Sprice and Comcare (Compensation) - [2021] AATA 4564

Sprice and Comcare (Compensation) [2021] AATA 4564 (6 December 2021)
Division:GENERAL DIVISION
File Number(s): 2018/7183; 2020/4421; 2020/4423; 2020/4489; 2020/4995; 2020/5538
Re:James Sprice
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:6 December 2021
Place:Sydney

The Reviewable Decisions which are the subject of the six applications for review are affirmed.
...................[SGD].....................................................
Senior Member Linda Kirk
CATCHWORDS
WORKERS COMPENSATION – permanent impairment - household expenses – pain management expenses – cease effects – psychological condition – what is an ‘injury’ – does the Applicant continue to suffer from the effects of the accepted conditions – are the accepted condition an ‘injury (other than a disease)’ – whether the Tribunal can make a decision contrary to the s 14 findings – decisions under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 5, 5A, 14, 16, 19, 24, 27, 29
CASES
Australian Postal Corporation v Burch (1998) 156 ALR 483
Commonwealth v Snell (2019) 269 FCR 18; [2019] 57 FCAFC
Kennedy Cleaning v Petkokska (2000) 174 ALR 626
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Portors v Comcare [2018] FCA 914
Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
SECONDARY MATERIALS
Comcare Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
Senior Member Linda Kirk
6 December 2021

Mr James Sprice (‘the Applicant’) was born on 26 June 1969. He commenced employment as a groundsman with the Department of Defence at Holsworthy in approximately 1992.[1] His duties involved mowing lawns and general groundskeeping duties.[2] On 22 January 1998, the Applicant commenced employment with the Family Court of Australia (‘the agency’) as a Client Service Officer, APS Level 2.[3] His duties involved clerical work, assisting judicial officers, marking exhibits and data entry.[4]
[1] Exhibit EA1, [4].
[2] Transcript of proceedings, 25 May 2021, 20.
[3] Applicant’s SFIC at [4].
[4] Transcript of proceedings, 25 May 2021, 21.
Between the period 1993 and 2019 the Applicant lodged claims for compensation with Comcare (‘the Respondent’) under the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’) in respect of a number of work-related injuries associated with his employment with the Commonwealth.
The Applicant ceased work on 13 July 2016.[5] He was certified unfit to work due to chronic pain and was issued with an invalidity retirement certificate on 11 January 2021.[6]
[5] Exhibit EA1, [29]; Transcript of proceedings, 25 May 2021, 29.
[6] Exhibit EA2, Transcript of proceedings, 25 May 2021, 19.
There are six Reviewable Decisions corresponding to the three active claims that are the subject of the following applications for review by the Tribunal.
AAT 2018/7183 – PERMANENT IMPAIRMENT CLAIM
On 17 April 2018, the Applicant, through his solicitors, lodged three compensation claims for permanent impairment and non-economic loss[7] in relation to the Applicant’s right wrist, neck arm and left shoulder and lower back.
[7] T101 – AAT 2018/7183.
The Applicant seeks review of the Respondent’s reviewable decision dated 10 October 2018,[8] (‘the First Reviewable Decision’) which affirmed an earlier determination dated 7 August 2018.[9] The determinations denied liability for compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act for permanent impairments to the lower back, neck, left arm, left shoulder and right wrist. The delegate was not satisfied that the Applicant’s accepted conditions resulted in a whole person impairment (WPI) of at least 10% under the Comcare Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1 (‘the Guide’).[10]
[8] T1.2 - AAT 2018/7183.
[9] T111 – AAT 2018/7183.
[10] T111 – AAT 2018/7183, p. 307.
AAT 2020/4421 – S 29 HOUSEHOLD EXPENSES
The Applicant seeks review of a reviewable decision by the Respondent dated 18 May 2020[11] (‘the Second Reviewable Decision’) that revoked an earlier determination dated 18 December 2019,[12] which had accepted liability to pay compensation under s 29 of the SRC Act for gardening services for up to two hours per fortnight up to 28 February 2020, in respect of the Applicant’s accepted ‘neck sprain, sprain of unspecified site of shoulder and upper arm (left), lumbosacral (joint) (ligament) strain, wrist sprain (right) and chronic pain syndrome’. The delegate was not satisfied that the Applicant continued to suffer from the effects of any of these conditions.
