Salehi and Comcare (Compensation)

Salehi and Comcare (Compensation) [2021] AATA 3294 (13 September 2021)
Division:GENERAL DIVISION
File Number: 2018/6181
Re:Khan Salehi
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:13 September 2021
Place:Melbourne

The decision under review is affirmed.
...................[SGD].....................................................
Senior Member C. J. Furnell
Catchwords
COMPENSATION – Commonwealth employee – low back condition – degenerative change in lumbar spine – whether applicant suffers from medical condition – whether disease or injury other than disease – applicant attributes condition to prolonged sitting at work – other work-related factors – employment did not contribute to disease to a degree that is substantially more than material – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219
Comcare v Laidlaw [1999] FCA 40
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Lees v Comcare (1999) 29 AAR 350
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare [2017] FCAFC 143
Schodde v Comcare [2015] AATA 598
Woodhouse v Comcare [2021] FCAFC 95
Secondary Materials
LexisNexis Australia, Cross on Evidence, vol 1 (online)
REASONS FOR DECISION
Senior Member C. J. Furnell
13 September 2021

The Applicant submits that he is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). In a compensation claim of 12 June 2017, that entitlement was said to arise with respect to two conditions: “lower back injury and anxiety due to injury.”[1]
[1] T3, p.2.
A liability to pay such compensation was denied in a determination of 4 August 2017.[2] The conditions with respect to which the determination was made were described as “low back pain related to degenerative change in the lumbar spine with probable radicular symptoms” and “adjustment disorder with depressed and anxious mood”.
[2] T15.1, p.168.
On 29 September 2017,[3] that determination was affirmed by a decision of a delegate of the Department of Human Services.
[3] T1.
The Applicant applied to the Tribunal for review of that decision. Leading up to the hearing of this application, the claim with respect to anxiety and depression was discontinued.
Hence, the sole issue in this proceeding is whether the respondent is liable under the Act to pay compensation to the applicant with respect to a lower back condition.
I have decided that the respondent is not so liable. Before delving into the reasons for doing so, however, I should first outline some aspects of the legislative and factual context.
ASPECTS OF LEGISLATIVE CONTEXT
Section 14(1) of the Act is central to this proceeding. Under it, the respondent is liable to pay compensation as required and provided for in the Act[4] “… in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
[4] Lees v Comcare (1999) 29 AAR 350 at [27].
Hence, in order for a liability to pay compensation to subsist, an “injury” must be suffered by an “employee”. (I note that at all relevant times the applicant was an “employee”[5], having commenced employment with the Department of Human Services in March 2016.[6])
[5] Act s 5(1), where employee is defined in a way which includes an employee of the Commonwealth.
[6] See, eg, T3, p.46; T12, p.99; T17, p.172.
Under s 5A(1) of the Act, and subject to a presently irrelevant exclusion,[7] an employee might suffer an “injury” if the employee suffers:
(a)“a disease”; or
(b)“an injury (other than a disease) … that is a physical or mental injury arising out of, or in the course of, the employee’s employment”; or
(c)“an aggravation of a physical or mental injury (other than a disease) … (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment.”
[7] Under s 5A(1) an injury “does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment”.
Section 5B of the Act identifies the circumstances in which an employee may be considered to suffer a disease. In particular, this will be the case when the employee suffers an ailment (being any physical or mental ailment, disorder, defect or morbid condition [whether of sudden onset or gradual development][8]), or an aggravation of an ailment, that was contributed to, to a degree that is substantially more than material, by the employee’s employment.
[8] Act, s 4(1).
As is apparent when ss 5B and 14 of the Act are read together, at least two types of requirement need to be met for there to be a liability to compensate in respect of a disease. There is a contribution requirement. The relevant employment needs to have contributed to the relevant ailment (or aggravation of ailment) to a degree that is substantially more than material. There is also a causation requirement. The relevant ailment (or aggravation of an ailment) needs to have resulted in death, incapacity or impairment.[9]
[9] Woodhouse v Comcare [2021] FCAFC 95 at [76], citing Comcare v Laidlaw [1999] FCA 40.
I note in passing that the nature of the required relationship with an employee’s employment differs depending on whether the claimed injury is a disease or an injury (or an aggravation of an injury) which is not a disease. The former requires a certain degree of contribution by the relevant employment. The latter requires that either the claimed injury arise out of the relevant employment (a causal connection) or occur in the course of the relevant employment (a temporal connection).
In some circumstances the requisite relationship with employment is, in effect, deemed to be met.[10] Section 7(6) of the Act is not, however, one of those provisions. It provides that:
An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:
(a)the incapacity or impairment would not have occurred;
(b)the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or
(c)the extent of the incapacity or impairment would have been significantly less.
[10] See, for example, in relation to an injury other than a disease, Act s 6(1).
Section 7(6) addresses the causation requirement – that is, the requirement concerning the connection between the relevant disease and the relevant employee’s death, incapacity or impairment. It “…is not concerned with “contribution requirement” and is not relevant to the assessment of whether the injury in question continues to have the relevant nexus to the employee’s employment.”[11]
[11] Woodhouse v Comcare [2021] FCAFC 95 at [114].
Lastly, the Act does not apply to an injury unless notice of it is given[12] and compensation under the Act is not payable unless a claim for it is made.[13]
[12] Act, s 53.
[13] Act, s 54.
QUESTIONS IN ISSUE
It is apparent from this legislative context that certain questions must be answered before the issue of whether the respondent is liable under the Act to pay compensation to the applicant with respect to a lower back condition can be addressed.
As I see it, those questions are:
(a)Does the applicant suffer from any particular medical condition encompassed by his notices of injury and compensation claim?
(b)If he does, is the medical condition a disease or an injury other than a disease?
(c)If it is a disease, has the applicant’s back condition been contributed to, to a degree that is substantially more than material, by his employment?
These questions can only be answered in the factual context in which they arise, a context to which I now turn.
ASPECTS OF FACTUAL CONTEXT
The applicant was born in 1980.
He underwent a pre-employment medical with the Department of Human Services on

