ROMANO and Comcare (Compensation) - [2024] ARTA 626

ROMANO and Comcare (Compensation) [2024] ARTA 626 (5 November 2024)

Decision and Reasons for Decision

Applicant/s: ROMANO, Mario

Respondent: Comcare

Tribunal Number: 2022/4244

Tribunal: Senior Member Hon J Rau SC

Place: Adelaide

Date: 05/11/2024

Decision: The reviewable decision dated 29 April 2022 is affirmed.

.......................................................................

Senior Member Hon J Rau SC

CATCHWORDS

COMCARE – workers’ compensation – original injury ‘lumbar sprain’ accepted in December 2005 under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) – initial acceptance of claim challenged – challenge not made out on the facts – disc bulge – degenerative disc disease – aggravation – on 23 February 2022, Comcare found that there was no present liability relating to 2005 injury – whether the Applicant continue to experience the effects of any compensable conditions – whether the Applicant is entitled to ongoing compensation for medical expenses under section 16 of the SRC Act – by 23 February 2022, the Applicant ceased to be suffering from any effects of the original 2005 injury – the Applicant is not entitled to ongoing payments under section 19 of the SRC Act from 23 February 2022 – the decision under review is affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Senior Member Hon J Rau SC 05/11/2024

INTRODUCTION

Mr Romano is seeking the review of a decision made by Comcare on 29 April 2022 (the reviewable decision), to affirm its earlier determination of 23 February 2022 (the 2022 determination), which declined present liability for medical expenses and incapacity payments under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988. (the SRC Act).1

Mr Romano has an accepted claim (the 2006 determination) for a “lumbar sprain”, sustained on 21 December 2005 (the original injury).2

1 Exhibit 1, Joint Hearing Book, 368-73.

2 Ibid 28-30.

The reviewable decision was based on a finding that Mr Romano did not continue “to experience the effects of any compensable conditions”.3

Mr Romano was represented by Mr Andrew Wright and the Respondent was represented by Ms Kim Bradey.

Mr Romano gave evidence in person. At times, he exhibited unusual behaviour. This included awkward or even bizarre movements, unnatural postures and grimacing. He was a poor witness. He frequently gave lengthy, irrelevant answers to quite direct questions. He was at times cagey and argumentative. He sometimes responded to a question with a question of his own. He was a poor historian.

I have formed the view that it would be unsafe to rely upon his uncorroborated evidence. This is especially true of his current recollections of past injury, aggravations, subjective pain, or incapacity.

The objective evidence available to the Tribunal is primarily in the form of diagnostic imaging. This in turn was the subject of expert medical opinion. The contemporaneous notes made by medical practitioners and physiotherapists are also a more reliable source of historic events, that Mr Romano is now.

Mr Romano called his current GP, Dr Neroni. Mr Romano first consulted Dr Neroni on 11 April 2013, some 8 years after the original injury. Dr Neroni gave evidence by telephone due to technical issues. It was clear that Dr Neroni has taken Mr Romano’s history and complaints of pain, at face value. He was helpful in providing some contemporaneous record of Mr Romano’s reports of injury and pain between 2013 and the present. His evidence is discussed in detail below.

Mr Romano also called Dr Suyapto, an occupational physician. He gave evidence by Teams. He first saw Mr Romano for the purposes of a medical assessment at the request of his then solicitors, on 10 October 2022. He also appears to have taken Mr Romano at face value. He neither tested for, nor reported having observed any signs of functional overlay or abnormal illness behaviour on examination. His evidence is discussed in detail below.

3 Ibid 369.

The Respondent called Dr Ghan, an orthopaedic surgeon. Dr Ghan first saw Mr Romano at the request of the Respondent on 12 September 2018. He found inconsistencies and functional elements upon examination. His evidence is discussed in detail below.

The Respondent also called Dr Sabetghadam, an occupational physician. He first saw Mr Romano on 21 December 2021, at the request of the Respondent. He also found inconsistencies and functional elements upon examination. His evidence is discussed in detail below.

ISSUES

At a basic level, there are 2 issues in this case.

Firstly, the Respondent contends that liability should not have been accepted by Comcare on 11 February 20064 (the initial liability issue). The initial liability issue was raised for the first time in the Respondent’s Statement of Issues, filed in this matter, on 12 September 2022.5

The Respondent asserts that notwithstanding the fact that the initial liability issue was raised for the first time, some 16 years after the 2006 determination, and that these proceedings concern a totally different reviewable decision,6 the Tribunal has both the jurisdiction and the evidentiary basis upon which, to set the 2006 determination aside.

The second, more conventional issue, concerns the question of whether, as at 23 February 2022, Mr Romano still suffered from the effects of the original injury.7

BACKGROUND

Mr Romano is aged 56. He is employed by the Bureau of Meteorology (BOM). He commenced his employment there in 2003.8

4 Ibid 28.

5 Ibid 649 at [2.1].

6 That made on 29 April 2022, confirming a determination made on 23 February 2022, that declined present medical treatment and incapacity; see Exhibit 1, T84, 368-71.

7 Exhibit 1, Joint Hearing Book, 649 at [2.2] – [2.6].

8 Ibid 643 at [6].

Medical records indicate that Mr Romano first saw a GP, Dr Kneebone, on 15 March 1993.9 This is inconsistent with his evidence to the Tribunal that he first went to Sportsmed after his December 2005 injury.

Medical notes record that on 18 October 1999, Mr Romano saw a chiropractor, Dr Snodgrass. The Applicant told the Tribunal that this for his neck and shoulder. He did not remember him looking at his back but he would do a “spine alignment”.10 Medical records identify this attendance as being for “spine examinations”.11

Medical notes record that on 3 November 2000, Mr Romano saw a chiropractor, Dr Sim.12 Medical records identify this attendance as being for “spine examinations”.13

On 7 September 2004, Sportsmed records note that Mr Romano had been in a fight and had injured his right shoulder.14 He attended again on 21 September and 26 October for this injury.15

Mr Romano told the Tribunal that notwithstanding this history, prior to December 2005, he had not suffered from any “back issues that stopped me working, only occasional tiredness.” He was somewhat vague about this. He did mention getting tired after long shifts, when he had previously worked as a waiter. He said however, that he had not sought medical attention for back pain. When the pre-2005 records were put to him, he commented that it was “possible that someone used my Medicare card to get treatment in my name.”

Between 19 and 21 December 2005, Mr Romano was required to replace computer monitors at work. He told the Tribunal that on 21 December 2005, when reaching up he heard a cracking sound in his back. He didn’t think it was from his body. His co-worker heard it and said: “what was that?”. He replied: “I think it’s my back”. Shortly afterwards the pain started to become “quite intense”. It became “unbearable”.

9 Ibid 1978.

10 Ibid.

11 Ibid 1975.

12 Ibid 1978.

13 Ibid 1975.

14 Ibid 776.

15 Ibid 777.

This is not the version of events contained in his claim form completed on 5 January 2006. That refers to “lifting a box and tools”.16 When asked about this, he said that he was told to write that, by his manager.

Mr Romano went to work the next day to assist with the preparations for the work Christmas function. He did this despite the pain, but he could not last the whole day and left work before the party finished.

On 23 December 2005 (the next day), he went to see Dr Fisher at Sportsmed. A note made during this visit mentions a history of a “ similar episode 18-20 years ago and + 1year ago”.17The notes states that he woke up with increased lower back pain.18 When asked about this note, Mr Romano said that he had had pains before when he was a waiter, but that this pain was “a different story”.

A medical certificate completed by Dr Fisher on 28 December 2005, stated that Mr Romano had sustained acute lumbosacral back pain due to lifting and bending on 21 December 2005.19

On 29 December 2005, Mr Romano had physiotherapy at Sportsmed. The note of this consultation says: “Recent LBP (2/52)..from ? work- sitting more…woke with pain in LBP…agg..sitting, bending, prolonged position .. eases. Moving around…”20

He returned to work on 3 January 2006, after the Christmas break.

On 4 January 2006, Mr Romano went to the physiotherapist at Sportsmed again. He reported being “much better… still in pain but is…. Improving”.21

16 Ibid 19.

17 Ibid 785.

18 Ibid.

19 Ibid 385.

20 Ibid 949.

21 Ibid 950.

In Mr Romano’s workers’ compensation claim form dated 5 January 2006,22 Mr Romano said that he suffered a ‘back strain, acute disc injury (back lower)’ on 21 December 2005 at 2:00PM. He stated he first sought treatment from Dr Fisher on 23 December 2005.23

On 13 January 2006, Mr Romano went to the physiotherapist at Sportsmed again.24

On 18 January 2006, Mr Romano went to the physiotherapist at Sportsmed again. A note of the visit records: “Mario’s LBP is much better – almost 100%”.25 When asked about this Mr Romano said maybe when he went back to work on 3 January 2006, he was doing restricted duties. He observed that he was “a lay person, just a victim”.

On 20 January 2006, an attendance note at Sportsmed says: “LBP improved, still some mid TX back pain …new aggravation over Xmas / New Year….coping with essential duties…. TX pain now greater than LBP.”26

On 3 February 2006, an attendance note at Sportsmed says that symptoms were improving.27

On 11 February 2006, the Respondent accepted liability for a ‘lumbar sprain’ which arose out of or in the course of employment, sustained on 21 December 2005 under section 14 of the SRC Act.28

On 17 February 2006, an attendance note at Sportsmed says that Mr Romano was being treated with Physiotherapy.29

On 10 March 2006, an attendance note at Sportsmed says that there was an aggravation.30

An Xray report dated 14 March 2006 states:

22 Ibid 16-27.

23 Ibid 17.

24 Ibid 952.

25 Ibid.

26 Ibid 784.

27 Ibid.

28 Ibid 28-30.

29 Ibid 784.

30 Ibid 782.

“There is straightening of the lumber lordosis due to rotation of the upper to mid lumber levels to the left. The disc spaces are satisfactory preserved. There are minor anterior lippings of the body of L5. The central/neutral canals appear normal. Both SIJs are also normal.”31

On 17 March 2006, an attendance note at Sportsmed describes the scan as “normal” and says that the pain “has settled somewhat over the last week”.32

On 29 March 2006 an attendance note at Sportsmed says that the pain is “slowly improving”.33

On 28 April 2006 an attendance note at Sportsmed says: “improving slowly, works ok, going to Moomba next week…ok to drive to Moomba, drive limit > 6 hours”.34

It was put to Mr Romano that at least by 1 June 2006, the pain had passed from the December 2005 injury and that other episodes of pain were brought on by other events. He said that the “pain improved but it never passed”.35

On 6 September 2006, an attendance note at Sportsmed reported pain over the preceding week. Pain was now at 6-7/10. Mr Romano could not recall what caused this episode. He had 2 weeks off from work.36

A CT of the lumbosacral spine dated 7 September 2006 states: “Indication: Back pain, ? L4/5 disc +/- facet joint pathology

Findings:

L2/3 level: No local disc protrusion. Normal calibre spinal canal. Normal facet joints.