[11] T9 – AAT 2020/4421.
[12] T5 -– AAT 2020/4421.
AAT 2020/4423 AND 2020/ 4489 – S 16 PAIN MANAGEMENT EXPENSES
The Applicant seeks review of the Respondent’s reviewable decision dated 24 June 2020,[13] (‘the Third Reviewable Decision’) which revoked two earlier determinations dated 23 January 2020[14] and 28 February 2020.[15] The earlier determinations had accepted liability under s16 of the SRC Act for six psychiatric consultations for pain management in respect of the Applicant’s accepted conditions, in the period between February and June 2020. The delegate was not satisfied that the Applicant continued to suffer from the effects of his accepted compensable conditions. A transition period involving payment for certain medical treatment up to and 30 June 2020 was intended, as was effected by the decision discussed below.[16]
[13] T40 - AAT 2020/ 4423 & 4489.
[14] T21 - AAT 2020/ 4423 & 4489.
[15] T27 - AAT 2020/ 4423 & 4489.
[16] T6 - AAT 2020/4995.
AAT 2020/4995 – CEASE EFFECTS
The Applicant seeks review of the Respondent’s reviewable decision dated 31 July 2020,[17] (‘the Fourth Reviewable Decision’) which affirmed an earlier determination dated 22 June 2020.[18] The determination denied liability to pay compensation for medical expenses, incapacity payments and household and attendant care services under ss 16, 19 and 29 of the Act, in relation to the accepted conditions. The delegate was not satisfied that the Applicant continued to suffer from the effects of his compensable conditions. The decision was to take effect after 30 June 2020.[19]
[17] T9 – AAT 2020/4995.
[18] T7 – AAT 2020/4995.
[19] T7 - AAT 2020/4995.
The quantifiable claims that are before the Tribunal are limited to claims under ss 16 and 19 of the SRC Act (the relevant s 29 claims are already canvassed under AAT 2020/4421). Specifically, the Applicant was paid incapacity benefits and treatment until and including 30 June 2020. The s 16 aspect of the decision resulted in the rejection of a claim made by the Applicant for a GP consultation on 8 July 2020 in the amount of $83 with Dr Kai Shing Cho. The Applicant had been receiving weekly payments under s19. The s 19 aspect of the reviewable decision before the Tribunal is for the period 1 July – 31 July 2020.
AAT 2020/5538 – S14 – PSYCHOLOGICAL CONDITION
On 15 July 2019, the Applicant lodged a claim for a psychological condition which he stated was attributable to his accepted conditions.[20] He claims to have first noticed the condition on 1 June 2005.
[20] T3 - AAT 2020/5538.
The Applicant seeks review of the Respondent’s reviewable decision dated 31 July 2020,[21] (‘the Fifth Reviewable Decision’) which affirmed an earlier determination dated 25 May 2020.[22] The determination denied liability to pay compensation under s 14 of the Act for ‘major depressive disorder’. The delegate was not satisfied that the Applicant’s claimed psychological condition was significantly contributed to by his accepted compensable conditions.
[21] T6 - AAT 2020/5538.
[22] T4 - AAT 2020/5538.
The review applications were heard by the Tribunal at a hearing in Sydney on 25, 26, 27 and 28 May 2021. The following witnesses gave oral evidence at the hearing:
·the Applicant; and
·Dr Charles New.
·Dr Anthony Dinnen.
·Dr Antonella Ventura.
·Dr Murray Hyde-Page.
·Dr Loretta Reiter.
·Dr Ravindra Mutha.
The following documents were before the Tribunal:
·Applicant's Statement of Issues, Facts and Contentions dated 6 April 2021.
·Respondent's Statement of Issues, Facts and Contentions dated 23 April 2021.
