d)detailing motor vehicles with Avis and Europcar for 2 ½ years;
(e)in the hospitality industry including bar and general work at the Kooralbyn Resort and at the Brisbane Casino as a bartender for two years; and
(f)on the assembly line at Mack Trucks between 2003 - 2006 – Exhibit 1 T86 p. 463, T165 p. 811.
The Applicant stated that he had been a fit and active person all of his life, and was an elite athlete from the age of 13. He played AFL football for the Mayne Tigers and in 1995 tried out with the Richmond Tigers AFL team. Further, he was a competitive sprinter in 100, 200 and 400 metre races and trialled for the 1998 Commonwealth Games. The Applicant also played golf, rode BMX bicycles to a high competitive standard and competed in motor sports as a driver and support person – Exhibit 1 T103 p. 537.
The Applicant commenced working for the Respondent in approximately June 2006. Initially the Applicant worked as a Postal Delivery Officer (PDO) from the Stafford Mail Centre which entailed, amongst other duties, delivering mail on a motorcycle. The Applicant claimed that as a PDO he was “required to lift 8 kg grey letter trays, 16 kg corfluts with large letters in them also 12.5 kg mail overweight bags…” The Applicant performed these duties for approximately 5 ½ years, and in 2012 transferred to the Northgate Mail Centre – Exhibit 1 T86 p. 463, T103 p. 540.
At the time of making his first claim, the Applicant was working at the Northgate Mail Centre as a Mail Officer normally on the 9 pm night shift. His work entailed the sorting of mail by hand or machine. The Applicant stated that this involved moving unit load devices (ULDs), and pulling trays out of them. The Applicant estimated that the trays weighed approximately 8 kg. The Applicant was also required to push the ULDs using a manual pallet jack. The Applicant estimated that the ULDs weighed between 300 – 500 kg – Exhibit 1 T68 p. 377.
The Applicant’s description is in accord with one given by the Respondent where it said that the machine work is performed on a rotational basis where staff rotate through the various stations on the machines. All work involves lifting up to 16 kg, repetitive lifting of trays weighing 8 kg for standard letter mail to 16 kg for large letter mail (A4 size). Mail is moved by ULDs using manual or sometimes electric pallet jacks. All duties require repetitive reaching with the arms, and most duties are performed in standing and walking posture – Exhibit 1 T162 p. 797.
The Applicant made a claim for compensation dated 24 July 2014 for a lower back injury sustained it was said from “lifting gray trays” and “pushing heavy ULDs with pallet jack” – Exhibit 1 T11 p. 163.
The claim was initially not accepted. In a letter dated 1 September 2014, the Claims Manager outlined the following reasons for this decision – Exhibit 1 T14 p. 174:
“I note there appears to have been no specific accident and/or specific incident that may have caused your lower back injury whilst in the course of your duties and you have not described any mechanism of injury. You also failed to report or notify anyone of the injury at the time of the incident occurred.”
The Applicant underwent a MRI scan of his lumbar spine. In his report of 5 September 2014, Dr J Savage made the following observations – Exhibit 1 T17 p. 184:
“The thoracolumbar junction and upper three lumbar disc spaces look normal with no signs of disc protrusion, stenosis or foraminal constriction.
L4/5 shows mild left posterolateral disc protrusion with minimal pressure on the exiting left L4 nerve root. There is no central stenosis. Facet hypertrophic changes are minimal.”
(emphasis in the original)
The Applicant requested a reconsideration of the decision and provided the following information about the circumstances of his injury – Exhibit 1 T20 pp. 187 – 190:
“My claim I put forth on the 24/7/2014 was for an incident that happened on the night of the 14/7/2014 and 15/7/2014. While I was on shift I was moving gray letter trays from ULD to ULD at machines and outside in loading docks. Also through the night I was moving ULD’s with a manual pallet jack with weights more than 300Kg.
I finished my working night at 04.51 on the morning of 15/7/2014 I got into my car drove home. When I got home I made myself some breakfast when I sat down to eat I felt a pain in my lower back. I thought it was a muscle pain from the nights work of all the lifting and moving of heavy items so I ate my breakfast went and had a shower took 3 Panadol and went to bed. I had a restless sleep when I woke up around 19.30 I rang work where I got the recorded message for the absence line I left a message saying. This is Trevor Neuendorf 9PM shift I would not be in tonight as I have hurt my back last night and would be seeing a doctor first thing in the morning that was 19.35 15/7/2014.
The next morning I went to the doctors at Walton Bridge medical centre Ferny Hills at 9.30 16/7/2014.
Dr S Sondergeld examined me asking me what happened and where it hurts. I then did a flexibility test with him to see how far I could move after that he referred me to see a physio.
At around 9.45 I left the doctors and went to the physio at Ferny Grove straight away I was examined by the physio he noticed right away that my lower back was swollen he asked how I did this I told him. I the left the physio and went home where I then rang work at Northgate letting them know what had happened and what was wrong also when I would be seeing the doctor again told them. I went to the physio on the 17/7/2014 on Friday the 18/7/2014 another physio treated me as my physio was off she said that my coxes was not straight she then said she thought I had a bulging disc in my back I had further physio and also saw my doctor again a few times in that time the doctor gave me a referral to get an MRI done to get confirmation it was a bulging disc. In the time I was off no one from compo or Australia post had spoken to me or try to contact me….
There is nothing in my life that could have contributed to my injury other than what I do at work. I do no heavy lifting or pushing of heavy objects other than work this is why I feel that my claim should be excepted.”
Within this decision, there are numerous quotations from documents prepared by the Applicant. Unless otherwise noted, the documents are quoted in their original form with no spelling or grammatical corrections
The Applicant was also provided a short report, dated 16 September 2014, by his treating GP Dr Sondergeld, which is set out below – Exhibit 1 T19 p. 186:
“I am Mr Neuendorf’s family doctor. He presented to me on 16 July 2014 having sustained a low back injury at his workplace on 14 July 2014. I herewith, append a transcript of my notes from that initial consultation:
Moving heavy objects at work Monday night (14/7/14). By the time he got home yesterday morning, he was experiencing low back pain – history of same 20 years ago. This pain is constant and radiates into the (L) thigh. Interfered with his sleep yesterday (despite panadol) – unable to work last night. O/E: indicates the (L) lower back as the site of discomfort. Tentative flexion, extension and (L) lateral flexion of the L/S spine. (R) lateral flexion and rotation reasonable. SLR is limited by tight hamstrings of the (R) to 50* (L) 20*. Impression is of discogenic low back pain with sciatica. Given the non-acute onset, disc swelling is the provocative cause. For analgesia (p-forte) and physio. Consider MRI lumbar spine with symptom persistence.
My WorkCover certificate written that day (enclosed) provides the working diagnosis of discogenic low back pain. This has not changed and has been substantiated by subsequent MRI examination of the lumbar spine (report enclosed) – this examination was delayed because WorkCover approval was required. Given that his symptoms are unresolved and the MRI scan supports the original diagnosis, I have provided Mr Neuendorf with a referral to Dr John Albeitz, orthopaedic surgeon, specialising in the spine.”
On 27 October 2014 the Reconsideration Officer revoked the Determination of 1 September 2014, and accepted liability under s 14 having been satisfied that the Applicant suffered a lumbar strain as a result of his employment with the Respondent – Exhibit 1 T26 pp. 218 – 219. In reaching this decision the Reconsideration Officer quoted Dr Sondergeld’s consultation notes of 16 July 2014.
On 31 October 2014 Mr Sang Diep, Compensation Claims Manager, corresponded with the Applicant. Mr Diep approved payment of compensation under s 19 based on 100% the Applicant’s Normal Weekly Earnings (NWE) for the period 14 August 2014 – 22 October 2014 – Exhibit 1 T28 pp. 221 – 226. Subsequently, compensation was paid fortnightly commencing for the period 23 October 2014 – 5 November 2014 (Exhibit 1 T29 pp. 227 – 232) and this continued at the 100% rate until 17 June 2015 – Exhibit 1 T74 pp. 411 – 415.
The Respondent referred the Applicant to Dr Leigh Atkinson, Neurosurgeon and Pain Medicine Physician, for assessment. Dr Atkinson examined the Applicant on 9 December 2014 and opined that there was no place for any surgical intervention. In reaching this conclusion, Dr Atkinson made the following observations and recommendations – Exhibit 1 T38 pp. 271 – 272:
“In his past medical history I note he has previously had surgery for pigeon toes. He had a BMX accident, at one stage resulting in an abdominal injury and four days in hospital. He had developed an anxiety depressive state last year and he had been treated with Zoloft by Dr Sondergeld. He had seen a psychologist on a couple of occasions.
He complains of pain in the lumbar region radiating down the left leg more than the right and at times it reaches 9 out of 10. It is worse at night time. He said he was up walking a lot at night time.
He reports he feels restless, depressed and worthless most of the time. His K10 is 31 out of 50. With respect to activities of daily living he rises at 6am, he tends to walk around the home during the morning and may go to the shops. He may watch television and may for a brief walk in the afternoon. He has avoided swimming and regular walking activities.
My examination revealed a man who preferred to stand and pace around. He walked with a normal gait with normal power, tone, reflexes and sensations. The range of movements of the lumbar spine was restricted and straight leg raising was bilaterally 10 degrees. On measurement there was no wasting of the thighs or calves.
An MRI of the lumbar spine dated 5 September 2014 showed normal discs at L4/5 and L5/S1 and no evidence of any nerve root compression.
In summary, Mr Trevor Neuendorf has suffered musculo ligamentous strain with non-verifiable referred pain. There is the background of the adjustment disorder with depressed mood and insomnia.
He has become physically deconditioned. There is no place for any surgical intervention or any interventional procedures.
As the injury occurred in July I think there is still the expectation that a rehabilitation program might help him regain confidence and return to employment in the New Year. It is recommended he be admitted to the three week Wesley program with a view to returning him to suitable duties immediately after the program.”
Dr Sondergeld referred the Applicant to Dr John Albietz, Spinal Surgeon, who prepared a report dated 19 January 2015 – Exhibit 1 T46 pp. 297 – 298. Dr Albietz noted that the Applicant had suffered a previous injury to his thoracic spine 4-5 years previously which had settled after receiving physiotherapy and acupuncture. Dr Albietz also recommended against surgery and made the following observations:
“Trevor has had an MRI scan of the lumbar spine demonstrating mild discogenic deterioration at the L4/5 level and lumbosacral junction. There is a left L4/5 foraminal annular tear. There is no aggressive compression of neural structures throughout the lumbar spine.
I explained the pathology evident on the films to Trevor. He has likely strained the lumbar spine with the annular tear at the L4/5 level possibly being new. This spinal pathology does not warrant surgical intervention.”
In accordance with Dr Atkinson’s recommendation approval was given for the Applicant to engage in the Wesley Hospital three week Pain Management Program. Dr Atkinson reported to the Respondent, in a letter dated 20 February 2015, the outcome of the Program was disappointing – Exhibit 1 T51 p. 314:
“There was the background that he had suffered a workplace injury at Australia Post. He suffered an aggravation of the pre-existing degeneration of the lumbar spine with non-verifiable left leg pain.
There was the background that he was on medications including Panadeine Forte four daily, Zoloft 50 mg and Lyrica 75 mg, as well as Endep 50 mg a day.
Mr Trevor Neuendorf had significant difficulties engaging in the program. His commitment was variable. There was a uniform feeling from our therapists that he was self limiting.
At the age of 39 it seems he has difficulty recognising the health benefits of work.
Certainly I agree with you that there is no place for surgical intervention in this man. Unfortunately the outcome of this program has been very disappointing. We felt that he demonstrated the capacity to return to employment and he might be further assisted by engagement in a gymnasium program.”
The Applicant was again reviewed by Dr Albietz on 16 March 2015. Dr Albietz stated (Exhibit 1 T54 p. 329) that the Applicant’s symptoms had not changed since his last visit and that he was continuing to take Panadol, Panadeine Forte, Zoloft, Lyrica, Endep, Melatonin and Ibuprofen for analgesia. Dr Albietz opined that there was no evident pathology to warrant spinal surgical intervention and then noted:
“I believe he should be assessed for a degree of permanent impairment through Australia Post and seek alternative lighter employment.”
Dr Sondergeld issued a medical certificate on 10 April 2015 that the Applicant was capable of suitable duties from 14 – 27 April 2015 – Exhibit 1 T57 p. 340. A Rehabilitation Consultant from the Respondent conferred with Dr Sondergeld on the same day and discussed a return to work program for the Applicant on restricted duties for two hours per week from 14 April 2015 – Exhibit 1 T58 p. 341.
On 15 April 2015 a Determination was made pursuant to s 37(1) of the Act that the Applicant commence a Rehabilitation Upgrade Program dated 10 April 2015. This entailed one hour per day for two days each week commencing between 14 – 27 April 2015 – Exhibit 1 T59 pp. 343 - 348.
The Applicant was referred by the Respondent to Dr Robert Ivers, Orthopaedic Surgeon, for examination and assessment. Dr Ivers examined the Applicant on 8 May 2015 and prepared a very detailed report dated 13 May 2015 – Exhibit 1 T68 pp. 373 – 392.
Dr Ivers summarised his main findings as follows – Exhibit 1 T68 pp. 380 – 381:
“It appears Mr Neuendorf has sustained a soft tissue injury to his lower lumbar area. It is likely that this related to the type of work that he was doing during his shift on 14 and 15 July 2014. He has undergone the appropriate investigation and management for this condition. The available investigations failed to demonstrate major pathology in the region of the lumbosacral spine. The minor disc bulges at his age could be considered a normal ageing phenomenon.
I understand that Dr John Albietz, Orthopaedic Surgeon, has specifically related the pain to an annular tear of the disc. This supposition is reasonable, though I note that the disc hydration has not yet been compromised. It is not likely that Mr Neuendorf would benefit from any other treatment including surgical intervention.”
The Respondent asked Dr Ivers a number of questions. One of these focused on the cause or causes of the Applicant’s condition – Exhibit 1 T68 pp. 382 – 383:
“It is likely that Mr Neuendorf’s back condition is directly related to his employment as a Mail Officer. The available investigations reveal a fairly normal looking spine for is age. I cannot detect any pre-existing congenital, constitutional or underlying conditions affecting his lumbar spine. I am not aware of any factors unrelated to work which could be active. It is likely that natural ageing processes are partially contributing to the back condition.”

