Peipman and Comcare (Compensation)

[2019] AATA 545

Peipman and Comcare (Compensation) [2019] AATA 545 (26 March 2019)

Division:GENERAL DIVISION

File Numbers:         2015/6429 and 2015/6434

Re:Mark Peipman

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:26 March 2019

Place:Brisbane

(a)sets aside Comcare’s decision of 23 October 2015 (2015/6429);

(b)remits the matter to Comcare for reconsideration on the basis that the Applicant continues to suffer from the previously accepted back injury, psychiatric injuries and impotence injury;

(c)affirms Comcare’s decision of 13 March 2015 (2015/6434);

(d)allows 21 days for the parties to make any submission for an order for costs pursuant to section 67 of the Act.

.........................[Sgd]...............................................

Deputy President J Sosso

CATCHWORDS

COMPENSATION – workplace injury – injury to lower back – secondary psychiatric conditions –ceased effects determination – status epilepticus – liability denied – Safety Rehabilitation and Compensation Act 1988 – s 16 – whether medical treatment received by Applicant in relation to original compensable injury – Telstra Corporation v Hannaford – s 19 – whether incapacity for work as a result of original compensable injury – ceased effects reviewable decision set aside – status epilepticus reviewable decision affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Canute v Comcare (2006) 226 CLR 535
Comcare v Porter (1996) 70 FCR 139
Comcare v Power (2015) 238 FCR 187
Comcare v  Sahu-Khan [2007] FCA 15; 156 FCR 536
Commonwealth v (KC) Smith (1989) 18 ALD 224
Darling Island Stevedoring and Lighterage Co Limited v Hankinson (1967) 117 CLR 19
Howes v Comcare [2016] FCA 1521
Kavas and Comcare [2011] AATA 935
Kennon v Spry (2008) 238 CLR 366
Lees v Comcare [1999] FCA 753
Martin v Australian Postal Corporation [1999] FCA 655
McDonald v Director-General of Social Security (1984) 1 FCR 354
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537 at 593
Prain v Comcare [2017] FCAFC 143
Pratt and Comcare [2004] AATA 1281
Renouf and Comcare [2004] AATA 525
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157
Telstra Corporation Ltd  v Hannaford (2006) 151 FCR 253
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110

REASONS FOR DECISION

Deputy President J Sosso

26 March 2019

INTRODUCTION

1. Mr Mark Peipman (the Applicant) worked for the Australian Tax Office (ATO) from 1987 until August 2001. When the Applicant ceased employment with the ATO he had attained the level of an APS 3. On 26 April 2001 the Applicant injured his lower back at work when a chair he was sitting on collapsed. On 30 October 2001 Comcare accepted liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for an injury described as “aggravation of displacement of intervertebral disc – lumbar” – Exhibit 1 T26 pp. 319 – 320.

2. The Applicant has complained of ongoing back and leg pain which is said to be the source of a continuing incapacity for work (whether partial or full) since April 2001.

3. During the period 3 July 2006 until 19 September 2008, Comcare accepted liability for a further two categories of injuries, which in generic terms can be described secondary psychiatric injuries (3 July 2006) and impotence due to psychological factors (19 September 2008).  These are dealt with below.

4. On 3  July 2006 Comcare accepted liability for two secondary conditions  described as “Major Depressive Disorder and Adjustment Disorder with Mixed Anxiety and Depressed Mood” – Exhibit 1 T143 pp. 611 – 612. In reaching this decision, the Comcare Delegate referred to the medical reports of Dr Pavan Bhandari of 1 March 2006 (Exhibit 1 T 124 pp. 527 – 543) and Dr Inglis Synnott of 13 April 2006 (Exhibit 1 T129 pp. 560 - 567).

5. The Tribunal made a consent Determination on 19 September 2008 which set aside a decision of 8 June 2005 and in substitution determined that the Applicant suffered from sexual dysfunction which was secondary to his accepted injuries of 26 April 2001. It was further determined that the Applicant suffered from a 15% permanent impairment of sexual function and was entitled to the payment of compensation – Exhibit 1 T191 pp. 721 – 723.

6. On or about 29 August 2013 the Applicant lodged a further claim for a fall then coma due to serotonin syndrome – Exhibit 1 T 251 pp.  886 – 892. This claim flowed from an accident that occurred about 4 February 2012 when the Applicant fell at home having suffered a seizure (status epilepticus) and became comatose.  This claim was accepted by Comcare on 24 December 2014, and reasonable medical treatment claims resulting from this injury were accepted up to and including 21 February 2012. The label ascribed to the condition by Comcare was “extrapyramidal diseases & movement disorders”. – Exhibit 1 T 277 p. 933.

7. Following a request by the ATO for a reconsideration, Comcare revoked its earlier acceptance of liability. The Review Officer gave extensive reasons for the revocation;  set out below are relevant portions: - Exhibit 1 T 286 pp. 971 – 972:

   “I do not dispute that you suffered a condition causing seizure activity on 4 February 2012 which resulted in hospitalisation.  I am satisfied that you have suffered from an ‘ailment’ which has not been given a specific label.

   I am also satisfied that as a result of previous accepted claims, you have required treatment with multiple medications.

   Having regard to:

   ·the Hospital Discharge Referral did not provide a precise diagnosis;

   ·both Dr Russo and Dr Bracco seem unclear in their contentions that the serotonergic syndrome is a cause of your ICU admission;

   ·your psychiatrist doubled your dose of Efexor (as reported by you) for non-compensable purposes; and

   ·Dr Bracco cites in his report ‘Avoid further intoxication by assuming inappropriate dosage against medical advice’.

   I consider that although it is possible that the medication to treat your compensable conditions has contributed to the cause of the condition that resulted in seizure activity, the medical evidence has not established the condition for which you were treated in hospital on 4 February 2012 on the balance of probabilities was as a result of medication required for your compensable condition.

   In the absence of an opinion from a medical professional regarding the precise diagnosis of your condition I am not satisfied that your condition is as a result of medical treatment for a compensable condition.”

8. On 28 July 2015 Comcare determined that the Applicant’s “current symptoms and presentation are no longer related to your former employment with the Australian Tax Office, or the employment incident of 26^th April 2001.” – Exhibit 1 T300 p. 1031.  Consequently the Applicant was no longer entitled to receive compensation for medical expenses under s 16 or compensation for incapacity payments under s 19 of the Act.  In reaching this decision the Comcare Delegate, Ms Laura Plumb, made the following observations – Exhibit 1 T300 p. 1030:

   “You recently attended two independent medical examinations on behalf of Comcare.  These examinations were conducted by Dr Uthum Dias, Occupational Physician, on 19^th March 2015, and Dr Alison Moffatt, Psychiatrist, on 31^st March 2015.

   In his report Dr Dias indicated that in his opinion, your compensable condition of aggravation of displacement of intervertebral disc -lumbar had resolved, and that your current symptoms and presentation were due to underlying degeneration of the lumbar spine, which was present prior to the workplace incident on 26^th April 2001.

   In the report prepared by Dr Moffatt, she stated that in her opinion, that factors other than your former employment with the Australian Taxation Office, contribute to your current depression.  Dr Moffatt went on to cite a number of issues form your personal life that have occurred, as well as the hospitalisation in 2012.

   In the report prepared by Dr Russo, Dr Russo acknowledges that you have degenerative lumbar spondylosis, and that is part of your ongoing pain issues.  Dr Russo went on to state that he is currently treating a segment of your spine above your spinal surgery.  Dr Russo went on to explain he was treating adjacent segment disease, which Dr Russo alleges is as a result of the surgery undertaken in November 2001.

   Dr Russo goes on to indicate that he does not agree with Dr Moffatt’s opinion, however does not provide any reasons to support his opinion.”

   [Note: Dr Moffatt is spelt “Moffatt” by the Delegate]

9. This Determination was reconsidered by Ms Lynette Comber, Review Officer, who, on 23 October 2015, affirmed it.

10. Ms Comber considered each of the compensable conditions. With respect to the aggravation of displacement of intervertebral disc – lumbar, she referred to, and quoted from, reports prepared by Dr Dias (27 March and 9 October 2015) and Dr Mark Russo (27 May 2015).  She then made the following observations – Exhibit 1 T306 pp. 1045 – 1046:

    “In relation to your condition, I note that Dr Russo and Dr Dias agree that your aggravation of displacement of intervertebral disc – lumbar is as a consequence of your accepted compensable condition and that this will progress and deteriorate with time.  Dr Russo states that you suffer a chronic pain condition adjacent to the site of surgery conducted November 2001.  Dr Dias is of the opinion that the condition you now suffer is a degenerative lumbar condition that is supported by the fact that your current symptomatology at 14 ½ years post injury reflects the progression of degenerative condition rather than an isolated incident. Dr Dias also noted that your current symptomatology was at the site of the surgery, rather than adjacent to it.

    I note that Comcare have not accepted for a degenerative underlying constitutional and degenerative lumbar spondylosis condition under section 14 of the SRC Act, having only accepted liability for an aggravation of disc displacements.  Therefore, I am unable to consider any medical treatment or incapacity in relation to the underlying, degenerative condition.

    It would appear from the evidence before me that you no longer suffer the effects of your accepted condition of ‘aggravation of displacement of intervertebral disc – lumbar’, but rather from the other diagnosed conditions.  As such, it follows that your requirement for medical treatment and any incapacity for work are not related to the accepted condition, but rather to the non-compensable condition. Therefore, I find that you have no present entitlement to medical treatment or incapacity under sections 16 and 19 of the SRC Act in relation to this condition.”

11. Ms Comber then considered the Applicant’s depressive disorder.  She referred to the medical reports of Drs Dias, Moffatt and Russo.  As with Ms Plumb, Ms Comber also referred to Dr Moffatt as Dr Moffatt.  The following observations were made Exhibit 1 T306 p. 1046:

    “For compensation to be payable for your claimed major depressive disorder, single episode and adjustment reaction with disturbance of emotions, I must be satisfied that you continue to suffer an ailment that was significantly contributed to by your employment (being your compensable condition of ‘aggravation of displacement of intervertebral disc – lumbar’, sustained on 26 April 2001).

    This means, I need to consider whether your psychological condition continues to related to your compensable ‘aggravation of displacement of intervertebral disc – lumbar’ of 26 April 2001.  I note Dr Moffatt is of the opinion that you suffer a major depressive disorder, adjustment disorder with mixed anxiety and depressed mood, pain disorder and a cognitive disorder, related to your current orthopaedic injuries.

    However, Dr Dias has provided comment that your current orthopaedic issues do not relate to the compensable injury of 26 April 2001, rather that your current lumbar condition is a result of degenerative lumbar spondylosis condition, as noted above.

    As such, I am not satisfied that your current condition of major depressive disorder, single episode and adjustment reaction with disturbance of emotions is not related to your accepted ‘aggravation of displacement of intervertebral disc – lumbar’, of 26 April 2001 and is therefore no longer compensable.”

12. Ms Comber then dealt with the condition of impotence due to psychological factors.  She observed that the most recent medical evidence was from a Urologist, Dr J H Alexander, in a report dated 27 July 2008. Dr Alexander opined that the primary cause of this condition was back pain. It was also noted that the Applicant had not claimed pharmaceutical treatment for impotence since 1 December 2011.  In the absence of evidence supporting the continuance of this condition, Ms Comber, was unable to find that the Applicant had a requirement for medical treatment – Exhibit 1 T306 p. 1047.

13. As a result of these decisions, Comcare was no longer liable to pay compensation with respect to the conditions of “aggravation of displacement of intervertebral disc – lumbar, major depressive disorder, single episode, adjustment reaction with disturbance of emotions and impotence due to psychological factors.”

