O’Brien and Comcare (Compensation)

O’Brien and Comcare (Compensation) [2019] AATA 1004 (24 May 2019)
Division: GENERAL DIVISION
File Number(s): 2017/0943
2017/0944
2017/0945
2017/0947
2017/0948
2017/0949
2017/0950
2017/0951
2015/0952
2017/0953
2017/0954
2017/0955
2017/0957
2017/5657
2018/1699

Re:Dean O'Brien
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:24 May 2019
Place:Canberra

The decision under review in application 2018/1699 is set aside. In place thereof the Tribunal decides the nature and conditions of Mr O’Brien’s previous employment caused an injury to his low back for which Comcare is liable.
The decision under review in application 2017/5657 is set aside. The effects of Mr O’Brien’s 2005 and 2010 injuries did not cease on or before 17 February 2017 and are presently ongoing. As of 17 February 2017 and presently, subject to claim, Comcare is liable to compensate Mr O’Brien for incapacity and medical treatment expenses.
The decision revoking determinations of compensation for incapacity made on 5 August 2015, 30 September 2015, 20 January 2016, 17 February 2016, 16 March 2016, 30 March 2016, 22 June 2016, 3 August 2016, 31 August 2016, 28 September 2016, 12 October 2016 and 9 November 2016, and denying compensation for incapacity from 13 May 2014 to 20 May 2015 is set aside. The revoked determinations will be reinstated. Comcare is liable to compensate Mr O’Brien for incapacity in the period from 13 May 2014 to 29 May 2015.
The matter is remitted to Comcare to determine amounts of compensation payable to Mr O’Brien.
The Parties have not been heard on the question of costs under s 67(8) of the SRC Act. Written submissions addressing this question and requesting orders may be made within 14 days. Should no such submissions be received, Comcare will be ordered to pay Mr O’Brien’s costs, as agreed or taxed in accordance with the Taxation of Costs Practice Direction.
........................................................................
Mr S. Webb, Member
COMPENSATION – low back injury claim – frank injury or disease - nature and conditions of work – notice of claimed injury – legal advice – no prejudice - serial occurrences of low back pain – accepted injuries – fluctuating symptoms – recurrence and exacerbation of symptoms – ‘disease’ contributed to by employment to a significant degree – progression of ‘disease’ - contribution of activities outside employment – nature and conditions of work significantly contributed to recurrence and progression of ‘disease’ – decision set aside
COMPENSATION – accepted low back injuries – frank injury – aggravation of intervertebral disc displacement significantly contributed to by employment – disease - progression and deterioration – causes of incapacity – medical treatment – persistence of effects of accepted injuries – meaning of ‘as a result of’ – no sole cause test - incapacity results from compensable injuries - liability to pay compensation in respect of incapacity and medical treatment expenses continues – decisions set aside
Administrative Appeals Tribunal Act 1975, ss 33, 43
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 6, 7, 14, 16, 19, 20, 21, 21A, 53 68
Taxation Administration Act 1953, s 14ZZK
Cases
Abrahams v Comcare [2006] FCA 1829
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26
Comcare v Martin [2016] HCA 43
Commonwealth of Australia v Keith Colville Smith [1989] FCA 189
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
McDonald v Director-General of Social Security [1984] FCA 59
Military Rehabilitation and Compensation Commission v May [2016] HCA 19.
Phillips v The Commonwealth (1964) 110 CLR 347
Power v Comcare [2015] FCA 1502
Prain v Comcare [2017] FCAFC 143.
REASONS FOR DECISION
Mr S. Webb, Member
24 May 2019
Dean O’Brien hurt his back undertaking manual work in the course of his previous employment as a storeman by the Department of Parliamentary Services (DPS). On two occasions he successfully claimed compensation for injuries to his back. His DPS employment came to an end and Comcare determined amounts of periodic compensation for incapacity to which he was entitled. A dispute arose about the extent to which, if at all, activities outside his DPS employment contributed to his low back condition and related symptoms. It is in this context that Comcare made a series of reviewable decisions revoking, curtailing and rejecting compensation Mr O’Brien claimed in respect of incapacity for work, medical treatment expenses and the nature and conditions of his previous work as a cause of injury.
Disputation over such matters has a long root. Allegedly disentitling events, in which Mr O’Brien hurt his lower back outside the protection of employment, occurred several years ago. In order to understand the significance of these events, it is necessary to go further back in time to closely examine the precise nature and causes of the back injuries he sustained in employment, and the effect those injuries had on the physiological state of his lumbosacral spine from April 2005. Difficulties arising from the effluxion of time notwithstanding, it is necessary to expose historical facts in order to properly address issues in dispute between the parties, and to make the correct or preferable decision in each of the applications Mr O’Brien has made.
Furthermore, it is necessary to consider the precise evidence concerning the history and progress of Mr O’Brien’s low back condition, including the nature and incidents of physiological changes in his lumbar spine, on a fact by fact basis in order to determine Comcare’s liability in respect of a ‘disease’ or ‘an injury (other than a disease)’, or related aggravations, should the requisite nexus with his previous employment be made out. This requires a lengthy and detailed exposition of facts.
Facts
Mr O’Brien was 22 years old when he commenced full time employment with DPS in or about January 2000. He had no history of back complaints, injuries or symptoms. He was employed as a Stores Officer in the loading dock area of Parliament House. The Duty Statement for this position indicates that the job included receiving, packing, stowing and delivering stores (including furniture), collecting and removing waste and refuse, and operating materials handling equipment, including tugs (electronic tractors).[1]
[1] ST2, folio 913.
In addition, the job involved the following physical work –
Use of Vehicles –
·     Operate vehicles in the basement including forklifts
·     Load and unload vehicles
·     Strap and lash loads (ie tie down on vehicles)
·     Getting in and out of vehicles at intervals all day
·     Bending and swivelling required to operate forklifts and hook up trailers
·     Required to twist while seated to check for any obstructions behind vehicle eg when undertaking ‘garbage run’ – need to check for traffic in front, sides and behind when lifting and moving mini skips
·     Pull trailers into place by hand so they can be hooked onto vehicle (in most cases these will be empty but on occasion they will be laden with goods [sic]
Loading items –
·Load, unload and move equipment to different locations in the building as required
·Assess loads of unusual shape and size and determine the best method to move them eg use pallet jack, fork lift or assistance from other staff
·Will be required to lift loads and will therefore need flexibility to bend, lift and stack goods
·Use proper manual handling techniques when lifting loads
·Would be required to lift loads of up to 20kg by hand (staff are instructed to utilise lifting apparatus or to seek assistance from other staff lifting items heavier than this, posters in the work area also advise staff on this issue)[2]
[2] ST1, folio 912.
Mr O’Brien gave detailed oral evidence in respect of the actual work he carried out of a regular daily basis. His evidence on these matters was not seriously challenged and it is largely consistent with the stated duties, although with greater detail. For example, he explained the ‘garbage run’ involved, among other things, the collection of 240 litre bins of waste paper that would be hoisted onto trailers by a single person standing on the trailer deck, bending forward and pulling up the heavy bin onto the deck. On his evidence, the 240 litre waste bins weighed well in excess of 20 kilograms. He also gave evidence about the X-ray screening procedure for all goods entering Parliament House, including heavy items of furniture, such as fridges, and pallets of boxes of paper in reams, where each box would be unstacked, placed on the running belt of the X-ray machine and then stacked again. He explained that the running belt was approximately knee height from the floor, so the procedure involved a lot of lifting, bending and twisting.
