Pendlebury and TT Line Company Pty Ltd (Compensation)
[2024] AATA 3620
•10 October 2024
Pendlebury and TT Line Company Pty Ltd (Compensation) [2024] AATA 3620 (10 October 2024)
Division:GENERAL DIVISION
File Number(s): 2022/1184, 2022/5973, 2023/4068
Re:Brett Pendlebury
APPLICANT
AndTT Line Company Pty Ltd
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:10 October 2024
Place:Hobart
Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal decides as follows:
1.In respect of application 2022/1184:
(a) The Tribunal sets aside the reviewable decision dated 16 March 2022.
(b) In substitution therefor, the Tribunal decides:
(i)The Applicant continues to suffer from the effects of the injury he suffered to his spine, sustained on 8 May 2020;
(ii)The Applicant is totally incapacitated for work;
(iii)The Respondent, under s 26 of the Seafarers Rehabilitation andCompensation Act 1992 (SRC Act), has an ongoing liability under s 31 of the Act for incapacity payments and s 28 of the SRC Act for medical expenses in relation to the injury;
(iv)That the Applicant’s claim be remitted to the Respondent for determination of his entitlements for incapacity payments and medical expenses from 18 November 2021 to date;
(v)That the Respondent pay the Applicant’s costs, as agreed or assessed
2.In respect of application 2022/5973:
(a) The Tribunal sets aside the reviewable decision deemed to have been made on 22 May 2022;
(b) In substitution therefor, the Tribunal decides:
(i)That the Applicant sustained an injury to his lumbosacral spine involving the aggravation and acceleration of a degenerative condition of his lumbosacral spine as a consequence of the nature and conditions of his employment over the period from 2003 to 8 May 2020 working for the Respondent;
(ii)That the Applicant is totally incapacitated for work;
(iii)The Respondent under s 26 of the SRC Act has ongoing liability under s 31 of the SRC Act for incapacity payments and s 28 of the SRC Act for medical expenses in relation to the injury;
(iv)That the Applicant’s claim be remitted to the Respondent for determination of his entitlements to incapacity payments and medical expenses from 18 November 2021 to date;
(v)That the Respondent pay the Applicant’s costs, as agreed or assessed.
3.In respect of application 2022/4068:
(a) The Tribunal sets aside the reviewable decision dated 8 May 2023;
(b) In substitution therefore, the Tribunal decides:
(i)That the Applicant has suffered a psychiatric injury described as an adjustment disorder, as a consequence of the condition of his lumbosacral spine;
(ii)That the Respondent has, under s 26 of the SRC Act, an ongoing liability under s 31 of the SRC Act for incapacity payments and s 28 of the SRC Act for medical expenses in relation to the Applicant’s consequential psychiatric injury;
(iii)That the Applicant’s claim be remitted to the Respondent for determination of his entitlements;
(iv)That the Respondent pay the Applicant’s costs, as agreed or assessed.
................................[signed]........................................
Senior Member D. J. Morris
Catchwords
COMPENSATION – SEAFARER - applicant lodged claim for workers’ compensation for back injury – respondent determined no present liability to pay compensation – applicant lodged claim for workers’ compensation for aggravation of degenerative injury – applicant lodged claim for workers’ compensation for consequential psychiatric injury – applications heard together – whether liability exists – consideration of expert medical evidence – tribunal satisfied that applicant has degenerative spinal disease – tribunal satisfied degenerative condition contributed to a material degree by nature of applicant’s work – tribunal satisfied applicant suffered an injury – tribunal also satisfied that parties accept if applicant successful on either of compensable injury claims, consequential psychiatric injury is conceded and compensable – decisions under review set aside and new decisions substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Cases
Caserotto v Australian Postal Commission (1989) ALR 399
Comcare v Canute [2005] FCAFC 262
Secondary Materials
Administrative Appeals Tribunal guideline – Persons Giving Expert and Opinion Evidence; made by the Hon. Justice Duncan Kerr, President; 30 June 2015
The Australian Reference Dictionary; Anne Godfrey-Smith et al (eds); Oxford University Press; Melbourne; 1986
The Concise Dictionary of Current English; H. W. and F.G. Fowler (eds); Eighth Edition, edited by R. E. Allen; Clarendon Press; Oxford; 1990REASONS FOR DECISION
Senior Member D. J. Morris
10 October 2024
The Applicant, Mr Brett Pendlebury is aged 52. He is a seafarer employed as an integrated rating on two seagoing ferries operated by the Respondent, the Spirit of Tasmania I and the Spirit of Tasmania II. He was employed part-time since 2003 and then full-time since mid-2004 by TT-Line Company Pty Ltd as a merchant mariner. The Respondent submitted that it is not in contention between the parties that his work as an integrated rating involved work that was physical and repetitive and included tasks regularly requiring pulling, pushing and bending.
Application 2022/1184
On 18 May 2020, the Applicant lodged a claim for workers’ compensation under the Seafarers Rehabilitation and Compensation Act 1992 (‘the SRC Act’) in respect of an injury to his ‘mid-lower back’, which he claimed to have sustained on 8 May 2020 as a result of repetitive lashing and an increased workload.
On 18 November 2021, the Respondent determined that there was no present liability to pay compensation to the Applicant under the SRC Act. The Applicant has brought that decision for review.
The Respondent submitted that the issue before the Tribunal in relation to this application is whether liability exists under the SRC Act for the claimed back ailment, and this requires consideration of:
(a)whether the Applicant continues to suffer from a back ailment;
(b)if so, whether the ailment continues to be an ailment that was materially contributed to by his employment, and in particular the incident on 8 May 2020, and
(c)if so, whether liability exists to pay compensation for incapacity for work under s 31 of the SRC Act and medical treatment expenses, under s 28 of that Act.
Application 2022/5973
On 28 February 2022, Mr Pendlebury lodged a claim for compensation under the SRC Act in respect of an aggravation of ‘degenerative changes in back with referred pain to right leg/foot’ claimed to have been sustained between 2013 and 8 May 2020, as a result of ‘normal duties involving lashing and unlashing cargo’.
The Respondent submitted that the issue in this application is whether liability exists under s 26 of the SRC Act for Mr Pendlebury’s claimed back aggravation. This requires consideration of:
(d)the diagnosis of the claimed condition;
(e)whether the condition is classified as an injury or disease;
(f)if the condition is a disease, whether the claimed condition (including any aggravation) was contributed to, to a material degree, by the Applicant’s employment, as defined in s 3 of the SRC Act; or
(g)if the condition is an injury, whether the claimed condition (including any aggravation) arose out of, or in the course of, the Applicant’s employment, as defined in s 3 of the SRC Act.
Application 2023/4068
On 15 February 2023, the Applicant lodged a claim for compensation under the SRC Act in respect of a ‘consequential psychiatric injury’ claimed to have been sustained in late 2021 as a consequence of his work-related lower back injury.
In the normal course, the Tribunal would be required to address the same questions in relation to the Applicant’s claimed consequential psychiatric injury. The Respondent initially submitted that Mr Pendlebury’s psychiatric condition is wholly attributable to his underlying degenerative back condition and is not attributable, to a material degree, by any aspect of his employment.