L3/4 level: no local disc protrusion. Normal calibre spinal canal. Normal facet joints.

L4/5 level: there is posterior annular laxity with a more local broad based central and left paracentral disc protrusion. This is slight larger than at the level above. This fills the

31 Ibid 1024.

32 Ibid 782.

33 Ibid 783.

34 Ibid.

35 Ibid 783.

36 Ibid 780.

inferior aspects of the left L5 exit foramen without definite nerve root impingement. No significant facet joint degenerate change.

Comment: Degenerative disc disease at the L4/5 and L5/S1 levels with a small broad based posterior disc protrusion at the L4/5 level and a slightly large broad based and left paracentral disc protrusion at the L5/S1 level. No definite neural impingement.”37

On 22 November 2006 an attendance note at Sportsmed says that he was going ok. He was taking fish oil and glucosamine.38

On 31 January 2007 an attendance note at Sportsmed says that he was gradually improving. He was still taking fish oil and glucosamine.39

On 11 May 2007 an attendance note at Sportsmed says that he has ongoing lower back pain, but the sharp pain has gone. He has a constant “low backache/tightness”.40

The Respondent submits on 18 September 2009 and 16 July 2014, Mr Romano reported injuries to his back and coccyx .There is very limited information regarding the back injury, only stated he suffered ‘back soreness. Moving laptop case’.41

On 20 September 2007, an attendance note at Sportsmed says “lower back pain – but has been better recently. Does physio, gym, massage..Awoke this AM…pinch in back worsened throughout the day..spasms….radiated to R leg > L leg”.42

On the same day, a physio treatment sheet records: “LBP- Christmas 2005, similar to this but a little worse, cont therapy. Now fish oil glucosamine+ swimming, stopped all in May+ felt better. Ok until today. Got OOB +was ok, bent to put shoes on+ felt pinch..got worse @ work, called Dr @ lunch as couldn’t sit /std…”.43

37 Ibid 1023.

38 Ibid 778.

39 Ibid.

40 Ibid.

41 Ibid 687 at [8].

42 Ibid 779.

43 Ibid 953.

On 27 September 2007, Sportsmed notes record that: “last week had exacerbation of LBP…exactly same pain as before”.44

On 24 October 2007 Sportsmed notes record that Mr Romano was doing better since his last appointment.45

On 19 December 2007 Sportsmed notes record that Mr Romano “coping with duties at work” and “managing pretty well”.46

On 7 April 2008, Sportsmed notes state that Mr Romano had been going ok. He reported that on 1 April he had driven to Woomera in 1 day. On 2 April he had driven to Tarcoola over rough dirt roads. On 3 April he drove to Roxby Downs. When he was working there, he got up from a squatting position and his “lower back seized up”. He experienced referred pain to the left lateral thigh with tightness, and lower back pain.47

On 29 April 2008, Sportsmed notes state that his lower back had “settled well”.48

On 25 July 2008, Sportsmed notes state that Mr Romano had not had major pain for 3 months. He was having good days and bad days. He had a low-grade ache most of the time.49

On 3 February 2009, Sportsmed notes state that Mr Romano reported being “generally OK”. He was “coping with work ok”.50

On 1 May 2009, Sportsmed notes state that Mr Romano reported “coping with field trips” but that he had “nagging lower back pain after work at night”.51

On 11 September 2009, Mr Romano was involved in a motor vehicle accident. He was “sideswiped”. His then solicitors wrote to Alliance CTP giving notice of a claim for an

44 Ibid 786.

45 Ibid 787.

46 Ibid.

47 Ibid 789.

48 Ibid 788.

49 Ibid.

50 Ibid 790.

51 Ibid 791.

“exacerbation to a pre-existing lumbar back strain and disc bulge”.52 Mr Romano told the Tribunal he did not instruct his lawyers to pursue a personal injury claim, only a property damage claim. This seems at odds with him being sent to Dr Osti for a medico-legal assessment. He conceded that he possibly exaggerated at the time. In any event it seems that no personal injury claim was pursued.

A physiotherapist’s note of 17 September 2009 mentions low back pain that “comes back every now and again”.53

On 30 September 2009, Sportsmed notes state that Mr Romano reported being stiff generally in the morning. He complained of chronic lower back pain that was not settling after a “recent exacerbation”.54

A physiotherapists note of October 2009 mentions that Mr Romano was having more pain-free times and the pain is “less intense when it is sore”. He sometimes forgets that it’s there. The pain is described as “ very positional”.55

On 12 October 2009, an MRI report states:
“Clinical: chronic LBP 4 years. recent exacerbation, previous imaging 2006 L4/5 & L5/S1 disc lesions, ?annular tear.

Orbits: No radioopaque foreign body identified.

MRI: Sagittal T1/T2, PDFS series of the lumbar spine, with transverse imaging through the lower three lumbar discs.
- No pathologic marrow infiltration is identified.
- Normal lumbar spine alignment.
- Distal thoracic cord is of normal signal and volume with conus termination at L1.
- There is some loss of T2 hyperintense signal involving the L4/5 and L5/S1 discs, compatible with disc desiccation.

52 Ibid 770.

53 Ibid 955.

54 Ibid 792.

55 Ibid 957.

L3/4: There is no significant disc protrusion. central or foraminal compromise.
L4/5: There is a circumferential disc bulge with a posterocentral annular tear: no central or foraminal compromise: mild facet joint degenerative changes.

L5/S1: There is a small broad based posterior/left paracentral disc bulge, which contacts the descending left S1 nerve root within the lateral recess, without significant displacement: minor narrowing of the right lateral recess: no foraminal or central canal compromise. The possibility of S1 radiculopathy should be correlated clinically. Mild facet joint degenerative changes bilaterally at this level.

COMMENT:

- Annular tear and disc bulge at L4/5.
- Small central/left paracentral disc herniation at L5/S1 narrowing the left lateral recess, the disc margin contacts and has displaced the descending left S1 nerve root. The the possibility for symptoms related to this should be correlated clinically.”56

On 1 December 2009, Dr Damian Newberry completed a medical certificate for ‘chronic lower back pain – degenerative disc disease”. He noted “fluctuating levels of lower back pain- recent exacerbation but improving”.57 He also noted that Mr Romano had episodes with no pain.58

On 7 December 2009, Dr Osti provided a report stating:
“Thank you for asking me to see this gentleman with quite a long history of low back pain dating back since late 2005 and which he relates to a lifting incident at work at the time.

Since then, with ongoing symptoms, Mario has continued to work in his usual capacity as a Technical Officer at the Bureau of Meteorology.

He has had a few episodes since of significant exacerbation of pain, the more recent one in August this year. In addition , to complicate matters

56 Ibid 1022.

57 Ibid 32.

58 Ibid 793.

further, he was involved in an MVA in early September with further exacerbation of his back symptoms.
….

He came with a good quality lumbar MRI performed a couple of months ago which had demonstrated marked degeneration of the L4-5 and LS-S1 spinal segments with posterocentral disc bulges causing a minimal degree of mass effect onto the thecal sac but with no convincing evidence of any specific associated radicular compromise.
I had a good chat with Mario today. I have advised him against surgery. I have encouraged him to perform regular, self-directed exercise which would not require paramedical supervision.

Mario should be allowed to continue to work in his normal and unrestricted capacity as a Technical Officer. It would be inappropriate and medically unjustified, in fact, to impose any specific restrictions on· him, either in terms of lifting and/or other activities . He should be encouraged to change positions frequently, though, and to avoid, as much as possible, any prolonged driving (over. four hours per day) and/or sitting for very prolonged periods. In addition, he should be allowed. to avoid very prolonged forward bending and/or heavy lifting, i.e. over 20kg on a regular basis.

I have advised him that physiotherapy, chiropractic and/or other forms of passive treatment are unlikely to be of benefit to him and would be definitely counter-productive if they led to any exacerbation of his symptoms.”59

On 18 January 2010, Sportsmed notes state that Mr Romano reported that he had suffered an exacerbation 7 - 10 days before. He had taken Nurofen and it had settled after 2 - 3 days. He was able to work without incident last week.60

On 6 February 2010, Sportsmed notes state that Mr Romano reported that he had developed central lower back pain. It was very localised and quite intense. He had to go home from work. He had 1 day off then went back to work.61

59 Ibid 34-5.

60 Ibid 796, 962.

61 Ibid 796.

On 6 April 2010, Sportsmed notes state that Mr Romano reported that overall, he was better and managing well. He had a variable lower back ache at the end of the day.62

On 1 June 2010, Sportsmed notes state that Mr Romano reported that he had “low grade niggles in the lower back”.63

On 6 September 2010, Mr Romano rang Comcare and stated that he was involved in a car accident on his way to see a doctor. He stated that he believed the accident made his condition worse at the time, but he believed that he had probably recovered from the accident.64

Between 11 February and 4 March 2011, Mr Romano was away from work.

On 14 February 2011, Sportsmed notes state that Mr Romano reported that had been suffering from lower abdominal pain and cramping for 5 days. The Dr thought that he may have renal colic or appendicitis. Mr Romano went to the RAH emergency Department. He had a CT scan. This states:
“CLINICAL:
Back pain suggestive of renal colic but potentially radicular pain secondary to disc prolapse.

CT ABDOMEN AND PELVIS:
No renal or ureteric calculus evident. Some possibly nephrocarcinosis in the right with a small cortical scar superiorly. Bladder unremarkable. Allowing for the non contrast study, the spleen, pancreas, liver and adrenals are grossly normal. Some diverticular disease noted in sigmoid colon however no active diverticulitis. Lung bases are clear. No lumbar or sacral fracture identified.

L1/2:
There is mild broad based disc together with mild facet arthropathy and ligamentum flavum hypertrophy seen to cause mild central canal narrowing. No exit foraminal narrowing.