On 1 June 2001, Mr O’Brien attending the Parliament House Nurse Station complaining of “pain between shoulder blades last few days”.[3]
[3] Exhibit 1.
On 4 July 2002, he again attended the Nurse Station, complaining of “pain in ‘middle’ of back & pain when breathing, just arrived at work and was unloading furniture”. The nurse noted “Muscle spasm at T11-T12/T12/L1 region of spine. Pain on inspiration…”.[4] He completed an Incident Report.[5]
[4] Ibid.
[5] Exhibit 2.
On 4 September 2003, Mr O’Brien attended the Nurse Station once again. On this occasion the nurse noted “INCIDENT REPORT” and –
“S) c/- sore lower back radiating to (R) side → sciatica
O) States no previous back injury however → NB: previous Occ in file on 4/7/02 “back pain”
A) Was lifting a box this morning when felt pain in back and leg
Advised needs to see GP if pain persists. Supervisor contact re: same. Given 2x nurofen
P) RTW. Advised not to lift for next few days”[6]
[6] Ibid.
There is no Incident Report relating to this event in the materials provided to the Tribunal.
On 8, 11 and 15 April 2005, Mr O’Brien reported to the Nurse Station. The nurses in attendance noted –
8/4/05
S) Reporting work related injury
O) Lower back strain on Monday while lifting 40kg dumbells to gymnasium
A) Lower back strain – sciatic pain
P) Incident report form completed. Referred to GP. Supervisor contacted…
11/4/05
Presenting to N/C requesting analgesia from back strain from 4/4/05. c/- low back radiating down L) leg
Panadol x 2 given. Strongly advised to see GP as pain intermittent over weekend as well.
15/4/05
Phone call – patient still c/- painful back. Saw own GP. Unsure of cause of pain. Will return to see GP next week. Is taking anti-inflammatories, nocte.[7]
[7] Exhibit 1.
The Incident Report in respect of this event confirms that the incident occurred on 4 April 2005 at 11am in the Staff Café Gym. The Report contains the following -
What happened and/or how did the incident occur?(Include what you were doing at the time and what happened unexpectedly)
Delivery of 40kg dumbells to gym. Hand carried from trailer to inside of gym. Approx 10 dumbells ranging in weight from 30kg to 40kg. Lower back pain following delivery.
How do you think DPS could stop this happening again?
Nature of work, review and educate staff of safe working practises [sic] & safe lifting techniques.[8]
[8] Exhibit 2.
There is some controversy over when this incident was reported to Mr O’Brien’s supervisor, Richard Arnold. Mr O’Brien says he did so on the day the incident occurred, 4 April 2005, and Mr Arnold advised him to go to the Nurse Station and report it. The Incident Report suggests the report was made on 8 April 2005 at 11.30am. The nurse noted “Supervisor contacted” on 8 April 2005. In a Supervising Officer’s Statement on 16 May 2005, Michael Hoorweg indicated that the injury was reported to him on 8 April 2005. Mr Hoorweg was not Mr O’Brien’s direct supervisor at the time. There is no direct evidence from Mr Arnold. Nonetheless, the employer section of the compensation claim Mr O’Brien subsequently lodged on 16 May 2005 in respect of this incident reveals that the employer was notified of the claimed injury on 4 April 2005.[9] That being so, I accept Mr O’Brien’s account is accurate.
[9] ST5, folio 927.
Mr O’Brien continued to undertake his normal duties from Monday, 4 April 2005 to Friday, 8 April 2005. He says, doing so, he avoided heavier tasks and experienced significant pain, about which Mr Arnold urged him to report to the Nurse Station on several occasions, until finally he did so.
Consistent with the nurse’s notes, Mr O’Brien consulted his treating general practitioner, Dr Tyler, on 11 April 2005. In respect of Dr Tyler’s clinical notes on 11 April 2005, 10 May 2005, 17 May 2005 and 23 May 2005, it is germane to recite the following entries –
Monday April 11 2005
…
Last wk at work, lifted 40kg wt at the time nil, next day LBP into L leg to ankle
…
Tuesday May 10 2005
…
Pain from thoracic spine into leg after pushing heavy stuff at work. Feels stiff.
…
Tuesday May 17 2005
…
Thoracic back pain last night when sleeping
Lower back L buttock pain when walking, aching
…
Monday May 23 2005
…
Rested for 4 days
Pain in L S1 area radiates into post thigh to knee
…[10]
[10] Exhibit 3.
Dr Tyler referred Mr O’Brien for a CT scan of his lumbosacral spine. The report of this scan includes the following –
HISTORY: Works as a storeman, lifted 50kg, tender L5 area with reduced movement and pain into posterior left thigh.
REPORT: …
L4/5 spondylosis is seen as transverse bulge of the posterior disc annulus causing mild impression of the thecal sac at the disc level.
L5/S1 spondylosis includes broad-based disc bulge compressing the thecal sac and the S1 nerve roots at the disc level.
The bones and joints are normal throughout the region examined….[11]
[11] T3, folio 8.
Dr Tyler referred Mr O’Brien to Dr Eaton (an occupational physician).
On 17 June 2005, Dr Eaton reported –
Dean injured his back on for [sic] April 2005 when unloading gym dumbbells weighing between 30 and 40 kg at Parliament House where he is employed as a storeman. He said he also pushed a trailer containing 10 of the dumbbells up to the gym.
In the process he appeared to strain his back and felt that he had probably strained a muscle. However when he woke up the next day he had persistent low back ache and left leg pain. His symptoms progressively got worse and his left posterior thigh pain caused him to limp…
… he was off work for about three weeks initially and has now returned to work on full hours with restricted duties with no heavy lifting. He reports an ongoing pinching feeling in the lower back, some upper back pain and occasional stabbing pains. Up until a week or so ago he experienced a tingling feeling in the left inner thigh…
… There is no evidence of neural compromise in the lower limbs.[12]
[12] T5, folio 10.
Dr Eaton referred Mr O’Brien for an MRI of his lumbosacral spine.[13] The resulting MRI report on 30 June 2005 was said to be normal. It contains the following –
The T11/12 to L5/S1 intervertebral discs all appear normal. No bulges, protrusions or annulus tears are demonstrated.[14]
[13] T4, folio 9.
[14] T6.
In or about August 2005, Mr O’Brien commenced a second job as a casual night shelf packer at Woolworths. He maintains that this lasted only a couple of weeks as “I found the lifting too difficult and I was getting too much pain from bending down to unpack boxes”.[15] Subsequently, he worked in a bar and as a security guard.
[15] Exhibit 4, paragraph 22.
On 18 November 2005, Mr O’Brien attended the Nurse Station. The nurse noted –
Painful lower back, radiating down L) leg[16]
[16] Exhibit 1.
In 2006, he commenced martial arts training, attending twice per week.
On 13 June 2006, Mr O’Brien attended the Nurse Station. The nurse noted –
Low back pain following injury sustained when moving trailers in loading dock.[17]
An Incident Report was made, in which the nurse wrote –
Presenting following incident causing back strain. Ongoing problem. Panadeine ~/11 given. Declined hot pack, linament or rest at this time.[18]
[17] Ibid.
[18] Exhibit 2.
In or about January 2007, Mr O’Brien was promoted to Loading Dock Supervisor in the position of a Logistics Supervisor. The duty statement for this position refers to supervisory and management functions.[19] Mr O’Brien’s evidence is that in this role he continued to undertake heavy physical tasks, as previously, albeit with the addition of supervisory and management functions. This evidence was not challenged.
[19] T7, folio 13.
On 5 December 2007, Mr O’Brien attended the Nurse Station. The nurse noted –
Low back pain sustained from activity this am. Incident form completed. Declined ice/hot pack or lie down…[20]
[20] Exhibit 1.
