Richard Changadzo and K & S Freighters Pty Ltd - [2013] AATA 889

[2013] AATA 889

Division General Administrative Division

File Number

2013/2937

Re

Richard Changadzo

APPLICANT

And

K & S Freighters Pty Ltd

RESPONDENT

Decision

Tribunal
Deputy President S D Hotop
Dr J Chaney, Member

Date 13 December 2013

Place Perth
The decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable, pursuant to s 14(1) and Part VIII of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay compensation to the applicant, in accordance with that Act, in respect of an injury, namely, strain at the L4/5 segment of the lumbar spine, suffered by him on 2 January 2013.

Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.10 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction (September 2013).

........................[sgd]................................................
S D Hotop
Deputy President

Catchwords
COMPENSATION – employee of licensed corporation – applicant suffered lower back pain when performing employment activity – applicant suffered strain of lower lumbar spine – applicant's lumbar strain contributed to, to a significant degree, by employment – applicant's lumbar strain a disease – applicant's lumbar strain a compensable injury – respondent liable to pay compensation to applicant in respect of lumbar strain – decision under review set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(10A), s 5A(1), s 5B, s 7(4) and s 14(1)
REASONS FOR DECISION
Deputy President S D Hotop
Dr J Chaney, Member
13 December 2013
Introduction