62 Ibid 797.

63 Ibid.

64 Ibid 621.

L2/3:
There is mild annular laxity and facet arthropathy causing moderate central canal narrowing, Some ligamentum flavum hypertrophy is also noted.

L3/4:
There is mild broad based disc bulge causing mild central canal narrowing. No exit foraminal narrowing.

L4/5:
There is a broad based disc bulge together with bilateral facet arthropathy and ligamentum flavum hypertrophy causing mild to moderate central canal narrowing. The theca is indented anteriorly. No exit foraminal narrowing.

L5/S1:
There is a broad based disc bulge with the left paracentral component indenting the theca anteriorly and extending into the left exit foramen. The L5 nerve root however exit freely. The left S1 nerve root appears displaced in the lateral recess. Possibly the right S1 nerve is also mildly effaced. Clinical correlation is recommended.

IMPRESSION:
Left para central disc prolapse indents the theca anteriorly and likely displaces the left SI nerve root in the lateral recess. Clinical correlation is recommended.”65

On 30 March 2011, Sportsmed notes state that Mr Romano reported that his lower back was settling. Most of the pain was localised to the lower spine.66

On 29 August 2011, Dr Newbury prepared a report which stated:
“Mr Romano injured his back five years ago whilst undertaking his normal duties as a technical engineer at the Bureau of Meteorology. He has had intermittent lower back pain since with occasional exacerbation of his symptoms. A CT scan of his lumbar spine in September 2006 showed degenerative disc disease at L4/5 and L5/S1 levels with disc protrusions at both of those levels. I enclose a copy of the report for your notes.

65 Ibid 1028-9.

66 Ibid 802.

He has been on anti-inflammatories including Celebrex and Nurofen. He has had multiple physiotherapy appointments with a physiotherapist here at SPORTSMED SA. He has had a gym program and done swimming for rehabilitation. He has been given home exercises. Despite these efforts he continues to have some varying levels of lower back pain.

He is a smoker and continues to smoke. ! have tried to dissuade from smoking and advised him of the poor prognosis for people that smoke and have chronic lower back pain.

He has had an opinion from spinal surgeon Dr Orso Osti. I cannot release a copy of that letter from Dr Osti but it would be worthwhile you contacting Dr Osti's office to get a copy of that correspondence. He has also seen occupational physician, Dr James Economos, and again it would be worthwhile you contacting Dr Economos's office to get a copy of his correspondence.

Mr Romano continues to perform essentially normal duties at work with some restrictions on the amount of driving he does and the amount of repetitive bending or prolonged bending that he does. He occasionally takes Celebrex or Nurofen. His physiotherapist here at SPORTMED SA is Jenny Laver. I enclose copies of some of my correspondence and some of the imaging results.”67

On 6 February 2012, Mr Romano attended Dr James Economos for treatment and the clinical note entry recorded “still good effect with patch. Eased significantly over Xmas break for the first time and this was first time that was restricted from field work. However, finds that no field work very restrictive and would like removed.”68

On 24 July 2012, Dr Kneebone’s notes state that Mr Romano reported that: “returned from Italy last sunday week. Unweel[sic] since this sunday turned while sitting developed marked pain on left later referred to leg
Due to go back to work yesterday
Pain relef[sic] with lying on side and heat pack
L5 sciatic on left good reflexes left SLR 70 DEGREES

67 Ibid 817-8.

68 Ibid 1721.

Rx: Oxazepam 30mg Oral Tablet (Tablet) 30 mg [25] - Qty: 1*25 Rpts: 0 - Take 1 tid prn
Referral: CT-Scan (Spine;lumbosacral) [?acute sciatica L;5 ON LEFT] – Radiology S.A.
….
long hours work back pain bad using 10 mg patch going away for 6 weeks to italy
has prescription for 4 patches going in 2 weeks time has appointment on 19th of sept
would like appointment for general review when returns brother lung cancer non smoker”.69

Between 24 September and 2 October 2012, Mr Romano was away from work.70

On 25 September 2012, Mr Romano attended Physiotherapy Active for treatment. Their notes state:
“2 days ago sitting down and folding clothes on the couch and felt sudden sharp pain in L) LB.
Then rest of gradually worsened despite applying heat. Then next day (yesterday) still ongoing p+ -> seen GP Dr KK -> referred for updated scans and PT.
Initially injured Lx in Dec 2005 at work -> had scans -> L4/5 disc bulge -> PT, H/T and gym at SportsMed -> ceased ~ 1 year ago. Has had several bouts of LBP since initial injury and seen various GP's at SportsMed and Specialists.
Now, today still ongoing p+ and walking with SPS but better with heat.”71

On 25 September 2012, Mr Romano also attended Dr Kirsty Kneebone for treatment. Her notes state:
returned from Italy last sunday week. Unweel since this sunday turned while sitting developed marked pain on left later referred to leg
Due to go back to work yesterday
Pain relef[sic] with lying on side and heat pack
L5 sciatic on left good reflexes left SLR 70 DEGREES

69 Ibid 979.

70 Ibid 399.

71 Ibid 748.

Rx: Oxazepam 30mg Oral Tablet (Tablet) 30 mg [25] - Qty: 1*25 Rpts: 0 - Take 1 tid pmn
Referral: CT-Scan (Spine;lumbosacral) [?acute sciatica L;5 ON LEFT] - Radiology S.A.

…
long hours work back pain bad using 10 mg patch going away for 6 weeks to italy
has prescription for 4 patches going in 2 weeks time has appointment on 19th of sept
would like appointment for general review when returns brother lung cancer non smoker”72

On 5 March 2013, Mr Romano saw Dr Kneebone. Her notes state: “recurrence of pain 4th feb left buttock and left leg
saw dr Economos
lasted for one week L4 nerve area on right given 20 mg patches for 2 weeks
now working 5 hours per week
has repeat MRI so no change since 2009

has further appointment in one month 27th march has repreot to corn care for psychologist
wanting fasting blood sugars
Rx: Norspan 10 Transdermal Patch (Patch) 10 mg (equiv. 10 mcg/hr) [2] -
Qty: 4
Rpts: 0 - Take 1 weekly”73

On 11 April 2013, Mr Romano attended Dr Neroni for treatment for the first time. 74

On 3 September 2013, Mr Romano attended Dr Economos for treatment and the clinical note entry recorded ‘increasing R mid LBP with radiation R flank but not groin over past 2 weeks after altercation with supervisor who he’s had issues with in past. Reported to director that day and sent home… Examination: Full lumbar movement except for

72 Ibid 979.

73 Ibid 977.

74 Ibid 193.

moderately restricted left lateral flexion because of right-sided low back pain and mildly restricted forward flexion’.75

Between 16 April and 30 July 2014 Mr Romano was on modified duties.76

Between 5 June and 11 June 2014, Mr Romano was unfit for work.77

On 5 June 2014, Mr Romano attended Dr Economos for treatment and the clinical note entry recorded ‘came in with stick but not using’.78

An MRI dated 14 July 2014:

“Lumbosacral Spine:

Lumbar vertebral alignment is within normal limits. Vertebral body heights are preserved. There is some loss of intervertebral disc space at L5/S1. There Is also low T2 signal noted within L4/5 and L5/S1 intervertebral disc spaces in keeping with disc dehydration. The conus terminates appropriately at L1.

There is minor annular laxity at L 1/2 and L2/3. No central canal narrowing noted in this region and there is no neural foraminal narrowing.

At L3/4, there is no disc protrusion. No central canal or neural foraminal narrowing. The L3 nerve roots exit freely.

At L4/5, there is annular disc laxity noted. There is also a tiny amount of high signal noted In the posterior disc likely in keeping with small annular fissure. There is no neural foraminal narrowing. The L4 nerve roots exit freely. Mild facet joint degenerative changes are noted.

L5/S1:

There is posterior central disc bulge indenting on the anterior thecal sac. There is no associated central canal narrowing. There is no neural

75 Ibid 1726.

76 Ibid 404.

77 Ibid 405.

78 Ibid 1728.

foraminal narrowing. L5 nerve roots exit freely. Also at this level there is well circumscribed oval lesion in the right paracentral region. It demonstrates low T1 and low T2 signal measuring 5mm. This is likely in keeping with focal extruded disc material. It indents on the anterior right thecal sac however does not about the right pre-emergent S1 nerve root in the lateral recess. Facet joint degenerative change is noted.

Conclusion:

Unremarkable appearance to the brain.
Degenerative change noted in the cervical spine with mild central canal narrowing In the mid and lower cervical spine and adjacent patchy high T2 signal In the cord likely In keeping with oedema. Unremarkable appearance of the thoracic spine.
Mild degenerative changes of the lumbosacral spine with disc degenerative change noted.
At L4/5 there is a small annular fissure.
At L5/S1, there Is central disc protrusion. There Is also an adjacent focus of extruded disc In the right paracentral region.”79

On 16 July 2014, Mr Romano reported injuries to his back and coccyx. There is very limited information regarding the back injury, only stated he suffered ‘back soreness. Moving laptop case’.80

In a report dated 28 August 2014, Dr Orso Osti (orthopaedic surgeon) reported he informed Mr Romano that it would be highly inappropriate for him to apply any pressure with regard to possible surgery. Dr Osti reported that if operative intervention was to be carried out, he would need to include the L4/5 segment due to the obvious degenerative changes.81

In August 2015 Mr Romano went to Italy. He flew economy class. He said that he had to rest in bed after the flight. He returned in September and went back to work.

On 2 March 2016, Mr Romano was cleared to return to unrestricted duties.82

79 Ibid 103.

80 Ibid 687.

81 Ibid 688.

82 Ibid 152, 1383.

On 30 May 2017, Mr Romano attended Dr Neroni for treatment. The notes record that his lumbar back pain was “worse since working in Melbourne over the past two weeks”.83

In a report dated 29 September 2017, Dr Neroni provided a report that stated: “(2) His current condition is related to the incident on 21/12/2005 when he injured his back while lifting boxes which resulted in lumbar L4-5 disc bulge and LS-S1 disc prolapse. He was doing work in Melbourne for his employer for 2 weeks in May 2017 which caused an aggravation of his lumbar pain and stiffness.

(3) I saw him initially on 30/5/17 and he had lumbar pain and muscular tenderness and reduced range of lumbar movement in all directions.