However, during the course of the hearing, the parties advised that they had reached agreement in relation to this particular application, should the Applicant succeed in either of the first two applications, and handed up a Memorandum of Agreement in the following relevant terms:
The parties have agreed that the Applicant has sustained a psychiatric injury, best described as an “adjustment disorder” as a consequence of the condition of his lower back, and that the condition results in an incapacity for work.
The Tribunal notes that it was decided not to call expert witnesses in relation to this specific application and that there were medical opinions lodged from two consultant psychiatrists, Dr Kiran Nair and Dr Panjak Relan, who both concluded that the Applicant has sustained an adjustment disorder as a consequence of the condition of his lumbosacral spine.
HEARING
A hearing was held on 19, 20 and 22 August 2024. The Applicant was represented by Mr Brian Hilliard of counsel, instructed by Mr Damien Hill of McNally Jones Staff Lawyers. The Respondent was represented by Mr Anthony Harding of counsel, instructed by Mr Aaron La Pietra of Sparke Helmore Lawyers.
The Applicant gave evidence in person. The parties also called five expert witnesses who gave evidence by video link by leave of the Tribunal under s 33A of the AdministrativeAppeals Tribunal Act 1975 (‘the AAT Act’). The five expert witnesses were Dr Ales Aliashkevich, neurosurgeon and spine surgeon; Professor Richard Bittar, neurosurgeon; Dr Hazem Akil, neurosurgeon; Dr Charles Allen, orthopaedic surgeon; and Dr Asish Jonathan, neurosurgeon.
The Tribunal admitted into evidence the exhibits which are listed in the annexure to these reasons.
APPLICANT’S OPENING SUBMISSION
Mr Hilliard told the Tribunal that Mr Pendlebury’s work as an integrated rating involved lashing vehicles and other cargo in the hold of the vessels as they sail across Bass Strait. He said that the Applicant has had lumbar pain since 2012 and had an accepted claim. He had made good recovery and worked on the ship until 2020. In May 2020 he developed significant back pain in the course of his work. The pain radiated into his legs. He went on sick leave, unfit to work, and has remained so ever since.
Mr Hilliard said that the Applicant had been referred by his general practitioner to a neurosurgeon and has had interventions but no surgery at this stage. He said it got to the point where fusion surgery was recommended.
ORAL EVIDENCE
The Applicant
Mr Pendlebury adopted his witness statement dated 11 November 2022. The Applicant was asked about an MRI scan said to have been done in 2010. He said he had visited his general practitioner and asked for copies. He said he had numerous x-rays in 2020 relating to a broken ankle which was repaired, and told the Tribunal that this ankle injury was not work-related. He could not remember an MRI at this time.
The Applicant confirmed that he worked as an integrated rating since 2003, and full-time from 2004. His work is exclusively on the Respondent’s Spirit of Tasmania vessels, which run a regular passenger and vehicle/cargo service across Bass Strait, at this time between the River Mersey in Devonport in Tasmania and Station Pier in the Port of Melbourne.
The Applicant said his work cycle was 28 days on duty and then 28 days off. During the duty period he said that he had to remain on the vessel, and was allocated his own cabin, which he vacated at the end of the 28-day cycle for another integrated rating. He said that more recently, since 2016, he had made an arrangement with a work colleague to do a cycle of 14 days, and then 14 days off. He said that a month of lashing cargo was becoming too much.
Mr Pendlebury told the Tribunal about the difference between a single and a double sailing, and that the latter occurs during holiday periods, and especially during school holidays. He said a typical day for a double sailing would begin at 4 am. All integrated ratings would go to the vehicle decks, unlash all the lashings, remove the straps and then drag them to a rail ready for freight to discharge. He said if the vessel is arriving at Devonport, they could not commence unlashing until the ship had entered the Mersey, and the captain of the ship had given permission; in the Port of Melbourne they had more time.
Once the ship has docked, stevedores would come on and drive trucks off. The integrated ratings would tidy the lashings, ready to re-use them for the freight and trucks coming on board.
Mr Hilliard referred to the report of Mr Michael Armitage dated 8 August 2020 which was before the Tribunal (‘the Armitage report’) (Exhibit A2). The Applicant said he had read it and it was an accurate summary of the type of work he and the other integrated ratings did. He explained the process, and the various lengths of lashings, and that they have a ratchet mechanism to be tightened. Mr Pendlebury said they had a 20-tonne breaking strain.
The Applicant estimated that the lashings generally weighed around 12 kilograms, with some being a little more. Depending on the style of the lashing, he said integrated ratings had to bend down under trucks. He would use a hefty bar to tighten the lashings, to get tension, and to do that he had to use his whole bodyweight.
Mr Pendlebury was shown illustrations in the Armitage report which showed the lack of space between bulkheads and the trucks parked on the vehicle decks, and he said that the tight conditions meant it was difficult to achieve good ergonomics when crouched under a truck. He said he had constant back pain, sometimes with sharp pain, and constant muscle stiffness.
The Applicant said that if the vessel were on a double sailing, they would have less time to check the lashings, make sure the decks were clear and sometimes there was no chance to clean up oil spills before trucks were coming on for the next voyage. He said the integrated ratings would usually have a short break with something to eat and then return to the vehicle deck and start lashing the vehicles which had been driven on. If there was rough weather, they would put an additional two lashings in a cross-formation – storm lashings.
He said that some of the ratings would serve as watchkeepers, and they would sometimes come and help if the weather was expected to be rough, and that up to 16 lashings would be put on large trucks in these circumstances.
Mr Pendlebury was asked about the incident on 8 May 2020. He recalled experiencing very painful back pain, and said before that date he had had trouble in 2012, but no incapacity between 2012 and the 8 May event. He said that, on that day, he was crouched down under a trailer and got a sharp pain in his lower spine. He said he was putting force with his upper body on a ratchet bar, and bent over at a 45-degree angle, when he felt the pain.
Mr Hilliard asked whether the pain and discomfort had continued. The Applicant responded that it was extreme and restrictive, with shooting pain down his leg and tingling sensations with radiating pain. He said some treatments had made it worse, and found that he could not sit down. He said it had worsened since May 2020.
Mr Pendlebury said that he had always found the work painful but used to recover, however in this case the pain has not subsided. He said once he changed to a 14 day on-off cycle in 2016, he had found it better for his back because he was performing tasks for less time. He had less muscle spasms and less tension in his back; “on the 28-day cycle, people tend to be worse off”.
He said that because of a senior person on the ship who directed what integrated ratings did, he had not rotated at the time of the incident to other duties which were less physical: typically, some integrated ratings are assigned during a voyage to watchkeeping on the bridge and in the engine room. He said watchkeepers also performed other tasks such as checking the quality of the lashings, and checking on animals which are being carried as cargo in the hold.
Under cross-examination, Mr Harding asked the Applicant whether he had been elected as a health and safety representative and whether he had raised specific concerns in that role about lighting, staff and lack of space between trucks. Mr Pendlebury confirmed that was the case.
Mr Pendlebury was asked about the 8 May 2020 incident. He said he felt a sharp pain as he was forcing a ratchet bar down with all his strength, for about half a metre. Mr Harding noted that in his written statement the Applicant said he was pulling a lashing strap, and referred to paragraph 51 of the statement:
On 8 May 2020, my back became very painful during my lashing duties on the Spirit of Tasmania. At the time I was pulling tension on the lashing straps.