Richard Changadzo (“the applicant”) has applied to the Tribunal for review of a “reviewable decision” made on behalf of K & S Freighters Pty Ltd (“the respondent”) under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) on 23 May 2013.
The reviewable decision of 23 May 2013 revoked an earlier determination of the respondent, dated 4 February 2013, whereby the respondent accepted liability under s 14 of the SRC Act to pay compensation to the applicant in respect of an injury described as “soft tissue injury/lumbar back, ?neck pain sustained on 2/1/2013”.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents”( T1–T17, pp 1–84) lodged on behalf of the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1–A14 tendered by the applicant;
·Exhibits R1–R5 tendered by the respondent; and
·the oral evidence of the applicant, Dr Paul Cleary, Mr Soni Narula, and Dr Durda Bacvic.
Factual Background
The following factual background appears from the T Documents and Exhibit A6.
On 15 January 2013 the applicant lodged with the respondent a completed Claim for Workers’ Compensation form whereby he claimed compensation under the SRC Act for a condition described as “soft tissue injury to lumbar region” sustained on 2 January 2013 and caused by “lifting and rotation of body” when working at his usual workplace. He indicated that he first sought medical treatment for that condition from Dr Paul Cleary on 2 January 2013. (T8)
An Incident Report form, dated 2 January 2013, contains the following description of the relevant incident:
“ As employee assisted two other employees to lift ladder platform into trailer, he felt a twinge in his lower back. Employee felt consistent pain when in upright position.”
It is also stated in the form as follows:
“ Richard was taken to medical centre for further assessment.”
The form was signed by the applicant and by his Supervisor/Immediate Manager. (T7)
A Workers’ Compensation FIRST Medical Certificate issued by Dr Paul Cleary on 2 January 2013 contains the following medical assessment of the applicant:
“ 5.Medical Assessment
Clinical findings / diagnosis (include possible complications, effect of prior injury or medical condition): HISTORY; this am after lifting a ladder onto a trailer turned to walk away and as he did so he felt a sharp pain on the left side of his lower back pain has been present since then pain is worse when standing also has a little bit of numbness around left hamstring area and also has some slight discomfort in the neck on the left side; no weakness in lower limbs; no past history of back injuries or problems; EXAM; very limited ROM of l/spine tender over left paraspinal muscles; sir 30 right 15 left; nuero exam okay; ASSESS; biomechanics of injury and preceding good health of patient along with his good physical conditioning don’t suggest he has a major injury; likely to be soft tissue injury to lumbar region; PLAN; restricted physical activity to allow injured area to being healing; medication to aid this; physio to help guide safe recovery activity ensure doesn’t decondition.” [sic]
Dr Cleary certified that the applicant was fit to return to work from 2 January 2013 to 9 January 2013 on restricted duties. (T6)
Dr Cleary subsequently issued Workers’ Compensation PROGRESS Medical Certificates on a regular basis certifying the applicant as fit for restricted duties from 9 January 2013 to 7 June 2013. (T17, Exhibit A6)
The Applicant’s Evidence
The applicant confirmed that he had signed a witness statement, dated 11 September 2013, for the purpose of this proceeding and that its contents are true and correct. The contents of that statement are as follows:
“1. My name is Richard Changadzo. I was born … January 1977 in Makoni in Zimbabwe. I am a qualified diesel mechanic and have been working in that capacity since 1997.
2.In May 2005 I came to Australia on a section 457 visa as a diesel mechanic. The duties involved physical work repairing and maintaining trucks, cranes, earthmoving gear.
3.I initially started at Toll Transport and I worked there between May 2005 and January 2007 under MHS RECRUITMENT. I subsequently was employed through labour hire company Recruit West and worked with them between 2007 and March 2011. I then worked for MJ & CM West between March 2011 and April 2012.
4.I have been employed by Regal Transport since April 2012.
5.On 2 January 2013, the first day of work in the new year, at 8.00 am at the start of the shift we were setting up a job to do some curtain repairs on a semi-trailer. To access the inside of the curtain of the semi-trailer being repaired, we needed to put a platform ladder onto the tray of the semi-trailer.
6.At the time I was working with Ronald and Nathan.
7.The semi-trailer was about chest height just under 1.5m high. The stepladder was of awkward dimensions although it weighed only about 20 kg. Nathan and I were on ground level and we lifted the ladder from its base with Ronald guiding the top whilst standing on the semi-trailer.
8.Whilst lifting I needed to crouch lift and rotate my body so as to push the stepladder upwards onto the tray of the semi-trailer. After performing that task, I felt a twitch in my lower back as I turned to walk away. I said to the [sic] Ronnie and Nathan I think I hurt my back. I informed Kevin my leading hand at the time who took me to the office to fill out paperwork.
9.I was brought to see the company doctor, Dr Paul Clearey [sic] at Kinetic Health in Kewdale. He assessed my injuries and gave me a First Medical Certificate.
10.I was unfit for work as a diesel mechanic but was assigned to do odd jobs in the office, parts stores and around the yard as well as driving out to pick up parts.
11.I had radiological investigations with an MRI scan on 6 February 2013. I was told by Dr Clarey [sic] that I had an annular fissure at L4/5 with a shallow disc bulge which was causing my pain.
12.I was then referred to a specialist, Dr Mark Hamlin who advised me that I had an annular fissure at L4/5. He recommended some exercises and offered to inject my spine where the fissure was.
13.I was then referred by my employer to Dr Durda Bacvic for an Independent Medical Assessment because they were concerned that my recovery was taking too long. Dr Bacvic asked me general questions such as whether I had a sore back before. I explained to her that the work that I did as a diesel mechanic was very physical and that I had in the past experienced soreness in the back after a hard day’s work.
14.The only time I have experienced notable back pain was in 2011 after doing clutch overhauls on consecutive occasions on that one occasion I was given a certificate for 2 days off work by Dr Sivapalan and after that I was rested enough to work. [sic]
15.Being a keen soccer player training twice a week and playing a game each weekend prior to my accident on 2 January 2013 I did occasionally go for physiotherapy, acupuncture, and massage. That, however, was for my leg muscles with tight calves and hamstrings.
16.There may have been some massage done on my back as well but it would have been for just tightness and relaxation.
17.Dr Bacvic misrepresents in her report by painting a picture that I was always having lower back soreness after work and needed physiotherapy, acupuncture and massage, when I did not generally have any problems whatsoever in my lower back. I was in good form as a soccer player and managed my work as a heavy duty diesel mechanic without any problems until the unfortunate incident that occurred on 2 January 2013.
18.After my employer made the decision to cut me off on [sic] workers’ compensation Dr Clarey [sic] who was a company doctor advised that he could not see me anymore due to the clinic’s charges being a bit more expensive than a GP. I thereafter went to see Dr Malathy Sivapalan for treatment because I could not get an appointment to see my GP Dr Warr. I was referred to Neurosurgeon, Associate Prof Soni Narula who diagnosed an annular fissure and recommended physiotherapy.
19.I have since attempted to return playing [sic] soccer but have had difficulties. I have not been able to return to work as a diesel mechanic due to my injuries. My employer gave me a job description with a request that a doctor sign me off as 100% fit to undertake diesel mechanic work for me to return to work. Without that they did not have any work for me. I had a discussion with Dr Clearey [sic] about that but he advised me to seek treatment since I was not medically fit.” (Exhibit A1)
In cross-examination the applicant gave evidence to the following effect:
·when he commenced employment with the respondent (April 2012), he was “feeling 100% at that time”;
·when he worked as a diesel mechanic prior to joining the respondent he used to have aches and pains but only after doing certain activities such as lifting, and at the end of the day he would “feel sore”;