15 February 2016 and was characterised as suitable for the position for which he applied, without restriction.[14]
[14] T12, p.77.
He commenced employment with the Department on 15 March 2016.[15]
[15] T3, p.46; T12, pp. 75 and 99.
In April 2016, he submitted an injury report in relation to neck and shoulder pain. In it, the applicant stated that the pain was due to frequent bending in the month since commencing employment, a requirement, he said, of his job.[16]
[16] T12, p.94. In an email of 14 April 2016, the applicant complained of neck, shoulder and knee pain, which he attributed to “standing long hours and bending to support client”.
In June 2016, he submitted an injury report in relation to left knee pain.[17] He then suggested that “doing standing job for last three months” was the cause of his pain (a suggestion repeated by the applicant in an email of 14 June 2016).
[17] T12, p.96.
The applicant then provided two medical certificates, one of 11 June 2016 and the other of 16 June 2016. In the first, it was stated that the applicant would benefit if his “type of job changed from standing to sitting down job.”[18]
[18] Exhibit R6 (Medical Certificate of Dr Athapattu of 11 June 2016).
Also in June 2016, an ergonomic assessment was completed in relation to the applicant’s workstation.[19] Again, excessive standing was said to be a problem, with the applicant stating to the assessor that his left knee pain symptoms were aggravated by standing for more than 20 to 30 minutes.[20]
[19] T12, p.97.
[20] T12, p.98.
Consequent upon the assessment, adjustments were made to the applicant’s workstation and he was provided with recommendations as to how to maintain his desk set-up. I note that the assessor reported that the applicant’s rest breaks included a five-minute break every hour.[21]
[21] T12, p.99.
On 5 July 2016, the assessor’s report was made available to the applicant.[22] Amongst other things, it was recommended that the applicant alternate between sitting and standing postures every 30 to 60 minutes until his left knee pain resolved.
[22] Exhibit R10 (Email of 5 July 2016).
On 18 July 2016, the applicant attended the rooms of his general practitioner with respect to, amongst other things, a sore lower back.[23]
[23] Exhibit R4 (Thompson Road Clinic Records – summonsed material).
Despite initially contending that his knee condition was a work-related condition for which he would be seeking compensation,[24] in around mid-July 2016, the applicant decided not to pursue a workers’ compensation claim with respect to the condition. This was apparently because, rather than being work-related, the applicant’s general practitioner had suggested that the condition was due to the applicant’s weight as well as being possibly related to a soccer injury and a genetic arthritic condition.[25]
[24] Exhibit A4 (Email of 14 July 2016).
[25] T12, p.111. See also T12, p.106.
On 9 January 2017, the applicant was re-deployed so that his role became predominantly computer-based.[26] That is, consistent with the medical certificate of 11 June 2016,[27] his role became one where the predominant posture was no longer standing but was, instead, sitting.
[26] T12, p.130 (Statement of 19 July 2017 of Ms Selimi).
[27] Exhibit R6 (Medical Certificate of Dr Athapattu of 11 June 2016).
On 4 April 2017, the applicant submitted an injury report in relation to back and hip pain. In it the applicant stated that “I been working sitting job all day, and it is hurting my back” and “I feel pain in my muscles sitting all day”. He then said: “I need a desk which I can adjust to sit and stand.”[28]
[28] T12, p.113.
On 18 April 2017, the applicant was advised to obtain a recommendation for an electric sit/stand desk from his treating doctor. He was also provided with information as to certain software that was said to provide reminders to take breaks after prolonged sitting.[29]
[29] T12, p.114.
On 26 April 2017, a medical certificate from Dr Gedera was provided to the effect that the applicant required an adjustable table due to his history of left knee pain.[30]
[30] T12, p.115.
In an email of 27 April 2017, the applicant stated that it “…is not suitable for me to stand too long or sit too long , however, sitting is much better for me, if I have breaks and stretching, or use a desk which I can adjust accordingly…”.[31]
[31] Exhibit A4.
By 1 May 2017, the ordering of a sit/stand desk for the applicant had been approved.[32]
[32] T12, p.121.