14. The Tribunal has two applications to consider.  Application 2015/6429 relates to the reviewable decision of 23 October 2015.  Application 2015/6434 relates to the reviewable decision of 13 March 2015.

    ISSUES

15. Comcare helpfully set out in the Respondent’s Amended Statement of Issues, Facts and Contentions (RASIFC) the issues to be determined (at para 2.1 – 2.2).

16. With respect to Application 2015/6429 the issues before the Tribunal are:

    (e)whether, by 28 July 2015, the effects of the accepted conditions had ceased.

    (f)whether, as at and since 28 July 2015:

    (i)the accepted conditions have resulted in a need for medical treatment;

    (ii)the accepted conditions have resulted in an incapacity for work, either partial or total; and

    (iii)the Applicant has been entitled to compensation under ss 16 and Division II, Part 3 of the Act for the accepted conditions.

17. With respect to Application 2015/6434 the issues before the Tribunal are:

    (a)whether the Applicant has sustained an injury, as claimed by claim for compensation dated 29 August 2013, in accordance with ss 5A, 5B, 6 and 7 of the Act;

    (b)whether Comcare is liable to pay compensation to the Applicant for the claimed condition pursuant to s 14 of the Act;

    (c)the diagnosis of the claimed condition; and

    (d)whether the claimed condition arose out of, or in the course of, the Applicant’s employment or whether the Applicant’s employment contributed to the claimed condition to a significant degree.

    BACKGROUND

18. As previously stated, the Applicant commenced working for the ATO in 1987. During the course of his employment the Applicant reported a number of accidents.  Those accidents that impacted on his back are dealt with below.

19. On 6 July 1988 at approximately 3 pm the Applicant reported an incident where he was lifting boxes in a confined hallway and suffered pain in his back and between his shoulders. – Exhibit 2 ST1 p. 1054.

20. On 6 December 1988 the Applicant made a claim for compensation in relation to this accident and listed absences from work because of the injury between 13 and 22 July 1988 – Exhibit 2 ST 4 p. 1073.

21. The next incident occurred at 5.00pm on 17 July 1995 at 266 King Street, Newcastle – Exhibit 2 ST12 pp. 1090 - 1091.  In his compensation claim dated 10 October 1995 the Applicant provided the following description of the incident – Exhibit 2 ST12 p. 1092:

    “Several days prior to injury, I reported to our OHS officer, that my Ergo chair was damaged.  It was replaced with a smaller, lower chain while the other was being repaired, being used to the other bigger chair, I sat down badly, pushing the chair backwards then falling forward causing severe lower back damage.”

22. The Applicant stated that his lower back was affected and that he was experiencing extreme lower back pain extending down his legs and he was was also immobile. The Applicant claimed that he was unable to bend his back and his leg movement was restricted and painful.  The Applicant’s only comfortable position was lying flat on his back – Exhibit 2 ST12 p. 1091.

23. Two fellow workers who were present when this incident occurred (Ms Helen Brown and Ms Rosemarie Kinna – Exhibit 2 ST12 p. 1092) provided written statements.

24. Ms Brown’s statement is dated 11 October 1995 and provides  as follows – Exhibit 2 ST13 p. 1096:

    “My work station adjoins Mark’s, & I can see his head & shoulders above the partition.

    On the day in question, my attention was drawn by a sharp exclamation from him & some sudden movement – possibly his standing up – together with complaints about the chair.  I didn’t respond immediately, because I was in mid process of something on the system, but as soon as I could extricate myself from the screen I joined in with queries about what had happened being expressed by Rosemarie Kinna whose work station adjoins Mark’s on the other side.  It was clear that he was in considerable pain.  He explained that the back of his chair was broken and I understood that it had flipped back & as a result he had sustained some damage to his lower back.

    He was standing against the desk, & would not resume his seat, so I went to collect a chair from the Conference Room 8^th floor as at that stage I assumed that he would be able to return to work.  On my return with the chair, I observed his extreme pallor & distress, & realised that he would be unable to resume work suitable chair or not.”

25. Ms Kinna’s statement is undated, but provides the following information  - Exhibit 2 ST14 p. 1097:

    “In the afternoon of 17 August, 1995 I heard Mark Peipman call out something like ‘damn, I hurt my back’.   I did not take any notice and continued working.  However, Mark continued complaining of severe back pain and the fact that he could not sit down.  I turned around and looked at him, his face was very pale and it looked to me as if he might faint.  Helen Brown, another staff member present during this incident, got him a chair from the eighth floor, however, he could not sit down.  We tried to talk to him going home in a Z car.  However, he left work ultimately I cannot remember.”

26. The Applicant’s claim for a strain to the lower back was accepted by Comcare on 15 November 1995 – Exhibit 2 ST15 p. 1098.

27. On 14 May 1998 the Applicant made a further claim for compensation in relation to incidents that occurred up to and including 13 March 1998.  The first incident related to sitting in a work chair for three months, which caused back pain. The second incident occurred on 13 March 1998 when the Applicant was changing a tyre on returning home from work.  The final incident occurred later that evening when the Applicant was moving a dog kennel.  The Applicant stated that his lower back was affected and he was unable to move around for one week.  He described suffering from intense pain in the lower back radiating down both legs.  The place of the accident was said to be “TAFE Hamilton” and “at home”- Exhibit 2 ST17 pp. 1102 - 1103.  The sequence of events leading to the incident was described by the Applicant as follows- Exhibit 2 ST17 p. 1104:

    “Sitting in ergo chair, while mine was being repaired, this took over 3 months, caused pain in lower back, changing a flat tyre on route home from work 13/3/98 further aggravates condition.  Shifting a dog kennel that evening caused severe pain & loss of feeling in my legs & abdominal area.  Aggravated back reported to OH&S officer around 1 week prior to incident.”

28. The Applicant, in a letter dated 29 July 1998, outlined at greater length the events leading up to the incident – Exhibit 2 ST19 p. 1110:

    “In reply to your correspondence dated 20 July 1998, your ref 62859/4, please note the following facts in reply to your questions:

    (a)When leaving work on Friday 13 March, my back was stiff and a little sore, it was only sore after long periods of sitting, this had been reported to the OH&S representative in the office, as repair work on my personal ergo chair was taking a long time and the chair provided while adequate was not helping my back pain.

    (b)After I changed the tyre on route home I felt a severe pulling in the muscles in my lower back and in my legs, accompanied by stiffness and burning pain when I attempted to stand up, I had difficulty in straightening my back and could not twist. I had been experiencing this burning pain for some time prior to this occasion but not to this degree.

    (c)Prior to lifting the dog kennel I had become very stiff and had a little more than usual burning pain in my back which also radiated partially down the tops of my legs, especially on the right side, after a little stretching and the application of methyl salicylate the pain eased a little and I become [sic] a little more mobile.  Though I was still quite uncomfortable and unable to sit properly, walking and standing seemed to ease the pain further.

    (d)After lifting the dog kennel and twisting I experienced very severe discomfort, the pain returned to my legs and I lost mobility in both regions.  I was unable to stand upright or sit and was only able to lie flat on the floor in extreme discomfort till pain killing medication had taken effect.

    The dog kennel is light and is a plywood construction with a tin roof.  It can be moved easily by a child and I had no assistance moving the kennel as I was only moving it a short distance to get the dog lead which had fallen behind it the pain occurred when I twisted with the weight of the kennel.

    The reason I moved the kennel the night I had aggravated by back condition is that I was embarking on a walk to ease the pain in my back and thought I would take my dog, as he needed the exercise.  He is obedience trained and I intended to leave him of [sic] the lead, but am required to take the leash by law.”

1. During the first half of 1998 the Applicant was being treated by Dr T  P S Khaira – Exhibit 2 ST20 pp. 1111 - 1113.  Dr Khaira first examined the Applicant on 16 March 1998 when he reported exacerbation of lower back pain after lifting a heavy load.  A diagnosis of Musculo Ligament Strain was made, and he was prescribed Panadeine Forte, Valium and Anaprox (an anti-inflammatory medicine).

2. The Applicant was examined by Dr Khaira on 24 March 1998 who reported having a recurrence of pain after bending over and by travelling in a motor vehicle.  The Applicant was prescribed Valium and was given a medical certificate that he was unfit for work duties from 23 – 27 March 1998.

3. On 30 March 1998 the Applicant returned to work but claimed he could not continue and returned home.  He was examined by Dr Khaira on 31 March 1998 and stated that he had lower back pain and was seen to be limping.  Dr Khaira again assessed the Applicant on 12 May 1998 when he complained of lower back pain.

4. Dr Khaira made the following observations in a report dated 12 August 1998 – Exhibit 2 ST20 p. 1112:

   “At this stage no exact plan of treatment has been formulated…

   In general prognosis of Severely Degenerative Disc Disease is of recurrence and varying periods of exacerbations depending on multiple factors.  I am unable to speculate about the prognosis in this case at this stage of clinical information…

   b) X-ray of Lumbo-sacral spine shows features of severe disc degeneration at L5-S1 and narrowing of disc height at L3/4…

   c) I am unable to state the cause of this condition from the current clinical information in my possession.”

5. On 10 September 1998 Comcare rejected the Applicant’s claim for workers’ compensation. Reference was made to both the report of Dr Khaira and the Applicant’s letter of 29 July 1998. It was pointed out that a claimed aggravation of a pre-existing condition, must arise out of or in the course of the Applicant’s duties. The following reasons were then given – Exhibit 2 ST21 p. 1115:

   “In looking at the statements made in your letter and those made by Dr. Khaira, it would appear that while you may have been feeling stiff at the end of your normal work hours, that the undertaking of both changing the tyre and moving the dog kennel were factors which lead you to seeking medical treatment on 16 March 1998…

   I am of the view that while you may have suffered some discomfort on the evening of 13 March 1998, that it was not that specific set of circumstances, which required you to seek medical treatment. I am also consider [sic] that there is no nexus between the (aggravation) you suffered on 13 March 1998 and your employment with the Australian Tax Office.”

6. On 8 October 1998 the Applicant requested a reconsideration of this Determination – Exhibit 2 ST22 pp. 1116 – 1117.

7. Ms Robyn Sephton, in a detailed and well reasoned decision dated 27 November 1998, affirmed the earlier Determination – Exhibit 2 ST23 pp. 1119 – 1125.

8. It was pointed out that the Applicant had referred to three factors as contributing to the exacerbation of pain in his lower back:

   (a)pain caused by sitting in a replacement chair for a period of three months while the Applicant’s usual ergonomic chair was being repaired;

   (b)changing a flat tyre on the way home from work on 13 March 1998;

   (c)moving a dog kennel on the evening of 13 March 1998.

9. In relation to the first factor, Ms Sephton referred (Exhibit 2 ST23 p. 1123) to a statement of 13 July 1998 from S Barron, the Occupational Health and Safety adviser.  She advised that the Applicant reported to her on 9 February 1998 that he was experiencing back problems as a result of his special therapod chair being broken. A new chair was delivered on 24 February 1998. In short, from the time the Applicant complained to the time a new chair was delivered was only a period of two weeks, and not three months.  Ms Sephton said it may have been the case that the Applicant’s chair was broken for a period before he complained on 9 February 1998, but this was unclear.

10. Ms Septhon also pointed out that the Applicant had been using the replacement chair for approximately three weeks before the incidents of 13 March 1998.

11. Ms Septhon was not satisfied on the basis of the material before her that the pain the Applicant may have suffered caused incapacity or impairment.  There was no evidence that he attended on Dr Khaira during this period nor did he take any sick leave.

12. Finally, Ms Septhon referred to a statement provided by the Applicant’s then manager, Ms R Di Stefano. Ms Di Stefano stated that before the Applicant took sick leave on 16 March 1998 he had not raised the issue of his back condition or any concerns regarding his work station – Exhibit 2 ST23 p. 1121.