Dr Ivers was asked if the workplace contribution to the Applicant’s condition had ceased or been superseded by another episode; his response was as follows – Exhibit 1 T68 pp. 383 – 384:
“The natural history of a soft tissue injury such as this, generally speaking, is resolution of symptoms over time.
I would expect, in the normal course of events, that after approximately three months, the effects of a soft tissue injury would have ceased.
In the case of Mr Neuendorf, there appears to be persisting pain nine months after the event, and I would consider that this was unusual. There are some aspects of abnormal pain behaviour present in his presentation and clinical examination. An opinion from an expert in this area would be valuable.”
Dr Ivers was clearly of the opinion that there were non-physical factors at play with the Applicant. First, he made these observations about his perception of the Applicant’s abnormal pain behaviours – Exhibit 1 T68 p. 385:
“I conclude that there is some evidence of abnormal pain behaviour. Specifically, the level of pain described would be unusual in an ambulant patient attending the gymnasium three days per week. Additionally, an inability to sit, even for a short period of time, twenty minutes or so, is unusual, despite any particular pathology present in the lumbar spine. I also note that the range of forward flexion of the spine is different when standing or sitting with the legs extended. I also note the apparent sub optimal effort when assessing range of motion of the spine.”
From a musculoskeletal point of view, Dr Ivers opined that he could not see an impediment to the Applicant returning to his usual employment duties. However, he went on to observe that the Applicant did not have the capacity to engage in any type of work, and that this required review by an expert in the psychosocial area – Exhibit 1 T68 pp. 387 – 388. Dr Ivers gave this pessimistic diagnosis – Exhibit 1 T68 p. 389:
“Based on his presentation today I have grave doubts as to whether he will return to normal work or normal working hours in the future. I cannot accurately pinpoint a musculoskeletal cause for this.”
On 12 August 2015 Ms Vivian Daoud, Claims Manager with the Respondent, wrote to Dr Ivers and asked if he would advise “if Mr Neuendorf condition has ceased?” – Exhibit 1 T79 p. 432.
In his report of 24 August 2015 Dr Ivers gave the following opinion – Exhibit 1 T81 pp. 440 – 441:
“…I could not find a musculoskeletal based impediment for a return to his usual hours and duties. At presentation, however, it was quite clear that either he could not or would not return to work. It is for this reason that I have suggested that an alternative diagnosis be sought.
Purely from the musculoskeletal point of view I can conclude that the effects of the work injury on 14 and 15 July 2014 have ceased. I am making this assessment based on the knowledge that the effects of a soft tissue injury would normally cease after approximately three months. Therefore, for your purposes, I conclude that the effects of the work related conditions as described in my report have ceased.”
On 29 May 2015 Mr Sang Diep wrote to the Applicant informing him that his entitlement to be paid 100% of NWE would soon be exhausted. The Applicant was informed that 100% of NWE was payable for a maximum of 45 weeks and thereafter a percentage of NWE was payable depending on the circumstances. Where a person is totally incapacitated for work an entitlement of 75% applies – Exhibit 1 T71 p. 403. Commencing 18 June 2015, the Applicant was paid compensation based on 75% of NWE – Exhibit 1 T75 pp. 416 – 420.
The Applicant was referred to Dr David Douglas, Consultant Occupational Physician, for examination and assessment.
Dr Douglas examined the Applicant on 21 October 2015 and provided a report dated 27 October 2015 – Exhibit 1 T86 pp. 462 - 469. Dr Douglas’ summary assessment was as follows – Exhibit 1 T86 p. 467:
“In my opinion Mr Neuendorf developed lumbosacral muscle soreness on 15 July 2014 during a busy night as a mail sorter working the night shift in his substantive position. I agree with the opinion of the orthopaedic surgeon Dr Ives that Mr Neuendorf’s muscle soreness would have expected to be settled within days or weeks following such a development. Accordingly I am of the view that his ongoing symptomatology is not related to any specific injury but is more an expression of physical symptoms in someone who has significant pre-existing vulnerabilities.”
Dr Douglas opined that the Applicant would have been fit to return to work within a few days of reporting his low back muscle soreness, and that his “ongoing incapacity for work is not related to any work-related injury” – Exhibit 1 T86 p. 467.
Finally, Dr Douglas made the following observation – Exhibit 1 T86 p. 468:
“In my opinion closure of his Workers’ Compensation claim would be the first beneficial step in restoring Mr Neuendorf’s overall state of health.”
Following receipt of the reports of Drs Ivers and Douglas, the Respondent wrote to the Applicant on 5 November 2015 informing him that it was intended to issue a Determination in respect of continuing benefits and giving the Applicant 28 days to respond – Exhibit 1 T88 pp. 471 – 472.
Immediately after the Respondent forwarded this correspondence to the Applicant, a number of medical reports and a MRI were instigated on his behalf.
Dr Sondergeld prepared a short report dated 13 November 2015 in which he observed – Exhibit 1 T90 p. 486:
“Trevor has been consulting me for chronic back pain since injuring his lower back at work 14/7/14. I have supervised his referrals to physiotherapy, orthopaedic surgeons and rehabilitation courses as well as the requisite imaging. His symptoms are static with the low back pain chronic. There is limited range of movement of the lumbosacral spine with straight leg raising restricted [sic] to 20* bilaterally. He is unable to sit for more than 5 minutes without discomfort and is currently unfit for any employment.”
Dr Sondergeld also referred the Applicant to Dr Savage for an updated MRI scan. Dr Savage subsequently performed the MRI scan and prepared a report dated 16 November 2015 – Exhibit 1 T91 p. 487.
Dr Savage observed minor facet degenerative changes at L1/2, L2/3 and L3/4 with no disc protrusion or foraminal constriction.
Dr Savage made these observations about L4/5 and L5/S1:
“L4/5 shows mild generalised disc bulge. No central stenosis or foraminal constriction is seen.
L5/S1 shows facet degeneration changes. Minimal central disc protrusion is seen. There is no pressure on S1 nerve roots. No foraminal constriction is identified.
Impression: Minor facet degenerative changes. No significant disc herniation or central stenosis. Minor paraspinal muscle atrophy. No nerve root lesion. No fracture or dislocation.”
The Applicant sought an extension of time to respond, citing errors in documentation that the Respondent was relying on and the need to gather evidence from various people about his case – Exhibit 1 T92 p. 488. The relevant Compensation Delegate for the Respondent agreed to extend the time to respond to 31 January 2016 – Exhibit 1 T94 p. 495.
The Applicant was again examined and assessed by Dr Albietz who provided a short report to Dr Sondergeld dated 18 January 2016 – Exhibit 1 T100 pp. 520 – 521. Dr Albietz made the following observations – Exhibit 1 T100 p. 520:
“I reviewed Trevor today who continues to experience severe back and bilateral radiating leg symptoms. He feels that he has developed the right leg pain most likely from limping through the left leg. Trevor has become disillusioned with the various Specialists that he has seen at the request of Australia Post.
I agree that Trevor appears to be disabled by the back and leg symptoms. He limped quite aggressively into the consultation. He has very limited lumbar motion flexing through the lumbar spine with hands to knee level and unable to extend beyond a neural posture without an increase in back pain. He continues to take anti-inflammatory medication (Ibuprofen) for analgesia.
Trevor has had a recent MRI scan of the lumbar spine which demonstrates partial resolution of the left L4/5 foraminal annular tear though I do see a continuing disc bulge in that region. There is however no aggressive neural compression. There is minor facet degeneration at the lumbosacral junction.
It is somewhat difficult to explain the severity of Trevor’s symptoms based on his imaging studies. I have referred him for both inflammatory markers, ESR and CRP and also a SPECT scan to try to delineate any increased inflammation to explain the symptoms.”
The Applicant provided the Respondent with a number of submissions in support of his case. They were as follows:
(a)“Dr David Douglas. Consulting Occupational Physician.” – dated 27 January 2016 and 3 February 2016, Exhibit 1 T103 pp. 532 – 534;
(b)“Dr J Savage Lumber Spine.” – dated 28 January 2016 and 3 February 2016, Exhibit 1 T103 p. 535;
(c)“Claim Rejection” – dated 28 January 2016 and 3 February 2016, Exhibit 1 T103 p. 536;
(d)“What can cause Annular Tear. Ways to Avoid Annular Tear” – dated 30 January 2016 and 4 February 2016, Exhibit 1 T103 pp. 537 – 538;
(e)“Dr Atkinson” - dated 31 January 2016 and 3 February 2016, Exhibit 1 T103 p. 539;
(f)“Dr Robert Ivers” – dated 31 January 2016 and 3 February 2016, Exhibit 1 T103 pp. 540 – 542;
(g)“Dr John Albietz. Spinal Surgeon.” – dated 2 February 2016 and 4 February 2016, Exhibit 1 T105 pp. 549 – 551; and
(h)“Determination Appeal Document” – dated 3 February 2016 and 4 February 2016, Exhibit 1 T105 pp. 552 – 553.
The Applicant focused in his submission on expounding what he claimed were inaccuracies, inconsistencies and mistakes by those doctors and employees of the Respondent whose views were not in accord with his case. The substance of the Applicant’s case is discussed below, however one aspect of his submissions should be presently noted. The Applicant was at pains to personally attack and impute bad motives to some of the medical experts who assessed him – see, for example, Exhibit 1 T105 p. 552.