At or about this time, Mr O’Brien was regularly undertaking weight training at a gymnasium.
In 2008, having obtained the relevant licence, he was employed in a second job as a security guard at pubs and clubs in Canberra, Queanbeyan and, on one occasion at least, Ulladulla.
Mr O’Brien asserts that he continued to experience niggling back pain that occasionally flared up over the next few years. This is controversial. There are no contemporaneous medical or other records to support his assertion. His evidence that he took Panadeine Forte to manage the pain when it was bad lacks probative evidence of prescription by a doctor. In January 2012, Mr O’Brien gave Dr McDowell (a neurosurgeon) a history of continuing to experience minor recurrent episodes of low back pain that did not require him to take time off work until May 2010.[21]
[21] T34, folio 98.
On 10 May 2010, Dr Brand (treating general practitioner) noted that –
“paijn [sic] in L buttock, down to knee and leg,
Getting pins and needles in L foot,
Storeman, does a lot of lifting,
Had pre-existing injury 4 years ago L4/5/S1, Dr Garth Eaton – did gym, same company did it with now, did different duties
Fine until 2/52 at work, felt tweaked back a bit
Decreased SLR to 30 in L leg, 80 in R,
SST decreased in L, power tome [sic] and reflexes seem ok in both
Tender over L3/4/5/S1”[22]
[22] Exhibit 3.
What provoked these symptoms, and how they should be characterised for the purposes of s 5A of the SRC Act, is in dispute. Mr O’Brien says the symptoms he experienced in May 2010 and subsequently were further expressions of ongoing injury. Comcare asserts that the symptoms were a temporary aggravation of degenerative disease in Mr O’Brien’s lumbar spine – the symptoms were minor, muscular and resolved soon thereafter, without evidence of any pathological change.
Dr Brand referred Mr O’Brien for a CT scan. The resulting report suggests –
At the L4/5 level there is a mild annular discovertebral bulge with a minimal left paracentral predominance. It results in slight lateral recess and minimal canal narrowing. The foramen appear of good dimension.
At the L5/S1 level there is a minimal annular disc bulge/central disc bulge, not significantly encroaching on neural pathways.[23]
[23] T11.
Dr Brand’s subsequent clinical notes include the following -
“… 12/05/2010
…
note CT scan – mild annular discovertebral bulge at L4/5
symptoms are settling
feels did it when lifting cartons to put in xray machine – works at Parliament Housesome [sic] weeks ago, felt a twinge
off for 1/52 with Comcare
…”[24]
[24] Exhibit 3.
On 17 May 2010, Mr O’Brien completed an Incident Report Form in which he said –
Over the last 4 week have had some minor pain in lower back believe to be from loading and unloading of equipment/goods through xray machine, notified Wayne Evans of day when felt small pain, few weeks later after noticing pain persist had major pain on Monday 10^th May, went to doctors, CT scan done and have minor protrusion of discs.[25]
[25] T12, folio 21.
On 20 May 2010, Mr O’Brien lodged a compensation claim in respect of “mild annular discovertebral bulge at L4/5 with some paracentral predominece [sic]”, citing left leg and back pain,[26] and asserting that “Lifting box aggravated previous injury”.[27]
[26] T13, folio 26.
[27] Ibid, folio 28.
Dr Brand’s clinical notes in respect of subsequent consultations with Mr O’Brien contain the following –
“… 02/06/2010
…
further trouble with back, has been back at work, doing normal duties, at work yesterday and got severe pain over L lumber [sic] and lateral chest wall
…
Usual back problems low lumber [sic] but this is more chest
…”[28]
[28] Exhibit 3.

On 14 June 2010, Dr Brand reported –
“On Monday May 10 he gave a history of pain in his left buttock with referral down to his knee and leg. He also stated he was getting pins and needles in his left foot.
…He said he had felt fine until two weeks ago when he “tweaked” his back a bit at work.
…
In my opinion Mr O’Brien suffers from a symptomatic L4/5 disc bulge.
His work would seem to be the major cause with repeated lifting and twisting as he carries loads in his job as a storeman.
Mr O’Brien has a significant past history of the same problem which is well documented…
Mr O’Brien’s condition is an aggravation of his pre-existing problem with his current work being the aggravator.
He has been asymptomatic until May and he relates his symptoms to work.
He has symptoms and signs of lumbosacral disc disease and this is confirmed by CT.
I believe this is a re-emergence of his pre-existing problem due to work.
…
It is likely this problem will continue to give him problems if he continues the same work and may well require future surgery…”[29]
[29] T16.
In subsequent clinical notes, Dr Brand recorded the following remarks -
… 21/08/2010
…
still getting back problems
…
… boss is pushing him with his back,
Still getting some twinges at limits of back movement – has seen Dr Garth Eaton in the past and is back doing exercises,
…
…… 01/09/2010
…
Ongoing low back pain issue. Flared up this week 3 nights back.
…”[30]
[30] Exhibit 3.
On 3 March 2011, Mr O’Brien was involved in a “fight with a drunken patron at work”, in which he slipped, fell to the ground and hurt his left shoulder.[31] He consulted Dr Chowdhury on 7 March 2011. The doctor’s clinical notes do not refer to low back symptoms resulting from this incident.
[31] Ibid.
It appears that Mr O’Brien next consulted Dr Brand in respect of his back problem in July 2011. Dr Brand’s clinical notes include the following –
“… 26/07/2011
…
back is a problem again, had for a week
Sometimes can’t walk, sit, or drive car
No pain down legs
…
… 01/08/2011
…
back still a problem,
pain relief helps but needs to take regularly
…
… 12/08/2011
…
back still a problem, having massage
still pain sitting and driving, at work …
…
… 29/08/2011
…
still pain++,
was carrying euipment [sic] to PH – 40kg weight – had acute pain – off some One or two months
this time just started at work, was getting dizzy when turned neck
lifts cartons on and off screening machine at parliamne [sic] turning and lifting++
does a manual handling training each year
gets pain in L3/4 area and some referred pain into SI joints, buttocks and knees
not getting any better
tender L3/4, SLR to about 50 and SST full, power tome and reflexes R=L
can sit for 15-20 minutes and then has to get up,
can walk for 45 minutes on flat but was in severe pain after
mothere [sic] cleanng house,
…”[32]
[32] Exhibit 3.
On 12 September 2011, Richard Costin (a physiotherapist) reported –
“9 weeks low back pain. Unsure of cause. Previous injury 2005 L4, L5, S1. ? Disc herniation. MRI results not available. Pain++
Key findings/impression:
Left L4, L5, S1 and left SIJ facet dysfunction +/- IVD injury. Painfully restricted ROM”[33]”
[33] T19.
Dr Brand referred Mr O’Brien for an MRI of his lumbosacral spine. The resulting report on 26 September 2011 contains the following –
At L4/5 there is a posterocentral focal disc protrusion presumably related to a small annulus tear. This is causing mild thecal sac compression. No foraminal root compression.
At L5/S1 there is a very low grade posterior disc bulge but no neural compromise and no nerve root compression. No S1 nerve root compromise.[34]
[34] T21.
On 7 October 2011, Dr Brand certified Mr O’Brien fit to return to suitable duties at work – 3 days per week performing desk-based tasks for 4 hours and two 4-hour shifts per week performing security duties within restrictions.[35]
[35] T24 refers.