13. Ms Septhon concluded that there was insufficient evidence to establish that the use of an alternative chair to that which the Applicant normally used contributed to the condition which occurred on 13 March 1998 – Exhibit 2 ST23 p. 1123.

14. While conceding that changing a tyre on a journey from work to home could be considered “in the course of employment”, Ms Septhon noted that there was no contemporaneous incident or accident report and the Applicant first lodged an incident report three months after the event. Further, the Applicant did not report this incident either to his employer or Dr Khaira.

15. Finally, Ms Septhon observed that even if such an event occurred, there was no medical evidence linking the incident to an exacerbation of lower back pain – Exhibit 2 ST23 p. 1124.

16. Ms Septhon found that any exacerbation of the Applicant’s back pain by the moving of the dog kennel did not arise out of, in the course of, employment and was therefore not an injury as defined in the Act – Exhibit 2 ST23 p. 1124.

17. Mr Black of Counsel, in the Applicant’s Outline of Submissions (AOS at para 2), refers to the Applicant injuring his back in 1988, 1995 and 1998 but contends that each of these incidents only resulted in short-term temporary incapacity. In particular, after the 1998 “incident” outlined above, the Applicant was able to return to normal life and full-time employment with the ATO, which continued until April 2001.

18. As previously noted, the Applicant injured himself at work on 26 April 2001 when a chair he was sitting on collapsed.  On 9 October 2001 the Applicant provided a Statement which sets out his version of events immediately following the accident – Exhibit 1 T24 p. 316:

    “Though the incident that caused the injury to my lower back occurred on 26^th April 2001, I did not take any leave as I do not have much sick leave left and I intended to work through as long as I could.  The back of the chair collapsed while I was leaning on it causing me to fall and twist my lower back.  This resulted in immediate pain in my lower back, so bad that I had to leave the course s it was uncomfortable sitting.

    I completed an incident report and kept attending work though I was in pain and very stiff.  I also had a burning sensation in my legs.  Shortly after the incident, on Monday 25^th May 2001, my back went into spasm and I left work.  My usual practitioner was on holidays and my Chiropractor was also away for the next 2 weeks, though I was not at work during this period I was unable to attend a doctor’s surgery as I could not move and was unable to get another doctor to attend my house.  I was advised to rest and lie flat till my back pain subsided.  On the 3^rd of June I was finally able to attend my chiropractor who informed me that the injury was caused by the chair as I have not been able to do anything else since to create a further injury.

    I returned to work on the 12^th June as I did not have much leave left to get paid, I then intended to lodge a claim form for compensation, however I was very busy catching up with work.  I was also wearing a back brace, which I purchased on 14^th June, to support me against further injury and taking pain-killing tablets at work.  This combination made life very difficult to get anything done and the smallest task took a long time.

    I asked my Team Leader Tony Wood to contact OH&S to see what date the incident occurred so that I could make a claim, however in the mean time my back again went into spasm causing me to take further time off work.  I have gained the forms from the internet and have had a lot of trouble completing them as I am taking Endone tablets which are a strong pain killing tablet and make it hard for me to think. I also find it difficult to sit up to write.

    I left work again on the 14^th September due to sever [sic] back pain, as a result of this further investigations by way of a CT scan have shown that I have 2 bulging discs that may have to be operated on.  I have been referred to a surgeon and have made an appointment with him for the 18^th October and will know after that date whether surgery will be necessary.

    Since the 14^th September I have been unable to return to work due to severe pain and immobility, it is the opinion of Dr Mahernosh that I will not be able to return to work till surgery has corrected the pressure on the nerves coming from that part of my back.  I hope that this explanation helps to clear up the lack of information provided in the claim…”

19. The Applicant was examined on 22 November 2001 by Dr Leon Kleinman, Orthopaedic Surgeon who made the following observations – Exhibit 1 T33 p. 327:

    “He is in considerable pain, he is taking 70mg of Morphine a day which isn’t really giving him much relief…

    Because he is obviously in so much pain I will admit him to the Lake Macquarie Private Hospital for pain management and I will do his laminectomy at L3, L4 and probably at L5 laterally as soon as his infection has healed and it is safe to operate on his back…”

20. On 29 November 2001, and prior to being operated on, the Applicant underwent imaging.  Dr Garvin Williamsz made the following diagnosis from the imaging of his lumbar spine – Exhibit 1 T34 p. 328:

    “There is degenerative L5/S1 disc narrowing and the short L5 pedicle can add to central stenosis.  Degenerative L2/3 narrowing is also present.  Alignment is normal and the remaining bony features are normal.”

21. The Applicant underwent a Laminectomy of L3, L4, L5 and the upper part of S1 on 29 November 2001. Dr Kleinman noted that the “patient tolerated the procedure well and left theatre in good condition and when he woke up he was able to move his legs and his sciatica in the right leg had gone.” – Exhibit 1 T35 p. 329.

22. The Applicant remained in hospital until 4 December 2001, but his immediate recovery was described by Dr Kleinman as “dramatic” – Exhibit 1 T36 p. 330:

    “He has had a dramatic result from his 3 level laminectomy 5 days ago, he has had dramatic relief of pain, his sciatica has cleared up, he is off his opiates that he was taking and he is going home today and will be able to swim as much as he wants to, walk as much as he wants and see me again in 6 weeks time.”

23. Dr Kleinman again examined the Applicant on 31 January 2002, and said that the Applicant was “delighted with the outcome of surgery, he is off all his opiates.” He noted that the Applicant was still getting pain in his right thigh if he walked long distances and if he took his brace off “he feels like his back will collapse.”  Dr Kleinman noted that the Applicant had not returned to work, was still depressed and had a stiff back. Nonetheless he was able to walk across the room on tiptoes and on his heels and his power and sensation in his legs was normal. The Applicant was referred to the Hunter Rehabilitation Service for rehabilitation and planning return to work – Exhibit 1 T37 p. 331.

24. When the Applicant first attended the Hunter Rehabilitation Service, he was assessed by Dr Robert Burke, Occupational Rehabilitation Physician.  Dr Burke reported that the Applicant said that his symptoms had improved considerably since his surgery and he was able to walk quite freely. Nonetheless more recently the Applicant had noticed a reduction in walking tolerances. Dr Burke opined that the Applicant was then not fit for work – Exhibit 1 T39 p. 336.

25. The Applicant was assessed by Ms Rosamaria Coster, Rehabilitation Consultant, on 7 March 2002, and her report paints a far more pessimistic picture of the Applicant’s state of health. Ms Coster stated that the Applicant informed her that immediately after surgery he experienced relief, “but within a week or two, he began to experience increasing pain” – Exhibit 1 T40 p. 338.

26. Ms Coster reported that the Applicant had moved into his fiancé’s house because he was no longer able to perform his own house duties, and that his fiancée performed all tasks. The Applicant reported difficulties sleeping, having mood swings and verbal outbursts, having difficulties with concentration and memory and feeling depressed – Exhibit 1 T40 pp. 339 – 340.  The Applicant’s physical status was described as follows – Exhibit 1 T40 p. 338:

    “At present, Mr Peipman reports experiencing constant lumbar pain, more on his right side than his left side.  He also reports pain in his hip and pelvis, and a sensation of pins and needles in his left leg on sitting.  Additionally, he reports pain in his arms, neck and shoulders.  He experiences pain on coughs and strain, but denies any bowel or bladder involvement…

    Mr Peipman spent the entire assessment lying in a bed in the lounge room.   When asked to stand, it was observed that he was unable to weight bear through his left leg and had a very asymmetrical trunk posture and walk.”

27. Mr Black contended (AOS para 5) that the Applicant’s back and leg pain has continued to varying degrees ever since the accident of 26 April 2001. The pain, it was contended, has been the source of a continuing incapacity for work, whether partial or total, since 26 April 2001.

28. The Applicant was examined by Dr Kleinman on 30 April 2002 and he informed Dr Kleinman had he had hurt his back after falling.  The following notes were made by Dr Kleinman – Exhibit 1 T42 pp. 343 - 344:

    “This gentleman came back with his fiancee today.  He tells me he has been attending the Hunter Rehabilitation Service and he feels that he is much better however two things have happened. One is that he still can’t sit for prolonged periods and he gave his history standing and secondly at Easter he slipped on wet grass at home which had grown over the edge of a concrete lip and he fell backwards and landed on his backside and then fell onto his back.  This put him to bed for a week. He started getting pain down the front of his right leg, this extended down as far as his right knee but he is also beginning to get pain in the left leg extending down the left buttock into the left hamstrings. When he sits his left leg, he says, goes pins and needles all the way from the groin to toes…

    I think the real issue here is whether when he fell hard on his buttocks he dislodged more disc material and he should have another MRI scan because up to that point he was making steady progress.”

29. Comcare considered this report and approved the cost of a MRI scan to the Applicant’s back. Comcare also requested that Dr Kleiman provide a report after considering the results of the MRI – Exhibit 1 T45 pp. 349 – 350.

30. The Applicant underwent a MRI scan on 14 May 2002 which was performed by Dr Mariola Wierna, who compared the results of this scan with the previous scan of 31 October 2001.  Her conclusions were as follows – Exhibit 1 T44 p. 348:

    “Post operative appearances from L3 to S1 with laminectomies.  There is residual advanced disc degeneration with protrusion at L3-L4, bulge at L4-L5 and moderately severe lateral recess narrowing at L5-S1.  There has been improvement in the canal calibre at L3-L4 and L4-L5 but no change in the lateral recess narrowing since the previous examination.”

31. Dr Kleinman subsequently observed that the MRI confirmed the laminectomy and the ongoing presence of a bulging disc at L3 which was present prior to surgery, and which did not seem to have increased in size together with disc degeneration at L4 – L5 – Exhibit 1 T48 p. 355.

32. Dr Kleinman also provided a report to Comcare which is dated 11 June 2002 – Exhibit 1 T49 pp. 356 – 357.

33. Dr Kleinman noted that the MRI disclosed no change in appearance other than the results of the laminectomy.  He opined that the Applicant’s recent aggravation in pain was due to a fall at Easter, and there was no radiologic evidence of further spine damage.  Dr Kleinman estimated that 80% of the Applicant’s ongoing injuries were related to his compensable condition and 20% attributable to aggravation due to the fall.  Further, Dr Kleinman opined that the fall had worsened the Applicant’s compensable condition because his backache was worse and it had significantly slowed his rehabilitation. Finally, Dr Kleinman observed that he had “no idea when his condition will resolve completely” and present “treatment will not necessarily provide a resolution to his ongoing injuries” – Exhibit 1 T49 p. 356.

34. The Applicant was examined on 18 February 2003 by Professor Y A E Ghabrial, Director of the Department of Orthopaedic Surgery at Royal Newcastle Hospital.  Professor Ghabrial made the following observations – Exhibit 1 T63 pp. 387 – 388:

    “Examination of the back on the 18^th February 2003 showed a protected sitting and standing attitude.  There was a list and limp while walking and decreased postural lordosis.  The spinal movements were markedly stiff with pain with flexion from the fingertips to above the knee.  Extension, lateral bending and rotation were decreased with pain.  There was marked paraspinal lumbar spasm.  The straight leg raising in the sitting and supine positions was 30 degrees on the right and 50 degrees on the left with a positive sciatic stretch.  There was decreased right calf atrophy and decreased weakness of the right foot dorsiflexion, EHL, foot plantar flexion and FHL and decreased sensation of the L5 dermatome on both sides.  The knee and ankle jerks were decreased on both sides.  There was marked tenderness at the L3 – S1 level of the lumbar midline.  The femoral stretch was negative and the sacro-iliac tests were negative…

    Clinical assessment and investigations confirmed L3/4 and L4/5 prolapsed discs.  I believe that the degenerative discs shown in the MRI scan performed on the 31^st October 2001 was a combination of the injury at work in the early 1990’s as well as the incident when he was changing the tyre of his car in the late 1990’s.  I believe that the prolapsed discs are the result of the injury on the 26^th April 2001.  In summary I believe that his back and both leg problems are related to his work related injuries.