Mr Pendlebury said he meant to write ‘putting’ tension. He agreed he had read through the statement before he signed it.
Mr Harding suggested that there was no specific event that led to the Applicant suffering sharp pain. The Applicant said that was incorrect.
Mr Harding drew the Applicant’s attention to his reference in an earlier 2012 claim relating to an RSI condition in both arms (paragraphs 38-42 of his statement). He agreed with Mr Harding that his back pain developed later.
Mr Pendlebury said he had time off and returned to duties, which he said were light duties, and then he later progressed to normal duties for, he estimates, one or two months while he was building up to being declared fit. In response to direct questions from the Tribunal he said he could not remember how long it was before he was restored to full duties but agreed he was back on normal duties in 2013.
The Applicant agreed with Mr Harding that between the 2013 and May 2020 incident, he did not take any time off work for a back complaint.
Mr Harding asked the Applicant if he raised his specific concerns with TT-Line. The Applicant said he did, but he did not mention them in his statement because they were not documented on board.
Mr Pendlebury said he had seen specialists and had reported his ongoing back issues to them. He said he told the specialists that he had not fully recovered from his 2012 injury but that “I put up with it”.
In reply, Mr Hilliard asked the Applicant if he attended a general practitioner after the 8 May 2020 incident. The Applicant said he did, and he told his doctor what had happened.
Mr Hilliard referred the Tribunal to a medical note from Dr Emma O’Donoghue dated 25 May 2020, and Mr Pendlebury confirmed she was the GP he saw at that time.
Before the Tribunal were summonsed records from MyHealth Clinic, Eltham in Victoria. A medical record relevantly records:
Consultations:
Surgery consultation
Recorded by Dr Emma O’Donoghue Visit date 25/05/2020
Recorded on 25/052020Reason for visit:
Back pain
Work CoverAttended with partner
Report he hurt back at work on 8/5/2020, occurred while pulling tension on a lashing strap on truck
– pain started in lumbar area but on 9/5/2020 pain spread to thoracic and between scapula, sharp pain
– trouble sleeping
– pain severe if sitting 5-10 mins
– radiating to right buttock/thigh
– some numbness in right leg
Mr Pendlebury said he recalled giving this history to the doctor.
Dr Ales Aliashkevich
Dr Aliashkevich confirmed he examined the Applicant, and consulted with him subsequently, and wrote a medical report dated 2 December 2022.
He said that the Applicant had told him that on 8 May 2020 he was performing repetitive lashing and felt a sharp pain in the medium and lower back.
Dr Aliashkevich said he had seen a copy of the Armitage report and it was his opinion that the nature of the work the Applicant was required to undertake on board was a significant contributing factor in aggravating his existing disease. He noted that most of the work was repetitive and performed in an awkward posture.
Mr Hilliard asked whether he considered the 28-day cycle of work was relevant. Dr Aliashkevich said that only strengthens his opinion. He said that the ergonomic position is relevant because the more pressure put on a lumbar disc, then the more likely it will aggravate.
Mr Hilliard asked the witness whether he had seen the article in the health journal Spine titled ‘Mechanical Aspects of Intervertebral Disc Injury and Implications on Biomechanics’ (Exhibit A8). Dr Alaishkevich said Spine was an international peer-reviewed publication which was highly respected among spinal surgeons.
Dr Alaishkevich said an MRI confirmed extensive degenerative changes in the Applicant’s spine, “He is losing shock-absorbing function in the disc space”.
Under cross-examination by Mr Harding, Dr Alaishkevich said he agreed with Dr Jonathan’s view that the primary issue facing the Applicant is a degenerative disease in his lumbar spine. He agreed it was a long-standing condition that pre-dated 8 May 2020. Dr Alaishkevich said Mr Pendlebury had back problems since “at least 2010 or 2012 when he had an MRI. He told me he’s had back problems since that time”.
Dr Alaishkevich said degeneration lasts for a lifetime and may be asymptomatic, and it is a product of ageing. The witness said his notes stated that the Applicant underwent an MRI on 14 September 2020 and another in 2012. He said the notes state that the MRI showed degeneration in the L2-3 and L4-5 vertebrae.
Dr Aliashkevich said he could not say how good or bad the state of his vertebrae was at that time because he did not see the 2010 scan himself. He noted that the Applicant did not consult any spinal therapist or had injections, and so he guessed, on the balance of probabilities, it was probably ‘minor’.
Dr Aliashkevich agreed that Mr Pendlebury had a longstanding back complaint since 2010, and Mr Harding noted the Applicant said it gradually became worse after February 2013 when he returned to work. He asked the witness whether it would be a natural history for such a condition to worsen progressively over time. Dr Aliashkevich said that usually such conditions come in episodes, with flaring, then settling, then flaring again, rather than a constantly worsening condition. He agreed with Mr Harding that the overall trajectory would be for such a condition to worsen because of the natural ageing process, and told the Tribunal that symptoms and pain can vary widely.
Dr Aliashkevich said that the MRI scan showed the condition getting worse, and that working physically on the same tasks showed a connexion with an aggravation of his degenerative condition. He agreed with Mr Harding that simply getting older can make a condition worse.
Dr Alaishkevich said that his opinion was in 2020 that the Applicant’s work was a significant contributing factor which worsened a pre-existing condition. He told the Tribunal that the Applicant has been working as a seafarer since 2004, and if he had a hypothetical identical twin who worked in an office, with hypothetically the same genetic pathology, the twin would be less likely to develop problems with his spine. He said both ageing and the contribution from employment are factors.
Professor Richard Bittar
Professor Bittar confirmed he had prepared a report on the Applicant dated 26 November 2022, and had recently read over Mr Pendlebury’s written statement. He said he had seen the Applicant on two occasions through telehealth for the purpose of providing an opinion.
Professor Bittar said it was his opinion that the Applicant’s very heavy physical work led to a very substantial type of stress on the spine.
Mr Hilliard noted that from 2004 to 2016, the Applicant would typically do a cycle of 28 days on, and 28 days off, and this changed to a 14-day cycle in 2016. Professor Bittar responded that the type of physical work, of a heavy repetitive nature, would place anyone at a higher risk of developing spinal problems, and would advance degenerative changes.
The Tribunal asked the witness what he meant by ‘advance degenerative changes’. He responded: “Everyone develops changes as they age. If you have work stress on the spine you are going to have a higher chance of developing changes earlier. Studies show that people in such cases are more likely to have disc herniations.”
Professor Bittar said some people display no degenerative change at the age of 50, and he sees that occasionally. He said an individual not predisposed, doing heavy work for a number of years, may well bring about change on its own. When asked whether structural failures were observable in the Applicant’s MRI, he responded: “Yes, disc degeneration. Disc desiccation. Annular tear. A number were present in the Applicant’s case. L5-S1 and L4 as well.”
Under cross-examination Professor Bittar agreed that he saw Mr Pendlebury in October 2021 and recommended surgery as a reasonable treatment option. Mr Harding asked if he told the Applicant that and that he would perform it. Professor Bittar responded, “I am sure I would have told him. Under normal circumstances I would be able to operate but it was the middle of Covid. He could have had the surgery in Tasmania”.