(4) The cause of his symptoms was due to travelling from Adelaide to Melbourne and returning back and doing repetitive back activities while working in Melbourne and sleeping on the hotel bed for 2 weeks rather than his own bed in May 2017. His lumbar symptoms had been well controlled prior to this and he had been working full-time normal duties . When I saw him on 30/5/17 I gave him a medical certificate to remain off work from 29/5/17 to 9/6/17. I saw him next on 7/6/17 and he was improving gradually with Nurofen tablets and heat packs and he was doing regular home exercises and I gave him a medical certificate to return to 4hrs/day, 5days/week modified duties from 13/6/17 to 23/6/17. I saw him next on 23/6/17 and he was continuing to improve and coping with his modified work duties. I gave him a medical certificate to do 5hrs/day, 5days/week modified duties from 26/6/17 to 30/6/17 and 6hrs/day, 5days/week, modified duties from 3/7/17 to 7/7/17. I saw him next on 7 /7
/17 and he was still complaining of lumbar pai n and stiffness and I gave him a medical certificate to do 6hrs/day, 5days/week modified duties from 10/7/17 to 14/7/17 and 7hr25mins/day, 5days/week modified duties from 17/7/17 to 21/7/17. I saw him last on 21/7/17 and his lumbar pain and stiffness was resolving. He was still doing regular home exercises . I gave him a medical certificate to do full-time self- paced duties and avoid heavy and repetitive bending, lifting and carrying duties from 24/7/17 onwards.

83 Ibid 1122.

(5) He has returned to his full-time work duties now and his prognosis is good provided he continues with self-paced duties and avoids doing heavy and repetitive bending, lifting and carrying duties in the future.”84

On 28 March 2018, Dr Neroni reported a re-aggravation due to work duties on 20 March and 22 March 2018. He described this as a new injury.85

On 19 September 2018, Dr Ghan prepared a report which states:

“In 2005, he was assigned to replace CRT (cathode ray tube) in an office. There were a lot of units to be replaced. It took him three days to go through all of them. The monitors were heavy, he had to dispose of them, which meant lifting and carrying them to a station wagon. On the last day of this work, he was over reaching when he heard his back crack. He was frozen. Subsequently, he had a lot of pain.

He went to see a GP at Sportsmed and was given 10 days off work. There was no specific treatment. He eventually returned to normal duties. Over the years, he had many episodic exacerbations. The last episode was in March 2018. He was off work for some three weeks. There was not a specific injury at work, but he was doing calibration work, which entailed working low on the ground.

…

Physical examination revealed a pleasant, quietly spoken male, standing at 153cm, weighing 70kg. Throughout examination there was evidence of functional overlay. There was excessive tenderness to light touch on his back. He was not willing to move his spine much in any direction.

Examination of his thoracolumbar spine demonstrated normal alignment. There was no evidence of reversal of rhythm. His forward lumbar spine flexion was 30°, 400, beyond which he complained of discomfort. Lumbar spine extension was 10°. Lumbar spine lateral flexion was 10°. Straight leg raising was 700, with no evidence of nerve root tension sign.

84 Ibid 156-7.

85 Ibid 426.

I noted that he was able to get on the examination couch quite easily. He was able to lie down on the examination couch from a sitting position quite easily. He was able to turn over from supine to prone on the examination table quite easily. He was able to sit up from a supine position quite easily. I detect no motor or sensory deficit in the lower limbs.

An MRI scan, dated 14 July 2014, reported mild degenerative changes of the lumbosacral spine, disc degenerative change noted. It reported at L5- S1 there was a central disc protrusion, but there was no associated central canal narrowing.

In summary, Mr Romano, a 51-year-old technical officer for the Bureau of Meteorology, had initially developed lumbar back pain during the course of his work in 2005. Subsequently, he has had intermittent episodic back pains. The last episode was in March 2018 whereby he had to take three weeks off work.

Based on my physical examination of him and the available MRI scan report of 2014, it is my opinion that his episodic back pains appear to be essentially non-specific musculo-ligamentous in nature. Certainly, there is no evidence of any significant disc protrusion causing radiculopathy. It is also my opinion there is no evidence of discogenic pathology.

Following are the answers to the questions accompanying this report. Please do not hesitate to discuss Mr Romano's case with me further if required.

In my opinion, Mr Romano suffers from non-specific intermittent lumbar musculo-ligamentous back sprain. This is based on the history provided, as well as the MRI scan in 2014. My clinical examination of him was negative for any evidence of radiculopathy. There were non-organic signs present during examination which includes excessive, inappropriate reaction to light touch and limited lumbar spine range of motion, which appeared to be contradictory to the movements observed during the rest of the physical examination.

In my opinion, his initial injury was a simple back sprain. Therefore, it is my opinion that his current condition is not consistent with the mechanism of injury in 2005.

He reports constant back ache, 4-5/10 and he wears a thermal jacket most times. He also takes intermittent Nurofen. His reported symptoms are not consistent with my clinical assessment. It is also not consistent with the nature of the work related incident that occurred on 21st December 2005. In my opinion, the 2005 episode was a simple back strain which in my opinion does not cause ongoing symptoms for the next 13 years.

I cannot explain why he has frequent exacerbations. It is my opinion that the exacerbation is not the same injury. It could just be simple non-specific muscular back ache.

Mr Romano, in my opinion, suffers from non-specific back ache, which is very common in the general population. It is constitutional and there is no evidence on MRI scan that there is any disc pathology (MRI scan 2014).

I am not aware of any activities outside work that are causing his ongoing symptoms.

The prognosis for Mr Romano's condition in my opinion is reasonably good.

The most appropriate way of dealing with an exacerbation, when it occurs, is self-managed home exercises which can be taught by the physiotherapist — or has been taught by the physiotherapist in the past. I also suggest trial of a gym membership to enable him to do some swimming exercises.

Pain management should be simple pain management with simple pharmaceuticals (non-opioids). For example, just simple Panadol Osteo, nothing else.”86

Dr Neroni provided a report dated 30 November 2018. Which relevantly states: “He works as an engineering services technical officer at the Bureau of Meteorology. He sustained a lumbar injury at work on 21/12/2005 while doing heavy and repetitive lifting activities. Since his initial injury he has had persistent lumbar pain and stiffness due to L4-5 disc and L5-S1 disc protrusions. He has had re-aggravation of his initial injury due to work

86 Ibid 164-72.

duties on 5/4/13, 16/5/17, 20/3/18, 22/3/18 and 29/10/18. He has been doing modified work duties since his initial work injury on 21/12/05. He is currently doing full-time modified work duties with maximum of2 to 4 hours field work/day and regular rest breaks when required.

I have read the report from Dr. F Ghan dated 14/9/18 concerning Mr Romano. I disagree with Dr Ghan's diagnosis and prognosis and treatment for Mr Romano. Mr Romano has sustained a L4-5 disc and L5-S1 disc protrusions as a result of his initial work injury on 21/12/05 which has been confined on lumbar CT scan on 7/9/06, lumbar MRI scan on 15/11/12 and lumbar MRI scan on 14/7/14. He had no lumbar symptoms prior to his initial work injury on 21/12/05. Mr Romano has had persistent lumbar pain since his initial work injury on 21/12/05 due to his L4-5 disc and L5-S1 disc protrusions which are chronic and ongoing and are the cause of his chronic lumbar pain. If his condition was due to lumbar sprain his condition would have improved and resolved after a few months after the initial injury.

His frequent aggravations have been due to repetitive bending, lifting or carrying activities at work which cause aggravation of his L4-5 and L5-S1 disc protrusions and result in lumbar muscular spasm with lumbar pain and stiffness and painful gait and· reduced range of movements. His condition is not related to any pre-existing, congenital or constitutional condition. His last lumbar MRI scan on 14/7/14 showed L4-L5 disc bulge and L5-S1 disc protrusion involving anterior thecal sac with extruded disc material indenting anterior right thecal sac.

His prognosis is fair rather than good. He has persisting lumbar pain due to his initial work injury on 21/12/05 and subsequent re-aggravations of his initial work related lumbar injury. His future treatment will involve wearing a lumbar support brace, taking Nurofen (anti-inflammatory) tablets for analgesia, doing regular home stretching and light back exercises and weekly Pilates exercises and in the future he will need to, do a regular gym exercise program and hydrotherapy/swimming exercise program and he will require physiotherapy treatment at times in the future if he has a re- aggravation., of his condition. Ai1 this stage he is not a candidate for surgery but if his condition was to deteriorate he would require a spinal surgeon referral for assessment and further treatment. He was seen by Dr

O Osti (spinal surgeon) on 7/12/09 who suggested lumbar facet joint blocks (steroid/ local anaesthetic injections) if his condition was to deteriorate.”87

Dr Economos provided a report dated 17 December 2018, which relevantly states: “In answer to your specific questions, whilst noting Mr Ghan's opinion, this
does not change my opinion regarding the discogenic pathology being the likely somatic focus and I remain of the opinion that the activities undertaken in 2005 are continuing to be a significant contributing factor to the episodic flare ups of pain and any ongoing pain and disability reported, as well as the need for any further treatment. On a further note, I recommend against the long term use of oral anti- inflammatories and that if he continues to take this, that his GP consider the concomitant use of esomeprazole or similar agent to supress stomach acid secretion.

For the purposes of this report, I have assumed that Mr Mario Romano has truthfully provided me with information and that the history is factually correct. I make no judgement about the dependability of those assumptions of fact. I, Dr James Economos, have made the necessary enquiries from Mr Romano, which I believe are desirable and appropriate within my area of specialty, and no matters of significance, to my knowledge, have been withheld from the Court. Please feel free to contact me should you have further queries regarding any aspect of the above.”88

On 27 February 2019, Mr Romano attended Dr Neroni. He complained of increased lumbar back pain after attending a field trip for six hours on 14 February 2019.89

On 31 July 2019, Mr Romano attended Dr Neroni. He complained of increased upper lumbar back pain for the past three weeks.90

On 30 September 2019, Dr Neroni provided a report in which he states:
“I am replying to your letter concerning Mr Mario Romano who has been a patient of mine since 11/4/13. He has worked as a technical officer for the Bureau of Meteorology for 17 yrs. He sustained a lumbar discogenic injury

87 Ibid 179-81.

88 Ibid 189-91.

89 Ibid 1119.

90 Ibid 1118.

due to repetitive heavy lifting at work on 21/12/05 with subsequent reaggravations at work due to aggravating work activities. He has worn a battery operated thermal vest which provides constant heat to his affected lumbar area. His current vest is 7 years old and is worn out and is no longer functioning and requires replacement. The answers to your questions are as follows : -
(1) His current battery operated thermal vest is an Alpenheat heated black softshell vest with battery pack with charger and adaptor.
(2) The battery powered thermal vest directly assists his compensable condition by providing constant heat to his lumbar area which reduces lumbar spasm and pain and increases his mobility and endurance which assists him to perform his full time modified work duties and and assists him to self manage his condition and also prevents him from getting reaggravations of his condition and taking time off from work.
(3) The battery powered thermal vest meets the definition of medical treatment because the vest slows down and prevents the deterioration of his compensable condition. The battery powered thermal vest is similar in nature to a medical aid or appliance.”91

On 16 December 2019, Mr Romano attended Dr Neroni. He complained that he had lumbar back pain, which was worse with work duties.92

On 30 November 2020, Mr Romano attended Dr Neroni. He said that he had increased lumbar pain since 20 November 2020 when he attended a video conference.93

On 17 February 2020, Dr Neroni prepared a report which states:
“He has been doing modified work duties since his initial work injury on 21/12/05. He is currently doing full-time modified work duties with maximum of 4 hours field work/day and regular rest breaks when required.