Notwithstanding this, it appears that on 14 November 2011, Mr O’Brien was again complaining of back pain, of which Dr Brand noted –
“back worse, pain into L buttock
Panadeine forte not helping
not been to physio for couple of weeks but not helping much
SLR to about 20 degrees oin [sic] both legs and SST giving pain in both legs at 80 degrees
Reflexes OK
Unable to sit in car for more than 5 minutes getting discomfort and pain
Note MRI…”[36]
[36] Exhibit 3.
It was on this day, for the first time in this case, Dr Brand prescribed Endone,[37] an opioid drug, in addition to Panadeine Forte. He certified Mr O’Brien unfit for work until 7 January 2012[38] and referred him to Dr McDowell, a neurosurgeon. In the referral letter, Dr Brand observed that “In 2005 he had a similar problem [with back pain] but this is worse with increasing pain”.[39]
[37] Exhibit 7.
[38] T27 refers.
[39] T26.
On 20 December 2011, Mr O’Brien consulted Dr Brand, who noted –
“felt back go ‘pop’ on weekend, just picking daughter up, then acute pain down leg, difficulty waking [sic – walking] been taking Endone and panadeine forte has appointment for 22/1/2012 to see neurosurgeon”[40]
[40] Exhibit 3.
Dr McDowell produced a report dated 3 February 2012, in which he related Mr O’Brien’s history of back pain –
“…
Mr O’Brien stated that he initially suffered significant lower back pain in 2005. Secondary to lifting stress at work, he suffered back and leg pain. He stated that he was off work for two months – the pain slowly resolved during this time and he was able to return to his former work.
Thereafter, he suffered minor recurrent episodes of lower back pain. He did not take any time off work to the best of his recollection.
He suffered another work related (lifting) injury in 2010. This stress resulted in back pain – he could not recall suffering leg pain. Again, he was able to return to work after a short period of rest/medical therapy/physical therapy.
Mr O’Brien’s most recent back injury occurred in July 2011. He recalled initially feeling dizzy – he then developed severe incapacitating lower back pain. He could not identify a particular work related stress to his lower back (anteceding the onset of incapacitating lower back pain). He stated he had not worked as a storeman since July 2011.
Initially, Mr O’Brien’s most recent low back pain was largely confined to his low lumbar spine. In approximately December 2011, he felt a “pop” in his lower back – subsequently he developed left sciatica (which, in general, radiated to his left antero-lateral calf). The pain was not associated with motor or sensory impairment. More recently, he had been more aware of occasional right leg pain.
…”[41]
[41] T34, folio 98.
Dr McDowell’s examination findings include reduced plantar reflexes, straight leg raising was limited to 30 degrees (actively) and 40 degrees (passively) on the right and to 20 degrees on the left. This was associated with low back pain without sciatica. Motor and sensory testing did not reveal a radicular pattern of impairment. Dr McDowell examined the 26 September 2011 MRI imaging and reported –
This imaging demonstrated that all of his lumbar discs were normally hydrated. At L4/5, there was a relatively small central disc bulge (possibly associated with a small central/posterior annular tear) There was no radicular or clauda equina compromise.[42]
[42] T34, folio 99.
Dr McDowell requested a further lumbosacral MRI, which was conducted on 30 January 2012. The MRI report includes –
L4/5: Loss of disc height posteriorly with loss of disc signal. Left paracentral disc bulge indents the anterior aspect of the thecal sac, contacting and probably compressing the L5 nerve root in the medial aspect of the exit foramen, and effacement and displacement of the left S1 nerve root within the thecal sac…
L5/S1: Mild loss of disc height and signal, disc osteophyte which contacts but does not make an impression on the thecal sac. No compression of the S1nerve roots in lateral recesses…
COMMENT: Progressive degenerative disc disease at the L4/5 level with large left paracentral disc bulge compressing the left L5 nerve root in the lateral recess as it exits the thecal sac in the medial margin of the exit foramen. This is presumed to progressive [sic] from previous scan (MRI 2005 report describes no abnormality, although the films are not available for direct comparison). [43]
[43] T33.
Of this MRI, on 1 April 2012, Dr McDowell reported to Comcare –
That imaging demonstrated further L4-5 disc herniation with compromise of the origin of his left L5 nerve root. In comparison to previous lumbo-sacral spinal MR imaging (September 2011) the objective disc pathology had progressed.
Clinically, there had been no major change since January, 2012.[44]
On the same day, the doctor reported to Dr Brand that –
Since January, Mr O’Brien stated that his back/left leg pain had moderated. He attributed this to “core” exercising in a gymnasium. He also attributed his symptomatic progress to avoidance of all low back stresses. He stated he continued to experience back ache/left sciatica if he bent or lifted – postural changes remained painful.
He had undergone a recent lumbo-sacral spinal MR imaging… In comparison to the lumbo-sacral spinal imaging performed in September, 2011, there was new L4-5 posterior/left disc herniation. The origin of his left L5 nerve root was compromised. His L4-5 disc was reduced in height – there was loss of signal from within the L4-5 disc nucleus.”
The foregoing accorded with his history (ie an exacerbation of his longer term problem in December, 2011).[45]
[44] T37.
[45] T38, folio 106.
On 11 April 2012, Maria Jarvis (a senior return to work coordinator with SRC Solutions) reported that Dr McDowell certified Mr O’Brien unfit for work to 8 May 2012 and that –
Mr O’Brien stated that he has joined a gym to assist him with his pain management and mobility and is currently attending on a regular basis. Mr O’Brien reports he has noticed an improvement with his walking since commencing at the gym.[46]
[46] T39, folio 108.
On 13 April 2012, Dr Brand noted –
“still not at work, not [sic] recent report of Dr McDowell
Still can’t bend, can’t lift leg
Has possible job placement at PH – case manager will come in and discuss
Can sit for half to one hour before needs to get up
Can do walking OK”[47]
[47] Exhibit 3.
On 9 May 2012, Dr Brand noted –
“been going well
Back OK with gym sessions
Not had injections as ‘scared shitless about it’
Still needs pain medications, trouble pushing trolley
Case manager wants to get back into work
Happy to go back nd [sic] start doing
Has other duties – working for building maintenance – walking but no lifting”[48]
[48] Ibid.
On 21 June 2012, Ms Jarvis reported that a graduated return to work commenced on 16 May 2012 and –
“Mr O’Brien has continued to attend the gym to assist him with his pain management and mobility and is currently attending on a regular basis. Mr O’Brien continues to report an improvement with his walking since commencing at the gym
However, Mr O’Brien continues to reports flare ups of his symptoms and has now decided to undertake the cortisone injection as per Dr McDowell’s recommendation...”[49]
[49] T43
This surgical procedure was undertaken on 2 July 2012.[50]
[50] T44.
On the 10 July 2012 and 6 August 2012 notes of Dr Brand, the injection did not have a positive effect –
“has seen Dr McDowell – advised to have surgery
did have injections and if anything seems to have made it worse,
not at work at all, still doing gym…”[51]
[51] Exhibit 3.
On 21 September 2012, Dr Seneviratne, a neurologist, examined Mr O’Brien. In a subsequent report,[52] Dr Seneviratne diagnosed “left L5 radiculopathy” which she attributed to his work injury, observing that this was likely an aggravation of his previously existing low back problems.[53]
[52] T62.
[53] Ibid, folio 181.
On 12 October 2012, Dr Wilkins, an occupational physician, reported similar conclusions.[54]
[54] T63, folio 187.
On 13 November 2012, Dr Smith, an orthopaedic surgeon, reported a diagnosis of Scheuermann’s Disease with degenerative disease in Mr O’Brien’s lumbar spine which was unrelated to his previous injuries or his employment.[55] In Dr Smith’s opinion, work-related exacerbations including the 2010 “aggravation” would have completely resolved within a short period.