Professor Bittar agreed that he had been given a copy of Dr Jonathan’s report. Professor Bittar confirmed he did not agree with its conclusions.
Mr Harding asked Professor Bittar about his diagnosis of an aggravation of Mr Pendlebury’s lumbar spondylosis. He responded, “It can occur that way, earlier than it otherwise would, if someone with a degenerative disease is doing biomechanical work. A pre-existing condition can accelerate, or a new pathology can develop.”
Professor Bittar agreed that he did not identify an acute prolapse. He said, “It is most likely existing degenerative changes, aggravated by work. I am not saying it did happen in this particular case.”
Mr Harding asked if there was aggravation after the 2012 incident. Professor Bittar responded that there were two events, the 2012 event and after that Mr Pendlebury got back to doing heavy physical work. He said his view was that the point it became more symptomatic was the 2020 incident, which was the more serious one. He added that the 2012 incident probably played a role.
Professor Bittar said he considered the degenerative condition would ‘largely’ have remained asymptomatic but for the 2020 incident, and would not have been disabling. He considered the Applicant would have experienced back pain ‘now and then’.
Professor Bittar said he was not aware of any significant pre-existing symptoms before 2012 and was not aware of an MRI done in 2010. He said the Applicant did not mention it. He said, “Manual workers often get a bit of back discomfort. I don’t consider that a significant history. If that is why he had an MRI, it would not change my view. An ordinary MRI doesn’t always correlate with significant symptoms. I can’t draw too many conclusions from any earlier MRI.”
Mr Harding asked Professor Bittar if he accepts that the Applicant having an MRI in 2010 was consistent with a longitudinal history of age-related lumbar spondylosis. He responded, “No, it is not. He was 38 years old then. It is not consistent with age-related spondylosis.
38 is on the younger side. I question the clinical relevance [of the 2010 MRI]. You wouldn’t usually order it for back pain alone. He may have had injury to another body part. It cannot be assumed it was ordered for back pain. It may be that they were looking for a compressed nerve, sometimes.”Mr Harding noted that the Applicant did not see a doctor and did not take leave from 2012 to 2020 for back problems. Professor Bittar responded, “Lots of people are stoic. It is all very subjective. He still had ongoing symptoms. ‘Significant recovery’ is someone who becomes minimally symptomatic. There is radiological evidence of an underlying condition. Most people don’t have that. Changes in the spine are like wrinkles on the skin – they happen with age – his underlying condition was not the problem here, the incidents were.”
Mr Harding put to Professor Bittar that the changes were consistent with a person with an underlying degenerative condition. He responded, “I disagree. It was the stress of work.”
Mr Harding suggested that the natural history of a degenerative condition is that it evolves with age. The witness responded, “No. Everyone has degenerative changes but only a small percentage of the population is disabled by it. It is much more likely that his work-related activity is the contributor.”
Professor Bittar said he wanted to clarify his comment that it would have been most likely to have remained asymptomatic. Professor Bittar told the Tribunal that he meant it would have remained asymptomatic if the Applicant had not kept doing heavy physical work.
The Tribunal asked if Professor Bittar had the view that Dr Jonathan was biased. Professor Bittar said it was not accurate to say that; but he thought the report sounded biased.
In response to questions about a portal which allows medical practitioners to look at past scans of a patient on-line, Professor Bittar said he had checked and it did not show that Mr Pendlebury had an MRI in 2010, but it did show he had x-rays of the hip, foot and ankle in May and June of 2010 on six occasions, and a scan of the foot in 2019.
Dr Hazem Akil
Dr Akil confirmed he had written a report on the Applicant on 6 March 2023. He said he considered Mr Pendlebury’s symptoms serious and that they affected his capacity for work. He reiterated the conclusion in his report that the Applicant’s prognosis was poor, but that surgery would be a ‘great help’.
Dr Akil said degenerative back conditions are commonplace, but symptomatic degeneration requires factors, which include smoking, lifestyle and the nature of everyday activities, including work, play a part.
Dr Akil confirmed he had seen the Armitage report which describes the work the Applicant was regularly undertaking when at sea from 2004 to 2020. When asked if the nature of this work was significant in terms of the Applicant’s back condition, Dr Akil said: “definitely. Repetitious bending, repetitious lifting, doing them on a daily basis. He has symptoms from 2012 but the incident in 2020 led to incapacity. There have been a significant number of studies showing a significant correlation between the physical nature of work and symptomatic degeneration, including a Danish study.”
Under cross-examination, Dr Akil said he was unaware of a 2010 MRI. In response to Mr Harding, he said that a history of back pain could be a contributory factor, depending on what sort of back pain there was. Dr Akil said there was no frank injury but there were modic changes and the surroundings of the discs became inadequate. He said, in Mr Pendlebury’s case, fusion surgery would assist but would not completely eliminate the pain.
Dr Akil confirmed his view that the aggravation of the Applicant’s degenerative condition was caused by repetitive activities and that it became symptomatic in 2020; “It takes years to develop”. He agreed that there is multi-disc degeneration. Dr Akil said everyone will have degeneration of the spine caused by ageing, but the issue is how quickly this will occur and whether a person is going to be symptomatic: “A European study found that ninety per cent of people aged 25 had some lumbar degeneration. You need to eliminate the cause. Something like repetitive bending will accelerate the degeneration.”
Mr Harding asked Dr Akil whether it was his hypothesis that the nature of Mr Pendlebury’s duties led to degeneration. Dr Akil responded, “It is not just a hypothesis. It will lead to accelerated degeneration. Degeneration is not a disease. What we see on an MRI scan is that a person might have minimal symptoms. At my age, I have significant degeneration, but I don’t have symptoms. What is not inevitable is the development of the symptoms.”
Mr Harding suggested to Dr Akil that the usual trajectory is that a person worsens. He responded, “I disagree. The person will worsen radiologically, but not symptomatically”.
The Tribunal asked Dr Akil to explain what he meant by modic changes. He responded, “Modic changes are a description of how a bone appears around the disc. He said it shows as a different colour on an MRI. There are three modic levels: modic 1 is inflammation; modic 2 is fatty indentation, which the Applicant has; and modic 3 is when the bone becomes sclerotic. Often fusion is futile, but for modic changes, the Applicant would benefit.”
Dr Charles (Phil) Allen
Dr Allen gave sworn evidence and confirmed he had prepared a report dated 11 August 2023 in relation to the Applicant.
Dr Allen was asked by Mr Harding what he meant by the progression of the Applicant’s degenerative lumbar spondylosis. He responded, “Any degenerative disease process tends to be progressive. Part of the natural ageing process, it parallels our linear age. The natural history defines progression over time.”
Mr Harding asked Dr Allen to explain to the Tribunal his reasoning as to why he formed the view that there has been a progression in the Applicant’s degenerative condition. He responded, “The main reason was his history. He first had problems in 2012. He described the symptoms and treatment. His symptoms are now more severe, and in the absence of a major musculoskeletal change, it is the natural history.”