Also on 1 May 2017, the applicant consulted Dr Azeez about back pain. Medical records of that consultation simply note that there had been “no recent trauma” and that the applicant had had back pain “once or twice” in the past.[33]
[33] Exhibit R3 (Park Avenue Medical Centre Records – summonsed material).
On 18 May 2017, the applicant’s supervisor (or team leader) discussed with the applicant his request for a promotion. He was then told that examples of his work outlined in his draft promotion submission had not demonstrated performance at the level to which he wished to be promoted.[34]
[34] T12, p.131-2. The supervisor’s comments on the applicant’s promotion submission are outlined in an email of 25 May 2017 at T12, p.134.
Also on 18 May 2017, the applicant was seen by Dr Patil of Thompson Road Clinic in relation to low back pain. The applicant was said to have denied any trauma.[35]
[35] Exhibit R4 (Thompson Road Clinic Records – summonsed material).
In a 19 May 2017 report with respect to an MRI conducted in relation to the applicant, it was stated that the “L5/S1 intervertebral disc demonstrates degeneration… There is a left posterior paracentral focal disc bulge … which compresses and displaces the left S1 nerve root in the lateral recess…”.[36]
[36] T17, p.178.
On 22 May 2017, Dr Patil certified that the applicant was unfit for work in the period 22 May 2017 to 29 May 2017.[37]
[37] T3, p.53; T17, p.173.
On 23 May 2017, the applicant was on leave. He contends it was because of his medical condition. The respondent’s records suggest that he was then on special leave “to attend court re AVO and other matters”.[38]
[38] T12, pp.117-8.
On 24 May 2017, the applicant attended the Park Avenue Medical Centre where he saw Dr Gupta who reported that the applicant had complained of having back pain for a few weeks.[39] Dr Gupta refused to be involved in any work cover claim.[40] That afternoon, the applicant also went to see Dr Prakash about his back.[41]
[39] Exhibit R3 (Park Avenue Medical Centre records – summonsed material).
[40] Exhibit R3 (Park Avenue Medical Centre records – summonsed material).
[41] Exhibit R4 (Thompson Road Clinic Records – summonsed material).
On 26 May 2017, in an attendance on Dr Khan of First Health Medical Centre, the applicant apparently advised that he “had back pain, radiating down the left leg since 2-3 weeks…”.[42] Dr Khan later certified that in the consultation of 26 May the applicant complained of back pain that had started “few weeks before his appointment with me”.[43] Dr Khan issued a certificate stating that the applicant was unfit for work in the period 29 May 2017 to 2 June 2017.[44]
[42] T9, p.63.
[43] T17, p.175.
[44] T17, p.177.
On 3 June 2017, Dr Khan again certified that the applicant was unfit for work, this time in relation to the period 3 June 2017 to 2 July 2017.[45] In the certificate, the condition suffered by the applicant was described as a lower back disc bulge, being an exacerbation of existing condition. Dr Khan subsequently provided similar certificates in relation to later periods.[46]
[45] T12, p.116: while this medical certificate was purportedly signed by the applicant on 3 May 2017, this appears to be a typographical error.
[46] T17, pp.179-80.
On 6 June 2017, the applicant’s workplace team leader reported that the applicant’s desk had been modified to enable adjustment from a sitting to a standing position.[47]
[47] T12, p.120.
On 8 June 2017, the applicant submitted a further injury report in relation to his back.[48] In the covering email, the applicant explained that since lodging his April injury report and a subsequent MRI, he had “…come to know it was not due to knee issues. I have lower back disc bulge…”.[49]
[48] T12, p.122.
[49] T12, p.121.
In the injury report itself, the injury was simply described as a back injury which, since April 2017, he had “…come to know was not knee pain in fact it was lower back disc bulge…”.The circumstance involved was said by the applicant to be: “sitting long period of time and that time I was not offered adjustable table.”[50]
[50] T12, p.123.
On 12 June 2017, the applicant lodged his workers’ compensation claim[51] in respect of a “lower back injury and anxiety due to injury” which arose when he was performing his usual work tasks and which was said to have been first noticed on 23 May 2017 (which, as noted earlier, was a day when the applicant was on leave).
[51] T3.
On 16 June 2017, the applicant provided a statement in which he said:
“Due to my role requirement I have to sit 8 hours every day. Back in April or begging [sic] of May, I started feeling back pain and I lodged an injury report to my employer. I have reported my employer that I am feeling pain at my back and I have requested to provide me an adjustable table because due to sitting all day put too much pressure on my back. My employer advised me to visit a doctor to discuss this matter and provide a support letter from my doctor.”[52]
[52] T8, p.60.
In the statement of 16 June 2017, the applicant also stated that:
(a)he notified his employer of his lower back problem on 22 May 2017 after he had undertaken an MRI scan.
(b)he had changed his treating general practitioner as the one who had arranged for his scan had gone overseas for a holiday.[53]
[53] T8, pp.60-1.
On 22 June 2017, Dr Khan stated that the applicant had been “injured at work”, that he was unaware of the applicant’s prior history given that he only commenced seeing the applicant on 26 May 2017 and, when asked to specify whether the applicant’s employment had contributed to his condition, Dr Khan’s response was “uncertain”.[54]
[54] T11, pp.68-9.
In a statement of 19 July 2017,[55] the applicant’s supervisor (characterised as his team leader) asserted that:
(a)as the applicant’s role was self-paced, the applicant had the capacity to take postural breaks;
(b)since initially reporting his back condition in April 2017, the applicant had been offered, but had declined the offer of, the use of an adjustable desk; and
(c)the applicant had been encouraged to take 10-minute stretch breaks every 50 minutes.
[55] T12, p.130.
As mentioned earlier, on 4 August 2017, it was determined to deny liability to compensate the applicant for low back pain related to degenerative change in the lumbar spine with probable radicular symptoms.[56]
[56] T15.1, p.168.
On 4 September 2017, in seeking reconsideration of that adverse determination,[57] the applicant indicated that:
(a)he had been requesting that his team leader provide an adjustable desk since early April 2017 and her response had been that it could take weeks, if not months, to arrange;
(b)his employer “took more than a month to provide me supporting equipment for my needs. With early intervention and proper workstation adjustments I would not have aggravated my back condition...”;
(c)he was told to use the adjustable desks of staff who were on leave but he felt uncomfortable about doing so. I note that this is somewhat inconsistent with the applicant’s statement in his undated Statement of Facts, Issues and Contentions to the effect that he totally disagreed with his team leader’s statement that he was offered an adjustable desk;
(d)he could not take 10-minute stretch breaks every 50 minutes due “to KPI and work load”. I note his team leader’s statement that the applicant had been encouraged to take such breaks;
(e)he had “never before suffered from back issues and never visited a GP for back issues”. I note that this appears inconsistent with the applicant having, on 18 July 2016, sought treatment for a back injury and with the statement he apparently made to Dr Azeez on 1 May 2017 to the effect that he had “once or twice” in the past experienced issues with his back.[58] At the hearing of this proceeding, the applicant’s explanation for this apparent inconsistency was that he had not sought treatment for back issues before commencing work for the Department in March 2016;
(f)he only became aware that his medical condition was due to lower back issues on seeking a second opinion from Dr Patil who, on 22 May 2017, provided him with the results of his MRI scan;
(g)he completed his injury report on 24 May 2017. At the hearing of this proceeding, the applicant stated that he was then in extreme pain and that his team leader should have completed the report rather than requiring him to do it then. As is apparent from the report, however, it was not lodged until 8 June 2017;[59]
(h)he started seeing Dr Khan because his usual general practitioner had gone overseas (in repetition of the statement he had made on 16 June 2017).[60] In fact, as became apparent from the applicant’s evidence in the course of the hearing of this matter, the applicant changed his treating general practitioner because his usual general practitioner refused to be involved in his workers’ compensation claim.
[57] T17, p.171.
[58] Exhibit R3 (Park Avenue Medical Centre Records – summonsed material).
[59] T12, p.122.
[60] T8, pp.60-1.