The Applicant claimed that Dr Douglas required him to sit for a prolonged period thereby causing him unnecessary pain, made inaccurate statements in his report and generally was guilty of bullying behaviour. The Applicant made the following accusations – Exhibit 1 T103 p. 534:
“I feel that Dr David Douglas is a bully and should not be treating people to tell a company to just cut someone’s compo off so they will go back to work is so wrong and he should be reassessed as to his ability to make judgment on people’s physical abilities.
As I have advised Comcare in the past this document is not of the truth and should not be used as evidence as it breaches the law as in making a false statement on a legal document and can be put down to making false statements for financial gain by Dr Douglas it also comes under conflict of interest as he is not going to go against the person who is paying the bill. I am not the only person who has seen Dr Douglas and had the same experience as to him not listening to you and just writing report to suit the employer.”
The Applicant also attacked both the report and the integrity of Dr Ivers. It was contended that Dr Ivers’ report contained numerous inaccuracies and that Dr Ivers was biased in favour of the Respondent. The Applicant made the following submission – Exhibit 1 T103 p. 542:
“…it is clear that Dr Robert Ivers is looking after his interests by supporting comcare and Australia post as if this was under different circumstances his diagnoses would be different, I feel that this is a clear conflict of intrust as he in my eyes did not do an independent assessment of me as he was looking at other doctors reports while assessing me this is not independent at all he is being influenced by other doctors reports and opinions. He was only going off what comcare had sent him prior to my appointment and he didn’t get sent anything from Dr John Albietz before assessment…Dr Ivers is not looking at all the evidence and only looking at what’s best for Australia post and not for my welfare and wellbeing as I was diagnosed with depression at the Wesley pain management clinic, but that’s not in any of the reports….”
The substantive thrust of the Applicant’s case was summed up as follows – Exhibit 1 T103 p. 537:
“I know that people are trying to pass this off as lumbar strain or degeneration as it is an easy way of getting out of their responsibilities but comcare and their doctors needs to realised is that you can’t have an annular tear without lumbar strain they go together so looking at lumber strain as a single injury in this case doesn’t add up you need to look at all the factors in it like Bulging Discs, annular Tear, Minor Pressure on Nerve and Lumbar Strain once you look at them as one injury the better you will understand the Pain, Flexibility, Rotation, Movement Disabilities and all so the healing time and process.”
The Applicant attached an untitled document downloaded from the internet on the causes of an annular tear. Under the heading “What are the causes?”, the following information is provided – Exhibit 1 T103 p. 538:
“Common causes of annular tears include:
·Age – The rapidity of bodily deterioration accelerates with aging. On average, starting at about the age of 30, intervertebral disc deterioration becomes evident as a response to years of continued wear. The annulus fibrosus (the tough exterior of a disc) can start to degenerate or break down due to loss of elasticity and water content. These changes contribute to the development of an annular tear.
·Strenuous activities – Participation in high-impact sports (i.e. football and rugby) can cause the annulus fibrosus to become injured. Either acute or continued impact can lead to an annular tear. Strenuous occupations that require heavy lifting or constant bending can also lead to disc injury or annular tear.
·Weight – Since the majority of a person’s weight is supported by the back, increased weight causes stress upon intervertebral discs. Carrying excess bodyweight forces the back to work extra hard and can sometimes cause the annular fibrosus to tear.”
The Applicant was very critical of Dr Ivers’ diagnosis, and, in particular, the manner in which he dealt with a diagnosis of possible annular tear. The Applicant made these submissions – Exhibit 1 T103 p. 541:
“8) Dr Ivers viewed the MRI scans but did not note about the Annular tear. As an Orthopaedic surgeon you would expect someone who is assessing people for work related injuries should be able to spot an Annular tear on an MRI scan.
9) Dr Ivers understood that Dr Albietz Orthopaedic surgeon has specifically related the pain to the Annular tear of the disc, Dr Ivers said that this was reasonable.
10) Dr Ivers now refers to the injury as soft tissue injury to lumber spine he said lumber strain diagnoses is reasonable but it doesn’t’ make medical sense the time laps is too great if I had a lumber strain I would have been back at work around October 2014 as I have been an athlete my whole life I know what tear strain sprains breaks are and how they can take to heel so I have stated many time there is no way it was a lumber strain.”
On 1 April 2016 the Claims Manager, Compensation (“the Reconsideration Officer”) affirmed the initial Determination that the Respondent was not liable to pay compensations under ss 16 and 19 in respect of the Applicant’s lumbar strain injury of 14 July 2014 – Exhibit 1 T111 pp. 571 – 576.
The Reconsideration Officer helpfully summed up the thrust of the Applicant’s submissions set out in the documents outlined above – Exhibit 1 T111 p. 572:
“1. You feel that the incident on 14/15 July 2014 caused a bulging disc and annular tear. But ‘people are trying to pass this of as lumbar strain’.
2. You feel Dr Ivers has breached human rights under Commonwealth and Federal laws in Australia by denying someone to be a witness.
3. Dr Ivers’ report is not independent as ‘Dr Ivers was reading off Dr Atkinsons notes as Comcare has sent them to him’.
4. You feel that Dr Douglas’s report does not reflect the truth.
5. You are ‘fit and active person your whole life’.”
The Reconsideration Officer did not deal with the Applicant’s complaints about Dr Douglas and Dr Ivers, but, appropriately, focused on the substantive thrust of the Applicant’s complaint, namely his contention that his injury was caused by a bulging disc and annular tear and not solely by a lumbar strain.
The Reconsideration Officer quoted (Exhibit 1 T111 p. 574) part of the Applicant’s submissions about the alleged inadequacy of Dr Ivers’ report in dealing with the annular tear hypothesis which is set out above. He then quoted from Dr Ivers’ report (which is also quoted earlier) where Dr Ivers directly deals with Dr Albietz’s diagnosis of an annular tear. Dr Ivers said:
“This supposition is reasonable, though I note that the disc hydration has not yet been compromised.”
After quoting from the annular document earlier quoted and referring to the Applicant’s claims that he was an active sportsman all his life, the Reconsideration Officer concluded – Exhibit 1 T111 p. 575:
“The causes of annular tears document suggest that your previous sporting activities could reasonably be considered to have caused your tear.
On the balance of medical evidence, I am of the opinion your workplace incident has caused a lumbar strain on your back, however, I am not satisfied that your current symptoms are due to your accepted condition of lumbar strain, and are not arising out of your employment with Australia Post.
I hereby determine that Australia Post is currently not liable to compensation under Section 16, medical treatment and Section 19, incapacity payment in respect of lumbar strain, with the injury date of 14 July 2014.”
The Applicant subsequently forwarded two undated documents to the “Reconsideration Officer Litigation Section” in which he sought a further reconsideration of the Determinations ceasing liability compensation in relation to medical expenses and salary pursuant to ss 16 and 19 – Exhibit 1 T113 pp. 579 – 586.
On 12 April 2016 the Respondent agreed to instigate a reconsideration of its own motion – Exhibit 1 T114 p. 587.
On 15 April 2016 the Respondent wrote to Dr Ivers seeking a supplementary report. In that letter Dr Ivers was given the more recent history of the claim and the letter concluded with the following information – Exhibit 1 T116 p. 590:
“Mr Neuendorf has now submitted a request for reconsideration (internal review) of the Delegate’s determination. He has claimed that the injury he got during the night of the 14 and 15 July was not a lumbar strain as reported an in fact two bulging discs, annular tear and lumbar strain in the L4/L5 region, which is shown on two MRI scans. He believes that liability should remain ongoing, and that Australia Post is liable for the cost of any treatment and incapacity related to his injury.”
Dr Ivers was asked six questions, and he responded in a report dated 20 April 2016 – Exhibit 1 T117 pp. 592 – 594.
In preparing his report, Dr Ivers requested a review of the MRI examinations by the reporting radiologist. The radiologist informed Dr Ivers that his original report remained accurate and that an annular tear could not be identified. Further, the radiologist informed Dr Ivers that there had been no increased signal evident in the region of the L4/5 disc on review – Exhibit 1 T117 p. 592.
Dr Ivers repeated his view that the Applicant suffered a work-related soft tissue injury to his lumbar spine, noting disc bulging at the L4/5 level. However, Dr Ivers then opined – Exhibit 1 T117 p. 592:
“I note that was also not able to identify the ‘annular tear’ as identified by Dr Albietz, though in reality this does not weaken the opinion of Dr Albietz, or my opinion, in that we are both agree that Mr Neuendorf has sustained a soft tissue injury to his lumbar spine in a work related injury. The term ‘soft tissue injury’ would cover an annular tear, if indeed it was present.”