·when he previously had aches and pains at work he would have an easy day the next day and his aches and pains would settle down within two days;
·he did go and see a doctor when working at MJ and CM West (March 2011-April 2012) and she gave him two days off work and prescribed anti-inflammatories;
·he had a pre-employment medical examination before starting work with the respondent and he then told the doctor that he previously had a back strain but that it did not affect his work and he was back at work after two days;
·he used to play competitive soccer but his work injury on 2 January 2013 affected his confidence in playing and he then “transitioned” into coaching and refereeing;
·he stopped playing soccer after the injury on 2 January 2013;
·he attempted to play in May 2013 and again in June 2013 but this “did not go very well” because he could only play for about 10 minutes, and on one occasion he only came onto the field near the end of the game to take a penalty kick for goal;
·he has not since made any other attempts “to play on the field of play”;
·when he saw Dr Bacvic on 6 May 2013 he had pain in his lower back, occasionally going down his leg to his foot;
·he had “intense” neck pain for about 1½ weeks after the incident on 2 January 2013 but it had “quietened down” by the third week, and had settled down before he saw Dr Bacvic.
The applicant was referred to certain documents produced to the Tribunal by Football West in response to a summons (Exhibit R1), including the following documents, and his evidence in relation to those documents was as follows:
·a document which indicated that he played a full game commencing at 3.00 pm on 5 May 2013 and scored a goal in the 52^nd minute and received a “yellow card” for an infringement – the applicant said that he did not play on that day and that the preparation of that document involved “human error”, and he added that he had refereed a junior boys’ game at 9.00 am and then went on to coach a women’s league team on that day, and he then arrived at the men’s game at about half-time and watched the remainder of the game from the bench but did not play;
·a document which indicated that he played a full game commencing at 3.00 pm on 28 April 2013 and received a “yellow card” for an infringement in the 79^th minute – the applicant said that this was the first game he attempted to play after the incident on 2 January 2013, and that he had “lied” to Dr Bacvic by not telling her about this game;
·a document which indicated that he participated in a game commencing at 3.00 pm on 14 June 2013 and scored a goal in the 92nd minute – the applicant said that this was the occasion when he only came onto the field to take a penalty kick at the end of the game and did not play in the game before that, and he added that he had refereed junior boys’ games in the morning on that day;
·documents which included his name in a list of participating players in a game on 21 April 2013 and a game on 25 April 2013 – the applicant said that those lists were prepared in anticipation of players who would be present at the game and that, although his name was included in those lists, he did not play in either of those games.
The applicant acknowledged that, when he saw Dr Cleary on 3 May 2013 for the purpose of obtaining a progress medical certificate, he did not tell him about his having played soccer on 28 April 2013. He added that Dr Cleary had not asked him about playing soccer and, if he had asked him, he would have told him.
The applicant also acknowledged that his earlier evidence at the hearing to the effect that he had only been able to play in a soccer game for about 10 minutes after the incident of 2 January 2013 was untrue.
Finally, the applicant was referred to medical records produced to the Tribunal by Dr Malathy Sivapalan in response to a summons (Exhibit A10). He confirmed that he had consulted Dr Sivapalan on 13 October 2011 in relation to neck pain and backache and that she certified him as unfit for work from 13 to 14 October 2011.
The Medical Evidence
MRI Report of Dr Michael Krieser
Dr Michael Krieser, Consultant Radiologist, provided the following report regarding the applicant, dated 6 February 2013, to Dr Cleary:
“ MRI LUMBAR SPINE
CLINICAL DETAILS
Work related lifting injury on 2/1/2013. Persistent lumbar pain.
FINDINGS
Satisfactory alignment. Normal marrow signal. No osseous injury or focal lesion identified.
T11/12 – L2/3 : Disc height, signal and contours are normal.
L3/4 :Disc height, signal and contour is normal. There is mild bilateral facet degeneration.
L4/5 : Disc height and signal is maintained. There is a shallow posterior disc bulge with possible small annular fissure. There is mild bilateral facet degeneration. Mild narrowing of the spinal canal is due to a combination of the shallow disc bulge and facet arthropathy. No foraminal narrowing.
L5/S1 : Disc height, signal and contour is normal. There is mild bilateral facet degeneration. No spinal canal or foraminal narrowing.
There is a rudimentary S1/2 disc posteriorly (doubtful significance). The distal spinal cord and cauda equina are normal. The conus is situated at T12. The paraspinal soft tissues are unremarkable.
COMMENT
1.At L4/5 there is mild multifactorial spinal canal stenosis due to a shallow posterior disc bulge and mild bilateral facet arthropathy.
2.Further mild facet arthropathy at L3/4 and L5/S1.” (T12)
Report of Dr Mark Hamlin
Dr Mark Hamlin, Consultant Interventional Radiologist, provided the following report regarding the applicant, dated 21 March 2013, to Dr Cleary:
“ Problems:
1.Work place accident 21^st [sic] January 2013.
2.Left low back pain.
3.Left sciatica.
Medications:
1.Tramadol 100 mg b.d.
2.Ceased Naprosyn one month ago.
Presenting Issue:
Richard is employed as a diesel mechanic. He suffered an injury at work on 2^nd January 2013 whilst performing a 3-person lift of 20 kilogram object on to a trailer . The pain onset was immediately after the manoeuvre when Richard stepped away from the trailer with a twisting motion. The left low back pain was very severe, 10/10 severity. This slowly decreased over one week; however, he then developed left sciatica involving the posterior thigh and calf extending to the toes. The sciatica was associated with pins and needles also.
Richard has had five physiotherapy sessions at Kinetic and now undergoes hydrotherapy four times weekly. He has good understanding of home based exercises; however, he has not been performing these due to the hydrotherapy program, which has been initiated. Our physiotherapist, Jessica Stander, has discussed the exercises with Richard today.
Psychosocial Factors:
No psychosocial factors are apparent. No features of depression.
Physical Examination:
There is moderate tenderness on provocation of the left L4-5 facet joint. Mild L4-5 midline tenderness is present. No right paraspinal tenderness is evident. Lumbar flexion is satisfactory, reaching toes. Lumbar extension is satisfactory with no exacerbation of pain. There is mildly reduced left lateral flexion, painful. Right lateral flexion is normal. The right straight leg raise is 80 degrees, left straight leg raise is 65 degrees. Single leg squat manoeuvres are satisfactory. No sensory or motor deficit is present bilaterally.
Radiology:
I have reviewed the MRI lumbar spine reports 6^th February 2013 (Envision Radiology). I note that there is mild multifactorial spinal canal stenosis at L4-5. Mild facet joint degenerative arthropathy is present at L3-4, L4-5 and L5-S1. Of particular note, there is a small annular fissure at L4-5. I suspect that a component of Richard’s pain may be secondary to the annular fissure; however, a degree of chronic low back pain is also associated with the facet joint degenerative arthropathy.
Management Plan:
Richard has been assessed by myself and our physiotherapist. We emphasised the importance of hydrotherapy and believe this should continue for at least a period of six more weeks. We have recommended that Richard also commences further aerobic conditioning exercise including cycling as this will be beneficial for his low back pain. He should continue performing home exercises, self management. The Tramadol can be continued whilst he has severe pain; however, this will hopefully reduce over time. The possibility of left L4-5 facet joint injection has been discussed with Richard and he is willing to proceed with this if necessary. I would reserve lumbar epidural injection for later stage if there is no improvement from the localised facet joint injection. In the longer term, I have discussed with Richard that he may require further facet joint injections given that there is a degree of degenerative arthropathy at multiple levels. He could also be a candidate for radiofrequency denervation in the future; however, this has not been discussed with him today.
…” (original emphasis) (T14)
The evidence of Dr Paul Cleary