Mr Romano has sustained a L4-5 disc and L5-S1 disc protrusions as a result of his initial work injury on 21/12/05…”94

91 Ibid 193-4.

92 Ibid 1117.

93 Ibid 1115.

94 Ibid 201-3.

On 26 February 2021, Mr Romano attended Dr Neroni. He said that he was getting intermittent sharp lumbar back pain when at work, and it was better when he was resting at home.95

On 8 June 2021, Mr Romano attended Dr Neroni. He said that he had increased lumbar pain for one day, and that he left work at lunch time.96

On 31 August 2021, Mr Romano attended Dr Neroni. He stated that he went to work but left at 12:30pm due to increased lumbar back pain and stiffness. This date corresponds with Dr Neroni’s report of an aggravation.97

On 7 September 2021, Mr Romano attended Dr Neroni. He stated that he had increased lower back pain over the past 3-4 days.98

On 5 November 2021, Mr Romano attended Dr Neroni. He stated that his lumbar pain was better with rest, but worse with work duties.99

On 23 November 2021, Mr Romano received injections and bilateral medial branch blocks to the L5/S1 facet joints.100

A medical certificate dated 29 July 2022 completed by Dr Neroni diagnosed discogenic lumbar injuries. He stated that Mr Romano had suffered reaggravations due to work duties on 24 October 2019, 21 December 2019, and 31 August 2021, and a previous work-related injury on 21 December 2005. Mr Romano was certified fit for three fulltime days per week on restricted duties. A medical certificate dated 26 August 2022 reported similar diagnosis, causation, and restrictions.101

95 Ibid 1114.

96 Ibid 1113.

97 Ibid 1112.

98 Ibid 1112.

99 Ibid 1111.

100 Ibid 1111.

101 Ibid 1109.

Dr Bruce Low (orthopaedic surgeon) prepared a report dated 8 April 2021. He diagnosed symptomatic degenerative disc disease at the L4/5 and L5/S1 level which was degenerative but most likely aggravated by the incident on 21 December 2005.102

Dr Graeme Wright (pain management specialist) prepared a report dated 12 November 2021. He diagnosed:
“Symptomatic degenerative change of the lumbar spine, at L4/5 and L5/S1. In early 2021 he was reviewed by spinal surgeon Mr YH Yau. He had an isotope scan Benson radiology 16 March 2021 which showed activity around the left side of the L5/S1 disc with some activity to the facet joint. There may be a facet joint component to his pain, and he has agreed to proceed to medial branch blocks at the L5/S1 level.

Major Depressive Disorder. He reports broken sleep. During the last episode of severe pain, he has lost between 5-10 kg. He has daytime fatigue, poor concentration, he has had spontaneous thoughts of death. Occasionally he thinks that he would not care if he died. He feels tired of everything, cannot be bothered with things he used to enjoy, as a significant level of anhedonia. He is not aware of a depressed mood. DASS 21 scores were: depression 28 extremely severe, anxiety 14 moderate, stress 16 mild.

Somatic symptom disorder with predominant pain. Self-report measures were pain severity 5 - 10 on a 10 point scale, with BPI - pain severity 7.8. BPI - life interference 10.0.”103

Unfortunately, there does not seem to be any follow up with an expert report addressing the specific issue of depression, associated abnormal pain perceptions, or “functional overlay”.

On 17 December 20121, Dr Reza Sabetghadam (occupational physician) provided a report which states:
“Mr Romano had normal straight leg raising tests in the seated position, but in the supine position, he did not lift his leg more than 20 cm from the examination table.

102 Ibid 217-24.

103 Ibid 258-60.

Mr Romano had positive axial loading and positive trunk-twisting while standing.

Motor examination of the lower limbs appeared to be unremarkable and symmetrical.

Reflex examination of the lower limbs appeared to be unremarkable and symmetrical.

Sensory examination in the lower back and also the lower limb appeared to be inconsistent with any myotome.

Waddell's signs were strongly positive. Simulation was positive. Distraction was positive. Regional sensory change was positive. Tenderness was positive. From Waddell's symptoms, pain was positive.

I measured the circumference of the thighs 10 cm proximal to the proximal pole of the patella. Both were symmetrical at 40 cm. The circumference of the calves at the thickest part was 32 cm.

I took a picture of the device at Mr Romano's waist, which is attached to this report for your attention.

Mr Romano did not report about the rehabilitation to me. He said he is working full-time hours, 37 hours, five days per week in his normal duties.

In my clinical opinion, Mr Romano does not require any rehabilitation program for his medical condition. He will experience intermittent non- specific lower back pain related to the underlying degenerative condition of his lumbosacral spine regardless of his occupational duties and social activities.

Overmedicalisation of the condition, with referral to multiple rehabilitation programs, passive therapies, reducing hours, certification of off duties, prescription of potent analgesia and a prolonged return-to-work program, could reinforce his heightened pain and disability perception and poor tolerance, as we observe over 16 years of this case.

Mr Romano requires an open, frank discussion about his medical condition, work-relatedness of his medical condition, exacerbating and

aggravating factors of his medical condition, discussion about his tolerance and his willingness to return to his normal duties. His tolerance is purely subjective and could change on a day-to-day basis depending on how he feels and how active he is, as he highlighted in his report. Mr Romano could have bad days and good days. This does not mean that he should have a rehabilitation program for every single day of good or bad days.

…

Mr Romano has degenerative changes in facet joints, which can cause some arthropathic pain with early morning stiffness and aching by the end of the day. His current pain symptomatology is vague, inconsistent, and non-concordant with any acute injury. His symptomatology probably does not require any rehabilitation program. Overmedicalisation of the condition could influence as a negative reinforcer his heightened pain and disability perception.

Mr Romano could return to his occupational duties and hours from today, the day of report, if he is willing to. However, I noted there were psychosocial reinforcers affecting his heightened pain and disability perception and poor tolerance, which are yet to be addressed and managed properly. His heightened pain and disability perception and poor tolerance have motivational and attitudinal factors.

Mr Romano requires an open and frank discussion, without overmedicalisation of his condition and referral to multiple passive therapies and treatments.

Mr Romano may have poor tolerance to return to his occupational duties as a technical officer, as he stated, but this does not imply that his occupational duties as a technical officer are a risk to his health and safety. Job rewards play an important role in return to work.

Considering Mr Romano's attitudinal and motivational factors, previous history of overmedicalisation of his condition, heightened pain and disability perception and poor tolerance, it is probable that Mr Romano will not be able to sustain a meaningful employment in the long term in a full- time capacity, regardless of what the type of employment is.

This is inconsistent with what Mr Romano reported in my examination room. He stated that he is still attending to field duties. Mr Romano could return to field duties if he is willing to and participate in all his occupational duties, but he said driving on dirt roads with the jolting of the car, prolonged sitting, prolonged standing, prolonged walking, lifting and carrying, and pushing and pulling are exacerbating his symptoms.

I am unable to measure his symptomatology scientifically and objectively. In my clinical opinion, his heightened pain and disability perception and poor tolerance have more psychosocial reinforcers than underlying pathophysiological condition, as I have highlighted in the previous report.

The most important concept here is tolerance, not capacity. Tolerance is Mr Romano's choice. His tolerance could be different on a day-to-day basis, depending upon how he feels and how active he is, as he highlighted in his history. His tolerance should not be a basis for a physician to provide restrictions and limitations. Restrictions are provided when there is risk of aggravation or deterioration of an underlying medical condition or development of a new medical condition. Limitations are provided when there is objective limited physical capacity.

Today in the examination, I did not elicit any objective limited physical capacity. On the contrary, I noted strong positive Waddell's signs highlighting elements of psychosocial reinforcers affecting Mr Romano's heightened pain and disability perception and poor tolerance.

Mr Romano was wearing a lumbar corset. He was wearing a strange device around his waistline and wearing a battery-operated heated jacket. None of these treatments are recommended for his heightened pain and disability perception and poor tolerance. It appears to me that Mr Romano's heightened pain and disability perception has some elements of primary or secondary gain.

As I explained in the previous questions, Mr Romano does not require any restrictions. Based on the AMA Guides to the Evaluation of Work Ability and Return to Work, restrictions are provided when there is risk of aggravation of an underlying medical condition or development of a new medical condition. A physician could not provide restrictions or limitations based on tolerance.

Mr Romano's tolerance is purely subjective and could change on a day-to- day basis and depends on him.

Here I need to highlight that Mr Romano may have intermittent non-specific lower back pain, but it is his choice if he is willing to work in his occupational duties despite intermittent non-specific lower back pain, or he is willing to modify his occupational duties to accommodate his intermittent non- specific lower back pain, or not to work at all.

…

Due to the subjectivity of Mr Romano's heightened pain and disability perception and poor tolerance, I am unable to anticipate Mr Romano's tolerance to return to his normal hours and work. If tomorrow he claims he is pain-free and he wants to return to work, I am unable to scientifically or objectively argue against his wish; but if he says he is in such pain that he is unable to work more than one hour a day, again no-one can argue against his wish scientifically and objectively.

The most important factor here to be noted is that his tolerance is purely subjective and could change on a day-to-day basis depending upon how he feels and how active he is. Tolerance is the patient's choice and is not a field in which an occupational physician should provide restrictions or limitations.