Dr Ivers opined that there was no significant difference in the opinions expressed between himself and Drs Douglas and Albietz and said – Exhibit 1 T117 p. 593:
“Dr Albietz has identified an annular tear, which cannot be verified by the reporting radiologist, though to my mind, this is not a major impediment in coming to a conclusion that a soft tissue injury to the lumbar spine as occurred. To my mind, an annular tear is a soft tissue injury.”
In the opinion of Dr Ivers all three doctors had identified an injury to the soft tissues around the lumbar spine as opposed to the bony tissues, with the disc classified as soft tissue – Exhibit 1 T117 p. 593.
In conclusion, Dr Ivers made the following observations – Exhibit 1 T117 p. 594:
“Mr Neuendorf is partially incapacitated for work as a result of the work-related lower back condition…Mr Neuendorf displayed significant abnormal pain behaviour and this is most likely contributing to his inability to return to the workforce…I was unable to identify a definite impediment to a return to some form of work. I am of the opinion that there are other factors active which are causing an impediment to a return to work, and review by an expert in the psychosocial field may be able to identify and manage these factors. I would reiterate that Mr Neuendorf does not require any further medical treatment, though may benefit from psychosocial support.”
On 28 April 2016 a reconsideration decision was issued affirming the Determination of 1 April 2016 – Exhibit 1 T119 pp. 596 – 598. In reaching this decision the Reconsideration Officer said – Exhibit 1 T119 p. 598:
“I have carefully reviewed the opinions provided by Dr Albietz and Dr Sondergeld, however, I prefer the opinions expressed by Dr Ivers and Dr Douglas in reaching my decision in this matter.”
On 4 July 2016 a reconsideration on its own motion by issued by the Respondent revoking the Determination of 1 April 2016 and determining that the Respondent was liable to pay compensation pursuant to ss 16 and 19 for the accepted “lumbar strain” – Exhibit 1 T124 pp. 606 – 607.
The Applicant was examined and assessed by Dr Albietz at the request of the Respondent. In his short report of 1 September 2016 Dr Albietz reiterated his previous diagnosis of an annular tear not causing neural compression and then opined – Exhibit 1 T128 p. 626:
“My impression is that Trevor is likely suffering persisting discogenic back pain from the L4/5 disc injury/annular tear. With his chronic physical limitation sitting and standing it appears highly unlikely that he will return to any form of manual work. Australia Post has proposed a return to work program which Trevor feels he would not be capable of performing. To move forward I feel that Trevor should be evaluated for permanent impairment so that the claim can be finalised and he can then pursue an alternative career path.”
The Applicant subsequently made a claim for permanent impairment and non-economic loss in a form executed on 6 July 2017 – Exhibit 1 T156 pp. 756 – 766. The claim was made for “lower back L4/5 disc bulge annular tear mental illness” – Exhibit 1 T156 p. 757.
Dr Sondergeld completed that part of the Form comprising questions for the treating practitioner. Dr Sondergeld diagnosed the Applicant’s condition as: “Chronic low back pain from a work related L4/5 disc injury/annular tear”. The impairments said to flow from this condition were stated to be: “chronic low back pain with intermittent radiation & altered sensation through the (L) leg, principally through the (L) anterior thigh.” – Exhibit 1 T156 p. 757.
In response to a Question relating to the nature and degree of suffering afflicting the Applicant, Dr Sondergeld observed – Exhibit 1 T156 p. 760:
“His thoughts are dominated by his pain state & his feelings of injustice at the way Australia Post have treated him & handled his case. Continues on Zoloft…”
The Applicant was referred by the Respondent to Dr Angus Forbes, Consultant Physician, to assess his functional capacity to undertake a rehabilitation program. Dr Forbes assessed the Applicant on 27 June 2017 and prepared a report dated 24 July 2017 – Exhibit 1 T158 pp. 772 – 780. Dr Forbes was also asked to do a worksite visit, and he noted in his report that new mail sorting machinery had been implemented over the past few months at the Northgate Mail Centre and the Applicant’s pre-injury duties had significantly changed since he sustained his injury – Exhibit 1 T158 p. 773.
Some aspects of Dr Forbes’ report raise issues about the accuracy of the information provided by the Applicant; at least as described by Dr Forbes. When asked by Dr Forbes about details of his history, the Applicant is reported to have said – Exhibit 1 T158 p. 774:
“the court had ordered that his diagnosis was ‘two disc bulges and an annular tear’ rather than a lumbar strain. He took significant umbrage at the independent medical assessment performed by Dr Robert Ivers particularly with regard to the reports that he ‘sat comfortably’ and ‘comfortably got up and down from the lounge’. I was unable to find those comments in the report of the assessment of Dr Ivers.”
Dr Forbes’ summary and assessment of the Applicant was as follows – Exhibit 1 T158 p. 778:
“Mr Neundorf has ongoing lower back pain. He reports that the onset of his symptoms was related to his busy work. It is likely that he had a musculoligamentous sprain of the lumbar spine, which would have been expected to settle over the course of a few weeks. He tells me that his condition has been legally accepted as ‘two disc bulges and an annular tear’. Annular tears are frequently found as incidental findings with MRI, and when suspected of causing symptoms, they would normally be expected to improve over the course of a few months. He does not have significant identifiable pathology in his spine that would be considered consistent with his ongoing symptoms. He has been resistant to active treatment.”
Dr Forbes opined that the Applicant’s initial symptoms were consistent with both a musculoligamentous sprain of the lumbar spine or an annular tear of the L4/5 disc. In either case, Dr Forbes stated that they would be expected to settle within a few months. Further, there was no significant root compression to explain the lower limb conditions – Exhibit 1 T158 p. 778.
Despite this, Dr Forbes opined that it was “highly unlikely that Mr Neuendorf would tolerate a return to work let alone upgrade to full hours and duties. He demonstrates abnormal pain behaviour, and has demonstrated a poor approach to active rehabilitation…Given his pain behaviour and the severity of his self-reported symptoms when compared to his pathology, the involvement of a psychiatrist is likely to be the most suitable treatment” – Exhibit 1 T158 pp. 779 – 780.
The Respondent next referred the Applicant to Mr Thomas O’Neill, Clinical Psychologist, for assessment and review. Mr O’Neill assessed the Applicant on 4 August 2017 and prepared an extensive report of the same date – Exhibit 1 T165 pp. 806 – 819.
In response to the Question whether the Applicant suffered from an emotional reaction or psychological illness indirectly or as a result of his work related injury, Mr O’Neill responded as follows – Exhibit 1 T165 p. 817:
“It is possible that Mr Neuendorf has developed secondary depressive symptoms to his physical injury based on his self-reports, the delay in recovery, the subsequent impact this has had on his life, and difficulties adjusting to this. There are significant mood disturbances, irritability, and difficulties managing anger. He blames Australia Post and its lack of efficient equipment as being the cause of his injury. A host of other personality factors appear to be at play.
There is a likely history of mood instability, impulsivity, proneness to anger outbursts, and some borderline paranoid and somewhat domineering personality traits.
I would not commit to a diagnosis of Somatic Symptom Disorder with persistent pain, given there is significant somatisation but discrepancies in physical diagnoses.
There was also noted over reporting of symptoms in the context of this assessment. In particular, Mr Neuendorf endorsed an extremely significant range of psychopathology on a personality test that was not consistent with his self-reports or presentation on interview.”
In response to the Question from what psychological illness, if any, does the Applicant currently suffer, Mr O’Neill provided the following response – Exhibit 1 T165 p. 817:
“Mr Neuendorf suffers from chronic pain. In terms of psychological or psychiatric diagnosis, he may have persistent depressive symptoms secondary to persistent pain related to his back injury. This is often seen in individuals living with chronic pain. However, as identified above, there are significant personality and psychological aspects at play accounting for his presentation. He is very embittered and angry about the worker’s compensation system and to an extent, this may be amplifying his presentation, in particular his over reporting and responding on personality testing. There was also evidence of some underlying personality disturbances with a combination of borderline, paranoid, and domineering features which would not be in fitting with the claimed psychological injury secondary to the physical condition. However, individuals with chronic pain can often show amplifications to their inherent personality structure in the context of such injury and chronic pain processes.”
The Respondent also arranged for the Applicant to be assessed by Dr Jim Khursandi, Consultant Orthopaedic Surgeon, for the degree of permanent impairment he suffered as a result of his lumbar strain injury of 14 July 2014 – Exhibit 1 T161 pp. 793 – 795.
Dr Khursandi examined and assessed the Applicant on 10 August 2017 and prepared a report dated 15 August 2017 – Exhibit 1 T166 pp. 820 – 824, Exhibit 5 T10 pp. 39 - 43. After setting out the Applicant’s history and summarising the findings of his physical examination, Dr Khursandi made the following assessment – Exhibit 1 T166 p. 823, Exhibit 5 T10 p. 42:
“Consistent with the work-related activity of pushing a heavy cage in the night of 14/15 July 2014, Mr Neuendorf sustained a soft tissue injury of his lower back in the presence of pre-existing degeneration of the lumbosacral spine.
His treatment has been mainly with non-operative measures which have not provided lasting relief of back pain.
When assessed on 10 August 2017 for the purpose of the current report, there was demonstration of perception of disability which was far in excess of the obvious underlying pathology.”
Dr Khursandi opined that the Applicant suffered an impairment resulting from his work-related injury of July 2014 which had become permanent by September 2014. He went on to opine that the Applicant had an overall Whole Person Impairment (WPI) of 8%, with 5% due to work-related factors and 3% attributed to the natural progression of pre-existing degeneration of the lumbosacral spine – Exhibit 1 T166 pp. 823 – 824, Exhibit 5 T10 pp. 42 - 43.
After receiving Dr Khursandi’s report, the Respondent determined that the Applicant was not entitled to payment of permanent injury compensation. Ms Kate Filemu, the decision-maker, in a Determination dated 18 August 2017, referred to s 24 of the Act which provides for payment of permanent impairment compensation where the WPI is assessed at 10% and above. She then quoted from Dr Khursandi’s report wherein he opined that the Applicant had a WPI of 8%. She therefore concluded that the Applicant was not entitled to permanent injury compensation pursuant to ss 24 or 27 (non-economic loss) – Exhibit 1 T169 p. 831, Exhibit 5 T11 p. 47.
On 6 October 2017 a further Determination was made by the Respondent to deny liability under s 14 for the claimed condition of depression and anxiety secondary to the accepted lumbar strain condition – Exhibit 1 T176 pp. 854 – 856. In reaching this conclusion reliance was placed on the findings of Mr O’Neill which have been previously quoted. The decision-maker was, after considering the opinion of Mr O’Neill, not satisfied that there was sufficient objective evidence that employment factors contributed to, to a significant degree, the claimed conditions of depression and anxiety.
It followed from this Determination that the Applicant’s claim for permanent impairment in respect of a “mental illness” also failed. Accordingly, on 24 October 2017 Ms Kate Filemu, Senior Compensation Claims Manager, wrote to the Applicant explaining that in the absence of an accepted claim for compensation, liability could not exist under ss 24 and 27 for payment of permanent compensation. The Applicant’s compensation claim for permanent impairment (and non-economic loss) was therefore disallowed – Exhibit 1 T181 p. 886.
The Applicant subsequently requested reconsideration of the 6 October 2017 Determination. In his request documentation he dealt at length with the perceived inaccuracies in the report of Mr O’Neill and returned constantly to the theme that he had been badly treated by the Respondent. The reconsideration request contained details of past suicidal thoughts and examples of how his workplace injury and mental condition had impacted negatively on his family life, employment prospects, financial state and interaction with other people – Exhibit 1 T188 pp. 930 – 939.
On 10 October 2017 the Applicant also sought reconsideration of the decision denying him compensation pursuant to ss 24 and 27 – Exhibit 1 T180 pp. 867 - 871.
As a result of the 10 October 2017 reconsideration request, the Respondent, on 23 October 2017, sought a supplementary report from Dr Khursandi – Exhibit 5 T15 pp. 84 – 87. Dr Khursandi subsequently provided a short report dated 2 November 2017 – Exhibit 1 T185 pp. 900 – 901, Exhibit 5 T16 pp. 88 – 89.
Dr Khursandi confirmed that he had read the two statements from the Applicant dated 10 October 2017, the compensation claim form for permanent impairment and non-economic loss form signed on 1 September 2017 as well as medical reports, including the report of Dr Angus Forbes. Having set out the material he had perused, Dr Khursandi then said – Exhibit 1 T185 p. 901, Exhibit 5 T16 p. 89:
“…the opinion expressed under the heading ‘Summary and Assessment’ in my report of 15 August 2017 remains unaltered.”
Following receipt of Dr Khursandi’s report, the Reconsideration Officer, on 6 November 2017, affirmed the 18 August 2017 Determination that the Respondent was not liable to pay compensation in relation to permanent impairment (s 24) and non-economic loss (s 27) in relation to the claimed condition – Exhibit 1 T185 pp. 896 – 897, Exhibit 5 T17 pp. 90 – 91. However, on 10 November 2017, Ms. C. Banh, the Manager Litigation, for the Respondent, agreed that the decision should be reviewed, and it was agreed to seek the advice of Dr Albietz concerning the degree of WPI afflicting the Applicant – Exhibit 1 T208 p. 1129, Exhibit 5 T20 p. 96. This is dealt with further below.
Dr Sondergeld referred the Applicant to Dr Daniel Berge, Specialist Anaesthetist and Physician, for examination and assessment. In a report dated 31 October 2017, Dr Berge gave the following assessment of the Applicant – Exhibit 1 T183 p. 893:
“Trevor has a complex presentation of severe disability based on what appears to be very mild degenerative features. There is a strong focus on liability, litigation and disability which I feel to be strong maintaining factors in his presentation.
I certainly would not support the introduction of stronger analgesic compounds in the current situation nor would I consider interventional procedures.
I strongly support the suggestion of a formal psychiatric assessment. I have made a referral to Dr Frank New for this.
Overall, it would be in my opinion in Trevor’s best interest if he were to finalise litigation so that he can move on with restructuring this life.”
The Respondent was provided a copy of Dr Berge’s report and even though it was under no legal obligation to do so, it offered to fund the Applicant up to six sessions of pain management counselling – Exhibit 1 T187 p. 920.
Independently of the offer to fund pain management counselling, the Reconsideration Officer for the 6 October 2017 Determination, referred the Applicant to Dr Wasim Shaikh, Psychiatrist, for examination and assessment – Exhibit 1 T189 pp. 1003 – 1009.
Dr Shaikh examined the Applicant on 5 December 2017 and provided a report to the Respondent dated 6 December 2017 – Exhibit 1 T194 pp. 1034 – 1049.
In his summary and conclusions, Dr Shaikh made the following observations – Exhibit 1 T194 p. 1044:
“From a psychiatric perspective, there is evidence to suggest the presence of previous mental health phenomena, and receipt of treatment. He expressed depressive phenomenon in 2013 and 2014, and was receiving antidepressant treatment, as well as counselling. There is a history of emotional symptoms in 2005 and 2010. I believe there was the presence of a pre-existing psychiatric disorder, perhaps an Adjustment Disorder….
…he has developed fixated ideas in relation to his physical and psychological condition, and this affects the recovery model of care. He is vehemently (and perhaps destrucively) in denial of specialist reports, and it quite litigious in his approach. His distress has significant contribution from decisions taken by Australia Post surrounding his compensation. This does not indicate the presence of a psychiatric disorder, and his lack of receipt of consistent treatment further justifies this notion.”
Dr Shaikh noted that while the Applicant has experienced some emotional distress and frustration from his dissatisfaction with the compensation process, this was not reflective of a psychiatric disorder – Exhibit 1 T194 p. 1045.
In Dr Shaikh’s view, the Applicant was suffering from a pre-existing psychiatric disorder which likely led to vulnerability in dealing with his physical complaints, and subsequent decisions contrary to his perception – Exhibit 1 T194 p. 1045.
Finally, Dr Shaikh observed that there was some evidence of “abnormal illness behaviour. There are inconsistencies from a physical perspective, and there is a level of medicalisation of his situation from a psychiatric perspective.” – Exhibit 1 T194 p. 1047.
As previously noted, the Respondent determined to request a report from Dr Albietz. In his report of 12 December 2017, Dr Albietz opined that there was a significant relationship between the development of the Applicant’s symptoms and work activity. In response to a Question regarding the percentage of WPI arising solely from work and non-work related factors, Dr Albietz provided the following opinion – Exhibit 1 T195 p. 1051, Exhibit 5 T19 p. 93:
“Based upon the Table 19.17 Trevor’s permanent impairment is best evaluated at 8% of whole person impairment with clinical history and examination findings compatible with a specific injury. The findings include non verifiable radicular complaints, defined as complaints as radicular pain without objective findings. There is no alteration of the structural integrity and no significant radiculopathy.
Trevor denies previous problems with his lower lumbar spine. He had an element of persisting symptoms that may be attributed to an aggravation of mild pre-existing degeneration and as such I would award 6% of the whole person impairment to work related factors and 2% to pre-existing degeneration that has potentially been aggravated.”
On 15 December 2017 the Applicant signed a compensation claim for permanent impairment and non-economic loss – Exhibit 1 T196 pp. 1053 – 1064, Exhibit 4 T7 pp. 25 – 37. The permanent injury claimed was stated as follows – Exhibit 1 T196 p. 1054, Exhibit 4 T7 p. 26:
“L4/L5 Disc Bulge Annular Tear.
Flexibility, Agility, Stamina, Strength, Movement
Mental Illness”
In Part B of the Form, Dr Sondergeld diagnosed the condition the Applicant was claiming for as follows – Exhibit 1 T196 p. 1055, Exhibit 4 T7 p. 27:
“Bilateral lower limb pain due to an L4/5 annual tear”