[55] T65, folios 195-196.
On the subsequent notes of Dr Brand, it appears that Mr O’Brien’s low back pain symptoms persisted in varying degrees. It also appears that Mr O’Brien experienced a number of incidents that affected his symptoms. These include the following incidents Dr Brand noted –
“… 02/04/2013
…
sat on plastic chair that collapsed and landed on backside
Since then some ‘fuzziness’ in his right foot,
Left no change
Still has some tenderness over low L/S spine but only feeling in toes not elsewhere in R leg.
…
… 13/06/2013
…
note letter from TCH – was at Gym – doing squats and felt something ‘pop’ and acute pain++ in both legs, back thigh, lateral lower leg, feet tingly, fuzzy feeling
…
… 24/01/2014
…
Back is playing up again, just started, no recollection of specific injury, started when driving home from the coast, didn’t do anything especially to aggravate it
doind [sic] exercises, still going to work,
getting along really well at work,
pain in low back but getting some pain in R buttock
feeling numbness in the foot and pain when gets out of the car.”
On 9 June 2013, Mr O’Brien attended the Emergency Department of The Canberra Hospital complaining of low back pain. Dr Lai (a resident medical officer) reported –
“Dean had an exacerbation of his existing mechanical lower back pain whilst at the gym doing squats. He heard a “pop” and then was in severe pain unable to weight bear. He has no neurological deficits.
He has a pre-existing L4-5 injury from two years ago and has been managed with physiotherapy, steroid injections and rehabilitation.
On examination, Dean appeared to be in severe pain with restricted movement. He was tender in his lower lumbar spine and his paraspinal muscles were tense. He had no sensory loss. Minimal movement was possible in his lower limbs and a straight leg raise was unable to be assessed.”[56]
[56] T92, folio 321.
Images of Mr O’Brien in November 2013 reveal a well-muscled man engaged in heavy weight training and in a seated posture.[57] By his own account, he rode a motor bike, necessarily in a seated position albeit using a saddle seat, which he asserts was better for his back.
[57] Exhibit 6.
On 28 December 2013, it appears that Mr O’Brien experienced increased low back and right buttock symptoms after driving from the coast.[58]
[58] T104, folio 357 refers.
On 4 March 2014, Dr Brand reported –
“… Despite returning to work Dean has never been pain free and this episode is an aggravation of his work related L4/5 injury caused by prolonged sitting in a car.
…
I believe Mr O’Brien’s injury to L4/5 was worked related and has never resolved despite returning to work. In my view this recent episode of pain and sciatica would not have occurred if he had not suffered the initial work related incident.”[59]
[59] T106, folio 361.
On 4 April 2014 in a referral to Dr Ow-Yang, an orthopaedic surgeon, Dr Brand noted –
“… [Mr O’Brien] has a long history of back pain which started in 2005 when he was working in the loading dock in Parliament House.
He initially had some L4/5 findings on MRI and settled on one cortisone injection 2 years ago that did not seem to help and gym work and keeping active that seemed to do the best.
He had an extended period off work but returned about March 2013 and has been mostly working since. He had an acute exacerbation of the pain in June when working out at the gym and was seen at TCH.
He then developed right sided sciatica following a long trip at Christmas.
…
MRI now shows a right sided disc bulge and L4/5 that looks improved.”[60]
[60] T108, folio 363.
On 8 May 2014, Dr Ow-Yang reported to Dr Brand –
“I do believe however, that the original injury in 2005 may have contributed to his current position as it may have caused a more rapid disc degeneration at the L4/5 and L5/S1 disc levels.”[61]
[61] T110, folio 368.
On 13 May 2014, Mr O’Brien’s employment with DPS was terminated.[62]
[62] T111.
On 16 May 2014, Dr Pillemer (an orthopaedic surgeon), examined Mr O’Brien and reported –
“As far as diagnosis is concerned, Mr O’Brien would seem to have mechanical problems at the lower two lumbar levels and importantly as mentioned, early on his CT scan did show disc involvement at both these levels. Subsequently the L4/5 disc was the main problem, but following the most recent recurrence of symptoms in December 2013, the L5/S1 disc is now the main problem with a further disc protrusion being noted on his new MRI.
…
In my opinion ongoing symptoms and pathology are due to the injuries described and the nature and conditions of his employment. I would regard the most recent incident in December 2013 as simply being a continuation of his earlier pathology.
…
As noted his most recent disc protrusion would seem to have occurred while he was driving home from the coast on 28 December 2013. However, I would certainly relate this to his previous problems, noting that the CT scan in May 2005 and MRIs previously all showed disc problems at the L5/S1 level. The most recent disc protrusion which seems to have occurred during his trip back from the coast would simply have been an aggravation of his underlying condition.”[63]
[63] T113, folios 377 and 379.
Dr Pillemer clarified his opinion in a supplementary report to Comcare on 28 July 2014, in which he described the ‘underlying condition’ to be “broad-based disc bulging compressing the thecal sac with possible S1 nerve root compression, and also bulging at the L4/5 level” and –
“In answer to your further specific question, in my opinion the new disc protrusion at the L5/S1 level occurred during long drive which he undertook on 28 December 2013. As noted he already had disc bulging at this level, and in my opinion would simply have had an increase in the disc protrusion that was noted on the MRI in February 2013.
In my opinion then his original injury in April 2005 caused damage to both of the two lower lumbar discs at L4/5 and L5/S1. The “new disc protrusion at the L5/S1” level in my opinion would have been an aggravation of this underlying disc weakness and bulging. As noted, the disc protrusion at the L4/5 level had improved but there was significant increase in the disc protrusion at the L5/S1 level. The “pathology from the improved original injury…” is the underlying weakness at the lumbosacral level.”[64]
[64] T116, folios 391 and 392.
On 10 July 2014, Dr Brand reported –
“Mr O’Brien’s problem has been present for years and it is my opinion that the initial insult occurred in 2005 but was aggravated by work in 2010 and continues to deteriorate. I believe his previous work loading and unload boxes at Parliament House aggravated his problem and his ongoing employment has contributed.”[65]
[65] T115, folio 389.
On 12 September 2014, Dr Ow-Yang reported –
“He has had a CT guided right S1 periradicular injection and tried Lyrica at 75mg twice a day. These measures have had very little effect in managing the right sciatica. He continues to complain of pain radiating to the right buttock area, posterior thigh and posterior calf in a typical S1 distribution which correlates well with a MRI of the lumbar spine showing an acute right L5/S1 disc protrusion.”[66]
[66] T121.
On 8 July 2015, Dr Ow-Yang reviewed Mr O’Brien and referred him for MRI.[67] In respect of this MRI,[68] Dr Ow-Yang reported –
“The repeat MRI of the lumbar spine shows the previous right L5/S1 disc protrusion is now reabsorbed since I last reviewed him September 2014 and there is no longer ongoing S1 nerve compression. The most significant abnormality causing nerve compression is a broad-based L4/5 disc bulge associated with a large annular tear causing bilateral lateral recess stenosis and bilateral L5 nerve root compression.
The current working diagnosis is one of bilateral L5 radicular pain secondary to bilateral L4/5 lateral recess stenosis.”[69]
[67] T137.
[68] See T138.
[69] T139.
On 13 October 2015, Dr Seneviratne reported to Comcare that –
“Mr O’Brien, in my opinion, currently suffers from lower back injury including soft tissue injury, as well as L5 plus or minus S1 radiculopathy bilaterally.