However, there are cases in the medical literature where tolerance can be supported by underlying pathology. In that case, an occupational physician could verify that the tolerance is believable. In this case, I did not find any objective limited capacity to justify Mr Romano's poor tolerance scientifically and medically. It appears to me that his poor tolerance and heightened pain and disability perception have more psychosocial reinforcers than underlying pathophysiological condition.

Please refer to Question 5. As I explained in the previous questions, Mr Romano's tolerance is purely subjective. It is not set in a framework which could increase or decrease.

In my clinical opinion, psychosocial reinforcers, attitudinal and behavioural factors are affecting his willingness to return to full-time capacity or pre-injury duties.

Overall, considering the length of the medical case, provision of passive therapies and certification off duties or on modified duties for prolonged periods, the likelihood of him returning to a meaningful full-time work capacity in any employment is decreased significantly.

Overall, again, this depends on the reward of the job. If the reward of the job is sufficient to encourage him to work in a full-time capacity, he may decide to return to full-time work, despite having poor tolerance and heightened pain and disability perception.”104

On 11 January 2022, Mr Romano attended Dr Neroni. He stated the Applicant complained of increased lumbar pain since returning back to modified hours and duties on 4 January 2022.105

On 21 January 2022 Dr Neroni prepared a report in which he stated:
“(1) Mr Romano has been working as an engineering services technical officer at the Bureau of Meteorology for the past 21 years. He sustained a lumbar injury at work on 21/1212005 while doing heavy and repetitive lifting activities. Since his initial injury he has had persistent lumbar pain and stiffness due to L4-5 disc and L5-S1 disc protrusions. He has had re- aggravation of his initial injury due to work duties on 5/4/2013, 16/5/2017, 20/3/2018, 22/3/2018 and 29/10/2018. He has been doing modified work duties since his initial work injury on 21/12/2005. He has had physiotherapy, hydrotherapy and regular exercise program in the past. He has seen Dr O Osti (spinal surgeon) and Dr J Economos (occupational physician) in the past. He had a lumbar MRI scan on 9/12/20 which showed L4-5 disc bulge indenting bilateral foramen & theca & L5-S1 disc bulge involving bilat S1 nerve roots. He saw Dr Y Yau (neurosurgeon} and Dr G Wright (occupational physician), Mr B Prew (physiotherapist) and Mr M Craig (psychologist) in 2021. He had full bone scan & SPECT CT lumbar spine which showed mild/moderate L5/S1 discovertebral degenerative uptake and mild left greater than right L5/S1 facet joint uptake on 16/3/2021. He was working full time modified work duties until he got increased lumbar pain and stiffness with insomnia on 6/9/2021 and was off work until 24/9/2021. He returned to 4 hours/day, 5 days/week modified duties until 15/10/2021 and then he returned to normal hours, 3 days/week

104 Ibid 296-309.

105 Ibid 1110.

modified duties on 18/10/2021. He then had a L5-S1 facet joint local anesthetic on 23/11/2021 which caused an aggravation of his lumbar pain and stiffness and bilateral leg pains with insomnia and he was off work until 10/12/2021 and he has returned back to 4 hours/day, 3 days/week modified duties with regular rest breaks when required and no field duties since 13/12/2021. His current treatment involves wearing a lumbar support thermal brace, taking Panadol (analgesic) tablets and Nurofen (anti- inflammatory) tablets for analgesia, doing regular home stretching and light back exercises.
His diagnosis is L4-5 disc and L5-S1 disc protrusions as a result of his initial work injury on 21/12/2005 with multiple recurrences since then due to his work activities and complicated by secondary major depressive order due to his chronic pain and lumbar disability.
…
(3) He is currently complaining of lumbar pain and stiffness and bilateral leg pain and depressed mood and insomnia as a result an initial lumbar injury at work on 21/12/2005 while doing heavy and repetitive lifting activities resulting in L4~5 disc and L5-S1 disc protrusions with recurrent re-aggravations of his initial injury due to work duties. He does not suffer from a pre-existing or underlying condition which was present prior to his work injury condition Which occurred on 21/12/2005. He is currently only fit for 4 hours/day, 3 days/week modified duties with regular rest breaks when required and no field duties.

(4) His recovery will involve neurosurgical review with Dr Y Yau to reassess his condition and determine if he will require surgical treatment in the future or whether he requires ongoing conservative treatment. His conservative treatment would involve doing a multidisciplinary pain management program over 3-4 months with 6 pain management consults with Dr G Wright , 6 psychological consults with Mr M Craig and 10 physiotherapy consults with Mr B Prew. The goal of his future treatments will be to improve his lumbar condition and improve his pain management and coping skills which will allow him to return back to full time modified work duties in the future.”106

106 Ibid 330-2.

On 23 February 2022, the Respondent issued a determination declining present liability under sections 16 and 19 of the SRC Act in respect of the Applicant’s ‘lumbar sprain’ sustained on 21 December 2005.107

Mr Romano requested a reconsideration of the NPL Determination on 25 March 2022.108

On 29 April 2022, the Respondent affirmed the determination dated 23 February
2022.109

In May of 2022, Mr Romano took on a new job. This job is very flexible and light work.110

On 13 September 2022, Mr Romano attended Dr Neroni. He complained of lumbar pain and stiffness. He also said that he experienced intermittent right leg pain and radiculopathy. He was performing full time hours, three days per week as a Surface Observation Support officer (no field work). He reported that he would be progressing to four days per week for four weeks, then five days per week.111

The employer statement (undated) recorded Mr Romano commenced a graduated return to work on 3 October 2022, working four hours per day in October 2022, has a medical review at the end of the month with a view to return to five days per week. Mr Romano’s usual fulltime hours are 36.75 per week. The statement also provided that Mr Romano commenced his current role on 3 October 2022, which appeared to be a sedentary role.112

On 11 October 2022, Dr Dion Suyapto (occupational physician) prepared a report for Mr Romano’s then solicitors which states:
“Mr Romano reported that since 2005, his pain had never settled. In fact, overtime he reported his back pain got worse.
….
Examination of the lumbar spine reveal loss of lumbar lordosis. He was tender to the L4/L5 and L5/S1 region in the midline with tenderness to

107 Ibid 357-9.

108 Ibid 360.

109 Ibid 368-73.

110 Ibid 1708-10.

111 Ibid 1109.

112 Ibid 690.

bilateral L4/L5 and L5/S1 facet joints. I also note tenderness to both SI joints. He had reduced thoracolumbar flexion in which he was only able to reach the midthigh with his hand. There was no extension recorded. He had reduced lateral flexion and rotation bilaterally. Straight leg raising was 60° on each leg with normal power although noting pain with power testing. I note normal sensation and reflexes to both lower limbs.
…

Mr Romano is a 55-year-old gentleman who sustained injury to his lower back in the course of his employment as a result of lifting and moving monitors in the building. The work includes disconnecting and pulling cables, reaching under the table, grabbing and twist before placing them onto the trolley before then removing it from the trolley onto the ground. The monitors then had to be moved on to the station wagon. He reported that the back pain occurred as he was reaching into the monitor. He reported that since then he has ongoing pain. Noting that he had been seeing Dr Economos occupational physician and noting his opinion given that he had been his treating operational physician.
…

It is my opinion that Mr Romano suffers from discogenic chronic back pain. This is on a background of disc degenerative changes noted on imaging.
…

I have outlined his current symptoms. The injury remains in my view stemming from the 2005 work injury which had been ongoing. He reported that there had been no significant changes and noting that he had a various medical reports from 2005 until more recently.
…

it is my opinion that his current presentation is relate wholly to the 2005 injury. While he reported motor vehicle accident, he reported no injuries from the accident. Apart from obvious ageing which may increase the degeneration, it is my opinion that the back pain predominantly caused by the 2005 injury.”113

113 Ibid 634-8.

On 11 October 2022, he diagnosed discogenic chronic back pain on the background of degenerative disc changes. On examination, Dr Suyapto reported that Mr Romano ‘appeared to be in pain and was walking slowly. He had what looked like a semi-circular stick which he placed in front of his abdomen and wrapped around his back. He reported that he bought this in Kmart. He reported that this gives some support or help’.114

In a supplementary report dated 15 March 2023, Dr Sabetghadam maintained his position in his report of 17 December 2021. He stated:
“With all due respect, I disagree with Dr Suyapto’s diagnosis of discogenic chronic back pain. There is insufficient evidence in the medical literature to justify the type of pain being related to disc problems in the lower back. The first question that arises is: What is the type of pain that discogenic pain is, and why is it different from the type of pain related to muscle spasm, muscle strain, ligament strain, hypertrophy of the joints, or other inflammatory diseases, problems, or medical conditions? To that end, due to the complexity of the structures in the lumbosacral spine, the term "non- specific lower back pain" is used in medical literature for pain related to musculoskeletal structures in the lumbosacral spine. We do not know the exact origin of pain or what is the cause of pain. The question is which disc or which arthropathy causing this type of pain and what is the definition of that pain. It is poorly understood and explained in medical literature. In my opinion as a medical practitioner, scientifically and objectively, I cannot write down the patient's subjective pain perception and correlate it with the lumbosacral spine investigation results. There is insufficient evidence in the medical literature to support the claim that the investigation results exactly correspond to the examinee's perception of pain.
….

As I explained in my original report, Mr Romano suffers from an underlying degenerative condition of the lumbosacral spine, which would be symptomatic regardless of his occupational duties and social activities. I anticipate that a gentleman of Mr Romano's age who suffers from degenerative changes in multiple levels of the lumbosacral spine, including L4/L5 and L5/S1 level, will experience intermittent, non-specific lower back pain. There is a probability that his pain symptoms could also be related to arthropathic changes in the facet joints. The degenerative changes in the lumbosacral spine include disc prolapse at multiple levels, annular disc

114 Ibid 635.

fissures, facet joint arthropathies, central canal stenosis, or even musculoligamentous thickening, which is not reported in investigations in detail.
….