I turn now to consider the three questions in issue identified earlier.
DOES THE APPLICANT SUFFER FROM ANY PARTICULAR MEDICAL CONDITION ENCOMPASSED BY HIS NOTICES OF INJURY AND COMPENSATION CLAIM?
I find that the applicant does suffer from a relevant medical condition.
In July 2017, Dr Burke, occupational physician, diagnosed the applicant as suffering from a condition which he described as “low back pain related to degenerative change in the lumbar spine with probable radicular symptoms.”[61]
[61] T13, p. 140: report of 31 July 2017.
A similar diagnosis was made by:
(a)Mr Gardiner, orthopaedic surgeon, who, in a report of 9 April 2019, opined that the applicant suffered from “[l]ow back pain with radicular symptoms in the left lower extremity in conjunction with an L5-S1 disc bulge displacing and compressing the S1 nerve root”.[62]
(b)Dr Kennedy, sports and industrial physician, who, in a report of 6 September 2019, opined that the applicant suffered an injury “involving the myofascial structures and also the lower lumbar intervertebral discs and posterior facet joints, with the development of some radicular symptoms into the lower left extremity…”.[63]
(c)Dr Journeaux, orthopaedic surgeon, who, in a report of 19 October 2020, opined that the applicant suffered from “[s]ingle-level degenerative disc disease presenting with an L5/S1 disc prolapse with evidence of left S1 neural impingement.”[64]
[62] Exhibit A7.
[63] Exhibit A2.
[64] Exhibit R9.
I prefer these opinions to that expressed by Dr Stewart, occupational physician.
In a report of 24 September 2019,[65] Dr Stewart stated that, while there were bulges in the applicant’s spinal disc, this did not reflect any underlying pathology. According to Dr Stewart, the applicant “does not have a medical condition” and “does not have a major medical problem”. He has “non-specific back pain” which is not a recognised medical condition.
[65] Exhibit R2.
Dr Stewart’s evidence in this regard is inconsistent with the weight of evidence before me. Moreover, Dr Stewart appears to have been unaware of certain aspects of the applicant’s condition to which reference was made by the other medical experts. No mention was made by Dr Stewart in his report of radicular symptoms or nerve root compression. Indeed, the applicant’s disc bulges were said by Dr Stewart to have no “relevant connection with his symptoms”. In this regard, I note that Dr Stewart would not appear to have had access to the 19 May 2017 MRI report in which the applicant’s disc bulge was described as one “which compresses and displaces the left S1 nerve root.”[66]
IF THE APPLICANT DOES SUFFER FROM A RELEVANT MEDICAL CONDITION, IS IT A DISEASE OR AN INJURY OTHER THAN A DISEASE?
[66] T17, p.178.
I find that the applicant’s medical condition is a disease.
As stated earlier, for a medical condition to give rise to a compensable injury, there needs to be a relationship between the condition and the relevant employee’s employment.
Before any determination can be made as to whether the requisite relationship is satisfied in any particular case, it is first necessary to decide whether the relevant medical condition is a disease or an injury not being a disease (noting, however, that the concepts of “injury” and “disease” are not mutually exclusive[67]). That decision is based on the “…nature and incidents of the physiological change” engendered by the relevant condition. [68]
[67] Prain v Comcare [2017] FCAFC 143 at [72].
[68] Military Rehabilitation andCompensation Commission v May (2016) 257 CLR 468 at [47]-[48]; [62].
As mentioned, I have found that the applicant’s back condition is a disease. The nature and incidents of that condition are not consistent with its being characterised as an injury other than a disease.
An injury other than a disease is generally one that entails “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”[69] or “…some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not sudden, is at least ‘identifiable.”[70] While “suddenness” is not determinative, it can be useful in distinguishing between a physiological change and the natural progress of an underlying disease.[71]
[69] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at 300.
[70] Military Rehabilitation andCompensation Commission v May (2016) 257 CLR 468 at [75].
[71] Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219 at [116].
Here, the physiological change represented by the applicant’s back condition was neither sudden nor dramatic. Instead, it appears to be one reflective of progressive degeneration. Like the circumstances considered by the Tribunal in Schodde, the applicant’s “back condition was of insidious onset and was not associated with a discrete event on a particular day.”[72]
[72] Schodde v Comcare [2015] AATA 598 at [14].
In this regard, reference is made to:
(a)the MRI report of 19 May 2017 which, as mentioned earlier, identified disc degeneration at the L5/S1 level of the applicant’s spine, accompanied by a disc bulge that compressed the left S1 nerve root;[73]
(b)the diagnoses of Dr Burke and Dr Journeaux, both of whom characterised the applicant’s condition in terms of degenerative change;
(c)Mr Gardiner’s 9 April 2019 report, in which he expressed his assumption that the applicant suffered from degenerative changes at the L5-S1 disc level;
(d)the applicant’s history as recorded in Mr Gardiner’s 9 April 2019 report, in which it was noted that there had been no specific injury in the workplace and no traumatic episode, with pain being a gradual development. According to Mr Gardiner, the applicant “… told me that in April 2017 he developed low back pain… He attributes the development of this pain to the prolonged sitting at work. Again, there was no specific injury mentioned.” The applicant is said by Mr Gardiner to have denied “the occurrence of a particular acute episode that resulted in the low back pain…”;[74]
(e)the applicant’s history as recorded by Dr Journeaux where it was noted that the applicant had indicated that there had been no specific injurious event;
(f)the applicant’s history as recorded by Dr Kennedy where it was noted that the applicant had “gradually started to notice low back pain”;[75]
(g)the medical records of Dr Azeez, Dr Gupta, Dr Patil and Dr Khan, who the applicant consulted in May 2017 about his back condition. In those records, no reference is made to any particular work-related incident. Indeed, Dr Azeez’s records of 1 May 2017 expressly refer to an absence of trauma,[76] while Dr Patil’s records of 18 May 2017 state that the applicant denied suffering any trauma;[77] and
(h)the applicant’s oral evidence before the Tribunal in which he made no reference to any particular workplace incident.
[73] T17, p.178.
[74] Exhibit A7.
[75] Exhibit A2.
[76] Exhibit R3 (Park Avenue Medical Centre Records – summonsed material).