Dr Allen said the 2012 MRI reports was in keeping with long-standing degenerative spondylosis. Mr Harding noted that Dr Alaishkevich refers to disc protrusion and a history of back problems back to 2010, with MRIs in that year and in 2012. Dr Allen said he noted that the 2020 MRI states that there is arthritis in the Applicant’s spine. He said that Mr Pendlebury has a long-standing degenerative condition and, if it was present in 2010, it is a long-standing condition.
Under cross-examination, Dr Allen said he had noted that Dr Alaishkevich referred to a ‘2010’ MRI but he had thought at the time it was a typographical error because he had not seen any 2010 MRI and so did not put much weight on that.
Mr Hilliard asked Dr Allen why he had concluded in his report that the Applicant had a “transient exacerbation in May 2020 and this has been superseded by the ongoing profession of his degenerative lumbar spondylosis which has continued to evolve since that time and has superseded the work-related exacerbation”, and asked why in particular Dr Allen was of the view that there was a transient exacerbation which had been surpassed. Dr Allen said he relied on his experience as an orthopaedic surgeon. He said there was no evidence of a significant new injury in 2020 and therefore in his opinion it was a transient exacerbation of a well-established lumbar spondylosis.
Dr Allen agreed that the Applicant had told him his symptoms were significantly worse in May 2020. Dr Allen said in his opinion the symptoms the Applicant reported were “out of step with objective clinical findings of the disease. He was reluctant to move his spine. He came in with a cane and used it in unison with his leg as an actor would in a Hollywood film.”
Dr Allen agreed he was an orthopaedic surgeon and not a neurosurgeon but told the Tribunal he had performed spinal surgery in the past. Mr Hilliard asked whether Dr Allen knew that other specialists had considered the Applicant a good candidate for fusion surgery. He responded, “I did not know that. I see other opinions suggest a sixty per cent improvement. That doesn’t say fusion surgery is not a good thing.” Dr Allen accepted that Dr Jonathan had agreed that fusion surgery was appropriate.
Mr Hilliard noted that Mr Pendlebury has not gained the ability to return to work, in the opinion of any doctor he had seen, or Independent Medical Examination (‘IME’) doctor. Dr Allen agreed, and added “Degeneration is in line with the natural history. Symptoms are not in keeping with objective evidence. I said, were he my patient, I would not recommend surgery at this time.”
Mr Hilliard asked Dr Allen about the significance of modic changes. He responded, “I don’t see modic changes. I didn’t have the MRIs themselves.” He said he accepted what other doctors had said about recommending fusion surgery.
Counsel for the Applicant asked Dr Allen what he meant by using the word ‘transient’, if it was caused by work but then stopped. He agreed. He added, “That is my opinion on the natural history. A lot of heavy work. I can’t say how long that transient period is.”
Mr Hilliard asked Dr Allen whether his evidence was that everyone recovers from degenerative back disease. The witness responded, “That is not what I said. The literature says the average [recovery from exacerbation] is 122 days, it is a bell curve.” He agreed that not everyone recovers from degenerative back disease.
Dr Allen said there was no evidence of a new injury or a new pathology in the MRIs that can be ascribed to the 2010 incident the Applicant reports. He said there is no evidence of a material injury at that time.
Mr Hilliard asked the witness whether he accepts that there was an injury. He responded, “There was an exacerbation.”
Counsel for the Applicant asked whether Dr Allen felt that heavy lifting work can put strain on discs. He responded, “Yes and no. Discs don’t wear out with activity.”
Dr Allen was asked about the article from the journal Spine. He agreed that it is a reputable, peer-reviewed journal, but noted that none of the authors are medical practitioners and they have extrapolated from other articles. Mr Hilliard read to the witness the following extract from the article, and asked if he agreed with it:
The most prominent structural failures associated with IVDs [intervertebral discs] are annulus tears, disc prolapse, endplate damage, disc narrowing, radial bulging, and osteophyte formation in the vertebrae. IVDs were found to be vulnerable to compression, flexion, axial rotation, and complex loading mechanisms through single impact, cyclical and continuous loading. However, chronic loadings had a more damaging impact on the spine.
Dr Allen said he agreed with these conclusions, except for the last sentence.
Dr Allen said he had seen the Armitage report. Mr Hilliard referred to the 28-day cycle rotation, during which the integrated ratings are not permitted to disembark from the ship and throughout which they are involved in lashing the cargo, and that this was physically demanding work, which the Applicant undertook from 2004 to 2020. Dr Allen responded, “None of this is surprising to me. I referred to the heavy type of work he did. He told me, and I accept it.”
Mr Hilliard asked whether Dr Allen thought undertaking very heavy repetitive work in confined spaces would contribute to increased degeneration of the Applicant’s long-standing spinal condition. He responded, “There are two sides. He was continuing to do work and maintaining physical fitness to do this work. Then he had an injury in 2020. He had an underlying condition. His fitness contributed to the rate of degeneration.”
Mr Hilliard pressed the witness and asked if it was his view that the physical work contributed to the degenerative progress. Dr Allen said, “It is not a simple case to say that.”
Dr Ashish Jonathan
Dr Jonathan, a consultant neurosurgeon, interviewed the Applicant by video and provided a report dated 5 November 2021 (TD, p 96).
Dr Jonathan agreed that he had seen an MRI dated 12 May 2020 which in his opinion shows multilevel degenerative disease of the lumbar spine, most evident at the lumbosacral junction. He told the Tribunal he was aware that Mr Pendlebury had seen Dr Alaishkevich and noted that Dr Alaishkevich referred to an MRI done in 2010 but he did not have a copy of that MRI.
Dr Jonathan said he asked Mr Pendlebury about a prior injury in 2012. He said the Applicant told him he felt a ‘click’ and five days later had back pain, “It is impossible to injure and feel pain five days later. His report is consistent with degeneration”.
Under cross-examination, Dr Jonathan said he understood that the Applicant’s work on the ships was securing vehicles by lashing them, and that it was predominantly manual. He said he had read the Applicant’s witness statement, in which he describes in detail his typical physical work at sea, but agreed that he read that statement subsequent to writing his 2021 report.
Mr Hilliard drew Dr Jonathan’s attention to the medical notes of Dr O’Donoghue taken in May 2020. He said he had read them before. Mr Hilliard described that the Applicant said he was bent at the waist under the tray of a truck, with a ratchet bar pushing downwards, and had a sudden onset of pain, which he reported to his doctor. He asked Dr Jonathan whether he agreed that was an injury. Dr Jonathan responded, “The Applicant did not mention that.”
Mr Hilliard asked Dr Jonathan whether he accepted an injury occurred. He responded that the notes say, “the pain ‘spread to the thoracic’ and this was not consistent with a lumbar injury. The symptomatology the Applicant has described is of the lumbar area. This is the shoulder area. Not the lumbar spine. A lumbar injury would not spread to the thoracic”.
Mr Hilliard asked if the report Mr Pendlebury gave to Dr O’Donoghue, of pain starting in the lumbar area, would be consistent with a lumbar injury. He responded, “Yes. Pain radiating on 25th May when he presented.” Counsel for the Applicant then asked if he accepted that pain radiated to his buttock and thigh. Dr Jonathan responded, “No. It could arise for many reasons”.
Mr Hilliard asked whether the pain described was consistent with an injury to the lumbar spine. Dr Jonathan responded, “It is possible. Consistent means causal – I cannot establish that. It is possible.”