On 17 January 2018 the Reconsideration Officer determined to affirm the Determination of 6 October 2017 in respect of the Applicant’s claim for compensation for depression and anxiety secondary to the accepted condition of lumbar strain – Exhibit 1 T201 pp. 1084 -1085.
The Reconsideration Officer referred to, and quoted from, the reports of both Mr O’Neill and Dr Shaikh and on the basis of the findings in those reports affirmed the Determination of 6 October 2017.
On 18 March 2018 the Applicant applied to the Tribunal for a review of this decision – Exhibit 1 T1 pp. 6 – 10: Application 2018/2010.
On 24 January 2018 the Reconsideration Officer, who on 6 November 2017 affirmed the Determination of 18 August 2017 in relation to permanent impairment and non-economic loss, again wrote to the Applicant. The Reconsideration Officer informed the Applicant that she had received that day the report from Dr Albietz dated 12 December 2017 and then said – Exhibit 1 T208 pp. 1129 – 1130, Exhibit 5 T20 pp. 96 – 97:
“As indicated above, payment of permanent impairment for compensation, is only made where the percentage of impairment is assessed as 10% or above. Taking into account that Dr Albietz confirmed the total level of impairment as Dr Khursandi opined, my review is finalised and my determination stands.”
Before the Reconsideration Officer wrote to the Applicant, the Applicant had already lodged an application with the Tribunal seeking a review of the reconsideration decision of 6 November 2018: Application 2018/0049.
The Respondent then referred the Applicant for examination and assessment by Dr David Ness, Orthopaedic Surgeon. In the briefing letter, the Respondent outlined the purpose of the examination was to obtain the following – Exhibit 1 T215 p. 1163:
“(a) an assessment of the degree of permanent impairment suffered by Mr NEUENDORF, as a result of an injury, ‘lumbar strain’, suffered on 14.07.2014; and
(b)your assessment of the effect that the impairment has had on Mr NEUENDORF’s lifestyle (non-economic loss);
(c)your opinion of the condition in general.”
Dr Ness examined the Applicant on 8 February 2018 and prepared two comprehensive reports dated 20 February 2018 – Exhibit 1 T217 pp. 1172 – 1193, T218 pp. 1194 – 1213. In the “Summary and Assessment” section of both reports, the following observations were made – Exhibit 1 T217 pp. 1187 – 1188, T218 pp. 1209 – 1210:
“Given the pre-existing mild degenerative disease and the mechanism of injury, I consider his normal work duties would at most have caused temporary worsening of the underlying condition. Apart from two short attempts to return to work, he has been completely off work for three and a half years.
Mr Neuendorf’s presentation on 8 February 2018 was one of multiple inconsistencies indicative of pain behaviour. This was to such a degree that assessment of the underlying organic condition was difficult. He made no effort to comply with the usual requests made in a physical examination of the lumbar spine, as he said that doing so would severely aggravate his constant low back pain and likely cause referral of pain into both lower limbs. His presentation was not consistent with the known pathology.
The only constant symptom reported by Mr Neuendorf was intermittent numbness in the left thigh in a distribution fitting that of the left L4 nerve root. However, this particular symptom has only been present since August 2016. It came on two years after the work injury. I do not relate it to the work injury. I relate it to natural deterioration in underlying degenerative disease of the lumbar spine.”
In the first of the two reports (T217), the second Question asked of Dr Ness related to the work-related condition the Applicant suffers, whether the mechanism of injury was consistent with Dr Ness’ clinical findings as well as a description of the condition, including its known aetiology and progression. Dr Ness’ answer was as follows – Exhibit 1 T217 p. 1189:
“I found no current work related condition. Based on history given, review of numerous reports, review of imaging studies and the described mechanism of injury, I consider the most likely work injury sustained in July 2014 was an aggravation of underlying mild degenerative disease in the lower lumbar spine. The work injury ceased, however, Mr Neuendorf’s presentation became one of pain behaviour, which has increased over time. I consider that his underlying condition may well be causing mild low back pain and it is likely responsible for the reported symptom of intermittent numbness in the front of the left thigh.
However, the mild low back pain and the sensory disturbance in the left thigh are due to degenerative disease, not to the work injury, as the effects of carrying out Mr Neuendorf’s normal duties at work would have been short lived and have ceased. Current signs on physical examination are largely those of pain behaviour.”
Dr Ness went on to opine that the lumbar strain only caused a temporary exacerbation of the Applicant’s underlying disease and had ceased and been superseded by pain behaviour. The reasons for the pain behaviour were said to fall into the area of psychology and psychiatry – Exhibit 1 T217 pp. 1190 – 1191.
Dr Ness also provided in the second report (T218) a blunt and unequivocal diagnosis. The second report dealt with questions pertaining to permanent impairment. In response to a series of questions concerning the specific condition that the Applicants suffers, and the permanence of such condition, Dr Ness gave the following answers – Exhibit 1 T218 pp. 1210 – 1211:
“Mr Neuendorf has mild degenerative disease in his lumbar spine with symptoms consistent with left L4 nerve root irritation, as shown recently on imaging. I did not identify a current work injury…
Mr Neuendorf does not suffer an impairment as a result of his compensable condition, as his compensable condition was temporary and has ceased. There can be no permanent impairment for an injury that has ceased…
There is no impairment due to the work injury, as the work injury has ceased. Underlying impairment due to degenerative disease could be assessed with referral to the relevant tables, except for the fact that Mr Neuendorf refused to move his lumbar spine at all…
There is no impairment due to work related injury. Any impairment due to the underlying degenerative condition would be either zero percent (0%) or five percent (5%), depending on whether there was no restriction of movement or minor restriction of movement. However, this could not be assessed because of pain behaviour.”
On 9 March 2018 the Respondent wrote to the Applicant enclosing a copy of the first of the reports of Dr Ness (T217). The Applicant was given 14 days to provide his response – Exhibit 1 T221 pp. 1227 – 1228.
Apart from a series of threatening and argumentative letters to officers of the Respondent, the Applicant provided a further report of Dr Albietz of 15 March 2018. Dr Albietz made the following observations – Exhibit 1 T224 p. 1257:
“I reviewed Trevor today after Australia Post are apparently claiming he only suffers from a lumbar strain and not persisting radiculopathy from the disc injury.
Trevor reports pain in his lower back that radiates down into the left anterior thigh and straight down the front of the leg to the foot. He has a positive straight leg raise with weakness of left great toe and ankle dorsiflexion on the left compared to the right. Lower limb sensation is preserved.
The most recent MRI clearly demonstrates a left L4/5 foraminal disc bulge and annular tear contacting the exiting L4 foot through the foramen and potentially also irritating the L5 root in the lateral recess.
My impression is that Trevor’s persisting symptoms are reflective of an L4 radiculopathy from the above seen lumbar pathology and not from a strain. I have recommended that Trevor discuss this with his lawyer.”
On 8 June 2018 the Compensation Delegate of the Respondent wrote to the Applicant – Exhibit 2 T4 pp. 12 -13. The Delegate stated that despite having reviewed the report of Dr Albietz and information entitled “slipped disc or muscle strain?” she was not satisfied that the Respondent was presently liable to pay compensation in respect of lumbar strain. The Delegate was more persuaded by the opinion of Dr Ness. Accordingly, the Compensation Delegate determined that as at 8 June 2018 the Respondent was not liable to pay compensation under s 16 for medical treatment or under s 19 for incapacity payments in respect of “lumbar strain” sustained on 14 July 2014.
The Applicant sought reconsideration of this Determination, but on 26 June 2018 it was affirmed by the Reconsideration Officer who also relied on the opinion of Dr Ness – Exhibit 2 T3 pp. 10 – 11.
This decision is the subject of Application 2018/4078.
A number of other Determinations were made by the Respondent around this period of time following further requests for compensation by the Applicant.
First, the Applicant requested further compensation pursuant to s 19(8) and 19(9) of the Act, which provisions relate to prescribed persons wholly or mainly dependent on the employee – Exhibit 1 T219 p. 1214. Liability to pay extra compensation was denied pursuant to s 19(6) on the basis that the Applicant was then receiving weekly compensation of $788.96 which was more than $300 above the prescribed minimum earnings – Exhibit 1 T232 pp. 1283 – 1284.