·Respondent’s s 37 documents:
o2018/7183: T1 – T121, p. 1 -326 filed 21 Jan 2019.
o2018/7183: ST1 – ST46, p. 1 – 139 filed 18 Sept 2019.
o2020/4421: T1 – T9, p. 1 – 21 filed 24 Sept 2020.
o2020/4423 & 2020/4489: T1 – T41, p. 1 – 203 filed 24 Aug 2020.
o2020/4995: T1 – T13, p. 1 – 472 filed 24 Sept 2020.
o2020/5583: T1 – T6, p. 1 – 17 filed 24 Sept 2020.
·Exhibit EA1: Applicant’s statement, dated 12 April 2021.
·Exhibit EA2: Invalidity Retire Certificate dated 11 January 2021.
·Exhibit EA3: List of medications, undated.
·Exhibit ER1: Letter from the Applicant to Associate Professor Mark Sheridan dated 9 August 2015.
·Exhibit ER2: Documents R7 – R21 of the Respondent’s Tender Bundle, filed 21 May 2021.
·Exhibit ER3: Email from Dr Loretta Reiter to Ms Bianca Audsley dated 25 May 2021.
·Exhibit ER4: Letter of instruction dated 27 October 2014 to Dr John Garven.
LEGISLATIVE FRAMEWORK
The Respondent’s liability to pay compensation is provided for in s 14(1) of the SRC Act:
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
With respect to the payment of medical expenses, s 16(1) of the SRC Act states:
16 Compensation in respect of medical expenses etc
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
With respect to compensation for weekly earnings if an employee is incapacitated for work, s 19 of the SRC Act states:
19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula…
Sections 24, 27 and 29 of the SRC Act provide for compensation for injuries resulting in permanent impairment, non-economic loss, and household services:
24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an I amount of compensation is not payable to the employee under this section.
27 Compensation for non-economic loss
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2)The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
"A" is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
"B" is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
29Compensation for household services and attendant care services obtained as a result of a non-catastrophic injury
Subject to subsection (5), where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200
…
‘Injury’ is defined in s 5A of the SRC Act:
(1) …
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
…
At all relevant times, section 4(1) of the SRC Act defined ‘disease’ to mean any ailment or aggravation of any ailment suffered by an employee ‘that was contributed to in a material degree by the employee’s employment by the Commonwealth’.[23]
[23] The necessary contribution by employment is to a material degree, pursuant to s 4(1) of the Act as it stood before the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007.
ISSUES FOR DETERMINATION
The issues for determination in the review are:
1) in relation to all the applications, whether the Applicant continues to suffer from the effects of the conditions of ‘neck sprain, sprain of unspecified site of shoulder and upper arm (left), lumbosacral (joint) (ligament) strain, wrist sprain (right) and chronic pain syndrome’ (‘the accepted conditions’); and
2) if the Applicant continues to suffer from the effects of his accepted conditions, whether the Applicant is entitled to each of the respective compensation claims he has made under ss 16, 19, 24, 27 and 29 of the SRC Act and which are properly before the Tribunal;
3) whether the Respondent is liable for the Applicant’s claimed psychological condition.
APPLICANT’S EVIDENCE
Injuries and compensation claims
Low lumbar sprain - June 1993
On 28 June 1993, the Applicant tripped over a whipper snipper causing him to fall backwards on his lower back/buttocks.[24] On 30 June 1993, the Applicant completed a claim for workers’ compensation for an ‘injured tail bone’. He wrote that he was ‘in the storage shed repairing my lawnmower, when I stood up, took a step back & fell over the whipper snipper, landing on my back’. The Respondent accepted liability under s14 of the Act for the low lumbar sprain sustained by the Applicant.[25]
[24] Exhibit EA1, [5]; ST1.
[25] Claim 117742/01.
The Applicant was off work for about eight to nine months following this injury.[26] He underwent ‘conservative treatment’ including hydrotherapy and physiotherapy and was able to return to work and resume his normal duties.[27]
[26] Transcript of proceedings, 25 May 2021, 42 – 43.
[27] Exhibit EA1, [5].
In his statement dated 12 April 2021, the Applicant wrote that when he returned to work, he noticed his condition was getting worse. He told the Tribunal that following discussions with his doctors, he was made aware that he would not be able to work as a motor mechanic in the future. He had completed an apprenticeship and was a fully qualified LPG fitter and held an air conditioning licence.[28] He told the Tribunal that this ‘psychological aspect’ affected him.