When asked whether numbness is consistent with injury to the L5 vertebra, Dr Jonathan responded, “I would have to see presentation in entirety. If a person has pre-existing pain in the leg. I cannot find causal connexion. He had a pre-existing condition; there was a decade of degeneration happening in his back.”
Mr Hilliard asked, accepting that the Applicant has lumbar degeneration and had an incident at work, if the witness accepted that he has likely had an injury, which might be an aggravation. Dr Jonathan responded: “I would say this man has longstanding radicular symptoms for a decade. He continues to experience symptoms not from tightening the ratchet. I am not going to tie it to that when he has ongoing symptoms from a pre-existing constitutional condition.”
Mr Hilliard noted that Mr Pendlebury had seven years at work with no time off during heavy work, which Dr Jonathan accepted. He then asked, “on 8 May 2020 he had a sudden onset of back pain – is this likely due to what he was doing at work?” Dr Jonathan responded, “It is possible.”
Mr Hilliard asked if it was overwhelmingly likely. Dr Jonathan responded, “I would not say that, because he would have said that in his claim form.”
Dr Jonathan agreed that symptoms have persisted since May 2020 and have not been resolved by conservative treatment. He agreed that Dr Alaishkevich and Professor Bittar had both formed the view that fusion surgery was desirable. Dr Jonathan said he thought that was a reasonable approach.
Dr Jonathan said it was his opinion that “there was no structural damage relatable to the Applicant’s work. Overwhelmingly, it was degeneration. The only cause of structural change was degeneration which preceded 8 May 2020 by a decade. It is driven by genetics. All these things are causing his ailment. There is no radiological evidence that can be pinned on 8 May 2020. If there had been exacerbation, it hasn’t contributed to an ongoing problem. Manual labour has nothing to do with it. Not because of an injury on 8 May 2020, because of a constitutional problem”.
Mr Hilliard asked whether Dr Jonathan accepted that the Applicant’s symptoms got worse after 8 May 2020. He responded, “I don’t want to add anything. There is no evidence of traumatic pathology arising from 8 May. No evidence attributable. The symptoms got worse, but it could have been because of the natural course of lumbar spine degeneration.”
Counsel for the Applicant asked whether Dr Jonathan agreed that repetitive lifting can contribute to degeneration. The witness responded, “There is no evidence to support that.”
Mr Hilliard posited that small, repeated injuries will contribute to a degenerative condition. Dr Jonathan responded, “I disagree. But if an injury causes structural change, there is no evidence of structural change.” He agreed that there is damage to the structure of Mr Pendlebury’s spine but said, “It is damaged because of degeneration, not because of a traumatic process”.
Dr Jonathan said he had seen the article from the journal Spine, and agreed it is a respected journal. He noted that this was a report of collected literature, not original work. Dr Jonathan was read the extract (set out above) and said he agreed with the first sentence but strongly disagreed with the second.
Mr Hilliard noted that three neurosurgeons disagree with Dr Jonathan’s views about the Applicant, but Dr Allen agreed. Dr Jonathan responded, “Yes. My views are mine.”
CONSIDERATION
It is not in contest between the parties that the Applicant has a degenerative condition affecting his spine; lumbar spondylosis. That is evidenced from the MRI reports which are referred to in the several medical reports before the Tribunal, and in the oral evidence of five expert medical witnesses who gave evidence at the hearing.
There was evidence about an MRI scan apparently done in 2010 showing degeneration at L2/3 and L4/5, which is referred to in a medical letter Dr Alaishkevich wrote to the Applicant’s general practitioner, Dr O’Donoghue, on 11 June 2020.
However, Dr Alaishkevich, whilst confirming in his oral evidence that his notes say he was told by the Applicant when he examined him that he had an MRI on 14 September 2020, he did not have a copy of any MRI report. None of the other expert medical witnesses who gave evidence had a copy of a 2010 MRI and some had no knowledge of one. Mr Pendlebury himself gave evidence that he remembered x-rays around that time, but he could not recall an MRI. During his evidence, Professor Bittar called up the Victorian portal, which medical professionals can use to find historical imaging reports including MRIs. Professor Bittar told the Tribunal that there is no evidence of the Applicant having an MRI on that portal, whilst noting that, if it had occurred in Tasmania, it might not necessarily appear on the portal.
Overall, because of the lack of firm evidence, the Tribunal cannot make a finding that there was an MRI in 2010.
On 7 December 2012, an MRI scan was taken which revealed a right-sided posterior-central disc protrusion, causing marked compromise of the S1 nerve, and marked compromise of the S1 nerve root on the right. The MRI scan report also noted posterolateral degenerative chances to discs.
In his witness statement dated 11 November 2022, Mr Pendlebury described suffering an injury on 8 May 2020. He said:
On 8 May 2020 my back became very painful during my lashing duties on the Spirit of Tasmania. At that time I was pulling tension on the lashing straps.
Mr Harding asked the Applicant what he was doing when he felt the pain on 8 May 2020. He said he was crouched under the tray of a truck putting tension on a lashing strap, using a tension bar. Counsel for the Respondent asked why he had stated that he was ‘pulling’ in his statement. The Applicant said that he meant to type the word ‘putting’. The Tribunal accepts that this is a typographical error; the grammar of the sentence admits that the word should be ‘putting’, and the Tribunal accepts that is what Mr Pendlebury was trying to convey, in terms of his mechanical actions at the time.
He went to the medic on board who gave him some painkillers. He returned to work the next day. On 9 May, whilst lashing, he felt a sharp pain in his back. He again saw the medic. The next morning, he reported to a supervisor that the pain had increased considerably, and he was finding it difficult to walk. The supervisor told him to again report to the medic.
Mr Pendlebury had a lumbar MRI on 13 May 2020 which showed:
L3/4 disc desiccation and minor protrusion on the theca. L4/5 mild annular bulge with mild facet arthropathy. L5/S1 reduction in disc height, mild to moderate annular bulge, moderate facet arthropathy and mild foraminal stenosis.
Counsel for the Applicant referred to a consultation the Applicant had with his general practitioner, Dr O’Donoghue, on 25 May 2020. Counsel for the Respondent initially objected to this being brought forward in evidence, but did not pursue the objection. To the Tribunal’s mind, Dr O’Donoghue’s clinical notes carry significant weight. These notes had not been seen by the parties until they were produced under summons to the Tribunal. As set out above, they record what Mr Pendlebury told his GP just over two weeks after the incident on 8 May 2020. The description Dr O’Donoghue recorded, of what occurred on 8 May 2020, is consistent with the Applicant’s witness statement and his oral evidence at the hearing.
The Respondent submitted that, based on Dr Jonathan’s evidence and medical report, the Applicant did not report a specific injury event or mechanism, and therefore he considered that the ongoing pain was due to pre-existing degeneration in the spine which dated back to 2012, and not to any work-related aggravation or acceleration. The Tribunal accepts Dr Jonathan’s evidence that the Applicant may not have reported a specific injury event to him when they spoke, but it is clear that he did report one to Dr O’Donoghue. The Tribunal notes that Dr Jonathan saw the Applicant by video link, to prepare his 2021 report, and never physically examined him.