Second, the Applicant made a claim for household services pursuant to s 29 of the Act. He claimed for the cleaning of his house by a named person from 26 February 2016 as his wife returned to full time employment – Exhibit 1 T219 pp.1215 – 1221.
The Respondent found, in a Determination dated 3 May 2018, that it was not satisfied that liability existed under s 29 for the claimed household services. The following reasons were provided – Exhibit 1 T234 p. 1288:
“Under Section 29 of the SRC Act, it is reasonable to expect other member of your family to carry out house cleaning duties, even if these family members did not normally undertake the tasks before your work-related injury or illness.”
Third, the Applicant sought reimbursement for medications obtained including Zoloft, Lyrica, Apo-Amoxy, Somac and Endep. In a Determination dated 4 May 2018 liability to pay for the cost of this medication pursuant to s 16 was not accepted. The following reason was provided – Exhibit 1 T235 p. 1298:
“I am not satisfied that these medications have been prescribed to treat your work related condition. The listed medications are predominantly used to treat psychological conditions, nerve pain, antibiotic and reflux.”
A recurring theme in the copious correspondence from the Applicant to the Respondent is his contention that he had been incorrectly diagnosed as suffering from a lumbar strain as distinct from an annular tear/disc protrusion. In support of this proposition reliance was placed on the various reports of Dr Albietz. In an email of 7 May 2018 the Applicant requested a review of the accepted lumbar strain condition. His email is set out in full below – Exhibit 1 T237 p. 1302:
“I Trevor Neuendorf are here by requesting my diagnoses be re investigated as Lumbar Strain is know way matched the physical evidence or symptoms I presented with form day one being L4-L5 disc protrusion minimal pressure L4 nerve root first Mri scan September 2014 by Dr Savage and then Dr John Albietz where he found the Annular tear. I am requesting that the review be done by Dr John Albietz as he is one of Comcare, Auspost Doctors so I will agree to have the review done by him and him only I trust his medical opinion and so do Comcare Auspost as I have documents that prove you have excepted his opinion in the past. This is now the second time I have requested such a review once in March 2016 and now. I await your response in this matter…”
The Compensation Delegate of the Respondent determined, on 7 June 2018, not to accept liability to pay compensation in respect of “L4/5 disc protrusion minimal pressure L4 nerve root” and that the accepted condition would remain as “lumbar strain” – Exhibit 3 T4 pp. 12 – 14.In reaching this conclusion the Delegate quoted extracts from the reports of Drs Ivers, Forbes, Berge, Khursandi and Ness, and said – Exhibit 3 T4 p. 13:
“On the balance of medical evidence, I am of the opinion your workplace incident has caused a lumbar strain to your back, as such your accepted condition will remain as ‘lumbar strain’.”
The Applicant requested a reconsideration of this Determination but on 27 June 2018 the Respondent affirmed the 7 June 2018 Determination – Exhibit 3 T3 pp. 10 - 11. In reaching this conclusion the Reconsideration Officer referred to the reports of Drs Douglas and Khursandi, and then said – Exhibit 3 T3 p. 10:
“As part of your reconsideration request you provided additional documents for review. Having considered all the documentation provided and the medical evidence, I am persuaded by the opinion of Dr Douglas and Dr Khurasandi and hence I AFFIRM the determination 7 June 2018.”
This decision is the subject of Application 2018/4076.
On 25 June 2018 a Delegate of the Respondent made a Determination in relation to the Applicant’s claim for compensation for permanent impairment in respect of L4/5 bulging discs and annular tear – Exhibit 4 T4 p. 10.
The Delegate noted that the Applicant had been informed on 8 June 2018 that the Respondent had determined it was no longer liable to pay compensation in respect to the accepted condition of “lumbar strain”. Noting that the Applicant did not have an accepted claim for compensation in respect of “L4/5 Bulging Discs with Annular Tear”, the Delegate determined that the Applicant was not entitled to the payment of compensation under either ss 24 or 27.
The Applicant sought reconsideration of this Determination, but on 3 July 2018 the Reconsideration Officer affirmed the 8 June 2018 Determination on the same grounds – Exhibit 4 T3 p. 9.
This decision is the subject of Application 2018/4079.
The above summary illustrates the seeming complexity of this matter, yet when carefully analysed the matters in dispute are of relatively narrow compass. Without trying to overly simplify matters, there are three fundamental issues in dispute:
(a)Is the Applicant continuing to suffer from a workplace lower back injury suffered in 2014 (whatever the label or labels that are placed on it), and, if so, does it result in a need for medical treatment and incapacity for work – ss 16 and 19;
(b)If the answer to (a) is in the affirmative, has the impairment flowing from the injury resulted in a permanent impairment, and is that permanent impairment not less than 10%; and
(c)Does the Applicant suffer from a psychiatric injury secondary to the accepted condition resulting from the 2014 workplace incident.
STATUTORY OVERVIEW
The Respondent is a licensed authority for the purposes of s 98A of the Act. Whilst reference is made to Comcare in the discussion below, this can be taken to be a reference, for the purposes of this matter, to the Respondent.
Section 14 of the Act provides that, subject to Part II, Comcare is liable to pay compensation in respect of an “injury” suffered by an employee if the injury results in death, incapacity for work or impairment.
Before focusing on the nature of the compensable “injury” it is important to note at the outset that in those matters where Comcare has initially accepted liability to pay compensation under s 14, in order for compensation to continue to be paid, there must be continuing incapacity or impairment. This matter is one where Comcare is not contending that its initial acceptance of liability under s 14 was wrong and it has not been contended that the Tribunal revisit the substantive determination relying on the principles expounded in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253. Rather, this matter, involves, inter alia, the contention by the Respondent that the compensation is no longer payable under ss 16 and 19 because of the “ceased effects” of the compensable “injury”.
The term “injury” is defined by s 5A to mean:
“(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.”
It will be seen that the definition of “injury” comprises two main subsets, namely “disease” and “injury (other than a disease)” each of which comprises separate but related bases of liability. The third basis of liability is an aggravation of a physical or mental injury (other than a disease).
As the High Court explained in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at 482, the first task of the tribunal of fact is to determine if the employee is suffering a disease.
“Disease” is defined by s 5B of the Act to mean:
“(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.”
The term “ailment” is defined by s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
“Aggravation” includes acceleration or recurrence – s 4(1). Reference can also be made to the following observations of Windeyer J in Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537 at 593:
“‘Aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that, running its ordinary course, increase in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli’: Federal Broom Co. Pty. Ltd. v Semlitch…”
A “significant degree” means a degree that is substantially more than material – s 5B(3).
Subsection 16(1) of the Act provides:
“Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
It will be seen that s 16(1) requires that the medical treatment obtained must be “in relation to the injury”. Whilst the words “in relation to” have the widest possible meaning intended to convey some connection between the subject matter to which the words refer (Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 at 111 per Mann CJ), the relational connection between the medical treatment and the compensable injuries must be determined objectively and by reference to all relevant evidence. In order to determine if the relational connection exists or existed, it is necessary for the Tribunal to consider the nature of the compensable injuries in light of the evidence presented, including opinions by medical specialists, and make, on the balance, an evaluative conclusion – Howes v Comcare [2016] FCA 1521 at [53] – [54].
Section 19 provides that Comcare is liable to pay to an employee who is incapacitated for work as a result of an injury compensation calculated in accordance with the prescribed formulae. Essentially, compensation for incapacity is paid on the basis of normal weekly earnings and is designed to reflect pre-injury earnings, including regular overtime and certain allowances.