Dr Cleary said that he has practised as a general practitioner for 20 years and in recent years has practised in the area of occupational health and injury management.
Dr Cleary confirmed that he has had occasion to treat the applicant and that he first saw him on 2 January 2013 when his employer brought him for assessment and on that occasion he issued a workers’ compensation medical certificate. He said that the applicant had told him that, on that day, he had been involved in an incident which caused him to experience back pain. He confirmed that, although his examination of the applicant did not demonstrate “a great deal of definitive abnormal information”, it was nevertheless his opinion that that incident had caused the onset of his symptoms. He also confirmed that his “working diagnosis” at that time was a “likely soft tissue injury to the lumbar region”.
Dr Cleary said that he continued to see and treat the applicant in relation to that injury and confirmed that he issued various progress workers’ compensation medical certificates. He also confirmed that he had referred the applicant for an MRI scan on 6 February 2013, and on 8 February 2013 he issued a further medical certificate in which he noted that the MRI scan had shown “some degenerative changes” and “some fissuring of the L4/5 disc”.
Dr Cleary confirmed that on 15 March 2013 he issued a progress medical certificate in which he suggested the possibility of facet joint injection to help to settle the applicant’s back pain. He added that he referred the applicant to Dr Hamlin, a practitioner with expertise in pain management, for a second opinion regarding the appropriateness of facet joint injection.
Dr Cleary said that he was informed by the applicant’s employer that his description of the applicant’s condition as a soft tissue injury made it inappropriate for it to cover the cost of facet joint injection.
Dr Cleary said that he issued a further progress medical certificate on 24 May 2013 and that he subsequently saw the applicant on one further occasion when he came with a letter from his employer seeking a medical clearance for work. Dr Cleary said that he did not feel that he was in a position to make that assessment and he declined to do so.
In cross-examination Dr Cleary gave evidence to the following effect:
·in issuing the various workers’ compensation medical certificates regarding the applicant, he relied on the history given to him by the applicant and he did not question its veracity;
·the applicant may have been symptomatic in his lower back before the incident of 2 January 2013 and his complaints of pain on 2 January 2013 may have related to a pre-existing pathology;
·the applicant’s neck symptoms were “relatively minor” and have not gone on to be a considerable problem for him;
·the incident of 2 January 2013, as described by the applicant, would not have caused neck pain;
·on 12 April 2013 the applicant reported a substantial increase in his back pain symptoms and he increased the daily dose of the applicant’s medication and certified that the applicant’s work hours be reduced to 6 hours per day;
·he issued a further medical certificate on 19 April 2013.
Asked whether, when he saw the applicant on 19 April 2013, he would have expected the applicant to be fit enough to play a full game of soccer on 28 April 2013, Dr Cleary initially answered “no” but then qualified his answer by saying that he would “find it surprising” and that it would “depend on how vigorous the physical engagement was”. He said that he would have found it “very surprising” that, in between his reviews of the applicant on 19 April 2013 and 3 May 2013, the applicant could have played a full game of soccer on 28 April 2013, and he added that such activity was “incongruent” with the applicant’s presentation to him on 19 April 2013 and 3 May 2013 when he continued to certify the applicant as fit for restricted duties and restricted hours and to prescribe a large dose of pain-killing medication for him.
In response to a question from the Tribunal, Dr Cleary said that, having taken a high dose of pain-killing medication, it would have been possible for the applicant to play soccer but that it would have required “considerable determination” to do so because of the resulting increase in pain symptoms.
The evidence of Mr Soni Narula
Mr Narula, Neurosurgeon, said that he had seen the applicant twice. He subsequently wrote two letters to the applicant’s general practitioners.
Mr Narula’s letter of 17 May 2013, which is addressed to Dr James Warr, states:
“ Thank you for asking me to see this 36 year old man who describes lifting with two others at work in January 2013 and suffering back pain. He was given anti-inflammatories. In the last 3 months he has had two episodes of numbness down the left hamstring and calf affecting the sole of the foot. He also describes lack of power in his arm which appears to have settled somewhat. He also reports some headaches. The headaches appear to have started when he was taking Panadeine Forte and Voltaren and decreased only with Tramadol. He is now using 200mg of Tramadol in order to function because of ongoing back symptoms.
He denies any past history of similar symptoms.
On examination he is tall and athletic. He has good spinal posture. He is tender at L4/5/S1 in the midline and to the left at L4/5 more than L5/S1. The cervical spine reveals tenderness in the midline at C5/6 and to the left at C2/3 predominantly but going down to C4/5. His spinal movements in the lumbar and cervical [sic] were unremarkable. There was some back pain with the straight leg raise at 70° but neurologically he was intact.
I have suggested he have an MRI scan and come back for review thereafter.” (Exhibit A12)
Mr Narula’s letter of 19 June 2013, which is addressed to Dr Malathy Sivapalan, states:
“ I saw Mr Changadzo at follow up today with his MRI scan. This shows an annular fissure at L4/5. There is no convincing impingement of any sort in the cervical or lumbar regions. He needs to have physiotherapy and I have asked him to come and see you regarding a referral. There is no surgical intervention required. I note there is an issue with regard to the insurers accepting his claim although it would appear on his history that he has had no previous problem and therefore it ought to be covered.” (Exhibit A13)
In his examination-in-chief Mr Narula said that there was “no significant change” between the MRI scan of 6 February 2013 (T12) and the MRI scan of 12 June 2013 (Exhibit A11). He said that the MRI findings are generally “in keeping” with a person of the applicant’s age but that “the important finding of note” is an “annular fissure at L4/5”.
Mr Narula said that activities such as bending or leaning forward, lifting and twisting place a load on the applicant’s spine, and that that mechanism is sufficient to explain a strain on the L4/5 segment, including an annular fissure. He confirmed that his diagnosis of the applicant’s lumbar condition is “a strain at the L4/5 segment” which “conforms to the annular fissure” at that segment. He added that the annular fissure explains why the applicant continues to be symptomatic and also explains the episodes of numbness going down into his foot. He also opined that the applicant has “an element of strain in his facet joint at L4/5”.
In cross-examination Mr Narula acknowledged that it was possible that the findings in the MRI scans predated 2 January 2013.
Mr Narula said that the applicant did not tell him about playing soccer when he first saw him on 17 May 2013 but that he did so when he saw him recently on 6 November 2013. He said that on that occasion, in response to his questions, the applicant provided extensive information about his playing soccer. He said that it would be possible for the applicant to play soccer with his lumbar condition.
Mr Narula explained that he saw the applicant on 6 November 2013 so that he could obtain a more detailed history from him in order that he would be better prepared for giving evidence at the forthcoming Tribunal hearing. Mr Narula’s clinical notes in respect of his consultations with the applicant were tendered in evidence (Exhibit A14).
The evidence of Dr Durda Bacvic
Dr Bacvic said that she has practised in the area of occupational medicine in Western Australia since 1999. She confirmed that she examined the applicant on 6 May 2013 and that she prepared a report dated 16 May 2013 in respect of that examination.
Dr Bacvic’s report of 16 May 2013, which is addressed to the respondent, states as follows:
“…
HISTORY:
Occupation/Work Duties:
Mr Changadzo’s reported work history is as follows:
Duration  Employer                   Position
April 2012 to present              Regal Transport         Diesel mechanic
March 2011 to April 2012        MJ and CM West        Diesel mechanic
2007 to March 2011                Recruitwest                Diesel mechanic