…
The report of the MRI scan of the lumbar spine dated 30 June 2005 does not demonstrate any significant disc protrusions or neural compromise in the lumbar spine.
The MRI scan of the lumbrosacral spine dated 26 September 2011 demonstrates an L4/5 posterocentral focal disc protrusion related to a small annulus tear. No foraminal or root compression is detected. At L5/S1 there is a very low-grade posterior disc bulge with no evidence of neural compromise detected.
In my opinion the significant contributing factor to the ongoing current medical condition is the injury suffered on 10 May 2010. More likely than not, the injury suffered on 4 April 2005 has not been a significant contribution to the injury suffered on 10 May 2010.
…
The described incident in 2010 more likely than not contributed significantly to the current medical condition. Mr O’Brien has been a manual worker all his life and heavy lifting and heavy manual work could predispose one to lower back injuries of similar nature.”[70]
[70] T147, folios 556 and 557.

On 26 November 2015, Dr Brand referred Mr O’Brien to Dr Fuller, a neurosurgeon, and said –
“He is still getting pain in both feet but the sciatic pain is just in his right buttock and back of thigh and calf. He has had CT guided cortisone with some relief on the left but none on the right…”[71]
[71] T149.
On 22 December 2015, Dr Brand reported to Comcare and provided some contemporaneous clinical notes. He stated –
“Dean continues to have back symptoms with pins and needles in both feet with right worse than left.
…
He is still going to the gym but had found he has had to reduce to three times a week because it is aggravating his pain.
…” [72]
[72] T153, folio 581.
In January 2016, Mr O’Brien says his back “locked up and was in severe pain” when bending to pick up some underwear from a bed.[73] On 18 February 2016, Dr Fuller examined Mr O’Brien and referred him for a repeat MRI.[74] In respect of the resulting MRI,[75] Dr Fuller reported –
“The MRI scan demonstrates disc desiccation at the L4/5 and L5/S1 discs. At the L4/5 level there is a diffuse broad based disc bulge which narrows the lateral recesses bilaterally. At the L5/S1 level there is a central disc bulge which abuts both S1 nerve roots.
His lower limb symptoms are a mixture of L5 and S1 in distribution although predominantly more S1…”[76]
[73] ST22, folio 984; Exhibit 4, page 16.
[74] T157.
[75] See report at T167.
[76] T175.
Dr Fuller referred Mr O’Brien for a bone scan, which was undertaken and reported on 18 August 2016.[77] On Dr Fuller’s subsequent report, the bone scan did not “demonstrate any significant abnormality within the discs or the facet joints of the lumbosacral spine”.[78]
[77] T179.
[78] T183.
In or about October 2016, Mr O’Brien says he experienced a further aggravation of his low back condition on leaning forward when sitting to receive a remote – “As I leaned forward to take the remote I felt extreme pain in my back and it completely seized”.[79]
[79] Exhibit 4, page 17.
On 16 December 2016, Dr Brand referred Mr O’Brien to Dr Ow-Yang for further opinion and management, and said –
“ [Mr O’Brien] is known to you with his back pain and pain radiating down both legs, but the left much owrse [sic] than the right.
He had an acute exacerbation of pain 2 months ago and while it is somewhat better he has to use a stick and more concerning is getting some foot drop in his left leg.
…”[80]
[80] T194, folio 757.
On 23 December 2016, Comcare decided to revoke determinations of compensation for incapacity[81] made on 5 August 2015,[82] 30 September 2015,[83] 20 January 2016,[84] 17 February 2016,[85] 16 March 2016,[86] 30 March 2016,[87] 22 June 2016,[88] 3 August 2016,[89] 31 August 2016,[90] 28 September 2016,[91] 12 October 2016[92] and 9 November 2016,[93] and affirmed a determination denying compensation for incapacity from 13 May 2014 to 20 May 2015.[94] Mr O’Brien applied for review of these decisions.
[81] T196.
[82] T143.
[83] T145.
[84] T155.
[85] T156.
[86] T160.
[87] T163.
[88] T169.
[89] T178.
[90] T181.
[91][91] T182.
[92] T184.
[93] T186.
[94] T189.
On 1 February 2017, Dr Ow-Yang reported –
“ … Three months ago he suffered a severe exacerbation of pain involving low back pain and bilateral lower limb pain. He is now severely disabled by pain…
A repeat MRI of the lumbar spine shows a large central L4/5 disc protrusion associated with a large posterior annular tear with bilateral lateral recess stenosis and bilateral L5 nerve compression. There is also a small L5/S1 posterior annular tear.
The working diagnosis is one of L4/5 discogenic low back pain and bilateral L5 radicular pain secondary to an L4/5 disc injury.”
On 17 June 2017, Professor Youssef, a rheumatologist, examined Mr O’Brien and reported to Comcare that –
“…
[Mr O’Brien] had a thoracolumbar strain in 2005 from which he made a recovery. He also had a thoracolumbar strain in April and June 2010 from which he recovered. He also sustained a lumbar strain and possibly a disc fibre tear in June 2011, unrelated to work. The most significant injuries were in December 2011 and December 2013 as I have already documented. In particular, he did not develop right sided radicular pain until December 2013.
…
The thoracolumbar strains that he sustained with the Department of Parliamentary Services resolved. His major problems were the left L5 radiculopathy and right S1 radiculopathy which occurred in December 2011 and December 2013 respectively when he was not working with the Department of Parliamentary Services. It is my opinion that his work with the Department of Parliamentary Services did not weaken his lumbar discs or predispose him to developing radicular problems in December 2011 and December 2013.
…
The work incidents caused a temporary musculoligamentous strain of the thoracolumbar spines from which he made a recovery. I do not consider that they caused a significant structural disorder and did not make any underlying pathology more severe or intense or more symptomatic.
…
He no longer suffers from the thoracolumbar strains that occurred while he was at work.
…” [95]
[95] ST22, folios 1020 and 1022.
Professor Youssef was subsequently briefed by Comcare with additional materials on which he was asked to comment. In doing so, the professor held to his original opinions and observed –
“My conclusion is based on the normal findings on the MRI of 2005 at the time of the original work injury.”[96]
[96] Exhibit 13, page 5.
On 19 July 2017, Dr Pillemer examined Mr O’Brien and produced a report for Mr O’Brien’s solicitors, in which he said –
“My opinion regarding Mr O’Brien remains unchanged from that previously expressed, noting that, in my opinion, his original injury occurred in April 2005 and this was significantly aggravated in May 2010 with a further aggravation in December 2013. It seems that there have been other aggravations along the way with the most recent aggravation having occurred in September 2016, as noted above.
It is again my opinion that Mr O’Brien has a mechanical problem at the lower two lumbar levels where he does have disc involvement and it was my opinion that the ongoing problems were due to the injuries described as well as the nature and conditions of his employment as a storeman since 2000.
…
In my opinion there do not appear to be any events outside of his employment with the Department that would be regarded as substantial contributing factors to his impairment.
…
In my opinion, the effects of his injuries and aggravations are continuing at the present time.
…”[97]
[97] ST23, folios1032 and 1034.
On 12 September 2017, Comcare decided to affirm a determination on 17 February 2017[98] that Mr O’Brien had no present entitlement to compensation under s 16 and s 19 of the SRC Act.[99] Mr O’Brien applied for review of this decision – application 2017/5657.
[98] T203.
[99] ST 26.