    I believe that he is not fit for activities involving lifting, bending and twisting as well as sitting or standing for lengthy periods.  These restrictions are indefinite…

    The permanent impairment of the back is assessed at 45%.  The permanent loss of the efficient use of the right lower limb at or above knee taking into consideration any loss below the knee is assessed at 25%.  The permanent loss of the efficient use of the left lower limb at or above the knee taking into consideration any loss below the knee is assessed at 15%.  The sexual impairment is assessed at 50%.

    I believe that his present clinical features, residual disabilities and permanent impairment are the result of his injuries sustained at work with the majority of his disabilities related to the incident on the 26^th April 2001.”

35. Dr Ghabrial prepared a supplementary medical report which is dated 8 May 2003 – Exhibit 1 T71 p. 404.  In this report Dr Ghabrial reassessed the whole person impairment in accordance with the “Commonwealth Guidelines”.  Impairments were assessed at 20% pursuant to Table 9.6 (thoraco-lumbar spine), 20% pursuant to Table 9.5 (lower limbs) and 20% pursuant to Table 11.1 (impairment of sexual function).

36. It is noticeable that Dr Ghabrial does not refer in his report to the Applicant’s Easter 2002 fall which, at the time he examined the Applicant, happened less than 12 months previously.

1. Dr Ghabrial’s failure to refer to this incident becomes more explicable when reading the medical report of Dr Graham Hall, Occupational Physician, of 6 May 2003 – Exhibit 1 T70 pp. 397 – 403.

2. Dr Hall made the following initial observations – Exhibit 1 T70 p. 398:

   “In November 2001 he underwent a three-level laminectomy.  He said it did not help, and when I said that the documentation indicated that he had improved following the operation he said ‘Well perhaps I was convincing myself’. He said that later he ‘fell apart’ with pain in his legs, hips and groin.  He did not mention the fall at Easter 2002, which is described in Dr Kleinman’s report of 30 April 2002.”

3. After providing a comprehensive analysis, Dr Hall concluded as follows – Exhibit T40 pp. 402 – 403:

   “Mr Peipman presents a rather puzzling picture.  From one point of view he appears to be exhibiting gross pain behaviour; the inconsistencies on straight leg raising combined with extreme limitation in spinal movement would support this interpretation.  However, as against this is the observable sweating which occurs when Mr Peipman is asked to perform certain manoeuvres and, this is accompanied by an increase in respiratory rate, which suggests the experience of severe pain…

   It would be helpful to obtain information about Mr Peipman’s bowel condition as this appears to be a complicating factor…

   In my opinion there is a major psychological component in all of this, and as he has undergone psychological assessments and it would be helpful to receive this information.

   A psychiatric assessment, if this has not already been carried out, would be helpful…

   In my opinion he is not at present fit for a conventional rehabilitation programme, such as would be carried out by a usual rehabilitation provider…”

4. Having regard to Dr Hall’s opinion that the Applicant’s bowel condition may have been a complicating factor, Comcare sought the advice of Dr Brian Draganic, Colorectal and General Surgeon, who had assessed the Applicant in 1999.

5. In his letter to Comcare of 9 July 2003, Dr Draganic made the following observations – Exhibit 1 T77 p. 416:

   “I saw Mark on the 5^th November 1999 at John Hunter Hospital when he presented with abdominal pain.  He had previously undergone two colonoscopies, upper gastrointestinal endoscopy and small bowel series s-rays all of which were normal.  He had also had multiple blood tests including immunoglobulin testing, liver function tests, and amylase and these were also normal. I arrange for him to have stool cultures and also a serum gastrin, VIP and serotonin levels.  These also proved to be normal….

   He continued to have intermittent abdominal pain associated with bowel habit. He was diagnosed with irritable bowel syndrome…

   I have not seen Mr Peipman since and I could not comment therefore on what sort of symptoms he has had in the last three years. Irritable bowel syndrome is usually a self limiting disease which can be managed…and should not in any way interfere with his occupation. Furthermore, I cannot see no manner in which this could be connected to an intervertebral disc prolapse.”

6. The Applicant was referred by his GP (Dr Mahernosh) to Dr Robert Kuru, Spinal and Orthopaedic Surgeon who prepared a medical report dated 7 October 2003.  Dr Kuru’s conclusions were as follows – Exhibit 1 T81 p. 427:

   “My impression is that he’s got failed back syndrome.  I think he is probably symptomatic from his internal disc disruption probably at multiple levels.  At this stage he is a difficult reconstructive candidate.  He is certainly in severe discomfort and has failed non operative management.  I don’t think it’s worthwhile persisting with further attempts to mobilise him.  To reconstruct I think would entail a 3 level interbody fusion.  This would be difficult work given his extensive laminectomy.  I guess the question is whether we bypass the system and try something such as a intra-thecal morphine pump to control his symptoms.”

7. Dr Kuru was asked by Comcare to prepare a supplementary report.  In his supplementary report of 1 March 2004, Dr Kuru substantially repeated what he reported earlier. His conclusions were as follows – Exhibit 1 T86 p. 438:

   “My impression was that your client had failed back or post discectomy syndrome.  I discussed with him operative an non-operative measures available to him but unfortunately did not think there was an easy solution for his problem.  I referred him for further x-rays to exclude any post surgical instabilities.

   I was able to review him with these x-rays on 28^th October 2003.  There was no evidence of instability on these views.  I felt it appropriate should Mark decide his symptoms severe enough to consider surgical reconstruction in the form of three level interbody fusion.  I reiterated to him however that this was a last resort and should he be able to manage his pain non-operatively this would be preferable…

   The surgical intervention would be with the objective of decreasing Mr Peipman’s pain. It would not necessarily be associated with significant functional improvement in his activities.”

8. This pessimistic assessment was shared by Dr Derrick Billett, Consultant Orthopaedic Surgeon, who, at the request of Comcare, assessed the Applicant on 6 November 2003. In his report of 10 November 2003, Dr Billett provided the following assessment – Exhibit 1 T85 pp 434 – 435:

   “His lumbar pain still occurs on a constant daily basis, of an increased severity compared to the pre-operative level, accompanied by constant daily pain down the right leg to the foot and intermittent pain down the left leg, with paraesthesia in either leg.

   The clinical examination has produced evidence of nerve root irritation in relation to the right side of the lumbar spine.

   Mr Peipman is not fit to resume any gainful employment.

   He probably has post-operative fibrosis, noting that he has had bilateral wide laminectomies from L3 to S1.

   In relation to further treatment, interbody fusions could be considered with pedicle screw fixation, but this has very poor results.  The best alternative would be a posterior spinal implant and, if successful, this will decrease the level of his pain and his reliance on medication.”

9. Dr Billett also opined (Exhibit 1 T85 p. 435) that the Applicant’s overall whole person impairment “is solely related to work factors, noting that following the injury Mr Peipman developed radiating right leg pain.”

10. Dr Kuru’s assessment was also shared by Dr Arthur Wong, Occupational Physician, who examined the Applicant on 26 July 2004.  Dr Wong’s assessment was as follows – Exhibit 1 T96 p.  469:

    “Mr Peipman presented with history of back injury followed by surgical intervention which consisted of three level laminectomy and two level discectomy.  Following the surgical procedure, the symptoms improved for two months but from that point on, gradually deteriorated.  I believe Mr Peipman’s condition is best described as failed back surgery syndrome and his ongoing pain symptoms are likely to be complicated by scarring at the site of surgery.  Mr Peipman is significantly affected by chronic pain in his lower back and despite very high doses of narcotic analgesic, he continues to suffer from significant pain symptoms.  Overall I am of the view that Mr Peipman is totally unfit to return to any form of gainful employment and is likely to remain so for the foreseeable future. In light of today’s assessment, I believe Mr Peipman should be considered for total and permanent invalidity retirement.”

11. On 27 May 2003 Comcare received the Applicant’s claim for permanent impairment – Exhibit 1 T73 pp. 406 – 407.  Comcare accepted the claim in a decision dated 15 November 2004.  The Comcare Delegate accepted that the Applicant was suffering from a 20% impairment of the lumbar spine and a 20% impairment of the lower limb function.  The Delegate, however, did not accept that the Applicant was suffering from any impairment of sexual function.  Using the Combined Values Chart (Table 14.1), the Delegate found that the Applicant had a 36% whole person impairment – Exhibit 1 T99 pp. 473 – 474.  That determination was varied on 15 February 2005, with the Applicant being awarded a slightly higher amount of compensation, however no alteration was made to the 0% awarded for loss of sexual function – Exhibit 1 T104 pp. 482 – 483. The Applicant sought reconsideration of the loss of sexual function aspect of the decision but on 8 June 2005 the Independent Review Officer affirmed the Determination – Exhibit 1 T110 pp. 497 – 499.

12. The Applicant formally ceased employment on 6 June 2005 due to invalidity – Exhibit 1 T109 p. 496.

13. Following the rejection of the Applicant’s claim for sexual dysfunction, he was assessed by Dr Michael Lowy, Sexual Health Physician – Psychological Medicine.  In his report of 15 June 2005, Dr Lowy opined that the Applicant’s work injury had substantially contributed to his sexual dysfunction. Dr Lowy described how the Applicant’s sexual function had all but ceased following the April 2001 work injury and Dr Lowy assessed the Applicant having a 70% permanent loss of efficient use of his sexual organ – Exhibit 1 T111 pp. 500 – 501. In a supplementary report dated 1 July 2005, Dr Lowy opined that the Applicant had a 20% whole person impairment according to Table 13.21 of AMA 5 Guidelines – Exhibit1 T112 p. 502.

14. The Applicant was also assessed by Dr John Alexander, Consultant Urologist – Exhibit 1 T116 pp. 508 – 511. In his first medical report of 20 October 2005, Dr Alexander opined that the Applicant had “significant impairment of sexual function” and observed that the “inhibitory nature of the back pain has reduced his ability to have erection and maintain erection. It has also prevented intercourse…”.  Dr Alexander considered “the loss of sexual function is purely due to his back injury” and that the Applicant “suffers from a permanent impairment of his loss of function.” It was estimated that the percentage of whole person impairment was 15% - Exhibit 1 T116 pp. 510 – 511. Dr Alexander reiterated and further explained his diagnosis in a supplementary report dated 14 November 2015 – Exhibit 1 T117 pp. 512 – 514.  In this report he opined that another “factor that may impinge on his erectile ability is the secondary depression as a result of his back pain” – Exhibit 1 T117 p. 513.

15. In February 2005 the Applicant’s fiancée passed away and Dr Pavan Bhandari, Consultant Psychiatrist, observed in a report dated 15 March 2005 that he was suffering from significant depressive symptoms – Exhibit 1 T106 p. 491  In his report of 26 July 2005 Dr Bhandari made the following observations – Exhibit 1 T113 pp 503 – 504:

    “Mr Peipman reported that there had been significant deterioration of his mental health state since last review…

    On mental state examination, Mr Peipman presented as a casually dressed male who was polite and cooperative but distressed and anxious throughout the interview.   He stood up for most of the interview, displaying numerous pain behaviours.  He was sweating profusely.  His affect was tearful for most of the interview and his mood anxious and depressed.  Mr Peipman denied experiencing any current suicidal thoughts.