May 2005 to January 2007       Toll Transport            Diesel mechanic
Mr Changadzo has been employed as a diesel mechanic with Regal Transport, K & S Freighters on a full-time basis for one year.
Mr Changadzo reported that his work duties involve repair and maintenance of trucks and the job is very physical.
Mr Changadzo reported that, in relation to the incident of 2 January 2013, he attends a gradual return to work and currently performs: office duties, yard duties and driving the company vehicle and picking up parts. He works six hours per day.
Mechanism of Alleged Injury/Sequence of Events:
Mr Changadzo reported that on 2 January 2013 that [sic] he, with the assistance of two others, lifted a ladder platform onto a trailer, laid it against the trailer and then pushed it into the trailer. Soon after he felt a sharp pain in the left side of his lower back.
He informed his supervisor of the incident, ceased work and went to a doctor.
Initial/Early Treatment Received:
Mr Changadzo reported that the doctor diagnosed him with a soft tissue injury and recommended Voltaren and Panadeine Forte and physiotherapy treatments.
Subsequent Progress/Specialist Management:
Mr Changadzo reported that he has been attending hydrotherapy treatments, four times per week, for the last three months.
Mr Changadzo reported that he also exercises at home.
Mr Changadzo reported that with medication he does not have pain, but would move slowly. He reported tension in the back, left thigh, ankle and foot.
Mr Changadzo reported that he feels an occasional drop of strength in the left leg.
Current Status:
Mr Changadzo reported mild pain in the left side of his lower back, numbness in his left sole and occasional pain in his left leg. He estimated the level of pain at 3 out of 10 (if on an analog scale 0 means ‘no pain’ and 10 means ‘excruciating pain’).
He reported that quick movements could trigger the pain.
Mr Changadzo reported no difficulties with sleeping.
He stated that he has to adjust his position while sitting or standing to get comfortable.
He reported no difficulties with walking.
He reported that he avoids lifting anything heavier than 5kg, except his son who weighs 10kg.
Present Work Status:
Mr Changadzo has been performing restricted duties and hours at work.
Present Activities:
Mr Changadzo reported no difficulties with his daily activities or maintaining his hygiene.
He reported that he has no difficulties with driving a car or performing household chores (such as cooking, washing and hanging out clothes). Mr Changadzo reported no difficulties with vacuuming but he limits his time.
Mr Changadzo reported that prolonged driving of the company ute is uncomfortable due to the very low seat.
Mr Changadzo reported that his wife would do grocery shopping or he would accompany her and use the shopping trolley to avoid carrying the weight/items.
Mr Changadzo reported that he reduced his sport to a minimal level. He coaches professional soccer and reported difficulties with demonstrating the activities. He has umpired two junior games since the incident.
Present Treatment:
Mr Changadzo reported that he takes Tramadol 200 SR (one tablet two times per day) and Naprosyn SR 1000 (one tablet per day).
Mr Changadzo reported that he attends hydrotherapy treatments, four times per week.
Mr Changadzo reported that an appointment with a neurosurgeon has been booked for him for 17 May 2012.
Past Medical History:
Mr Changadzo reported that he had soreness in his lower back after work in the past.
He would get physiotherapy and acupuncture and attend massage once or twice a month.
Mr Changadzo reported that he has been in good general health.
Mr Changadzo reported that he was diagnosed with rheumatic fever at the age of 19 or 20 years.
Mr Changadzo reported that he sustained a left ankle injury in 2007.
Personal/Social History:
Mr Changadzo reported that he moved from Zimbabwe to Australia in 2005.
Mr Changadzo reported that he lives in a de facto relationship in a rented property and has one son (10 months old).
Mr Changadzo reported that he does not smoke tobacco and drinks alcohol socially.
PHYSICAL EXAMINATION:
Mr Changadzo presented himself as a pleasant and cooperative 36-year-old, right-handed gentleman.
His height was 182cm and his weight was 78.5 kg. His BMI of 24kg/ places him in the healthy body weight category.
He demonstrated normal gait and posture, and was able to move freely.
Back/Spine Examination:
Inspection showed symmetry and no muscle wasting or deformity in the back.
The circumference of the right thigh was 41cm and of the left was 40.5cm, and the circumference of the right calf was 36cm and of the left was 36.5cm.
Palpation of the back was unremarkable.
Mr Changadzo demonstrated a full range of movements in the back:
·   flexion 90°;
·   extension 30° lateral flexion 30° bilaterally;
·   rotation 30° bilaterally.
The supine ‘straight leg raising’ test was 80° bilaterally.
He could reach his toes while sitting on the examination couch with his legs fully outstretched.
Sciatic tension signs were negative bilaterally.
He was able to walk on his heels and toes and squat with no apparent difficulty.
The neurological examination (reflexes, muscle tone and power and sensation to touch) was unremarkable.
INVESTIGATIONS:
MRI – Lumbar Spine (6 February 2013): Dr Michael Krieser, Envision Medical Imaging:
‘1.At L4/5 there is mild multifactorial spinal canal stenosis due to a shallow posterior disc bulge and mild bilateral facet arthropathy.
2.Further mild facet arthropathy at L3/4 and L5/S1’
SUMMARY AND ASSESSMENT:
Mr Richard Changadzo a 36-year-old, right-handed, diesel mechanic with K & S Freighters, who reported that in the course of his work duties on 2 January 2013 that [sic] he, with assistance of two others, lifted a ladder platform onto a trailer, laid it against the trailer and then pushed it into the trailer. Soon after he felt a sharp pain in the left side of his lower back.
I learned that the ladder platform, which was lifted by three persons, weighed 20 kg (Dr Mark Hamlin report dated 21 March 2013).
At the assessment Mr Changadzo reported pain in the left side of his lumbar spine and occasional pain in his left leg.
The clinical examination at the assessment was unremarkable.
Diagnosis:
·        Mild bilateral facet arthropathy at L3/4, L4/5 and L5/S1;
·        Mild multifactorial spinal canal stenosis at L4/5.
Further Treatment:
In accordance with current, medical, evidence-based data, simple analgesics and/or anti-inflammatory medication are recommended for symptoms management if needed. I would concur with this treatment regimen.
I would recommend an active exercise program, which should lead to self-managed exercise after a month or so.
Further Work:
Based on the history and objective findings at the assessment, in my opinion, Mr Changadzo is fit for suitable duties on a full-time basis, due to pre-existing lumbar spine condition.
I would recommend the following restrictions: avoidance of heavy lifting, repetitive back bending or sustaining prolonged forward leaning.
Prognosis:
Based on the history and objective findings at the assessment, in my opinion, Mr Changadzo’s symptoms should settle in time. However exacerbation of the symptoms could be expected in the future.
You particularly requested me to cover the following issues:
Medical
1.Would you please advise the history of the employee’s condition as he reported to you. Does this differ from the documents contained in the Case Summary, if so, please advise what effect, if any, the difference represents.
Mr Changadzo reported that on 2 January 2013 he, with the assistance of two others, lifted a ladder platform onto a trailer, laid it against the trailer and then pushed it into the trailer. Soon after he felt a sharp pain in the left side of his lower back.
2.From what specific clinical condition(s) does Mr Changadzo currently suffer? Please provide a short description of the condition including its known aetiology and progression, please include clinical signs and symptoms to support your conclusions.
Mr Changadzo has a mild bilateral facet arthropathy at L3/4, L4/5 and L5/S1 and mild multifactorial spinal canal stenosis at L4/5.
Arthropathy is a disease that involves inflammation of one or more joints. It could be caused by trauma to the joints, colitis, crystal arthropathy, diabetic arthropathy etc. The clinical signs include pain (worst following sleep or rest). Pain associated with facet arthropathy may be exacerbated by twisting or bending backwards. Lower back pain is the frequent complaint, but it does not typically radiate down the legs or buttocks, unless stenosis also is involved.
Based on the history and objective findings at the assessment, in my opinion, Mr Changadzo’s symptoms should settle in time. However exacerbation of the symptoms could be expected in the future.
3.On the balance of probabilities, is the condition currently suffered related to;
a.   Mr Changadzo lifting a ladder platform into a trailer;