On 18 September 2017, Dr Halcrow, a neurosurgeon, reported to Dr Brand that Mr O’Brien experienced “his original problem” in 2005, with exacerbations in 2010 and 2011, and subsequently his “presentation again being one of an acute lumbar injury with a recurrent exacerbation”.[100] Dr Halcrow reported –
“He presented with all his lumbar MRI scans in contemporaneous order. These showed a progression of changes of disc degeneration from 2005, particularly involving the L4/5 disc and L5/S1 disc to a lesser extent. These progressed to a progressive L4/5 disc bulge with his most recent MRI showing a significant acute posterior annular tear and a sizeable central disc prolapse narrowing his canal and compromising both nerve roots at the axillary level.
…”[101]
[100] Exhibit 8, page 1.
[101] Ibid, page 2.
On 14 November 2017, Dr Pillemer produced a further supplementary report for solicitors representing Mr O’Brien, in which he reiterated his earlier conclusions in respect of the nature and consequences of Mr O’Brien’s 2005 injury and said –
“…
As noted it was my opinion that his original injuries had damaged the lower two lumbar discs and that all further incidences thereafter were aggravations of this underlying condition. That is, if not for his original injuries and the history thereafter, the incidents referred to by Professor Youssef in December 2011 and December 2013 would not have produced the disc lesions if not for the underlying weakness of these discs.
…”[102]
[102] Exhibit 11, 14 November 2017 report, page 2.
On 29 March 2018, Comcare decided to affirm a determination denying liability for a low back injury resulting from the nature and conditions of Mr O’Brien’s DPS employment.[103] Mr O’Brien applied for review of this decision – application 2018/1699.
[103] ST47.
Dr Pillemer produced a further supplementary report on 13 March 2019, in which he considered an MRI taken on 30 May 2018 and said –
“Changes on MRI are routinely present, and significant disc protrusions can virtually disappear over a period of time. This does not alter the fact that Mr O’Brien has mechanical problems at the lower two levels of his lumbar spine, and it would seem that intermittently he has some nerve root involvement (that is, radiculopathy), but at other times there is none.”[104]
[104] Ibid, 13 March 2019 report, page 2.
On 4 December 2018, Dr Sergides, a neurosurgeon, examined Mr O’Brien and reported to his solicitors –
“…
Mr O’Brien is a 41 year old gentleman who suffered an injury to his back whilst at work in 2005. The symptoms were commensurate with a slipped/prolapsed lumbar disc and caused back pain and left sided sciatica.
Mr O’Brien was not completely pain free between 2005 and 2010 when he had a further exacerbation at work causing a recurrence of his low back pain and left sided sciatica. The symptoms in 2010 were an exacerbation of the previous symptoms in 2005 and therefore Mr O’Brien’s current symptoms are directly related to his initial injury in 2005.
…”[105]
[105] Exhibit 10, 4 December 2018 report, page 3.
Dr Sergides produced a supplementary report on 20 March 2019 in which he made some comments about the MRI scan taken on 30 May 2018 and further degeneration in Mr O’Brien’s L4/5 and L5/S1 discs. The doctor considered it important to review the MRI scan taken in June 2005, which he had not yet done. As will appear, he did so before giving oral evidence during the hearing.
Issues
The issues raised for determination on review are –
(a)whether Mr O’Brien complied with the notice provisions in s 53 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) when claiming injury as a result of the nature and conditions of his DPS employment; and, if so
(b)Comcare’s liability to pay compensation in respect of that claim;
(c)whether Mr O’Brien continues to experience the effects of accepted work-related injuries to his back; and in particular
(d)his entitlement to compensation for incapacity for work from 13 May 2014 (and as of 17 February 2017) to the present; and
(e)his entitlement to compensation for medical treatment expenses as of 17 February 2017 to the present.
There is an ancillary issue about which much was said during the hearing that it is convenient to deal with now. This relates to what has loosely been referred to as a ‘practical onus’ upon one party or the other to produce evidence sufficient to tip the balance of persuasion in proceedings of this kind. Of course, subject only to onus or burden of proof being established by legislation,[106] there is no strict onus on either party in proceedings before the Tribunal: proceedings in the Tribunal are not adversarial, even though, at hearing, they may resemble adversarial proceedings and the respective positions of the parties may be strenuously contested in an adversarial manner. The Tribunal’s task is to make the correct or preferable decision on the materials placed before it – a task the parties are obliged to assist.
[106] Such as in s 14ZZK of the Taxation Administration Act 1953, for example.
The dispute, presently, is whether one party or the other carries a burden of persuasion in support of the particular decision contended for, such that that party would bear the task of producing evidence sufficient to satisfy the Tribunal that it is the correct or preferable decision in the particular circumstances. While disputation of this kind risks descent into a degree of adversarial combat that is not helpful in Tribunal proceedings, such that inconsistency with the obligation to assist the Tribunal under s 33(1AA) or (1AB) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) might arise, there is, nevertheless, a practical kernel to the present issue.
On this point, the Katzmann J reviewed relevant authorities in Power v Comcare[107] (Power’s case) and said –
70. Nonetheless, I accept that is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made.[108]
[107] [2015] FCA 1502.
[108] Ibid, see discussion at paragraphs [58]-[70].
The essential point, consistent with authority, is that, practically, in order to make a decision, the Tribunal must be reasonably satisfied the decision is the correct or preferable decision on the materials placed before it. Under the obligation to assist, the task of adducing relevant materials is borne by both parties. Practically, however, the task of persuasion is borne by the party seeking to upset the previously existing state of affairs, and this task requires supporting materials.
When dealing with disputation over such matters, it is necessary, therefore, to identify the state of affairs existing prior to the contested decision under review. There is no presumption that the decision under review is correct – the Tribunal steps into the shoes of the person who made the reviewable decision and makes a fresh decision on the materials placed before it.
In Mr O’Brien’s case there are three kinds of decisions to consider: decisions revoking previously accepted claims for payment of periodic compensation for incapacity; a decision denying present entitlement to compensation in respect of incapacity for work and medical treatment expenses; and a decision refusing a compensation claim for injury.
Comcare argues that the onus is on a claimant to make out their claim. This is especially so in respect of claims for payment of periodic compensation for incapacity and claims for payment of medical treatment expenses – each claim must be assessed on its merits and payments will only follow where the claim is made out.
In the mechanistic processes of the compensation scheme the Act provides, involving claims and determinations, this is correct. But it does not address the essential point to which Katzmann J referred in Power’s case, that is clearly established by a line of authority reaching back to McDonald v Director-General of Social Security[109] - it is the party seeking to upset the status quo that has the practical task of providing materials sufficient to persuade the Tribunal that such a decision is made out on the balance of probabilities.
[109] [1984] FCA 59.
While Comcare’s argument is correct in terms of the claim for injury allegedly resulting from the nature and conditions of Mr O’Brien’s previous employment, where he is attempting to change the previously existing state of affairs, the same cannot be said of the decisions revoking previously accepted liability to pay compensation for incapacity and the decision denying present entitlement to compensation for incapacity and medical treatment expenses. Those decisions upset the previously existing state of affairs by revoking compensation previously paid and by denying an entitlement that previously existed.
The significance of this must be properly understood. Producing materials sufficient to make out the decision contended for on the balance of probabilities is simply an exposition of practical reality in Tribunal proceedings. Where it matters is if, on consideration of all the available materials, the Tribunal is left in a state of uncertainty, unable to decide a question of fact one way or the other, such that it is not able to positively determine the question on the balance of probabilities, then the previously existing state of affairs will remain unchanged.
Woodward J explained the consequence of such circumstances in McDonald v Director-General of Social Security[110] –
If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work. For a comparable analysis as to the onus of proof (properly so-called) before a judicial tribunal see Phillips v The Commonwealth (1964) 110 CLR 347 at 350.
[110] (1984) 1 FCR 354 at 358.