The medical evidence presented to the Tribunal in relation to the Applicant’s claimed condition of depression and anxiety is from Mr O’Neill and Dr Shaikh. Both of these professionals were prepared to testify and time had been set aside for that purpose on the afternoon of 14 March 2019. However, the Applicant informed the Tribunal that he did not wish to cross-examine either Mr O’Neill or Dr Shaikh and said that he just wanted their evidence to “stand as it is” – Tr. 14.3.2019 p. 91.
Not having had the benefit of hearing both of these professionals give oral evidence has meant that the Tribunal, necessarily, has had to rely on their uncontested reports.
Mr O’Neill placed the Applicant’s psychological complaints in the context of a person living with persistent pain. He did not consider those complaints to be clinically abnormal and requiring psychological or psychiatric diagnosis – Exhibit 1 T165 p. 807.
Mr O’Neill referred to the grief experienced by the Applicant following the death of his father in 2013 and seeking a counsellor to assist him during the grieving process in 2013. Reference was also made to the temporary break down in his marriage, also in 2013, due to a host of factors, including the death of the Applicant’s father. The Applicant separated from his wife for a couple of months and was prescribed anti-depressant medication and underwent counselling. Fortunately, the marital relationship improved and the Applicant and his wife got back together again – Exhibit 1 T165 pp. 808 – 809.
In that part of his report headed “Formal Psychological Assessment” Mr O’Neill reported that the Applicant had completed the Personality Assessment Inventory – Revised, a 344 item questionnaire that assesses the reliability and validity of a person’s responding to items on the inventory. Mr O’Neill made the following observations – Exhibit 1 T165 p. 815:
“Mr Neuendorf’s ratings on the reliability and validity scales were varied. He was consistent and careful in his responding. However, there was tendency to create a rather negative impression of himself with some inconsistencies noted on the MAL…and RDF indices…Thus there was over reporting of symptoms, with a pattern of symptom reporting often seen by those simulating mental disorders. Thus significant caution should be used in relying on these test results being an accurate picture of current emotional and personality functioning.
Mr Neuendorf had significant elevations across multiple scales worthy of note. His most significant elevations were on depression measures where his overall scores were unusual for clinical samples, falling above the threshold for clinical depression. He complained of extremely severe levels of dysphoria, anhedonia, negativity, pessimism, low self-esteem, and marked psychological indicators of depression such as disturbance to sleep, low energy and reduced libido. This was not consistent with his presentation on interview.”
Mr O’Neill went on to opine that it is possible that the Applicant may have developed secondary depressive symptoms to his physical injuries, based on self-reports, the delay in his recovery and other matters. However, Mr O’Neill noted that there are a host of personality factors at play. He thought it likely that the Applicant had a “history of mood instability, impulsivity, proneness to anger outbursts, and some borderline, paranoid, and somewhat domineering personality traits.” – Exhibit 1 T165 p. 817.
Mr O’Neill again emphasised the over-reporting of symptoms, and noted that his tests endorsed an extremely significant range of psychopathology that was inconsistent with the Applicant’s self-reporting and presentation on interview – Exhibit 1 T165 p. 817.
Mr O’Neill did not diagnose the Applicant suffering from a psychological illness. Rather, he provided the following diagnosis – Exhibit1 T165 p. 817:
“Mr Neuendorf suffers from chronic pain. In terms of psychological or psychiatric diagnosis, he may have persistent depressive symptoms secondary to persistent pain related to his back injury. This is often seen in individuals living with chronic pain. However, as identified above, there are significant personality and psychological aspects at play accounting for his presentation. He is very embittered and angry about the worker’s compensation system and to an extent, this may be amplifying his presentation, in particular his over reporting and responding on personality testing. There was also evidence of some underlying personality disturbances with a combination of borderline, paranoid and domineering features which would not be in fitting with the claimed psychological injury secondary to the physical condition…”
Mr O’Neill also opined that the Applicant was “somewhat more psychologically intact and healthy than he presents himself on personality testing” – Exhibit 1 T165 p. 817.
There were two themes that Mr O’Neill emphasised in his report. The first was the impact of the compensation process on the Applicant’s mental well-being. Mr O’Neill made the following observation – Exhibit 1 T165 p. 807:
“There is also anger towards Australia Post and the worker’s compensation system for declining and challenging the basis to diagnosis by his specialist.”
The second was the nature of the Applicant’s pre-injury personality issues. On this point, Mr O’Neill observed – Exhibit 1 T165 p. 818:
“Aspects to personality structure as already described above have also been identified which strongly suggest the presence of significant preinjury personality dysfunction with borderline and paranoid features, and vulnerability that has probably been amplified by this claims process.”
Accordingly, Mr O’Neill diagnosed the Applicant as a person living with persistent pain but not requiring a psychological or psychiatric diagnosis. Further, Mr O’Neill opined that the Applicant has significant personality and mood issues that were at play prior to his injury, which personality and mood features have been amplified by the Applicant’s dissatisfaction with the compensation process.
Mr O’Neill’s diagnosis is consistent with that given by Dr Shaikh.
First, Dr Shaikh noted that the Applicant did have a history of mental health issues prior to 2014 – Exhibit 1 T194 p. 1037:
“On questioning, Mr Neuendorf stated that he experienced some depressive phenomena in 2013/2014, but it was limited in severity, and in response to relationship disturbances. He was then prescribed the antidepressant medication Zoloft, in a dose of approximately 50mg per day. Documentation confirms that he also received psychological intervention.
Mr Neuendorf denied other history of mental illness, but once again, documentation from his GP suggests a history of emotional distress and sleep disturbances in 2005, and anxiety phenomena, as well as anger management issues in response to stressors in October 2010.
Mr Neuendorf was in receipt of the antidepressant Zoloft at the time of nominated injury.”
Dr Shaikh was of the opinion that “there was the presence of a pre-existing psychiatric disorder, perhaps an Adjustment Disorder” – Exhibit 1 T194 p. 1044.
The themes of anger management and dissatisfaction with the claims process are also present in Dr Shaikh’s report. Dr Shaikh noted, for example, the Applicant’s criticism of the doctors who had examined him at the request of the Respondent. He told Dr Shaikh that Dr Khursandi had “lied all the way” and that Mr O’Neill had not accurately reflected what he told him – Exhibit 1 T194 pp. 1038 – 1039.
Dr Shaikh also opined – Exhibit 1 T194 p. 1040:
“His mood reflected frustration as a common theme. He was agitated on occasions. He was not teary. He expressed distress with the actions of Australia Post, and multiple physical opinions that were not in keeping with his understanding of his illness.
There was an element of fixation to his thoughts. There were no obsessive features. He denied ideas of self-harm. His insight and judgment could best be described as fair.”
As discussed earlier, Dr Shaikh did not believe that the Applicant was suffering from a psychiatric disorder as a result of the compensable condition of lumbar strain. Dr Shaikh made these observations – Exhibit 1 T194 p. 1044:
“Mr Neuendorf has certainly experienced some frustration in response to his physical symptoms, and perceived disabilities. However, I do not believe this frustration and related symptoms by itself are to an extent to require a diagnosis. Symptoms such as sleep problems, impaired cognition, and reduced interest in recreational activities are a representation of his physical distress, and he continues to maintain an interest in most of his pre-injury activities, but is simply not able to engage in them due to his perceived physical health issues. This is not a psychological phenomenon.”
Dr Shaikh also noted the Applicant’s “fixated ideas” about his physical and psychological condition and his vehement “denial of specialist reports” and his distress about the decision of Australia Post regarding his compensation. Again, though, Dr Shaikh opined that these features “do not indicate the presence of a psychiatric disorder, and his lack of receipt of consistent treatment further justifies this notion” – Exhibit 1 T194 p. 1044.
Having opined that the Applicant was suffering no Axis I (V71.09) diagnosis (Exhibit 1 T194 p. 1044), Dr Shaikh made the following observations – Exhibit 1 T194 p. 1045:
“…there is no evidence to suggest the presence of a diagnosable psychiatric disorder. Mr Neuendorf does experience some emotional distress and frustration from his dissatisfaction with insurance decisions, and with his physical distress – this is not reflective of a psychiatric disorder…
There is a pre-existing psychiatric disorder, which likely led to vulnerability in dealing with his physical complaints, and subsequent decisions contrary to his perception.”
The Tribunal has before it uncontested evidence from two experts in the fields of psychology and psychiatry that the Applicant is not suffering from a diagnosable mental illness.
Whilst the diagnoses by these learned gentlemen are persuasive, they do not relieve the Tribunal of the task of determining, firstly, if the Applicant is suffering from a work-related ailment. As will be recalled “ailment” is defined in s 4(1) to mean:
“any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
One of the key decisions that regard should be had to in determining if an Applicant is suffering from an ailment, as defined, is Comcare v Mooi (1996) 69 FCR 439. His Honour Drummond J made the following observations – at 443 – 444:
“The definition provisions, which bring within the concept of ‘injury’ mental diseases and mental ailments, disorders, defects or morbid conditions, do not provide any precise criteria for determining whether an employee’s mental condition is within the concept of an ‘injury’ within s 14(1). In the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe. ..the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to ‘injuries’ compensable under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensable under s 14(1).”
The evidence of Mr O’Neill and Dr Shaikh is unequivocal in rejecting the notion that the Applicant is suffering a mental disease subsequent to his compensable lumbar spine condition. Both learned gentlemen opined that the Applicant has personality vulnerabilities and mood disorders, but neither ventured to diagnose that those constitutional conditions were such that it placed the Applicant outside the boundaries of normal mental functioning and behaviour. Indeed, particularly in the report of Mr O’Neill, there is a distinct suggestion that the Applicant may have deliberately (or perhaps unconsciously) exaggerated the extent of his psychological problems. Certainly, as with the other doctors who examined the Applicant, he reported a disconnect between the Applicant’s response to questions posed and his presentation and behaviour in the examination room.
The Tribunal has no reason to doubt that the Applicant is experiencing pain from his degenerative spinal condition. Moreover, the Applicant has experienced a number of stressors in his life; and the death of his father and the marriage problems he experienced shortly thereafter are, perhaps, two of the more prominent. It is also the case that the Applicant has a fixation on the claims process, and a reading of the many reports admitted into evidence, discloses that he has a strong belief that injustice has been perpetrated by the Respondent and that various medical experts have not given proper diagnoses. During the Hearing the Applicant tried to ventilate his proposition that some of the medical experts were biased or acted unfairly. It could also be, as has been previously noted by some experts, that the Applicant has an underlying paranoid personality with mood problems, particularly in the context of anger management.
The Tribunal had the benefit of observing the Applicant over three days. It was clear that the Applicant found the Tribunal proceedings difficult and that he presented as a person with a disordered approach. The Applicant appeared to be a very pleasant person, and throughout the proceedings he behaved appropriately and tried, to the best of his ability, to present his case. In short, the Applicant did not appear to be a person with mental health problems of the type that would satisfy the Mooi test.
This last point is important, a tribunal of fact has a duty to weigh the evidence presented and not accept without question or reflection medical reports, even if there is a unanimity of opinion expressed by the medical experts. This is particularly important in the field of mental ailments. The following observation of Drummond J in Mooi has particular resonance in this regard – at 443:
“…it can also be difficult to determine whether a worker is suffering from a disease in the sense of a mental ailment. Medical opinion changes too: regularly encountered signs may eventually come to be acknowledged as comprising a disease or as symptomatic of an underlying disease when previously, medical opinion rejected that notion.”
In this matter, though, the medical evidence comports with the Applicant’s presentation during the Hearing. In short, there is no basis for the Tribunal not to accept the clear, compelling and logical diagnoses of Mr O’Neill and Dr Shaikh.
The Tribunal finds that the Applicant is not suffering from an ailment as defined in s 4, and, therefore, is not suffering a work-related disease within the meaning of s 5B. Consequently, the Tribunal affirms the reviewable decision the subject of Application 2018/2010.
CONCLUSION
The preponderance of medical evidence presented to the Tribunal does not support the Applicant’s case. It is not contested that he suffered a workplace injury in 2014 and as a result of that injury has suffered pain and discomfort. The medical evidence also supports the proposition that the workplace injury has since resolved and the Applicant’s underlying and constitutional degenerative spine condition has “taken over”.
It is also patently clear that the Applicant does suffer from underlying personality and mood issues, and these have had an impact on his perception of the compensation process, particularly the actions and motives of the Respondent and some of the examining doctors who prepared reports not supportive of his case.
It is appropriate that the Tribunal note that a fair reading of copious material presented does not suggest that the Respondent has acted unfairly or pedantically or even in strict accord with its legal rights. On the contrary, the material suggests that the Respondent was conscious of both its legal obligations to its employee, but also, perhaps, its social obligation as a good and fair employer. It should be placed on the public record that the Respondent in this case has acted in an exemplary manner and has shown the Applicant every possible courtesy and given him much leeway.
It may be that the Applicant is correct in being angry and dissatisfied with the standard of the equipment he had to work with in 2014. It may also be that if more up to date equipment had been in use he would not have injured himself. However, that is conjecture. All that the Tribunal can work on is the material before it, and that material suggests that the Respondent, and its employees, have acted fairly and professionally towards the Applicant. Where there has been a doubt, that doubt was determined by the Respondent in the Applicant’s favour.
It also should be placed on the public record that the evidence suggests that the Applicant has been a sick man. The last five years have been very difficult for him and his family. The Applicant presented to the Tribunal as a friendly person who was surrounded by his caring family. No doubt the compensation process, and now the Tribunal process, has caused him and his family considerable strain and placed his already fragile health under even more pressure.
The Tribunal notes, and agrees with, the advice that was given by Dr Berge in his report of 31 October 2017 – Exhibit 1 T183 p. 893:
“Overall, it would be in my opinion in Trevor’s best interest if he were to finalise litigation so that he can move on with restructuring his life.”
It is, of course, easy for a third party to give such advice to a person who believes in the justness of their cause and who is not well. However, the evidence presented to the Tribunal was clear and overwhelming and the Tribunal is in no doubt whatsoever about the correctness of affirming each of the reviewable decisions. Accordingly, it would be in the best interest of the Applicant and his family that he move on from the litigation process so that he can get on with his life without being borne down by the shackles of a legal quixotic quest that will only result in more disappointment and stress for all concerned.
DECISION
The Tribunal affirms the following decisions under review:
(c)Application 2018/0049;
Application 2018/2010;
Application 2018/4076;
Application 2018/4078; and
Application 2018/4079.

I certify that the preceding 264 (two hundred and sixty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

....................... [SGD]..............................................

Associate

Dated: 06 August 2019

Dates of hearing: 13 – 15 March 2019

Applicant: Self-Represented

Counsel for the Respondent: Mr Charles Clark

Solicitors for the Respondent: Mr Matthew Hawker
Sparke Helmore Lawyers

[2019] AATA 2430

6 August 2019

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Remedies

Judicial Review

Statutory Construction

Appeal

Dates of hearing:	13 – 15 March 2019
Applicant:	Self-Represented
Counsel for the Respondent:	Mr Charles Clark
Solicitors for the Respondent:	Mr Matthew Hawker Sparke Helmore Lawyers