I do not consider the overall nature and duties of employment with the Bureau of Meteorology contributed to the development or aggravation of the underlying medical condition to a significant degree. In my clinical opinion, Mr Romano would be in these circumstances in this presentation of his lumbosacral spine regardless of his work with the Bureau of Meteorology or even if he worked in office-based duties as a CEO of a company. This is based on evidence in medical literature, specifically the AMA Guides to the Evaluation of Disease and Injury Causation in the chapter with regard to the lumbosacral spine.
…

In my clinical opinion, Mr Romano’s current heightened pain and disability perception and poor tolerance have more psychosocial reinforces than an underlying pathophysiological condition, such as:

·     Rewards of work.
·     Benefits of claim.
·     Multiple passive therapies.
·     Psychosocial issues in the home environment.
·     Psychosocial issues in the work environment.
·     Overmedicalisation of the condition with multiple referrals and prescription of potent analgesia such as oxycodone
·     Certification of off duties or modified duties for prolonged period

He could experience non-specific lower back pain related to degenerative changes in his lumbosacral spine intermittently regardless of his social activities and occupational duties, but his non-specific lower back pain could be reinforced by psychosocial factors as listed. Age and genetic predisposition are main contributing factors to his medical condition in spine. However, please note that his pain perception is not solely related to the pathophysiological condition of his lumbosacral spine.

With all due respect, I disagree with Dr Suyapto’s opinion that the injury on 21 December 2005 continues to persist and that the applicant’s current position is wholly related to the 2005 injury. Dr Suyapto’s opinion in this

regard is neither scientific, nor is objective. There is insufficient evidence in the medical literature to support this claim.

In my clinical opinion, Mr Romano did not have any specific accident on 21 December 2005. He was assigned to change up to 100 monitors over three days with three colleagues. Lifting and carrying 30 to 35 monitors per day is not classified as an accident or incident. It is unclear to me what accident or incident scientifically and objectively took place on 21 December 2005, to which Dr Suyapto is referring.
…

I do remain in my opinion on 17 December 2021 that Mr Romano does not require any specific treatment for his non-specific lower back pain. His non- specific lower back pain, in my clinical opinion, has more psychosocial reinforces than an underlying pathophysiological condition. In my clinical opinion, over-medicalisation of conditions with referral to multiple therapists, passive physiotherapy including manipulations, invasive interventions such as injections, surgical approaches, and multiple investigations of the lumbosacral spine, certification of off duties and modified duties could contribute to heightened pain and disability perception and poor tolerance.

In my clinical opinion, treating practitioners should probably stop focusing on the radiological investigations of the lumbosacral spine and start treating the patient. Based on evidence in the medical literature, non- specific lower back pain is better to be treated with patient education and an immediate return to normal social and physical activities without any passive therapies or the prescription of potent analgesia.
…

I remain in my opinion on 17 December 2021, that Mr Romano does not have any work-related incapacities. He could return to any occupational duties and participate in any occupational duties that he is willing to. His heightened pain and disability perception has more psychosocial reinforces. His heightened pain and disability perception, as well as his poor tolerance, could be improved through patient education and understanding of medical condition, as well as the avoidance of: 1) passive therapies, 2) the prescription of potent analgesia, 3) certification of off duties, and 4) referral to multiple practitioners. Overmedicalisation of a

condition could have a detrimental impact on heightened pain and disability perception.

In regard to Mr Romano, the most important concept is his tolerance. Mr Romano’s occupational duties as a technical officer are not a risk to his health and safety. There is insufficient evidence in the medical literature to support the hypothesis that the ergonomic demands of his occupational duties as a technical officer could contribute to his ill health.

Apart from his subjective pain perception, I did not elicit any objectively limited capacity in my examination room. His pain perception and poor tolerance are purely subjective. It could change on a day-to-day basis, depending on how he feels and how active he is, as he reported in the history, and should not be a basis for a physician to provide restrictions or limitations.”115

In a supplementary report dated 10 July 2023, Dr Ghan maintained his diagnosis of a non-specific intermittent lumbar musculo-ligamentous back sprain. He stated:
“Dr Suyapto’s diagnosis of discogenic chronic back pain has no substantiating evidence to support his conclusion. I also query his definition of discogenic back pain or, in other words, his understanding of the implication making a diagnosis of discogenic chronic back pain.

Discogenic back pain, in the truest sense implies a condition caused by internal disc disruption. It is different from disc prolapse or protrusion, whereby a nerve root is impinged. The term is first described[sic] by Dr Harry Crock, a Melbourne spine surgeon in the 1970’s. Diagnosis is by discography, It has classical physical sign on examination ie reversal of spinal rhytm[sic] on extending the spine from a flexed position. The treatment for this disabling back pain is usually a spinal fusion.
…

I do not have the opinion that the employment with BOM 21st December 2005 continues to contribute to the ongoing back pain since 2005, nor do I have the opinion that his current condition is in any way related to the 2005 work injury. The fact that he was only off work for 10 days, and returned to work thereafter, is very much in favour of a simple back strain.

115 Ibid 653-9.

The episodic nature of subsequent back aches is nothing more than what is commonly observed in a normal population ie non specific backache or backstrain. These episodic episodes had no connection to the 2005 initial work injury.

…
The nature of his work with BOM in my opinion did not contribute to the diagnosed condition or worsening of the condition to a significant degree. The literature support the work injury diagnosed as an episode of simple back strain. On the balance of probability, do not consider the mechanism of injury ie “overreaching when he heard his back crack” can be classed as a serious mechanism of injury.
…
I consider there are significant non-organic factors contributing to his current presentation and condition. Other factors would have to include an element of degenerative spondylosis, commensurate with his age.

I do not agree with Dr Suyapto’s view that the injury on 21 December 2005 continues to persist and that his current presentation is wholly related to the 2005 injury. I maintain my firm opinion that his initial injury was a simple lumbar musculo-ligamentous back sprain which has resolved quite immediately after the injury, which is supported by the fact that he returned to work after ten days from initial back sprain.”116

Dr Ghan disagreed with Dr Suyapto’s diagnosis of discogenic chronic back pain because there is no evidence to support such a diagnosis.

A radiology report dated 3 May 2024 stated: “MRI LUMBAR SPINE
Summary:

Disc degeneration without convincing nerve root impingement. Overall appearance is stable compared to previous MRI of 9 December 2020.

Clinical:
Work injury 21/12/2005. Lumbar and bilateral left pain due to L4/5 and L5/S1 disc protrusions.

116 Ibid 679-81.

Comparison Study:

MRI of 9 December 2020.

Findings:

No sinister vertebral marrow signal. The conus terminates at L1.

L1/2:

No disc bulge, spinal canal or neural foraminal stenosis. Facet joints are unremarkable.

L2/3:

No disc bulge, spinal canal or neural foraminal stenosis. Facet joints are unremarkable.

L3/4:

Mild posterior disc laxity. Minimal spinal canal stenosis.
No significant neural foraminal stenosis. Facet joints unremarkable.

L4/5:

Mild posterior disc laxity. Minimal spinal canal stenosis.
No significant neural foraminal stenosis. Mild bilateral facet joint degeneration.

L5/S1:

Broad based posterior disc bulge with mild spinal canal and bilateral neural foraminal stenoses.
Mild bilateral facet joint degeneration. Overall appearance is similar to the previous MRI examination with no progressive findings.
The soft tissues appear unremarkable.”117

On 28 May 2024 Dr Suyapto provided a further report in which he stated:

“Summary of History

117 Exhibit 3, MRI Lumbar Spine Report (dated 03.05.2024).

Mr Romano reported sustaining an injury to his lower back in the course of his employment due to the work duties that he was asked to do which includes replacing all the computer monitors at work. He had to remove all the cables and reconnect them again. He had to grab the monitors and often having to bend and twist and then he had to load them onto the trolley before putting them on the ground. The work includes bending and reaching and twisting. He reported pain to his lower back.

He saw a doctor and reported that he had physiotherapy, hydrotherapy, and a gym exercise program. He reported no improvement with the treatment.
Mr Romano reported being referred to Dr Yau, neurosurgeon and reported that an injection was performed at The Memorial Hospital. The injection made it worse and did not help with the pain.

Mr Romano reported that he had been referred to Dr Graham Wright, occupational and pain physician.

Progress Since Last Review

Mr Romano reported that about two months ago his work capacity was reduced to four days a week in which he was asked to do two days of work from home and two days from work. He reported that the changed in his work arrangement helped to manage his lower back symptoms although He reported that the pain overall is getting worse with limited improvement. He reported that he had been referred to Dr Low and Dr Sabetghadam for an independent medical examination.

Mr Romano reported that he has not had any physiotherapy undertaken.

Current Symptoms

Mr Romano reported constant lower back pain with varying intensity. He reported that he takes Panadeine Forte which helps with the pain, although reported that he had stopped this one week ago. He was previously prescribed Lyrica which he has stopped. He reported pain to his left leg mainly but reported no pins and needles or numbness.
His sleep has been affected.

Past Medical History

He reported no changes to his past medical history.

Medication

He reported that he takes Panadeine Forte, although this has stopped. He continues to take Nurofen and Panadol. He continues to take fish oil and turmeric. He has stopped taking glucosamine.

Other History

He reported no changes to his social history or activities of daily living in which he remains restricted. He reported no changes to his occupational history.

He reported that he continued working although at reduced hours. He reported that he mainly does administrative work.

Examination

I note that he was walking slowly with a slight limp. He did not have a walking aid with him today. Examination of the lumbar spine revealed loss of lumbar lordosis.

He was tender to the L5/S1 region in midline, as well as bilateral L4/L5 and L5/S1 facet joints. The tenderness was worse on the right L4/L5 and L5/S1 facet joints. He had reduced thoracolumbar flexion and extension. He had reduced rotation and lateral flexion, worse on the right.

Straight leg raising on the left was 40° and on the right 70°. He had normal power, sensation and reflexes to both lower limbs.

Imaging

Mr Romano brought along with him an MRI of his lumbar spine dated 3 May 2024. This was viewed.

Document Review

I confirm I reviewed the following documents provided:
1. IME Report of Dr Suyapto 11 October 2022
2. Supplementary Report of Dr Reza Sabetghadam 15 March 2023
3. Supplementary Report of Dr Francis Ghan 10 July 2023
4. MRI Lumbar Spine Report 3 May 2024
5. Work Capacity Certificate 21 March 2024
6. Work Capacity Certificate 19 April 2024
7. Work Capacity Certificate 17 May 2024

I note the report of Dr Sabetghadam dated 15 March 2023. He outlined that he disagreed with my diagnosis. He outlined that a medical practitioner scientifically and objectively cannot write down the patient’s subjective pain perception and correlate it with the lumbosacral spine investigation result. There is insufficient evidence in the medical literature to support the claim that the investigation result exactly corresponds to the examinee’s perception of pain. He then outlined that Mr Romano suffers from an underlying degenerative condition which would be symptomatic regardless of his occupational duties and social activities. He outlined that lifting and carrying 30-35 monitors per day is not classified as an accident or incident. He outlined it is unclear to me what accident or incident scientifically and objectively took place on 21 December 2005.