Professor Bittar (also by video) examined Mr Pendlebury in October 2021 and February 2022. He made a diagnosis of ‘aggravation of lumbar spondylosis’. He noted a history of back symptoms since 2012, and was of the opinion that the Applicant’s condition deteriorated significantly whilst he was undertaking lashing duties on ship on 8 May 2020.
Professor Bittar considered that Mr Pendlebury’s lumbar spondylosis was asymptomatic prior to the incident in 2012 (a repetitive strain injury), and the incident on 8 May 2020. He was of the view that the injury that occurred during the Applicant’s rehabilitation in 2012 was the ‘dominant contributing factor’ in the causation of his aggravation of lumbar spondylosis, and that the 8 May 2020 incident was ‘also a significant contributing factor’ in the causation of his back condition deteriorating and him losing the capacity to work.
Dr Alaishkevich examined Mr Pendlebury again in July 2020 and July 2021 and wrote a report dated 2 December 2022. He concluded that the Applicant’s employment in general and the incident on 8 May 2020 in particular were material contributing factors to a significant exacerbation of a pre-existing degenerative lumbosacral spine condition.
Dr Akil examined the Applicant on 6 March 2023 and wrote a report of the same date. He said he concurred with the opinions of Dr Alaishkevich and Professor Bittar that Mr Pendlebury has aggravation of lumbar spondylosis. He went on to say: “On the balance of probabilities, the nature of his work, lifting repetitively heavy objects as well as repetitively bending, is a significant contributing factor to the presence of his current condition.”
The Applicant was examined by Dr Allen in August 2023, and he wrote a report dated 11 August 2023. Dr Allen expressed the view that the root cause of the Applicant’s condition is degenerative lumbar spondylosis, which is longstanding. He further expressed the opinion that: “There was a transient exacerbation of his lumbar spondylosis in May 2020, which has been superseded by the ongoing progression of his degenerative lumbar spondylosis…the work-related exacerbation has been surpassed by the progression of his underlying degenerative disease.”
In his oral evidence, Dr Allen reiterated that he accepted the Applicant suffered an injury in 2020, and in cross-examination also reiterated that he thought it was a ‘transient’ exacerbation, but he told the Tribunal he could not say how long that transient period was.
There is no special medical meaning of the word ‘transient’. Therefore the Tribunal adopts the dictionary definition of the word. The Concise Dictionary of Current English has this definition: transient – 1. Of short duration; momentary; passing; impermanent. The Australian Reference Dictionary defines the word: transient – quickly passing away; fleeting.
It is concerning to the Tribunal that Dr Allen, in his summary of the information that had been provided to him in relation to his providing a report on the Applicant, refers to being provided with “Doctor/GP reports E O’Donoghue – 29 May 2020”. That is the date on which Dr O’Donoghue conducted a telehealth consultation with Mr Pendlebury (Exhibit R9, p 22), but it was the previous consultation he had with her, four days before, on 25 May 2020, in which she set out his report to her of the incident on 8 May 2020 that is much more important. That was not apparently provided to Dr Allen and may well have affected the conclusions he drew. This is because Dr O’Donoghue recorded what her patient told her about what he said was the physical effect on him and symptoms of an incident just 13 days earlier, which gives her clinical notes significant weight.
In respect of Dr Jonathan’s evidence, his opinion was that Mr Pendlebury’s condition is wholly constitutional and unrelated to the nature of the work he does as an integrated rating. The Tribunal found Dr Jonathan’s evidence, under cross-examination, displayed a rigidity that reflected a concrete approach to his 2021 opinion. He was unwilling on several occasions even to accept a hypothesis put to him, and then would express the view, as outlined in the evidence summary above, that some alternatives were ‘possible’. Although he had been reminded (as had all the expert witnesses) at the beginning of his oral evidence of the Tribunal’s guidelines for Persons Giving Expert and Opinion Evidence, and that an expert witness is not to be an advocate for any party, because of his dogged refusal to accept anything other than his written opinion in 2021, the Tribunal considers that Dr Jonathan strayed into the shoals of being an advocate for the Respondent. A good expert witness will make appropriate concessions. Because of this dogmatic approach, the weight that the Tribunal gives his report is markedly lessened.
The Tribunal notes that it would appear that three of the expert witnesses: Professor Bittar, Dr Akil and Dr Jonathan, did not physically examine the Applicant and instead the consultations were by video. Dr Alaishkevich undertook both in-person examination and subsequent video consultations. It would seem from Dr Allen’s report that he did see Mr Pendlebury in person. The Tribunal places greater weight on the expert opinions of practitioners who have had the opportunity physically examine a patient.
The Tribunal places significant weight on Dr Alaishkevich 2 December 2022 report. He first saw the Applicant in June 2022, referred by Dr O’Donoghue for assessment, which was soon after the 8 May 2020 incident and the 25 May 2020 consultation with her. The Applicant’s solicitors asked Dr Alaishkevich the following question: “If you consider that our client suffers from a work-related aggravation of a disease, your opinion as to whether the aggravation continues”.
Dr Alaishkevich’s written response in December 2022 to this question was:
Having regard to your client’s
-physical and repetitive nature of long-term employment as a seafarer,
-history and mechanism of the workplace incident on 8/5/2020,
-chronic and refractory character of pain after the incident,
-previous back problems,
-ability to work full-time as a seafarer before the incident,
-failed long-term relief after conservative treatment,
-only temporising relief after pain interventions,
-insurer’s liability accepted for medical consultations, investigations and interventional pain procedures,
-clinical examination,
-available radiological results,
-available medial documentation, GP notes and reports of other medical specialists,
I consider his employment in general and the stated incident in particular as materially contributing factors to a significant exacerbation of a re-existing degenerative lumbosacral spine condition.
Dr Alaishkevich stated that he read Dr Jonathan’s report, and agreed with his comments about the choice of surgical procedure for Mr Pendlebury for his L5/S1 disc pathology, but stated he was not convinced that the Applicant’s condition is unrelated to his employment with the TT-Line Company.
The Tribunal also places significant weight on the report of Mr Michael Armitage, occupational physiotherapist, dated 8 August 2020 (Exhibit A2). Mr Armitage spent time on board the Spirit of Tasmania with the integrated rating crew, observing and participating in their lashing duties and also undertook ergonomic assessments of some of the office spaces onboard. He interviewed the crew to discuss the manual handling risks associated with their work, and appears to have provided advice to TT-Line Company Pty Ltd on strategies to mitigate risks in regard to the design of the new vessels that the company is currently in the process of procuring to replace the current sea-going ferries.
During the hearing, the Applicant was shown illustrations of other integrated ratings undertaking lashing duties in confined spaces on the vehicle decks, and the expert medical witnesses reported they had seen the Armitage report. It was not contested by the parties that Mr Armitage has accurately depicted the type of work and conditions under which Mr Pendlebury was typically working, in tight spaces in the ship’s hold, sometimes crouching down under the trays of trucks.
All of the medical witnesses said they had read the Armitage report and the Tribunal finds the photographs and commentary objectively illustrate the cramped conditions under which integrated ratings undertaking cargo lashing tasks work, which requires them to sometimes contort their bodies into awkward positions to secure and tighten marine lashings.