As will appear, no such state of uncertainty results in these proceedings as the issues in dispute are capable of positive determination on the balance of probabilities.
Notice – nature and conditions claim
Mr O’Brien asserts that he gave notice of the injury he attributes to the nature and conditions of his DPS work as soon as practicable after becoming aware the he could or should do so.
Comcare argues that Mr O’Brien was capable of giving notice of an alleged injury of this kind long ago and his delay in doing so results in prejudice. Comcare asserts that Mr O’Brien’s delay denied DPS the opportunity to modify the nature and conditions of his work so as to avoid injury. Furthermore, Comcare says it is most significant that Mr O’Brien was legally represented for two years before making the claim, and in view of the span of time traversed by the claim, there is no reasonable cause for the delay in providing notice of the alleged injury.
Mr O’Brien’s employment by DPS ended on 12 May 2014.[111]
[111] T111.
In or about March 2015, Mr O’Brien obtained legal advice and representation from Howes Kaye Halpin solicitors.[112] It is not presently established when Mr O’Brien first obtained legal advice in respect of claiming compensation for an injury allegedly resulting from the nature and conditions of his previous employment. I accept that without legal advice Mr O’Brien was ignorant of such matters. Subsequently, he lodged a compensation claim in respect of an alleged injury caused by the nature and conditions of his employment on 23 August 2017.[113]
[112] T133 refers.
[113] ST42.
Comcare’s assertion of prejudice against DPS is not consistent with the contemporaneous notes made by nurses at Parliament House and rehabilitation reports since 2005. On these materials, DPS had ample opportunities and reasons to modify the nature and conditions of Mr O’Brien’s work. The incidents of back pain about which Mr O’Brien complained to nurses in the context of his employment, and the injuries and time off work he experienced as a result, were very clearly flagged to DPS at the time.
Furthermore, Dr Pillemer provided a report to Comcare on 16 May 2014, in which he clearly stated that Mr O’Brien’s “ongoing symptoms and pathology are due to the injuries described and the nature and conditions of his employment”.[114]
[114] T113, folio 377.
I am satisfied no prejudice arises. In these circumstances, having regard to s 53(3)(c) of the Act, Mr O’Brien’s ignorance is a reasonable cause of his failure to lodge the application ‘as soon as practicable’ after becoming aware of the injury allegedly caused by the nature and conditions of his previous employment.
Liability – nature and conditions claim
Mr O’Brien asserts that the nature and conditions of the work he undertook in his previous employment involved heavy physical work, including lifting, bending, twisting, pushing and pulling weighty items every day. These activities, he asserts, caused physical injury to his lower back and lumbar spine.

Mr O’Brien argues that Comcare was wrong to curtail his entitlement to compensation for medical treatment expenses on 17 February 2017. In his submission, the injuries for which Comcare is liable continue to require medical treatment, the cost of which should be met under s 16 of the Act.
Comcare asserts that the effects of Mr O’Brien’s injuries came to an end or they were overtaken by other, more significant, events outside his employment.
The test to be applied is set out in s 16 of the Act –
16 (1) 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 it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
As can be seen, under s 16, Comcare’s liability arises in respect of medical treatment obtained ‘in relation to’ an injury.
I note that Comcare’s determination arose on review of Mr O’Brien’s case and not on assessment of any particular compensation claim relating to medical treatment expenses.
That being so and in the present circumstances of this case, it is not necessary to say much about the meaning of ‘in relation to’ in the context of s 16 other than to observe that ‘medical treatment obtained in relation to’ an injury is not confined to a direct or proximate relationship between the particular treatment and the injury.
Nonetheless, Comcare’s 17 February 2017 determination and the subsequent reconsideration decision proceeded on the basis that Mr O’Brien’s ‘injury’ was not an effective cause of symptoms requiring medical treatment, such that he had no present entitlement to compensation under s 16.
I am satisfied that the effects of Mr O’Brien’s accepted injuries had not come to an end on or before 17 February 2017, and his accepted ‘injury’ was a present and continuing cause of symptoms that may require medical treatment, such that he may be entitled to compensation under s 16, subject to claim. For this reason, that decision will be set aside.
Conclusion
Mr O’Brien’s compensation claim in respect of an injury caused by the nature and conditions of his DPS employment is not barred by lack of notice.
The nature and conditions of Mr O’Brien’s work in DPS employment contributed to the low back ailment he claimed as an injury. The contribution was substantially more than material – it was to a significant degree. This means, Mr O’Brien’s low back ailment is a ‘disease’ under s 5B(1) and an ‘injury’ under s 5A(1) for the purposes of the Act. The ailment is characterised by symptoms of low back pain that flare up from time to time with pain and paraesthesia radiating into the lower limbs. The nature of the ailment is physical, namely progressive damage and pathological changes affecting the L4/5 disc and the L5/S1 disc that were first diagnosed in or about April 2005, although the first complain of symptoms occurred on 4 September 2003.
The effects of that injury in April 2005 and the injury in May 2010 did not cease on or before 13 May 2014 or 17 February 2017. They have not been overtaken by other events, such that they are insignificant or pushed into the remote background, and they are presently persisting. The decision denying Comcare’s present liability to pay compensation under s 16 and s 19 (or s 20, s 21 or s 21A, whichever is applicable) as of 17 February 2017 will be set aside. Should further claims for payment of compensation for incapacity or medical treatment expenses be made, these will be assessed on their merits.
These injuries continue as operative and effective causes of incapacity for work. The reconsideration decision revoking compensation for periods of incapacity will be set aside. This means the determinations made will be reinstated - Mr O’Brien was entitled to payment of compensation for incapacity during these periods.
Decision
The decision under review in application 2018/1699 is set aside. In place thereof the Tribunal decides the nature and conditions of Mr O’Brien’s previous employment caused an injury to his low back for which Comcare is liable.
The decision under review in application 2017/5657 is set aside. The effects of Mr O’Brien’s 2005 and 2010 injuries did not cease on or before 13 May 2014 or 17 February 2017 and are presently ongoing. As of 17 February 2017 and presently, subject to claim, Comcare is liable to compensate Mr O’Brien for incapacity and medical treatment expenses.
The decision revoking determinations of compensation for incapacity made on 5 August 2015, 30 September 2015, 20 January 2016, 17 February 2016, 16 March 2016, 30 March 2016, 22 June 2016, 3 August 2016, 31 August 2016, 28 September 2016, 12 October 2016 and 9 November 2016, and denying compensation for incapacity from 13 May 2014 to 20 May 2015 is set aside. The revoked determinations will be reinstated. Comcare is liable to compensate Mr O’Brien for incapacity in the period from 13 May 2014 to 29 May 2015.
The matter is remitted to Comcare to determine amounts of compensation payable to Mr O’Brien.
The Parties have not been heard on the question of costs under s 67(8) of the Act. Written submissions addressing this question and requesting orders may be made within 14 days. Should no such submissions be received, Comcare will be ordered to pay Mr O’Brien’s costs, as agreed or taxed in accordance with the Taxation of Costs Practice Direction.
I certify that the preceding 239 (two hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.
……………………………………………………
Associate
Dated: 24 May 2019
Date of Hearing: 25-27 March 2019
Counsel for the Applicant: Mr Karl Pattenden
Solicitor for the Applicant: Ms Alison Mcnamara, Howes Kaye Halpin
Counsel for the Respondent: Mr Michael Snell
Solicitor for the Respondent: Mr Peter Lehmann, Lehmann Snell Lawyers

[2019] AATA 1004

24 May 2019

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Remedies

Statutory Construction

Costs