I note the report of Dr Ghan dated 10 July 2023. He disagreed with my diagnosis of discogenic chronic back pain. He did not believe that his employment with BOM worsened any pre-existing condition.

I note the MRI of the lumbar spine dated 3 May 2024, reported with disc degeneration without convincing nerve root impingement. L4/L5 mild posterior disc laxity with minimal spinal canal stenosis. L5/S1 broad-based posterior disc bulge with mild spinal canal and bilateral neural foraminal stenosis. There is mild bilateral facet joint degeneration at L4/L5 and L5/S1.

Summary and Opinion

Mr Romano reported sustaining injuries in the course of his employment. I disagree with the opinion of Dr Sabetghadam. I note that he wrote:
“In my opinion as a medical practitioner, scientifically and objectively, I cannot write down the patient's subjective pain perception and correlate it with the lumbosacral spine investigation results. There is insufficient evidence in the medical literature to support the claim that the investigation results exactly correspond to the examinee's perception of pain.”

If that is the case, there is no reason for a medical practitioner to take a history and there is no reason for a medical practitioner to refer someone for an investigation. What he is stating is that an MRI or any investigation of the lumbar spine is useless.

I also disagree that replacing 100 monitors over three days and probably
30 of them per day is not a significant contributing factor to the development of any significant trauma. I note that the work based on the reported history includes bending, twisting and working in awkward posturing while changing the monitors. It is unclear therefore how Dr Sabetghadam outlined that the work is not contributing to the development of the symptoms.

I note the report of Dr Ghan who disagreed with my diagnosis and stated that he did not believe that his employment with BOM worsened any pre- existing condition. I note from my previous report that Mr Romano reported no history of prior back injury.

I will now answer your questions.

History, Symptoms & Diagnosis:

1. What symptoms did Mr Romano report on examination?
I have outlined the current symptoms.

2. What history did you obtain from Mr Romano?

I have outlined the history above.

3. Was this history consistent with the history contained in the documents provided? If not, what differed?

It is in my opinion that the history is consistent with the imaging provided. I disagree with the report of Dr Sabetghadam and Dr Ghan for the reason I have outlined above.

4. After reviewing the additional information provided including the recent diagnostic report and reports of Dr Sabetghadam and Dr Ghan, do you maintain your diagnosis of “discogenic chronic back pain” in your report dated 11 October 2022?

I maintain my diagnosis of discogenic chronic back pain.
While I note that there was tenderness to the facet joints, in which he may also have facet arthropathy.

5. Do you maintain your opinion of 11 October 2022, that the Applicant’s presentation is wholly related to the 2005 injury and the back pain is predominantly caused by the 2005 injury? If so or if not, please explain why.

It is in my opinion that applicant’s presentation is solely related to the 2005 injury given the ongoing pain. He reported no resolution of the symptoms since then. He had ongoing pain.

6. Do you agree or disagree with Dr Sabetghadam and Dr Ghan’s diagnosis of Mr Romano? If so or if not, please explain why.

I disagree with the opinion of Dr Sabetghadam and Dr Ghan. I also disagree that the work cannot contribute to the development of symptoms. It is well-known that bending, twisting and awkward posturing can result in an injury to the lower back given the pressure to the lower back particularly with bending.

7. Whether you consider the injuries for which you assessed our client to be caused by their work. If yes, are you of the view that this diagnosis arises substantially from the injury sustained at work in 2005?

I consider that the lower back injury is to be caused by the work. It is in my opinion that the diagnosis arose substantially from the injury sustained at work in 2005 given the bending, twisting and awkward posturing while removing and lifting the monitors at work.

8. What further treatment is indicated for our client’s condition? Further treatment includes intermittent analgesia, activity modifications, and an exercise program.

9. Whether our client’s condition is stable. If yes, please provide a percentage of WPI.

His condition is stable.
I note the Comcare Guidelines for the evaluation of permanent impairment table 9.17 in which he would be assigned 8% whole person impairment as he fulfilled the linical history and examination findings compatible with a specific injury. Findings may include significant muscle guarding or spasm; asymmetric loss of range of motion; or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings. No alteration of the structural integrity and no significant radiculopathy

10. Should you consider our client’s condition to be unstable, please advise at what further interval of time an updated report should be requested.

Not applicable.

Capacity for Work:

11. Do you maintain your opinion of 11 October 2022, that the Applicant is restricted in his capacity for work? Please explain what in your view is Mr Romano’s current capacity for work and in that respect is he totally incapacitated (unable to perform any duties) or partially incapacitated due to his injury.
It is in my opinion that he is restricted based on his current presentation in which he had restricted thoracolumbar spine flexion, extension, lateral flexion and rotation.

I do not believe that he is totally incapacitated, but he is partial incapacitated. He should avoid bending, twisting and prolonged static posture. He should avoid any heavy lifting.

It is in my opinion that the current certification is appropriate given he can manage his symptoms although he continues to report ongoing pain to his lower back.

12. If he is partially incapacitated, what restrictions would you place on him in terms of:
a) Time (how many hours per day, days per week they can work)
b) Place (where they can work)
c) Activity (what they can do at work); Please explain the rationale for these restrictions.
The hours in which I note that he has been certified fit to work four days a week is suitable. This should continually be monitored by his GP depending on his progress or deterioration.

I note that he has been certified to work partially at work and partially on site. Again, this is appropriate. I believe that his appropriate modification can be assigned at work.

The restrictions aimed to manage his symptoms and to reduce further aggravation and therefore incapacity.

Recovery:

13. What is the prognosis of Mr Romano in general?
Prognosis is guarded given his ongoing pain since 2005.

14. Do you believe further treatment(s) is indicated? If so, what treatment regimen would you recommend in terms of:
a)Medication
b)Other modality of treatment
c)Surgery

Medications includes simple analgesia such as paracetamol and anti- inflammatory. Obviously, any side effects from the anti-inflammatory will need to be monitored.

I do not believe that surgery is indicated noting that he had been referred to Dr Yau, neurosurgeon.

15. Do you have any comments and/or recommendations to make in relation to rehabilitation and return to work?

I believe that ongoing provision of suitable duties would be beneficial for him and should form part of rehabilitation and treatment.

The contents of this report are true to the best of my knowledge and belief. I believe that I have made all the enquiries which I believe are desirable and appropriate, and that no matters of significance which I regard as relevant have, to my knowledge, been withheld from the Court.”118

CONSIDERATION

What was Mr Romano’s back condition immediately prior to December 2005?

I have considered all of the evidence. To the extent that there is disagreement in the expert evidence, I generally prefer the evidence of Dr Ghan and Dr Sabatghadam.

I have come to the view that it is highly likely, that if diagnostic imaging were available for a time immediately prior to December 2005, it would not have substantially differed from the post-December 2005 images, which are in evidence.

I accept the general assessment that there was no traumatic injury in December 2005, giving rise to a disc bulge, an annular tear, or any other specific identifiable pathology.

118 Exhibit 2, Independent Medical Examination Report of Dr Dion Suyapto (dated 28.05.2024).

I accept the assessment that Mr Romano had, and still has, an underlying degenerative condition of his spine, which produces intermittent symptoms regardless of his work or social activities.

I do, however, consider that Mr Romano’s degenerative spine has a propensity to become symptomatic, when stimulated by certain activities.

Did Mr Romano suffer an injury in December 2005?

I have come to the view that an injury occurred during the course of Mr Romano’s employment in late December 2005.

Leaving aside the semantic issue of whether it is currently acceptable medical terminology to describe this a “sprain” or a “strain”, I accept that this injury did give rise to pain and incapacity. Despite Mr Romano’s unreliable evidence, including that regarding his past back pain, there was an objective change in Mr Romano’s level of engagement with medical services, commencing in late December 2005.

This was almost certainly not however, Mr Romano’s first experience of similar back pain.

In my view, the injury resulted in an aggravation of his underlying degenerative pathology. This produced symptoms of sufficient severity, such as to require him to seek medical attention and to be incapacitated for work, at least until his return to work in early January 2006.

Mr Romano has since 2006, been locked into a repeating cycle of exacerbation of his underlying degenerative condition, improvement, stasis and then re-exacerbation.

Some re-exacerbations have corresponded with episodes at work. These episodes have included remaining seated for long periods of time during car journeys for field trips, sleeping in unfamiliar beds during work trips and performing various activities at work. None of these episodes have been the basis of a separate claim under the Act.

Some re-exacerbations have corresponded with non-work activities. These have included bending to put on his shoes and the effects of long-haul air travel to Italy, seated in economy class.

I have come to the view that whatever the jurisdictional or legal issues may be, the factual basis necessary to advance an argument that there was no original injury at all in December 2005, has not been established.

On the facts as found by the Tribunal, the initial liability issue, as formulated by the Respondent, does not arise.

Does the Applicant continue to suffer from the effects of his previously accepted ‘lumbar sprain’ sustained on 21 December 2005 from 23 February 2022 and presently?

Having regard to all of the evidence, I am satisfied that at an indeterminate point, but certainly by 23 February 2022, Mr Romano ceased to be suffering from any effects of the original December 2005 injury.

Accordingly, Mr Romano is not entitled to ongoing compensation for medical expenses under section 16 of the SRC Act as a result of the ‘lumbar sprain’ sustained on 21 December 2005 from 23 February 2022. He is also not entitled to ongoing payments under section 19 of the SRC Act as a result of the ‘lumbar sprain’ sustained on 21 December 2005 from 23 February 2022 .

DECISION

The reviewable decision dated 29 April 2022 is affirmed.

I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

....................[sgnd]............................

Associate Dated: 05/11/2024

Datesof hearing:	22, 23, 24 July 2024
AdvocatefortheApplicant:	Andrew Wright (WK Lawyers)
AdvocatefortheRespondent:	Kim Bradey (Counsel)

ANNEXURE A – LIST OF EXHIBITS

Exhibit no.	Lodged by	Document
1	Respondent	Tribunal Hearing Book
2	Applicant	Independent Medical Examination Report of Dr Dion Suyapto (dated 28.05.2024)
3	Applicant	MRI Lumbar Spine Report (dated 03.05.2024)
4	Applicant	1. Work Capacity Certificate (dated 21.03.2024) 2. Work Capacity Certificate (dated 19.04.2024) 3. Work Capacity Certificate (dated 17.05.2024)