    Mr Peipman suffers from Major Depressive Disorder, which has developed within the context of chronic pain and exacerbated by the recent death of his partner.  Arrangements have been made to review him on a fortnightly basis.”

16. Dr Bhandari continued to treat the Applicant, and observed in a report dated 18 November 2005 that his depressive symptoms had “worsened considerably following the death of his partner” – Exhibit 1 T120 p. 519. In a letter dated 1 March 2006 addressed to Comcare Dr Bhandari expressed “considerable concerns” regarding his mental state, and noted his repeated non-attendance at medical appointments.  He opined that the Applicant was “amotivated” and found it difficult to attend psychiatric evaluation – Exhibit 1 T124 p. 524.  Attached to this letter was a comprehensive medical report which dealt at great detail with the Applicant’s medical and psychiatric history – Exhibit 1 T124 pp. 525 – 543.  The conclusions reached by Dr Bhandari are as follows – Exhibit 1 T124 pp. 540 – 541:

    “Mr Peipman reported the development of significant depressive symptoms some time following his workplace injury.  It appears he became increasingly depressed after he recognised it was unlikely there would be a full resolution of his symptoms.  Ongoing pain symptoms, loss of employment and a complicated treatment course have all contributed to the onset of Mr Peipman’s depressive symptoms. It is important to note there is no pre-injury history of psychiatric disorder or psychological illness and no pre-injury treatment…

    Mr Peipman suffers from symptoms consistent with Major Depressive Disorder. His symptoms are attributable to a workplace injury he sustained in 2001. Persisting pain, loss of employment and impaired functioning as well as the loss of his partner appear to be the main factors contributing to the development and perpetuation of his depressive symptoms.

    Mr Peipman also suffers from many symptoms consistent with Pain Disorder. His underlying personality style has not been fully evaluated and the absence of comorbid personality dysfunction has not been excluded.  There is no significant substance abuse history nor any developmental factors that appear to have increased Mr Peipman’s vulnerability to developing a protracted pain syndrome.”

17. Comcare also organised for the Applicant to be examined and assessed by Dr Inglis Synnott, Consultant Psychiatrist.  Dr Synnott prepared two reports and both are dated 13 April 2006 – Exhibit 1 T129 pp. 560 – 569; T130 pp. 570 – 574.  Dr Synnott concluded that the Applicant met the diagnostic criteria of adjustment disorder with mixed anxiety and depressed mood, and, secondly, major depressive disorder. Further, Dr Synnott opined that the Appplicant appeared “to be significantly psychiatrically impaired and, currently, is incapable of participating in any kind of employment.”  - Exhibit 1 T129 p. 565.

18. In his second report, Dr Synnott stated that he was of the opinion that “there appears to be little likelihood of Mr Peipman’s psychiatric condition improving significantly in the future” , and, accordingly, opined that the Applicant “appears to have a permanent impairment resulting from his psychiatric conditions.” – Exhibit 1 T130 p. 571.

19. Finally, Dr Synnott was firmly of the opinion that “there appears to be a temporal and causal connection between the workplace injury of April 2001 and the subsequent development of his physical symptoms…and the secondary development of his psychological symptoms eight weeks later.” – Exhibit 1 T129 p. 566.

20. On 3 July 2006 Comcare accepted liability to pay compensation under s 14 for two secondary conditions:

    (a)Major Depressive Disorder; and

    (b)Adjustment Disorder with Mixed Anxiety and Depressed Mood;

    Exhibit 1 T143 pp. 611 – 612.

21. In 2007 the Applicant was again referred to Dr Synnott for psychiatric reassessment.  In his report of 29 August 2007 Dr Synnott opined that the Applicant’s psychological symptoms continued, and if anything there had been a deterioration over the previous twelve months.   Additionally, Dr Synnott stated that the impairment had become permanent, probably in 2004 or 2005 and that his impairment would not be reduced by further medical or rehabilitative treatment – Exhibit 1 T175 pp. 689 – 690.

22. As previously noted, on 19 September 2008 the Tribunal, by consent, set aside Comcare’s decision of 8 June 2005 not to accept liability to pay compensation to the Applicant with respect to his claimed sexual dysfunction condition. Instead, it was accepted that the Applicant had suffered from sexual dysfunction which was secondary to his “aggravation of displacement of the intervertebral disc-lumbar”, “major depression disorder” and “adjustment disorder with mixed anxiety and depressed mood” injuries.  In substitution, the Tribunal determined that the Applicant suffered from a 15% permanent impairment of sexual function, was entitled to a lump sum compensation payment and Comcare was liable to pay the Applicant’s  reasonable costs  - Exhibit 1 T191 pp. 721 – 723.

23. While not necessary for the disposition of this matter, it should also be pointed out that the Applicant sought compensation for the additional secondary conditions:

    (a)Arachnoiditis;

    (b)Obesity;

    (c)Diabetes;

    (d)Glaucoma;

    (e)Asthma/Bronchitis;

    (f)Peripheral Artery Disease; and

    (g)Heart damage.

24. The Comcare Delegate, Mr Yuksel Effendi, determined on 29 October 2009 that Comcare was not liable to pay compensation for these conditions – Exhibit 1 T215 pp. 798 – 802. The Applicant requested reconsideration of this decision, but on 23 April 2010 Mr Alan Burrows, the Comcare Delegate, affirmed Mr Effendi’s decision – Exhibit 1 T220 pp. 812 – 817.

25. The Applicant also sought compensation for other secondary conditions, namely:

    (a)Gingivitis;

    (b)Dental decay; and

    (c)Tooth loss requiring restorative dental treatment.

26. The Comcare Delegate, in rejecting this claim, pointed out that this was a new claim and as such new Workers’ Compensation Claim Form would have to be lodged – Exhibit 1 T218 pp. 808 – 809.

27. The next incident of relevance occurred in February 2012.  In the Online Notification and Report of an Accident Form, the Applicant stated that he was cooking dinner when the “Incident occurred in the kitchen, through dining room ending in Laundry” – Exhibit 1 T238 p. 850. The Applicant described the incident and the aftermath as follows pp. 850– 851:

    “As a result of Venhexafen building in my system over 10 years, I collapsed on the floor after falling down a flight of stairs.   I was found 3 days later…I had kidney and liver failure. I split my head open and injured by right shoulder…further injured my back, my knees and hip have also been injured. My digestive system has been effected as well as my memory and eyesight and feeling in my feet…

    Paramedics performed life saving CPR and used defib machine to start my heart, they performed other life saving techniques and rushed me unconscious to Hospital.  They stabilised me in attached life support.  They put me in dialysis and transfused blood as …24 hour high dependency management.  I had a cast placed on my left foot as it was becoming misshapen.”

28. A report of the Calvary Mater Newcastle Hospital confirms that the Applicant was admitted on 4 February 2012.  He was diagnosed suffering from “Status epilepticus” with a secondary diagnosis of “?venlafaxine toxicity”.  It was noted that the Applicant was “found by person lying in basement of a house in seizure activity”. The presenting problem was said to be “status epilepticus.  He was found seizing at home for unknown period of time, but at least 20 minutes” – Exhibit 1 T229 p. 829.

29. The Applicant underwent numerous tests as well as a MRI of the brain.  With respect to the MRI the following conclusion was reached – Exhibit 1 T229 p. 832:

    “No intracranial pathology is demonstrated. There is evidence of sinusitis.  There is mild prominence of the optic nerve sheath bilaterally.  It is likely to be an incidental finding.”

30. It was also determined that in the pelvis the Applicant’s bladder had collapsed – p. 832.

31. As previously noted, the Applicant lodged a compensation claim in August 2013 (Exhibit 1 T251 p. 886 – 892) and although Comcare initially (24 December 2014) accepted liability pursuant to s 14 for the condition of “extrapyramidal diseases & movement disorders” (Exhibit 1 T277 pp. 933 – 940), on reconsideration (13 March 2015) liability was denied (Exhibit 1 T286 pp. 967 – 972).

32. The Australian Tax Office was given an opportunity to comment on the Applicant’s claim, and in a letter dated  17 December 2014, the following submissions were made – Exhibit 1 T276 pp. 931 – 932:

    “We consider the application as provided to us wholly without merit in its current form.  It is devoid of evidence in support of it.   The Discharge summary makes no mention of the claimed condition (‘serotonin syndrome’). The primary condition is status epilepticus.  A secondary potential condition clearly marked with a question mark as a query. Is that of venlafaxine toxicity.   This condition is not formally diagnosed and is not mentioned again on the discharge summary.

    At question 25 of the claim form, the applicant states that he suffered from ‘serotonin syndrome’ which was caused by a reaction between antidepressants and analgesia he was taking.  His further explanation of that at question 26 is vague and contradictory.

    It is our understanding that Serotonin syndrome is most commonly an acute reaction to a new combination of medications or an increased dosage, rather than being caused by an accumulation of medications over a prolonged period of time, as alleged in the applicant’s claim for compensation.

    Serotonin syndrome is nearly always caused by a drug interaction involving two or more ‘serotonergic’ drugs, at least one of which Is usually a selective serotonin reuptake inhibitor (SSRI) or monoamine oxidase inhibitor (MAO).  In other words, the toxicity derives from a combination of drugs that lead to a build up of too much serotonin.  The applicant states (Q 25) the cause was from an interaction of an SSRI and an analgesic (Oxycontin).  Serotonin syndrome is not listed as an adverse event within the product information for OxyContin and our research indicates that serotonin syndrome is rarely if ever caused by this drug combination.  The Discharge Summary does not support the claimant’s assertions.

    The applicant contradicts himself (Q 26) stating the cause was a 10 year drug regime that lead to a toxic accumulation of ‘venhexofein’.  In our research, we could find no such substance called venhexofein.  We are assuming it is a typographical error and that the applicant means ‘venlafaxine’ (Effexor, a widely prescribed antidepressant SSR).  If our assumption is correct, the applicant’s assertions are also without any clinical foundation.  Venlafaxine has an extremely short half-life of 4 hours.  It is not capable of accumulating in the human body as claimed by the claimant.  Once again, the Discharge Summary does not support the claimant’s assertions.

    Finally, the Discharge Summary indicates the claimant was taking a large number of medications and suffers from a range of medical conditions.

    We see this as all the more reason to ensure that the applicant’s assertions are not accepted without rigorous testing or proper medical evidence.”

1. The Applicant sent a two page email dated 4 February 2015 to undisclosed persons disputing the ATO’s contentions outlined above – Exhibit 1 T284 pp. 953 – 954. For present purposes, the extract set out below encapsulates the Applicant’s contentions – p. 953:

   “Please refer to the tox screen from Mater Hospital, it shows that venlafaxine levels were very high, this is Serotonin Syndrome also known as serotonin uptake syndrome or Venlafaxine Toxicity.

   I had all the symptoms of this syndrome for quite some time prior to falling into a coma in February 2012.  It is caused by mixing pain killers with Anti-depressants, in this case I was taking enormous amounts of each, as my pain levels became more severe as the nerves and neurons become saturated by the medication, blocking the effacey [sic] of medications and amplifying pain and depression.”

2. On 4 March 2015 Comcare wrote to Dr Uthum Dias, Consultant Occupational Physician, requesting an independent medical examination regarding the Applicant’s compensable condition of aggravation of displacement of intervertebral disc – lumbar. In particular, Dr Dias’ opinion was sought on the question whether the aggravation had resolved – Exhibit 1 T285 pp. 960 – 966.