[77] Exhibit R4 (Thompson Road Clinic Records – summonsed material).
I reject any inference that there was a particular incident at work which contributed to the applicant’s back condition. Such an inference might be said to arise from the statement the applicant made in an undated further submission to the effect that, in mid-May 2017, he experienced very strong back pain while cleaning his desk and arranging his table at work. Such an inference would not survive the weight of the evidence before me, as reflected in the material to which I just referred.
I note, however, that some support for the inference might be said to be found in a certificate of 5 September 2018, in which Dr Khan stated that the applicant’s back pain commenced when he was trying to move a table at work.[78]
[78] Exhibit A1.
I do not accept that the applicant’s back pain so commenced. It is not consistent with the material to which I just referred in support of my conclusion that the physiological change represented by the applicant’s back condition was neither sudden nor dramatic. Second, it does not reflect the applicant’s oral evidence. Third, it is not reflected in the applicant’s injury reports of April and June 2017. In those reports (and in other material before me which I will soon get to), the applicant’s back condition was attributed to excessive sitting. Fourth, Dr Khan’s statement that it so commenced is not reflected in the clinical notes taken when he first saw the applicant on 26 May 2017.[79] Nor is it repeated by Dr Khan in his report of 24 January 2019[80] or in his June 2017 certificate (and subsequent certificates) in which he describes the applicant’s condition in terms of being an exacerbation of an existing condition.[81] Further, it is difficult to reconcile with Dr Khan’s response on 22 June 2017[82] that it was uncertain whether the applicant’s employment had contributed to, to a significant degree, the exacerbation of his existing condition.
HAS THE APPLICANT’S BACK CONDITION BEEN CONTRIBUTED TO, TO A DEGREE THAT IS SUBSTANTIALLY MORE THAN MATERIAL, BY HIS EMPLOYMENT?
[79] T9, p.63.
[80] T21.
[81] T17, p.179.
[82] T11, p.69.
As a disease, for the applicant’s back condition to constitute an injury compensable under the Act, it is necessary that a contribution requirement be met. In particular, it is necessary that the ailment constituted by the condition (or an aggravation of that ailment) have been contributed to, to a degree that is substantially more than material, by his employment.
I find that the applicant’s back condition (whether it be an ailment or an aggravation of an ailment) was not so contributed to by his employment.
Subject to an issue raised by the applicant in the course of the hearing, which I will address later, the nature of the contribution to his back condition which is said by the applicant to have been made by his employment is apparent from his injury reports of April and June 2017 and his statement of 16 June 2017. In that material, the applicant attributed his back pain to having to remain seated for prolonged periods of time as part of his employment. This attribution is also reflected in:
(a)an undated further submission of the applicant in which he stated that the role he undertook in 2017 involved continuous sitting “with no movement except the break time.” According to the applicant, he “started pain in my Knee” due “…to long sitting and not much moving around…”, and then began to suffer back pain after not having been given an adjustable table “because sitting long hours was hurting me”.
(b)the history the applicant apparently provided to Mr Gardiner, Dr Burke and Dr Kennedy. In his report of 9 April 2019, Mr Gardiner stated that the applicant attributed his back condition to prolonged sitting. Similarly, according to Dr Burke, the applicant associated the development of his low back symptoms with prolonged sitting.[83] In Dr Kennedy’s report, the applicant’s back pain was said to have commenced in January 2017 when “he was sitting at a desk on the telephone and computer for prolonged periods of time” and “in early May 2017 he developed quite severe low back pain as he was still working sitting at a computer for his entire shift”.[84]
[83] T13, p.139.
[84] Exhibit A2.
In his undated Statement of Facts, Issues and Contentions, the applicant submitted that his back condition was due to body stress, with the circumstances of his employment that generated his body stress reflecting a contravention by his employer of its own policies. In short, those circumstances involved him being “push to [sic] hard to do my job.” The applicant’s underlying contention appeared to be that, as a result of those circumstances, he remained for too long in a seated position, a situation which led to body stress and which, in turn, resulted in his back condition.
In support of that contention, the applicant produced various Department of Human Services policy and procedure documents.[85] Amongst those documents was a publication of the Department’s Workplace Relations, Safety and Policy division of 6 February 2020 in which it is stated (with my emphasis) that:
“Body stress injuries can have a sudden onset such as high force trauma in an accident, falling down some stairs or performing a hazardous manual task… Alternatively, body stress injuries can have a slow or cumulative onset and be complicated by existing degenerative conditions… Sedentary work, where employees sit for long periods can increase the risk of injury.”
[85] Exhibit A5.
In order to accept the applicant’s submission, I would need to be satisfied that he remained seated for prolonged periods of time and that him doing so contributed to his back condition to a degree that is substantially more than material.
Whatever might be the case in terms of the applicant remaining seated for prolonged periods, I am not satisfied that, if he did, him having done so contributed to his back condition to a degree that is substantially more than material.
While Dr Burke appeared to acknowledge the possibility that prolonged sitting may have an adverse effect on the lumbosacral spine (stating that there is “limited evidence” of this), he opined that the applicant’s condition had not been caused or contributed to by his work and that his employment had not made any significant contribution to his condition. That condition was, according to Dr Burke, a constitutional one, unrelated to the applicant’s work.[86]
[86] T13.
Like Dr Burke, Dr Journeaux also appeared to acknowledge the possibility that prolonged sitting may have an adverse effect.[87] He accepted that prolonged standing and sitting, and any significant bending, twisting or lifting, at work had the potential to result in symptomatic aggravation of the applicant’s condition. Consistent with his recognition of that potential,