b.   the incident on 2/1/2013 with K&S Freighters;
c.   a pre-existing, congenital, constitutional or underlying condition, including any personality disorder or predisposition, or
d.   the natural progression of an pre-existing condition, or
e.   an aggravation, acceleration or recurrence of a pre-existing condition, if so, has the aggravation, acceleration or recurrence resolved, if not when [sic],
f.    underlying degeneration as part of the natural aging process, if so, please advise the condition and its effect, or
g.   other health issues, or
h.   some other aspect of his employment?, if so, what and explain how it contributes to the condition, or
i.     factors unrelated to work?, if so, please advise which factor/s and their effect/s,.
(i)lifestyle issues,
(ii)life trauma,
(iii)financial issues,
(iv)family issues,
(v)any other factor not related to employment.
In answering the preceding questions, it would be appreciated if you would indicate the contributing factor.
Based on the history (the past history of the back soreness, the incident when three people lifted a ladder platform of 20 kg onto a trailer) and objective findings (arthropathy and mild multifactorial spinal canal stenosis at L4/5) at the assessment, in my opinion, Mr Changadzo’s symptoms are related to the pre-existing condition.
Medical investigation showed no evidence of aggravation in Mr Changadzo’s lumbosacral spine.
4.If you consider the employee’s employment with K&S Freighters continues to contribute to his condition, please explain the basis for your conclusion? if yes, when would you expect it to resolve?
Mr Changadzo has been performing restricted duties and hours at work. The employment is not contributing to his symptoms, however if he returns to a heavy physical job the employment may cause further exacerbation of his symptoms or aggravate the pre-existing lumbar spine condition.
5.Has the condition which was contributed to by the employee’s employment with K&S Freighters ceased and been superseded by another episode? if yes, would you please specify the circumstances of the new episode?
Mr Changadzo reported improvement in his condition.
6.Has the employee’s initial compensable condition [sic] been superseded by a different condition? if yes, would you please provide your opinion on what factors contribute to this different condition.
Based on the history (the past history of the back soreness, the incident when three person [sic] lifted a ladder platform of 20 kg onto a trailer) and objective findings (arthropathy and mild multifactorial spinal canal stenosis at L4/5) at the assessment, in my opinion, Mr Changadzo’s symptoms are related to the pre-existing condition.
7.If this is a question you consider you can answer, would the employee’s condition have arisen in the absence of his employment with K&S Freighters, ie: as an inevitable consequence of family life, given the employee’s personality?
Not applicable.
8.Are there any aspects of clinical examination which tend to suggest that the employee is:
voluntarily exaggerating his symptoms; consciously guarding, restriction of movement;
displaying symptoms, and examination findings, inconsistent with claimed condition, such as work staining/callosities etc;
making a less than appropriate effort in active demonstration;
showing inconsistency in repetitions of the same movement; and/or
demonstrating a range of movement during your passive observation of the employee which were not replicated during clinical examination;
displaying abnormal illness behaviour.
The clinical examination at the assessment was unremarkable.
Capacity
The employee had been working 35 per week [sic] with the following restrictions: avoid duties above shoulder height and below waist height, avoid twisting/pushing/pulling, can do some repetitive lifting as tolerated, no lifting heavier than 5kg, avoid prolonged standing/walking/sitting to change posture as needed, can now drive whilst taking Tramal.
9.Can you please advise what sporting activities or hobbies the employee reported, that he carries out in his spare time? How does the employee’s current medical restriction prevent him from participating in any of his sporting activities or hobbies?
Mr Changadzo reported that he reduced his sport to a minimal level. He coaches professional soccer and reported difficulties with demonstrating activities. He has umpired two junior games since the incident.
10.Does the employee currently have a capacity to engage in work at the same level at which he was engaged by K&S Freighters immediately before the injury: if yes, please advise your reasons; if no, please advise your reason/s.
Based on the history (the past history of the back soreness, the incident when three persons lifted a ladder platform of 20 kg onto a trailer) and objective findings (arthropathy and mild multifactorial spinal canal stenosis at L4/5) at the assessment, in my opinion, Mr Changadzo is likely unfit for duties of a diesel mechanic.
Based on the history (the past history of the back soreness, the incident when three persons lifted a ladder platform of 20 kg onto a trailer) and objective findings (arthropathy and mild multifactorial spinal canal stenosis at L4/5) at the assessment, in my opinion, Mr Changadzo would be at risk of exacerbation or aggravation of the pre-existing condition if he returned to a diesel mechanic position.
To get [sic] a more specific answer I would appreciate the opportunity to review Mr Changadzo’s job analysis.
11.Would you please identify the type of duties he could undertake, or specify the duties which should be avoided, in particular?
a)    the types of work the employee would be able to perform, please explain your reasons for each type of work you consider viable for the employee to undertake;
b)    the number of hours per week the employee would be able to perform, if not full hours, please advice [sic] the number of hours they could currently perform and when you consider the claimant could return to full hours;
c)     details of any work restrictions,
d)    if ‘excessive or repetitive’ lifting, bending, pushing, etc, is a restriction, please explain what you consider to be excessive or repetitive in this regard (times per hour, etc),
e)     if standing or walking for a long, or a significant period, is a restriction, please explain what you consider to be long or significant period, and what, if any, assistance do you consider the employee may need to undertake these duties/hours.
Based on the history and objective findings at the assessment, in my opinion, Mr Changadzo is fit for suitable duties on a full time basis, due to pre-existing lumbar spine condition.
12.Are there any other factors causing incapacity for work or work restrictions? If so, please provide details.
I would recommend the following restrictions: avoidance of heavy lifting, repetitive back bending or sustaining prolonged forward leaning.
In accordance with current, medical, evidence-based data, simple analgesics and/or anti-inflammatory medication are recommended for symptoms management if needed. I would concur with this treatment regimen.
I would recommend an active exercise program, which should lead to self-managed exercise after a month or so.
The treatment likely would not assist the employee to resume his employment.
Based on the history (the past history of the back soreness, the incident when three people lifted a ladder platform of 20 kg onto a trailer) and objective findings (arthropathy and mild multifactorial spinal canal stenosis at L4/5) at the assessment, in my opinion, Mr Changadzo likely unfit for duties of a Diesel Mechanic.
However based on the history and objective findings at the assessment, in my opinion, Mr Changadzo is fit for suitable duties on a full time basis, due to pre-existing lumbar spine condition, with aforementioned restrictions.
Treatment
13.Currently, the employee’s treatment regime is hydrotherapy. In your opinion:
a)    what, if any, treatment/treatment regime would you recommend for the employee, for what period should this treatment be undertaken, and with what frequency of treatment?
b)what is the therapeutic value of this treatment?
c)    what would you consider to be the outcome of this treatment?
d)    would this treatment assist the employee in their resumption of employment, and if so, how
In accordance with current, medical, evidence-based data, simple analgesics and/or anti-inflammatory medication are recommended for symptoms management if needed. I would concur with this treatment regimen.
I would recommend an active exercise program, which should lead to self-managed exercise after a month or so.
Prognosis
14.Would you please advise the prognosis for this condition?
Based on the history and objective findings at the assessment, in my opinion, Mr Changadzo’s symptoms should settle in time. However exacerbation of the symptoms could be expected in the future.
…”(T15)