3. Dr Dias assessed the Applicant on 19 March 2015 and provided Comcare with a detailed report dated 27 March 2015 – Exhibit 1 T290 pp. 983 – 993.  Dr Dias opined that the Applicant suffered a significant lumbar spine injury on 26 April 2001 which involved an aggravation/exacerbation of his underlying condition of degenerative lumbar spondylosis. Further, the Applicant underwent extensive lumbar surgery in November 2001.  Given the type of surgery involved, Dr Dias opined that the Applicant’s condition should have resolved in approximately 18 months so that he would have retuned to the pre-injury level of functioning – Exhibit 1 T290 p. 990.

4. Dr Dias concluded as follows – p. 990:

   “At the present time, at approximately 13 years post surgery and almost 14 years post incident, I believe that Mr Peipman’s current symptomatology now relates to his underlying degenerative condition affecting his lumbar spine namely degenerative lumbar spondylosis.  Every imaging study of his lumbar spine performed over the course of the past 13 years have indicted [sic] extensive degenerative changes in his lumbar spine, and I believe his condition, treatment needs and restrictions in relation to his lumbar spine relate to the progression of his underlying constitutional condition of degenerative spondylosis rather than to the original workplace incident, almost 14 years ago or to the lumbar surgery, 13 ½ years ago.”

5. On 18 March 2015 Comcare wrote to Dr Alison Moffatt, Consultant Psychiatrist, to undertake an independent medical examination of the Applicant in relation to the compensable condition of major depressive disorder and adjustment reaction with disturbance of emotions. In particular Dr Moffatt’s opinion was sought on the prognosis of these conditions and the continued relationship between the conditions and the Applicant’s primary physical condition – Exhibit 1 T288 pp. 975 – 981.

6. Dr Moffatt assessed the Applicant on 31 March 2015 and provided a lengthy medical report dated 10 April 2015 – Exhibit 1 T291 pp. 994 – 1009.

7. Dr Moffatt made the following diagnosis of the Applicant – Exhibit 1 T291 pp. 1004 - 1005:

   “In my opinion, Mr Peipman currently suffers from major depressive disorder, adjustment disorder with mixed anxiety and depressed mood, pain disorder and a cognitive disorder which is requires further diagnostic clarification…

   I am also concerned that Mr Peipman may have a cognitive disorder as he appears to have significant difficulties with his memory and his recollection of events seem somewhat contrary to other information provided to me.”

8. In response to a Question whether either or both of the Applicant’s compensable psychiatric conditions had resolved, Dr Moffatt said – Exhibit 1 T291 p. 1005:

   “In my opinion, Mr Peipman’s conditions of major depressive disorder and adjustment reaction with disturbance of emotions have not resolved.  He continues to meet the diagnostic criteria for both of these disorders and it is my belief that he has continued to meet most of the criteria for these disorders since their origin in and around 2001.”

9. Dr Moffatt was also asked whether, on the balance of probabilities, the compensable psychiatric conditions were related to the physical injury he sustained in April 2001 or pre-existing etc conditions including any personality disorder or predisposition or related family, lifestyle, financial or other health issues.  In response, Dr Moffatt opined – Exhibit 1 T291 p. 1006:

   “In my opinion, the psychiatric conditions currently suffered by Mr Peipman relate to many of the aforementioned factors.  His psychological symptoms appear to have developed in the context of pain related to a physical injury sustained in the workplace.  I note, however, Dr Dias’ opinion that Mr Pieman’s [sic] chronic pain at this time relates to degenerative lumbar spondylosis and not to a workplace injury.   Therefore, it follows that factors other than employment are more likely to have contributed to ongoing psychological disability.

   These include pain, underlying personality traits, life traumas including the death of his fiancée and recent separation, recurrent financial issues, and other health issues including cognitive difficulties.  There is also the episode of ‘coma’ in 2012 which Mr Peipman attributes to serotonin syndrome…I am also of the opinion that Mr Pieman’s [sic] preference to not engage in psychological therapies is likely to have adversely affected the trajectory of his illnesses.”

10. After receiving the reports of Drs Dias and Moffatt, Comcare forwarded copies to Dr Bracco and Dr Marc Russo inviting a response to the opinions expressed therein – Exhibit 1 T292,  293 pp. 1010 – 1013.

11. Dr Russo, Specialist Pain Medicine Physician, had been treating the Applicant for more than a decade by this time, and Exhibit 1 contains numerous reports prepared by him.  In a letter dated 27 May 2015, Dr Russo took issue with the diagnosis proffered by Dr Dias – Exhibit 1 T297 p. 1020:

    “I both agree and disagree with Dr Dias’ conclusions.  I entirely agree that Mark has degenerative lumbar spondylosis and that that is source of part of his ongoing pain.

    However, that does not entirely explain the situation.  I wish to explain that I specifically am treating the segment of the spine above his spine surgery, i.e. I am treating the L3 dorsal root ganglion with pulsed radiofrequency neurotomy and this represents adjacent segment disease that has developed subsequent to his spine injury.

    If his spine surgery had not been performed, he would not have adjacent segment disease and would simply have solely his degenerative lumbar spine condition.

    Therefore, when one attempts to attribute contribution, it would appear that approximately 50% of  his pain is arising from his degenerative lumbar spondylosis and 50% of his pain is arising from adjacent segment degeneration, secondary to his lumbar spine surgery.

    I grossly agree with Dr Moffatt’s report.”

12. As previously noted, Comcare on 28 July 2015 determined that the Applicant had no present entitlement in respect of either medical expenses or compensation for incapacity – Exhibit 1 T300 pp. 1029 – 1031.

13. The Applicant sought a reconsideration of this decision (Exhibit 1 T301 pp. 1032 1033), and Comcare sought a supplementary report from Dr Dias in order that he could respond to the opinions expressed by Dr Russo – Exhibit 1 T303 pp. 1036 – 1037.

14. In his report of 9 October 2015, Dr Dias responded to Dr Russo’s observations as follows – Exhibit 1 T304  pp. 1039 – 1040:

    “Dr Russo, in his correspondence letter of 27 May 2015 stated that he would attribute approximately 50% of Mr Peipman’s pain to his condition of degenerative lumbar spondylosis and 50% of his pain arising from adjacent segment degeneration secondary to his lumbar spine surgery.

    In my opinion, as I have stated in my report dated 27 March 2015, Mr Peipman’s symptomatology, on the balance of probabilities, relates to his underlying constitutional and degenerative condition of lumbar spondylosis which has progressed over the course of the past 14 years.  Based on Mr Peipman’s most recent imaging studies that were available to me i.e. on 27 November 2012 and reported by Dr Beng Tan, Mr Peipman’s degenerative changes, were most marked at the L4/5 and L5/S1 levels, and not above the previous spinal surgery, which was performed between the levels of L3 and S1, in November 2001.  Therefore, I do not believe that there is any significant symptomatic adjacent segmental degeneration that is contributing to his symptomatology, above the level of surgery performed in November 2001.

    His ongoing symptomatology, in my opinion relates to his ongoing degenerative condition affecting his lumbar spine, predominantly at the L4/5 and L5/S1 levels, which is in the region of his spinalsurgery, rather than being adjacent to the spinal surgery as Dr Russo asserts.

    Overall, in my opinion Mr Peipman’s symptomatology at approximately 14 ½ years post injury, reflects the progression of his degenerative condition affecting his lumbar spine, rather than being related to the isolated workplace injury of 26 April 2001 and subsequent surgery in November 2001.  As I asserted in my report dated 27 March 2015, in my opinion his condition, on the balance of probabilities no longer relates to the sequelae of surgery performed in November 2001, but rather to the progression of his condition of degenerative lumbar spondylosis over the course of the past 14 years.  My opinion is based on my assessment of Mr Peipman, on 19 March 2015, on the appraisal of the available medical evidence, and the available imaging study reports in relation to his lumbar spine condition.”

15. As previously noted, on 23 October 2015 the Comcare Delegate affirmed the Determination of 28 July 2015 – Exhibit 1 T306 pp. 1043 – 1048.

    SUBSEQUENT MEDICAL REPORTS

    Introduction

16. Following the handing down of the reviewable decision of 23 October 2015 a number of further medical reports were prepared by experts for both the Applicant and Comcare.  These reports are discussed below.

    Associate Professor Peter Steadman – Consultant Orthopaedic Surgeon

17. Professor Steadman was asked by Sparke Helmore Lawyers, on behalf of Comcare, to examine the Applicant.  When briefing Professor Steadman, Sparke Helmore provided copies of all of the relevant medical evidence set out previously and set out a Schedule of questions – Exhibit 13, attached letter of 20 May 2016.

18. Professor Steadman examined the Applicant on 23 May 2016 and provided a report dated 13 June 2016 – Exhibit 13.

19. Before responding to the questions posed, Professor Steadman made these observations – Exhibit 13 p. 5:

    “Mark Peipman, according to his first investigation completed in 2001, suffers from spinal stenosis. Spinal stenosis is a narrowing of the spinal canal that leads to symptoms which essentially squash the nerve with activity.  As a result he went on to have an operative decompression after a number of back injuries all of which seem rather minor.  The operation did not really help him successfully although he has not developed any iatrogenic instability but reportedly has high levels of pain. He has remained on large doses of analgesia for the next 16 years and continues to report high levels of back pain.”

20. Professor Steadman was asked three questions about the accepted injury.  Those questions and his responses are set out below – Exhibit 13 pp. 6 – 7:

    “3.1 The accepted injury

    (a)What injury or condition, if any do you consider Mr Peipman sustained as a result of falling following the collapse of the back of his chair on 26.04.2001 (the fall)?

    Based upon the findings of the scan it is unlikely that anything happened on 26.04.2001 other than he had progression of his spinal stenosis which is a pre-existing constitutional condition.

    (b)Did this injury or condition follow the expected pathway of recovery for this type of condition and, if it did not, how and why did it differ from the expected pathway of recovery for this type of condition?

    The pathway for recovery was unsuccessful.  This is a common operation done in older people and generally does very well.

    (c)Please comment on the effect you consider the laminectomy Mr Peipman underwent on 29.11.2001 had on this injury or condition.

    The effects of the laminectomy are reportedly very poor with a bad outcome demanding large amounts of medication that have led to secondary sequalae.  He says that he was worse after the operation but it should be recalled the operation was for a congenital spinal stenosis.  As to the duration of the claim and the social issues that are likely to have ensured since along with the pain issues in our cognitive function, is prognosis is very poor. This is all beyond the scope of my specialty with regard to the secondary complications.  From a perspective of the question about the demands and need for strong analgesics, it should be recognised that pain is largely a personal subjective condition, and undoubtedly in this case is tied up with a whole host of non-physical and chronic pain issues.
    Nevertheless, the recent MRI  and x-ray appears satisfactory in that no additional treatment is likely to alter his outcome and certainly is not a lot of changes that necessitate further treatment i.e. the objective support level is low.”

    (bold in the original)

21. Professor Steadman went on to observe that the Applicant “has been known to have spinal stenosis which is a constitutional condition not an acute injury condition” – Exhibit 13 p. 7. However, he then opined that the “spinal stenosis is no longer the problem as opposed to the secondary development of a non-physical disorder along with ongoing back pain and apparently lower limb pain” – Exhibit 13 p. 8.  It was Professor Steadman’s very clear view that the cause of the Applicant’s ongoing symptoms was “likely to be mostly non-physical” – Exhibit 13 p. 8.

22. Professor Steadman opined that there was no evidence of voluntary or involuntary exaggeration of symptoms by the Applicant – Exhibit 13 p. 10.  In conclusion, Professor Steadman made the following observations – Exhibit 13 p. 10:

    “To refer to the objective evidence which is the recent x-ray and MRI, the currency of the complaint in isolation is largely unsupported.  The reasons for the initial surgery are related to a congenital issue and ignore any of the mechanisms of injury terribly substantial when one considers the pre-existing condition.  Beyond that the non-physical issues have taken over on this case with time and chronic pain medicinal use, with a secondary crisis and apparently reported cognitive loss, likely to have led to substantial further deterioration in his prognosis.”