Dr Journeaux enclosed with his report an article published in International Orthopaedics entitled “Current Concepts for Lumbar Disc Herniation”. At p.842 of that article, there appears the following statement:
Recent scientific evidence from caprine lumbar spines showed that prolonged static axial overloading primes the lumbar intervertebral disc for posterolateral herniation that may be the basis of low back pain and herniation in people leading a sedentary and sitting life style…[88]
[87] Exhibit R9 (report of 19 October 2020).
[88] Exhibit R9 (annexure to report of 19 October 2020): Thami Benzakour et al, ‘Current Concepts for Lumbar Disc Herniation’ (2019) 43 International Orthopaedics 841, p.842.
Despite recognising the potential adverse effect of prolonged sitting, like Dr Burke,

Dr Journeaux nevertheless opined that the applicant’s underlying condition is constitutional and degenerative which had no causal relationship with the applicant’s work. According to Dr Journeaux, the applicant’s employment had not made a significant contribution to his back condition.
As to the question of contribution, I prefer the evidence of Dr Burke and Dr Journeaux to that of Mr Gardiner and Dr Kennedy.
Mr Gardiner’s evidence as to this question[89] was, from the applicant’s perspective, equivocal, at best.
[89] Exhibit A7 (report of 9 April 2019).
Mr Gardiner opined that the applicant’s previously asymptomatic early degenerative changes at the L5/S1 disc level had been rendered symptomatic by prolonged sitting.
The equivocation concerning this opinion is apparent from the precise terms in which it was expressed. In particular, Mr Gardiner stated that the previously asymptomatic early degenerative changes:
“…may have been brought to light as a result of prolonged sitting in the workplace. Therefore, I would say that there has been an aggravation of an underlying degenerative condition which has been made symptomatic as a result of prolonged sitting.”
The expressed basis for Mr Gardiner’s opinion does not constitute a foundation for it. An opinion that prolonged sitting has rendered an underlying condition symptomatic is not supported by a statement that prolonged sitting “may have” brought the condition to light. That is a statement simply as to the possible effect of prolonged sitting. A statement of possible effect does not “therefore” support an opinion as to actual effect.
Moreover, and in any event, Mr Gardiner’s report offered no support for the proposition that prolonged sitting had contributed to the applicant’s back condition to the requisite degree (ie, to a degree that is substantially more than material). Indeed, Mr Gardiner refused to opine about the degree to which prolonged sitting had contributed to the applicant’s back condition. As to this issue, he simply stated that:
“it is not possible to be adamant that work has significantly contributed to… [the applicant’s] condition. It may be suggested that the pain could have developed irrespective of his activities at the time of onset of pain.”
Dr Kennedy opined that the applicant’s work-related activities in the period January to May 2017 resulted in a work-related injury involving the myofascial structures and also the lower lumbar intervertebral discs and posterior facet joints with the development of some radicular symptoms into the lower left extremity.[90]
[90] Exhibit A2 (report of 6 September 2019).
Dr Kennedy expressed his opinion that the applicant’s back condition was work-related after noting that the applicant started to develop problems in his back when sitting at work, that those problems worsened when the applicant continued to work while sitting and that a MRI revealed that the applicant suffered from disc damage. The matters so noted, however, simply establish a temporal connection between the applicant’s work and his back problems, not a causal connection.
The Tribunal must be able to understand how an opinion was arrived at before it can rely on the opinion in coming to its conclusion on a question in issue. Hence, like courts, the Tribunal “…cannot be expected to act upon opinions the basis of which is unexplained.”[91] In this regard, Dr Kennedy does not identify, at least expressly, any causal connection between the applicant’s work and his back condition, let alone comment on the degree or extent of any such causal connection. Absent him having identified that causal connection, the intellectual basis for his opinion that the applicant’s work “resulted in a work related injury” is left undemonstrated.
[91] R v Jenkins; Ex parte Morrison [1949] VLR 277 at 303 per Fullagar J citing an extra-judicial statement of Sir Owen Dixon. See LexisNexis Australia, Cross on Evidence, vol 1 (online at 27 August 2021) at [29075].
It might be said to be implicit that Dr Kennedy considered prolonged sitting to be the causal connection between the applicant’s work and his back condition, given the matters noted by him before expressing his opinion that the applicant’s back condition was work-related. If so, I cannot be satisfied on the material before me that prolonged sitting would have had a significant effect on the applicant’s low back (or, put another way, would have contributed to the applicant’s back condition to a degree that is substantially more than material). The reports of Mr Gardiner, Dr Burke and Dr Journeaux admit of the possibility that prolonged sitting has an adverse effect on lumbar discs. None of those reports, however, support a conclusion that the effect is significant and Dr Kennedy does not address the issue.
Lastly, in stating that the applicant’s work activities resulted in a work-related injury,