Section 3(1) of the Act defines the word ‘aggravation’ to include acceleration or recurrence. The same section defines ‘disease’ to mean any ailment suffered by an employee (s 3(1)(a)); or the aggravation of any such ailment (s 3(1)(b)), being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment.
The Respondent accepts that the Applicant’s degenerative back condition is an ‘ailment’ for the purposes of s 3 of the Act (see paragraph 50 of submissions dated 22 August 2024).
In Casarotto v Australian Postal Commission (1989) 86 ALR 399, Hill J said, at [405] in distinguishing aggravation and acceleration:
...what appears in any event from the ordinary English meaning of the words ‘aggravation and acceleration’, namely that “aggravation” connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which, if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words, it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease.
The Tribunal is satisfied on the evidence before it that Mr Pendlebury’s underlying lumbar spondylosis suffered an aggravation as a result of an injury he sustained on 8 May 2020.
Applying the ‘evaluative threshold’ referred to in Comcare v Canute [2005] FCAFC 262, the Tribunal is satisfied on the balance of probabilities that the repetitive and physically demanding nature of the work, especially in applying tension with full body weight when tightening the lashing straps on cargo, contributed to a material degree to the Applicant’s underlying condition. This is consistent with the expert medical opinion, especially of Dr Akil, about the biomechanical nature of the stress on the Applicant’s back in undertaking these work tasks.
The Tribunal prefers the evidence of Dr Alaishkevich (particularly), Professor Bittar and Dr Akil to that of Dr Allen and Dr Jonathan. In the case of Dr Allen, the Tribunal notes his acceptance that there had been an injury on 8 May 2020 but that it resulted in a ‘transient’ exacerbation, but that he could not say to the Tribunal how ‘transient’ this exacerbation was. This use of the word ‘transient’ is at odds with the ordinary meaning of the word. The Tribunal also notes that relevant medical history was not provided to Dr Allen which may have affected the conclusions he drew. The Tribunal is not satisfied to accept that there was a transient exacerbation in the sense suggested by Dr Allen, especially as he has not opined as to when that transience might have ceased. The Tribunal does not accept Dr Jonathan’s opinion that Mr Pendlebury’s work did not contribute to an aggravation of his accepted degenerative spinal condition.
The Tribunal is satisfied that the Applicant’s work had a material effect on the aggravation of his underlying degenerative spinal condition. In respect of the Spine article (Exhibit A8), the Tribunal does not place significant weight on its contents. It is a literature review and not a report of original research. The more compelling evidence before the Tribunal is the general consistency of medical evidence about the impact of the Applicant’s daily heavy manual and repetitive work on his degenerative back condition.
The Tribunal notes that the parties decided not to call psychiatrist expert witnesses, and the Respondent agreed that, should the Tribunal find in favour of the Applicant, it was conceded that Mr Pendlebury suffered a psychiatric injury, and that the condition results in an incapacity to work. The Tribunal acknowledges that concession in terms of its finding in favour of the Applicant in relation to that particular application.
DECISION
In respect of application 2022/1184:
(h)The Tribunal sets aside the reviewable decision dated 16 March 2022.
(i)In substitution therefor, the Tribunal decides:
(i)The Applicant continues to suffer from the effects of the injury he suffered to his spine, sustained on 8 May 2020;
(ii)The Applicant is totally incapacitated for work;
(iii)The Respondent, under s 26 of the Act, has an ongoing liability under s 31 of the Act for incapacity payments and s 28 for medical expenses in relation to the injury;
(iv)That the Applicant’s claim be remitted to the Respondent for determination of his entitlements to incapacity payments and medical expenses from 18 November 2021 to date;
(v)That the Respondent pay the Applicant’s costs, as agreed or assessed.
In respect of application 2022/5973:
(a)The tribunal sets aside the reviewable decision deemed to have been made on 22 May 2022.
(b) In substitution therefor, the Tribunal decides:
(ii)That the Applicant sustained an injury to his lumbosacral spine involving the aggravation and acceleration of a degenerative condition of his lumbosacral spine as a consequence of the nature and conditions of his employment of the period from 2003 to 8 May 2020 working for the Respondent;
(iii)That the Applicant is totally incapacitated for work;
(iv)The Respondent under s 26 of the Act has an ongoing liability under s 31 of the Act for incapacity payments and s 28 for medical expenses in relation to the injury;
(v)That the Applicant’s claim be remitted to the Respondent for determination of his entitlements to incapacity payments and medical expenses from 18 November 2021 to date and continuing;
(vi)That the Respondent pay the Applicant’s costs, as agreed or assessed.
In respect of application 2023/4068:
(a) The Tribunal sets aside the reviewable decision dated 8 May 2023.
(b) In substitution therefor, the Tribunal decides:
(i) That the Applicant has suffered a psychiatric injury described as an adjustment disorder, as a consequence of the condition of his lumbosacral spine;
(ii)
That the Respondent has, under s 26 of the Act, an ongoing liability under
s 31 of the Act for incapacity payments and s 28 for medical expenses in relation to the Applicant’s consequential psychiatric injury;
(iii)That the Applicant’s claim be remitted to the Respondent for determination of his entitlements;
(iv)That the Respondent pay the Applicant’s costs, as agreed or assessed.
I certify that the preceding 158 (one hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
........................................................................
Associate
Dated: 10 October 2024
Date(s) of hearing: 19, 20, & 22 August 2024 Counsel for the Applicant: Mr Brian Hilliard Solicitors for the Applicant: McNally Jones Staff Lawyers
Mr Damien HillCounsel for the Respondent: Mr Anthony Harding Solicitors for the Respondent: Sparke Helmore Lawyers
Mr Aaron La PietraANNEXURE
Schedule of Exhibits
Exhibit R1 T-documents lodged 16 March 2022 (TD)
Exhibit R2 Supplementary T documents lodged 24 August 2022
Exhibit R3 Further supplementary T documents lodged 13 July 2023
Exhibit R4 Medical report of Dr Charles Allen, dated 11 August 2023
Exhibit R5 Briefing letter to Dr Allen, dated 1 August 2023
Exhibit R6 Medical report of Dr Pankaj Relan, dated 12 January 2024
Exhibit R7 Briefing letter to Dr Relan, dated 20 November 2023
Exhibit R8 Bundle of evidence lodged by the Respondent
Exhibit R9 Bundle of further evidence lodged by the Respondent
Exhibit R10 Workers’ compensation claim dated 18 February 2012
Exhibit A1 Witness statement of the Applicant, dated 11 November 2022
Exhibit A2 Report of Mr Michael Armitage, physiotherapist, dated 8 August 2020
Exhibit A3 Medical report of Dr Hazem Akil, dated 6 March 2023
Exhibit A4 Medical report of Professor Richard Bittar, dated 26 November 2023
Exhibit A5 Medical report of Dr Ales Alaishkevich, dated 2 December 2022
Exhibit A6 Medical report of Dr Kiran Nair, dated 12 September 2023
Exhibit A7 Briefing letter to Dr Nair date 10 August 2023
Exhibit A8Article ‘Mechanical Aspects of Intervertebral Disc Injury and Implications on Biomechanics’; Spine; Volume 45, Number 8, pp E457-464
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