23. A series of further questions were asked of Dr Steadman who, in turn, provided a Supplementary Report dated 20 October 2016 – Exhibit 14.

24. Dr Steadman elaborated on the “progression” of spinal stenosis which was sustained on 26 April 2001 in the following manner – Exhibit 14 p. 3:

    “ because the case was accepted as that.”

25. Professor Steadman was then asked if the “aggravation” was permanent or would it have resolved – Exhibit 14 p. 3:

    “In my opinion the condition would never have resolved spontaneously because it is a congenital situation and would only ever have progressed, with the work related injury unlikely to substantially alter the course of the disease (when MRI and original 2001 scan findings are considered) and  ultimately reflects an idiopathic and constitutional issue.  Tightening of the spinal canal or spinal stenosis is a common condition in the community with no work-related onset.  The so-called ‘disc bulges’ on the MRI which are endemic in the ageing population represent nothing other than a normal finding in retrospect.  That being said they contribute to tightening and or closure of an already congenitally compromised space.”

26. Next, Professor Steadman was asked if the Applicant’s spinal stenosis would have been the same “today” regardless of the 2001 fall – Exhibit 14 p. 3:

    “Almost certainly at some stage in the last 16 years it could be assumed because of the pre-existing and problematic narrow spinal canal that it would have caused the same trouble.  I.e. it is highly likely that at some stage between 2001 and 2016 he would have required surgery for his spinal stenosis for the pre-existing constitutional condition. This meaning that the spinal canal would have needed widening by surgical decompression as the spinal canal was tight from the overgrowth of the bony and soft tissue structures.”

    Dr Scott Campbell – Neurosurgeon

27. The Applicant was interviewed and examined by Dr Campbell, at the request of his legal representatives, on 3 March 2017 and the Tribunal has been provided with a copy of the medical report of the same date – Exhibit 5.

28. Dr Campbell diagnosed the Applicant with a work-related lower back injury resulting in decompression laminectomy surgery with the subsequent development of serotonin syndrome – Exhibit 5 p. 5.

29. Further, Dr Campbell opined that the Applicant sustained a traumatic injury to his lumbar spine when he fell off a chair at work on 26 April 2001 and that fall was the significant contributing factor to the onset and symptoms and remains the significant contributing factor to his current lower back pathology – Exhibit 5 p. 5.

30. Dr Campbell was pessimistic about any future improvement in the Applicant’s condition. He opined – Exhibit 5 pp. 5 – 6:

    (a)the Applicant has persistent lower back pain resulting from the 2001 workplace injury;

    (b)he is commercially unemployable;

    (c)the treatment provided for the Applicant’s lower back injury to date was appropriate, but chronic post-operative lower back pain is very difficult to manage;

    (d)it is very unlikely that the Applicant would benefit from any further surgical intervention;

    (e)the Applicant’s condition has reached the maximum medical improvement and any further recovery is unlikely;

    (f)the Applicant’s condition has stabilised and is unlikely to alter to any significant degree in the future;

    (g)it is unlikely that any future treatment would be of benefit for  his lower back injury; and

    (h)in accordance with Table 9.17 of the Comcare Guides, the Applicant’s injury best fits the 10 – 13% Whole Person Impairment category.

    Professor Peter Steadman – Supplementary reports 2018

31. Professor Steadman was briefed with the report of Dr Campbell and asked if it had caused him to change his conclusions about the Applicant’s conditions or his diagnosis of any condition or whether those conditions give rise to incapacity for work or a need for medical treatment.

32. In his supplementary report of 12 January 2018, Professor Steadman advised that there was nothing in Dr Campbell’s report which changed his opinion or any of the conclusions he reached – Exhibit 15 p. 2.

33. When asked about the relationship between the Applicant’s accepted condition and the surgery he underwent, Dr Campbell opined as follows – Exhibit 15 p. 3:

    “Essentially, all of the anatomical and pathophysiological consequences are all well recognised consequences of this type of surgery (if not still uncommon).  That is, as a result of surgical intrusion into the spine, scar tissue forms which then causes an alteration in the spinal pathophysiology and leads to chronic back and nerve pain and discomfort.”

34. Professor Steadman concluded with these observations – Exhibit 15 p. 4:

    “This is a very complex case and is an issue of the causation and approval of his initial treatment.  This began a journey that has resulted in further clinical events that represent subsequent parts of the same medical continuum, in essence a form of medical misadventure, multiple medical complications and development of subsequent non-physical issues for reasons that are beyond the scope of my specialty.”

1. Second, a sensible and common-sense inference can be drawn from this state of affairs: prima face, the Applicant’s pain and discomfort has it origins in the injury suffered on 26 April 2001.

2. Third, the Tribunal agrees with the submission of Mr Black (AOS para 31(a)) that Dr Campbell’s diagnosis is consistent with the mechanism of the injury and accords with the chronology of the Applicant being essentially asymptomatic before April 2001 but symptomatic thereafter.

3. Fourth, Professor Steadman’s alternative diagnosis fails to adequately explain the dramatic change in the Applicant’s condition and the deterioration of his functional capacity following the April 2001 accident.

4. However, in addition to these matters both Dr Campbell and Professor Steadman opined that the Applicant was suffering, prior to the April 2001 accident, with a chronic, constitutional and degenerative disease of his spine.  Further, Professor Steadman opined that at some future time, the Applicant would have experienced the same level of incapacity as he now suffers. In his written evidence he suggested that this would have occurred “at some stage between 2001 and 2016” (Exhibit 14 p. 3), and in his oral testimony he testified that without the effects of the 2001 accident, the Applicant may have been symptom free for up to a further six years.

5. Dr Campbell opined that it was unlikely that the Applicant’s current level of impairment would have manifested in the absence of a traumatic event. He went to opine that while it was not possible to predict when or if the underlying mild spinal stenosis at one level would have become symptomatic, an estimate of when the Applicant was 65 to 75 years of age was “reasonable” – Exhibit 6 p. 3.

6. If Dr Campbell and Professor Steadman’s evidence is accepted, then the law as explained by Burchett J in Martin v Australian Postal Corporation comes into play. In that case the worker had osteoarthritis but it had produced no symptoms before he experienced work related injuries.  It is helpful to set out some of the reasoning of Burchett J:

   “32 In the present case, the Tribunal accepted the applicant’s evidence that he had no symptoms before the first work-related accident.  It considered he had an asymptomatic underlying osteoarthritis to which the work-related motorcycle accidents contributed ‘in a material degree’, a ‘contribution [that] continues to date’.  The Tribunal expressly found that ‘it is impossible to say when exactly the Applicant’s symptoms would have manifested themselves had the motorcycle accidents (particularly the first one) not occurred.’  It assessed the permanent impairment produced by the now symptomatic condition at 10%, being the figure given in evidence by both Associate Professor Murrell and Dr Brooks.

   33 These findings were open to the Tribunal on the evidence. Even Dr Brooks acknowledged the possibility that ‘[p]eople can have an arthritic process or condition within their body that can lie dormant until the day they die…without them noticing symptoms’. So far as Mr Martin was concerned, x-rays taken in October 1993 and September 1994 were described by Associate Professor Sonnabend as ‘diagnostic of early osteoarthritis’, and the CT scan done in November 1994 ‘showed the arthritic change to be minimal’.   In another report, the same scan was described as showing ‘no significant arthritis’.  Associate Professor Murrell gave evidence that it is ‘fairly rare to get glenohumeral joint arthritis in the shoulder joint and it’s very rare at his age, 55.’….All this evidence would plainly support a view that emphasized the role of the aggravation or acceleration, as against the original condition.  Having regard to the minimal nature of the osteoarthritic changes that had taken place by the end of 1994, which was after the aggravation had been going for some time, the Tribunal’s finding that it was ‘impossible to say when exactly the Applicant’s symptoms would have manifested themselves [in any event]’ is not only reasonable, but really inescapable.

   34 In my opinion, the Tribunal’s findings bring the case squarely within the principle stated by Jordan CJ and Barwick CJ.  As there were no symptoms prior to the work-related injuries; those injuries aggravated or accelerated the condition so as to produce symptoms; it cannot be known when the condition itself might have produced similar symptoms in the absence of any such aggravation or acceleration; and the contribution of the aggravation or acceleration has been  held (by an acceptance, in this respect, of the evidence of Associate Professor Murrell) to be still continuing, it was open to the Tribunal to find that the aggravation or acceleration which constituted the injury within the meaning of s 24 had resulted in the impairment, which was likely to continue indefinitely…”

7. Accordingly, the fact that the Applicant would have, absent the April 2001 accident, been afflicted at some later point of time with the pain and disabling conditions he now suffers because of the progression of his underlying condition, is not determinative of his entitlement to receive compensation.  As Jordan CJ said in Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157 at 165:

   “The question is not whether the disease has caught up with the effects of the compensation injury, but whether the employment injury has ceased to produce disabling effects.”

8. This proposition receives statutory endorsement by s 7(6). Importantly s 7(6)(b) provides that an incapacity for work or impairment shall be taken to have resulted from (inter alia) an aggravation of a disease, if, but for that aggravation:

   “(b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time”.

9. To sum up, the Tribunal, on the balance, prefers the evidence of Dr Campbell as to the cause and progress of the Applicant’s condition to that of Professor Steadman for the reasons previously expressed. In particular, having regard to the totality of the evidence presented, the Tribunal agrees with the following propositions expounded by Dr Campbell in his report of 3 March 2017 – Exhibit  5:

   (a)the Applicant fell heavily and awkwardly from an office chair on 26 April 2001 resulting in a lower back injury;

   (b)he developed immediate onset of lower back pain and bilateral sciatica;

   (c)his condition failed to  settle with time;

   (d)the fall at work was the significant contributing factor to the onset of symptoms;

   (e)the fall at work and its consequences remain the significant contributing factor to his present lower back pathology.

10. The Tribunal is therefore satisfied that the effects of the accepted back condition have not ceased, and that medical treatment is still being obtained in relation to the injury (s 16) and that the Applicant remains incapacitated for work as a result of the injury ( s 19).  The reviewable decision of 23 October 2015 is therefore set aside.

11. Consideration must now be given to the accepted psychiatric injuries and the accepted sexual dysfunction injury.

12. The medical evidence regarding the Applicant’s psychiatric condition was basically consistent.  The Tribunal was particularly influenced by the written and oral evidence of Dr Varghese.  Dr Varghese opined that the Applicant “has complex psychological and medical problems”. He diagnosed the Applicant as suffering from a putative adjustment disorder in relation to his physical disability, whatever the cause.  Dr Varghese went on to state – Exhibit 12 p. 28:

    “In as much as the fall of 26 April 2001 led to his back injury resulting in significant physical disability of a long term nature, the putative Adjustment Disorder can be regarded as directly related to the fall.”

13. When asked if the Applicant continued to suffer the effects of any work related psychological condition, Dr Varghese provided the following answer – Exhibit 12 p. 30:

    “Mr Peipman does continue to suffer the effects of the work injury in that he is likely to have an Adjustment Disorder to his physical disability and the Dysthymic Disorder while of multifactorial origin has been contributed to by the ongoing effects of physical injury.”

14. Ms Troy likewise concluded that the Applicant “meets diagnostic criteria for an adjustment disorder, because he showed development of emotional and behavioural symptoms in response to injuries he sustained in the accident in 2001, the failure of surgical intervention in November 2001, and ongoing pain and functional impact of these injuries” – Exhibit 10 p. 20.