In her examination-in-chief Dr Bacvic confirmed that her opinion is that the pain symptoms reported by the applicant were the result of lumbar spine pathology (as found in the MRI of 6 February 2013) which pre-existed the work incident of 2 January 2013, rather than the result of that incident. She explained that the MRI showed multi-level facet joint arthropathy which indicated that the condition was chronic and that the degeneration of the applicant’s lumbar spine predated 2 January 2013.
Dr Bacvic said that the applicant did not give her a history of his having recently played soccer. Asked whether the fact that the applicant had played a full game of soccer on 28 April 2013 was consistent with his presentation to her, she said that that activity was inconsistent with what he told her on 6 May 2013 about his functional capacity.
Dr Bacvic expressed the opinion that the weight of the ladder platform (20 kg) which she understood the applicant and two others to have lifted on 2 January 2013 was not sufficient to “aggravate” the condition of his lumbar spine or to put “too much pressure” on his lumbar spine, although she appeared to accept that that activity may have “exacerbated” or precipitated pain symptoms at that time, but added that such symptoms will then settle.
In cross-examination Dr Bacvic said that she did not refer to the presence of a disc bulge and annular fissure at L4/5 (as indicated in the MRI of 6 February 2013) because that was “degeneration” of the disc and was “irrelevant” to the incident of 2 January 2013. She added that it was her understanding that the applicant already had back symptoms prior to the incident of 2 January 2013.
Dr Bacvic was referred to opinions expressed by other medical practitioners in reports prepared by them in relation to this matter, and her evidence was as follows:
·she disagreed with the comment of Dr Mark Hamlin (in his report of 21 March 2013 set out in paragraph 16 above) to the effect that the applicant’s back pain may be related to the annular fissure at L4/5 shown in the MRI of 6 February 2013;
·she agreed with the opinion expressed by Dr Michael Bowles, Occupational Physician, in his report of 3 September 2013 (see paragraph 40 below), that, in the applicant’s case, “the radiology is best ignored” because “it shows changes that were present prior to this problem and were asymptomatic, and … unlikely to be relevant to [the applicant’s] present condition”;
·she disagreed with the opinion expressed by Mr Michael Alexeef, Consultant Orthopaedic Surgeon, in his report of 16 September 2013 (see paragraph 41 below) that “it is clear that [the applicant’s] symptoms appear related to a specific event on the 2^nd January 2013 (date of injury)”;
·she disagreed with the opinion expressed by Dr Keith Grainger, Consultant Neurologist, in his report of 1 November 2013 (see paragraph 42 below), that, in the absence of previous significant injuries to the applicant’s vertebrae, “either the lifting or the twisting [in the incident of 2 January 2013] had triggered off the injury in a young person with already degenerative changes in his spine”;
·she disagreed with the opinion expressed by Dr Richard Vaughan, Consultant Neurosurgeon, in his report of 16 October 2013 (see paragraph 43 below), that the “straining incident [of 2 January 2013] … likely created acute pathology beyond the degeneration already present” and that that incident made a “90%” contribution to the applicant’s condition, the remaining contribution being made by “degeneration which had sometimes been minimally symptomatic”.
Report of Dr Michael Bowles
A report of Dr Michael Bowles, Occupational Physician, dated 3 September 2013, which is addressed to an insurer, refers in detail to his examination of the applicant on 3 September 2013 and includes the following:
“ …
Diagnosis
1.What is your diagnosis of Mr Changadzo’s condition? Please provide the basis of your decision.
Non-specific low back pain.
Mr Changadzo’s history is not unusual. Many if not most episodes of back pain occur as a spontaneous event undertaking a normal day-to-day activity. Mr Changadzo’s history is not unusual in my experience with a person having sudden back pain whilst performing an event they had previously done many times without untoward effect.
In my view the radiology is best ignored. It shows changes that were present prior to this problem and were asymptomatic, and in my view unlikely to be relevant to Mr Changadzo’s present condition.
In most episodes of back pain a specific diagnosis cannot be made, however it is an easy matter just to quote radiology reports and name the changes as a diagnosis.
However contemporary medical practice would not suggest that is a valid or reliable undertaking.
…” (Exhibit R5)
[The Tribunal notes that neither party required Dr Bowles to give evidence and his report was tendered in evidence by consent.]
Report of Mr Michael Alexeef
A report of Mr Michael Alexeef, Consultant Orthopaedic Surgeon, dated 16 September 2013, which is addressed to the respondent’s solicitors, refers in detail to his recent examination of the applicant and includes the following:
“ …
DIAGNOSIS
1.Mechanical low back pain.
2.Multi-level degenerative cervical spondylopathy.
3.Unexplained sensory loss in the left lower limb affecting multiple dermatomes.
4.Leg Length discrepancy.
…
Question 6.4.5
What factors you believe have contributed to the condition so claimed;
The abovenamed provided history of the development of symptoms of low back pain following a lifting event. It is therefore not surprising that this event has been suggested as causative of the abovenamed’s symptoms. Imaging in regard to the lumbar spine has been found to be reassuring. Indeed, I have described the imaging as possibly physiological. The imaging does suggest a developmental tendency to spinal canal narrowing although the abovenamed has no symptoms of spinal stenosis. I would disregard this finding.
The abovenamed was actively involved both previously playing soccer at an A grade level and now, coaching. It is possible that his symptoms have been maintained as a result of this activity. It might be prudent if he desisted.
I obtained history of the abovenamed being able to travel overseas. This might suggest that any pathology is of a low grade nature.
As the abovenamed retains symptoms, my previous advice that a bone scan might be worth undertaking to exclude an injectable focus, seemed sensible.
Clearly, although initially, a soft tissue strain type injury may have occurred, the natural history of such pathology is for symptoms to settle within a given timeframe. That this has not occurred might suggest that there are other factors at play.
Question 6.4.6
To the extent that you are able, provide a weighting as to each of the factors;
It is difficult to provide you with a weighting. It is clear that the abovenamed’s symptoms appear related to a specific event on the 2^nd January 2013 (date of injury). With the passage of time, the likelihood of that event remaining significant diminishes.
…” (original emphasis) (Exhibit R3)
[The Tribunal notes that neither party required Mr Alexeef to give evidence and his report was tendered in evidence by consent.]
Report of Dr Keith Grainger
A report of Dr Grainger, Consultant Neurologist, dated 1 November 2013, which is addressed to the respondent’s solicitors, refers in detail to his examination of the applicant on 31 October 2013 and includes the following:
“ …
6.3We also ask that a clinical examination be undertaken and that your findings and observations be noted in your report.
Please see under ‘Clinical Assessment’.
He has quite marked restrictions of straight leg raising bilaterally – more on the left than the right, and attempts to undertake heel-shin movement were very restricted.
With the type of injury, MRI scan, passage of time and the absence of any definite neurological findings one would have anticipated that there would have been gradual improvement with time, and certainly not the restrictions seen today.
6.4Apart from the history and the clinical examination to be noted in the report, we would also be appreciative if you could provide us with your opinion as to:
6.4.1 diagnosis;
I presume a mild degree of disc prolapse involving the left S1 nerve.
Features suggest a non-organic component as discussed in 6.3.
He gave no history of any other injury such as when playing soccer over the years except for injuries to his ankle. This does not appear to be a problem.
…
6.4.5 what factors you believe have contributed to the condition so claimed;
Losing his job is likely to have a negative impact on recovery, with the claim being denied and the possibility of having to return to Zimbabwe, given that he is on a 457 visa.
6.4.6to the extent that you are able, provide a weighting as to each of the factors;
I would not like to put a percentage figure on the above, however I would think that non-injury related factors are significant.
…
6.4.8advise us [sic] to any other matter you believe will assist the Tribunal and the parties in looking at this issue of the relationship between the claimed condition and the Applicant’s employment as a Diesel Mechanic with K&S.
If there is no previous history of any injuries of significance, then I would have felt that either the lifting or the twisting had triggered off the injury in a young person with already degenerative changes in his spine, with him giving no history of any previous injuries to the vertebrae including during his playing football.
…” (Exhibit R2)
[The Tribunal notes that neither party required Dr Grainger to give evidence and his report was tendered in evidence by consent.]
Report of Dr Richard Vaughan
A report of Dr Vaughan, Consultant Neurosurgeon, dated 16 October 2013, which is addressed to the respondent’s solicitors, refers in detail to his examination of the applicant on 15 October 2013 and includes the following:
“ …
6.4Apart from the history and the clinical examination to be noted in the report, we would also be appreciative if you could provide us with your opinion as to:
6.4.1 diagnosis;
I find he likely suffered a strain to the lumbar spine most at the L4/5 level where an annular fissure has been determined in follow-up investigation.
The referred symptoms to the left leg would be in keeping with the strain – the fissure creasing [sic] a chemical release aggravating most the left L5 nerve – and associated muscle pain.
…
6.4.5 what factors you believe have contributed to the condition so claimed;
There was mild early degeneration across L4/5, as found later post the index injury likely accounting for past niggling discomforts in the lower back. He likely suffered acute fissuring to that degeneration with resulting referred pain as put. He has a fear of pain and pain avoidance as he presents – his fear of some event that would cause him the same pain as he suffered earlier with the injury and so in fear of that; he thought most likely if he returned to work full time as a diesel mechanic.
6.4.6to the extent that you are able, provide a weighting as to each of the factors;
The straining incident as put likely created acute pathology beyond the degeneration already present – so significant. He did not give a history of having any significant pain prior to the work incident, that is in the immediate days or months before, but an episodic niggling discomfort and as far as I could determine only the one or two days away from work mid-year last year (reliant as I am on the veracity of his evidence).
The follow on investigations does [sic] indicate there was some degeneration present at the L4/5 level but he had never suffered the index event as reported of 2 January 2013 – so to that event – the index injury I would put a weighting of 90% - the remainder to degeneration which had sometimes been minimally symptomatic.
…” (Exhibit R4)
[The Tribunal notes that neither party required Dr Vaughan to give evidence and his report was tendered in evidence by consent.]
The Relevant Legislation
The SRC Act relevantly provides as follows:
“ …
4     Interpretation
(1)In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease has the meaning given by section 5B.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury has the meaning given by section 5A.
…
licensed corporation means a corporation that is the holder of a licence that is in force under Part VIII.
licensee means a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII.
…
significant degree has the meaning given by subsection 5B(3).
…
(10A)For the purposes of the application of this Act in relation to an employee employed by a licensed corporation, or a dependant of such a person, a reference in this Act (except in section 28 or Part III, V, VI, VII or VIII) to Comcare is, unless the contrary intention appears, a reference to that corporation.
…
5ADefinition of injury
(1)In this Act:
injury means:
(a)     a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
…
5B   Definition of disease
(1)In this Act:
disease means:
(a)   an ailment suffered by an employee; or
(b)   an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)   In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)   In this Act:
significant degree means a degree that is substantially more than material.
…
7     Provisions relating to diseases
…
(4)    For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
…
14Compensation for injuries
(1)   Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…”
The Issue
It is common ground that the respondent is a “licensed corporation”, and that the applicant is an “employee”, within the meaning, and for the purposes, of the SRC Act.
The ultimate issue for the Tribunal’s determination is whether the respondent is liable, pursuant to s 14(1) and Part VIII of the SRC Act, to pay compensation to the applicant in respect of an “injury” (as defined in s 5A(1) of the SRC Act).
Analysis and Findings
The credibility of the applicant
The respondent put in issue the credibility of the applicant and the reliability of his evidence. The Tribunal accepts that the applicant has not been entirely candid about the extent of his playing soccer in the period since 2 January 2013, both in the history he gave to medical practitioners who have examined him in relation to his claim for compensation - in particular, Dr Cleary, Mr Narula (in the consultations in May and June 2013) and Dr Bacvic - and in his evidence to the Tribunal. However the Tribunal notes that the respondent did not present any lay evidence which directly, or even indirectly, contradicts the applicant’s account of the workplace incident of 2 January 2013 involving himself and two fellow employees (whom he named in the compensation claim form and in para 6 of his witness statement set out in paragraph 9 above), as described in the Incident Report Form (referred to in paragraph 6 above). The Tribunal also notes that, immediately following that incident, the respondent arranged for the applicant to be transported to Dr Cleary for assessment and that Dr Cleary, a general practitioner with substantial experience in occupational health, did not query the applicant’s account of that incident and issued a workers’ compensation medical certificate in which he opined that his diagnosis of the applicant’s condition correlated with the applicant’s description of the incident and the lower back pain he suffered as a result of that incident. The Tribunal notes, furthermore, that none of the medical practitioners (including various specialists), who have examined the applicant in respect of his compensation claim and whose reports are in evidence, disputed the veracity of the history which he gave them regarding the incident of 2 January 2013 and his lower back pain symptoms immediately thereafter.
Although the Tribunal has some reservations regarding the applicant’s candour, it accepts his evidence regarding the workplace incident of 2 January 2013 and the lower back pain symptoms experienced by him immediately thereafter.
Has the applicant suffered an ailment?
The medical evidence before the Tribunal overwhelmingly supports the proposition that the applicant suffered an ailment involving pain in the lower back region on 2 January 2013 (“the ailment”), and the Tribunal so finds.
As regards the diagnosis or precise description of the ailment, the Tribunal accepts the opinions of Mr Narula and Dr Vaughan that the appropriate diagnosis or description is strain at the L4/5 segment of the lumbar spine, and it so finds.
Is the ailment a disease?
Pursuant to the definition of “disease” in s 5B(1) of the SRC Act, the ailment will be a “disease” (as defined) if it “was contributed to, to a significant degree, by [the applicant’s] employment by the … [respondent]”.
The only medical evidence before the Tribunal which does not support the proposition that the applicant’s suffering the ailment was causally related to the workplace incident of 2 January 2013 is the evidence of Dr Bacvic. On the other hand, the evidence of Dr Cleary and Mr Narula, and the reports of Dr Vaughan and Mr Alexeef, unequivocally support the proposition that the applicant’s suffering the ailment was causally related to the workplace incident of 2 January 2013. Furthermore, in the Tribunal’s opinion, the report of Dr Grainger provides qualified support for that proposition, while Dr Bowles’ report does not directly address the issue of causation (as he was not requested to do so) but does not appear to query the existence of a causal relationship between the workplace incident of 2 January 2013 and the applicant’s then experiencing back pain.
Having regard to the whole of the medical evidence before it, the Tribunal attaches the greatest weight to the evidence of Dr Cleary (an experienced practitioner in occupational health who examined the applicant shortly after the incident of 2 January 2013 and who continued to treat him until May 2013), the evidence of Mr Narula (a Consultant Neurosurgeon who examined the applicant in May and June 2013), and the report of Dr Vaughan (a Consultant Neurosurgeon who examined the applicant in October 2013 at the request of the respondent’s solicitors), and, on the basis of that evidence, the Tribunal is satisfied, and finds, that the applicant’s suffering the ailment was very largely, if not wholly, attributable to the workplace incident in which he was involved on 2 January 2013.