Dr Kennedy failed to acknowledge the role played in the applicant’s back condition of an underlying constitutional, degenerative, condition, a role to which Mr Gardiner, Dr Burke and Dr Journeaux all made reference.[92] The explanation for this might lie in the fact that

Dr Kennedy had not seen the report of the MRI conducted in May 2017 which referred expressly to disc degeneration. While he was aware of the MRI having been conducted, he said simply said that it revealed disc damage.
[92] Dr Khan, too, acknowledged the existence of a pre-existing condition in his certificate of 3 June 2017: T12, p.116.

As an aside, I mention that Dr Kennedy’s report may have been affected by some confusion about the factual context. For example, he referred in his report to the “accident” and the “incident” without identifying what they were (while, indeed, seemingly accepting of the applicant’s condition being one of gradual onset) and, contrary to the applicant’s evidence and to the history reflected in the other medical reports, Dr Kennedy stated that the applicant began experiencing back problems “when sitting at a desk on the telephone and a computer in January 2017.”
OTHER WORK-RELATED FACTORS?
During the course of the hearing of this proceeding, the applicant (for what would, on the material before me, appear to be for the first time) identified what he contended were employment-related factors additional to prolonged sitting which had induced body stress and, in turn, caused his back condition.
In particular, according to the applicant, he suffered body stress not only by reason of his having to remain in a seated position for prolonged periods as part of his employment in 2017 but also because, in 2016, he had been required to:
(a)remain standing for prolonged periods which resulted in an injury to his left knee which, in turn, resulted in an alteration to his gait which had a consequential, adverse effect on his back. I note in passing that attributing his left knee condition to his employment in 2016 appears inconsistent with the rationale the applicant apparently adopted in deciding in July 2016 not to pursue a workers’ compensation claim with respect to that condition (which, as previously indicated, concerned a causal connection between that condition and his weight, participation in soccer and genetics).
(b)undertake significant bending at the hips in order to view the monitors of those utilising self-service computer facilities.[93]
[93] I note that in an email of 14 April 2016, the applicant attributed pain he was then suffering to not only having to stand for lengthy periods of time but also having to bend to support clients with their self-service needs.
Dr Journeaux accepted that, as well as prolonged sitting, prolonged standing and significant bending, twisting or lifting had the potential to result in symptomatic aggravation of the applicant’s condition.[94] There is, however, no medical evidence before me on the basis of which I could be satisfied that these two additional, allegedly employment-related, factors – whether alone or in combination with the prolonged sitting factor – had, in fact, caused any such symptomatic aggravation (or made any contribution to the applicant’s back condition, let alone a contribution to a degree that is substantially more than material).[95] Indeed, the material before me is suggestive of a contrary conclusion noting, for example, Dr Burke’s opinion that the applicant’s condition “would have occurred at about this stage of life irrespective of him being employed…”.[96]
[94] Exhibit R9 (report of 19 October 2020).
[95] That the applicant did not seek to adduce such evidence might have reflected a misunderstanding as to where the burden of persuasion lies in this proceeding. In his undated Statement of Facts, Issues and Contentions, the applicant notes that “there is no strong evidence that this back issue is…not work related injury”.
[96] T13, p.141.
CONCLUSION
I have found that the applicant’s back condition is a disease which was not contributed to, to a degree that is substantially more than material, by his employment.
As such, the respondent is not liable under the Act to pay compensation to the applicant with respect to his lower back condition.
Accordingly, the decision under review is affirmed.

I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

....[SGD].......................................................
Associate
Dated: 13 September 2021

Date of hearing: 7 June 2021

Applicant: Self-represented

Counsel for the Respondent: Cathy Dowsett

Solicitors for the Respondent: Moray & Agnew Lawyers

[2021] AATA 3294

13 September 2021

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Statutory Construction

Remedies

Date of hearing:	7 June 2021
Applicant:	Self-represented
Counsel for the Respondent:	Cathy Dowsett
Solicitors for the Respondent:	Moray & Agnew Lawyers