15. These conclusions are also in accord with the diagnosis of Dr Moffatt in her report of 10 April 2015 – Exhibit 1 T291 pp. 994 – 1009. Dr Moffatt concluded that the Applicant’s conditions of major depressive disorder and adjustment reaction with disturbance of emotions had not resolved and had their origin of the events in and around 2001 – p. 1005.

16. There is no reason for the Tribunal to reject these findings, and, accordingly, I find that the Applicant has an ongoing psychiatric condition attributable to the pain he continues to suffer from his workplace injury of April 2001.

17. As previously explained, the Applicant was examined by Dr Lowy (Exhibit 1 T111 pp. 500 – 501) and Dr Alexander in 2005 (Exhibit 1 T116 pp. 508 – 511, T117 pp. 512 - 514), and both concluded that the Applicant’s work injury had substantially contributed to his sexual dysfunction. In September 2008 liability was accepted for the Applicant’s sexual dysfunction injury.

18. It was not disputed that if the Tribunal rejected Comcare’s ceased effects submissions with respect to the Applicant’s accepted back injury that this would necessarily result in a finding that his accepted impotence injury would also be accepted.

19. Insofar as no evidence was presented which is contrary to the findings of Drs Lowy and Alexander, or which suggests that the Applicant’s sexual dysfunction has resolved, I find that the Applicant has an ongoing injury described as “sexual dysfunction” which is attributable to the pain he suffers flowing from his work accident of April 2001.

    Application 2015/6434: status epilepticus

    Introduction

20. The Applicant contends that he suffered an ailment in February 2012, of whatever description, which resulted from the taking of medication for his accepted physical and psychological injuries.

21. Conversely Comcare contends that it is not liable to pay compensation for the claimed condition as it did not arise out of, or in the course of, the Applicant’s employment and that his employment with the ATO did not contribute to the claimed condition to a significant degree.

22. Despite the February 2012 ailment being described in a number of ways, including extrapyramidal diseases and movement disorders and serotonin syndrome, it will be referred to in this determination as status epilepticus.

    Legal background

23. The question whether liability exists for the Applicant’s status epilepticus condition hinges on the question whether its genesis lies in an adverse reaction to the medication he was prescribed for the effects of his compensable injuries (physical and psychological).

24. The relevant injury test in such circumstances is contained in s 4(3) of the Act which provides as follows:

    “For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:

    (a)  compensation is payable under the Act in respect of the injury for which the medical treatment was obtained; and

    (b)it was reasonable for the employee to have obtained that medical treatment in the circumstances.”

25. There is no dispute in this matter that the Applicant was receiving medical treatment in relation to his compensable back injury and psychological condition. Moreover, no dispute has arisen about the nature of that treatment, or that the medications prescribed were appropriate in the circumstances.  While there was some dispute as to whether the Applicant was in fact taking the prescribed dosage of medication, the Tribunal has proceeded on the assumption that he was not overdosing.

    Consideration

26. The Tribunal was presented with divergent diagnoses by Professor Howes and Dr Alderman.  Having carefully considered their respective reports and listened to their testimony, the Tribunal prefers the conclusions reached by Dr Alderman.

27. Professor Howes’ report of 13 September 2017 (Exhibit 4) proceeds on the basis of various assumptions, all of which are predicated on  the Applicant developing continuous grand mal fitting that lasted for three days due to high levels of venlafaxine in his blood. Professor Howes’ diagnosis is also based on the Applicant experiencing a sudden loss of consciousness.

28. Dr Alderman, in comparison, based his diagnosis on a series of objective and carefully considered factors, namely:

    (a)the Applicant commenced treatment with venlafaxine as long ago as 2002;

    (b)there was no evidence that in the period 2002 – 2012 the Applicant was affected by signs or symptoms consistent with serotonin syndrome;

    (c)a convincing temporal relationship is critical to determine the aetiology of a possible adverse drug reaction;

    (d)the long interposing period between the initiation of venlafaxine treatment and the development of symptoms said to represent serotonin syndrome are not suggestive that this putative diagnosis is plausible;

    (e)a temporal relationship may be entertained if other factors have significantly altered the pharmacokinetic profile of venlafaxine in the interposing  period, but Dr Alderman was unable to locate any objective evidence in the material provided to him;

    (f)the material presented did not disclose any objective or verifiable information to support the Applicant’s claim that he was affected by a genetic variation that would influence the pharmacokinetics of venlafaxine;

    (g)applying a score generated by use of the Naranjo algorithm for estimating potential causality of a putative adverse drug reaction, a score of 2 was generated (with serotonin syndrome as the putative adverse event), which was at the “low” end (0 being doubtful and 9 being highly probable);

    (h)there are two main diagnostic systems having international acceptance for providing criteria for the diagnosis of the serotonin syndrome: the Sternbach criteria and the Hunter criteria;

    (i)the Sternbach criteria posits that there should have been a recent introduction of a serotonergic agent, or an increase in the dose of a serotonergic agent already in use, plus there should be an absence of other feasible aetiologies for the phenomenology observed plus at least three characteristic diagnostic findings present (including phenomena such as mental state changes, agitation, myoclonus, hyperreflexia, diaphoresis, shivering, tremor, diarrhoea, incoordination and fever).  The details of the Applicant’s presentation to hospital in February 2012  was not such that the Sternbach criteria were satisfied, and on this basis a diagnosis of serotonin syndrome could not be made;

    (j)based on the phenomenology documented in the clinical records the Applicant did not have a convincing diagnosis of serotonin toxicity at the time;

    (k)the clinical signs and symptoms of the Applicant on admission to hospital were not consistent with those of an extrapyramidal syndrome, whether related to the Applicant’s medication treatment or otherwise;

    (l)the Applicant’s secondary diagnosis of venlafaxine toxicity on admission to hospital in February 2012 was largely speculative;

    (m)associated findings on admission to hospital included acute renal failure and significant rhabdomyolysis with grossly elevated creatine kinase concentrations, both of which have subsequently resolved completely;

    (n)the underlying causes of these conditions has never been established;

    (o)it is not possible on the evidence presented to determine the temporal sequence of events;

    (p)this is important so as to exclude a sequence of events whereby an episode of acute renal failure of unknown aetiology has contributed to the accumulation of a toxic serum concentration of venlafaxine, a drug that relies upon renal elimination for its clearance from the body;

    (q)other scenarios include acute renal failure leading to venlafaxine accumulation and subsequent toxicity in the form of status epilepticus;

    (r)epileptiform activity that has arisen because of the compound effects of several drugs known to lower the seizure threshold, including venlafaxine, quetiapine and prochlorperazine; and

    (s)another medication associated with the development of seizures is baclofen, which was taken by the Applicant.

29. During his testimony the Applicant stated that he did not have a crystal clear memory of the events surrounding the onset of seizures in February 2012. Indeed, the evidence presented to the Tribunal about the accident is vague, and, in part, speculative.

30. The Applicant stated at the time that he collapsed on the floor after “falling down a flight of stairs…I split my head open” – Exhibit 1 T238 p. 851. If that is in fact what happened, it is not clear whether the grand mal seizures were the result of the Applicant striking his head. As stated, the Applicant is unable to assist the Tribunal as the events in question occurred suddenly and without warning.  Further, based on the uncontested evidence, the Applicant was rendered unconscious and suffered grand mal fitting for three days until he was randomly discovered by a real estate agent.   By the time he was found, he had suffered significant bodily damage, including acute renal failure.

31. The Tribunal agrees with Dr Alderman’s observation that a convincing temporal relationship is critical to determining the aetiology of a possible adverse drug reaction. Moreover, when determining cause and effect in any area of the law, it is necessary for the tribunal of fact to be presented with objective material that allows it to make sound findings such that the chronology and course of causation is rendered understandable.

32. It certainly is no criticism of the Applicant to observe that in this matter there is no clear factual base supporting his case. He suffered a fall and was seriously injured.  Over the following three days his body was racked by continuous grand mal seizures.  His bodily organs began to fail.  His memory of what happened is vague.

33. In these circumstances the clear and convincing analysis of Dr Alderman has been of great assistance to the Tribunal.

34. Dr Alderman convincingly demonstrates why the onset of status epilepticus cannot be traced back to the consumption of venlafaxine from 2002 onwards.  While reliance on the Naranjo algorithm and the Sternbach criteria by themselves are not determinative of the issue, taken together with all of the other evidence, they cumulatively suggest that the Applicant did not have a sound diagnosis of serotonin toxicity on admission to hospital in February 2012.

35. It is possible, as both Professor Howes and Dr Alderman note, that baclofen, may have played a part in the events of February 2012. There is a link between the ingestion of baclofen and development of seizures – Exhibit 11 p. 7. However, the Tribunal is not satisfied, on the balance of probabilities, that the ingestion of baclofen led to the Applicant suffering grand mal seizures. At most it is a theory, but for a tribunal of fact, to make a finding of liability under s 14, much more medical evidence would be required.

36. The Tribunal is satisfied that the Applicant suffered from status epilepticus in February 2012, but the cause of that condition is unclear.  The Tribunal prefers the reasoning and conclusions of Dr Alderman as they are presented in an ordered, logical and compelling manner.

37. During his testimony, Dr Alderman quite properly conceded that the combination of prescribed drugs ingested by the Applicant could have lowered the threshold for the onset of seizures. Moreover he also conceded that he could not rule out that the Applicant may have suffered an adverse reaction to the prescribed drugs.

1. This is, perhaps, the high point for the Applicant but it does not, with respect, rise to a level that the Tribunal can be satisfied, on the balance, that the onset of grand mal seizures in February 2012 was precipitated by the side-effects of taking prescribed medication for his accepted bodily and psychiatric conditions. That scenario would satisfy the balance of possibilities but not the balance of probabilities.

2. The sequence of events that resulted in the Applicant being rendered unconscious and suffering continuous grand mal epileptic seizures for approximately three days is unclear. The preponderance of medical evidence does not support the proposition that the seizures were brought on by serotonin toxicity. It is possible that the onset of the seizures was brought about by either a reaction to the cocktail of prescribed drugs the Applicant was taking or by those drugs either singularly (baclofen) or in combination lowering the threshold for seizures. Again these are possible theories, but nonetheless do not rise above the level of theories.

3. It is equally possible that the Applicant may have been suffering from epilepsy before 2012, and in that regard Dr Alderman referred to the Applicant’s admission to hospital in August 2007 presenting with a complaint of “confusion”.  A working diagnosis at that time was of a possible seizure – Exhibit 11 p. 8.

4. As the Applicant discharged himself from the hospital before the completion of a planned consultation with a neurologist, it is not possible to sensibly determine if in fact he had suffered an epileptic seizure.

5. Accordingly, the cause of the Applicant’s status epilepticus in February 2012 remains unclear, with a number of possible theories, but none of which rises to a level that could satisfy the Tribunal on the balance of probabilities. However, the Tribunal is satisfied, on the balance, that the onset of the Applicant’s gran mal seizures was not brought about by venlafaxine toxicity.

   DECISION

6. The Tribunal:

   (a)sets aside Comcare’s decision of 23 October 2015 (2015/6429);

   (b)remits the matter to Comcare for reconsideration on the basis that the Applicant continues to suffer from the previously accepted back injury, psychiatric injuries and impotence injury;

   (c)affirms Comcare’s decision of 13 March 2015 (2015/6434);

   (d)allows 21 days for the parties to make any submission for an order for costs pursuant to section 67 of the Act.

I certify that the preceding 296 (two hundred and ninety -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

......................[Sgd]..................................................

Associate

Dated: 26 March 2019

Dates of hearing:	19 - 21 November 2018
Counsel for the Applicant:	Mr Matt Black
Solicitors for the Applicant:	Maurice Blackburn Lawyers
Advocate for the Respondent:	Mr Ben Dube
Solicitors for the Respondent:	Sparke Helmore Lawyers