Accordingly, the Tribunal finds that the ailment was “contributed to, to a significant degree, by” the applicant’s employment by the respondent, within the meaning of s 5B(1), (3) of the SRC Act, and that the ailment is therefore a “disease”, as defined in s 5B(1) of the SRC Act.
The applicant has suffered an “injury” (as defined in s 5A(1) of the SRC Act)
It follows from the lastmentioned finding that the Tribunal also finds that the applicant has suffered an “injury”, as defined in s 5A(1)(a) of the SRC Act. That finding makes it unnecessary for the Tribunal to consider whether the applicant suffered “an injury (other than a disease)” or “an aggravation of a physical or mental injury (other than a disease”), within the meaning of para (b) or para (c), respectively, of s 5A(1) of the SRC Act.
On the basis of the evidence before it, the Tribunal finds that, pursuant to s 7(4) of the SRC Act, the date of that “injury, being a disease” sustained by the applicant is 2 January 2013.
Conclusion
The Tribunal determines, therefore, that the respondent is liable, pursuant to s 14(1) and Part VIII of the SRC Act, to pay compensation to the applicant in respect of an injury, namely, strain at the L4/5 segment of the lumbar spine, suffered by him on 2 January 2013.
Decision
For the above reasons, the decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable, pursuant to s 14(1) and Part VIII of the SRC Act, to pay compensation to the applicant, in accordance with that Act, in respect of an injury, namely, strain at the L4/5 segment of the lumbar spine, suffered by him on 2 January 2013.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member.
.............[sgd D Brodie].................................................
Administrative Assistant
Dated 13 December 2013

Dates of hearing 18, 19, 20 November 2013

Representative of the Applicant Mr K Wong

Solicitors for the Applicant Friedman Lurie Singh & D'Angelo

Counsel for the Respondent Mr M Snell

Solicitors for the Respondent Clarke Legal

Division	General Administrative Division
File Number	2013/2937
Re	Richard Changadzo
APPLICANT
And	K & S Freighters Pty Ltd
RESPONDENT

Tribunal	Deputy President S D Hotop Dr J Chaney, Member
Date	13 December 2013
Place	Perth

Dates of hearing	18, 19, 20 November 2013
Representative of the Applicant	Mr K Wong
Solicitors for the Applicant	Friedman Lurie Singh & D'Angelo
Counsel for the Respondent	Mr M Snell
Solicitors for the Respondent	Clarke Legal