[28] Transcript of proceedings, 25 May 2021, 33.
During cross-examination, the Applicant told the Tribunal that following this incident he was ‘getting pain across the lower back and radiating down my left leg.’[29] When he was not working, he was attending doctors’ appointments and resting. He agreed that he was probably drinking more at this time and possibly gambling as well.[30] His significant pain symptoms continued into 1994, but after he returned to work it was not as bad.[31]
[29] Transcript of proceedings, 25 May 2021, 23, 33, 42.
[30] Transcript of proceedings, 25 May 2021, 33, 43.
[31] Transcript of proceedings, 25 May 2021, 48.
The Applicant saw Dr Chen on 30 October 1997 who reported that what the Applicant had sustained in 1993 was a muscololigamentous strain, and it should have ceased within a few weeks.[32]
[32] Exhibit ER2, [R7].
On 12 November 1997, following receipt of Dr Chen’s report, the Respondent issued a determination that on and from 17 November 1997, it was no longer liable to pay compensation under the SRC Act. The delegate referred to the lumbar radiology which was normal.
The Applicant requested a reconsideration of the determination, and on 15 May 1998 the Respondent issued a reconsideration which affirmed the determination dated 12 November 1997. The delegate was not satisfied that the Applicant now suffered from a condition resulting from his fall on 28 June 1993.
The Applicant lodged an Application for Review with the Tribunal, which was withdrawn on 3 November 1998.[33] On 12 November 1998, the Tribunal dismissed the application without review.
[33] Transcript of proceedings, 25 May 2021, 52.
Fractured right wrist – June 1998
On 2 July 1998, the Applicant lodged a claim for workers’ compensation for a fractured right wrist. The injury occurred on 13 June 1998 when the Applicant was walking home from the train station on a Saturday evening after work. He was walking across the playing fields at Hammondville Park, and crossed a depression in the ground and slipped down and fell down an embankment.[34] He put his hand back to stop his fall and injured his wrist.[35]
[34] Exhibit EA1, [8]; ST27.
[35] Transcript of proceedings, 25 May 2021, 54.
During cross-examination the Applicant was questioned about this incident which was reported to have occurred at 4:50pm.[36] He denied that he stopped at the Sporties (a local hotel) for a drink or anywhere in between after he got off the train.[37] He agreed that he did not seek medical attention following this fall. On 19 August 1998 he had a scan that showed a minor chip fracture in his wrist and he had it plastered for about five months.[38]
[36] Transcript of proceedings, 25 May 2021, 54
[37] Transcript of proceedings, 25 May 2021, 55.
[38] Transcript of proceedings, 25 May 2021, 56.
The agency confirmed the Applicant had worked overtime on 13 June 1998. The official record of overtime worked states the finishing time was 4pm.[39] On 17 August 1998, the Respondent accepted liability under s14 of the Act for fractured scaphoid of right wrist sustained on 13 June 1998.[40]
[39] Transcript of proceedings, 25 May 2021, 54.
[40] ST28 claim number 117742/02.
Sprained right wrist – December 2000

On 4 December 2000, the Applicant injured his right wrist at work when he was moving a trolley full of files and the front wheel of the trolley dug into the carpet.[41]
[41] Exhibit EA1, [9]; ST41.
On 5 January 2001, he lodged a claim for workers’ compensation for a ‘sprained right wrist’.[42] On 2 February 2001, the Respondent accepted liability for right wrist sprain sustained on 4 December 2000.[43]
[42] ST41.
[43] ST42, claim 117742/03.
Lower back and neck – September 2001
On 21 September 2001, the Applicant completed a claim for compensation for a ‘soft tissue injury of neck, back, chest, L knee and R wrist’.[44] The injury occurred at about 11.45am on 12 September 2001 at the Sydney Registry of the agency. The Applicant described the incident as follows:
I opened the door at the front of the court room for the JR, said the speech for re-opening the court after an adjournment and the proceeded to go down the stairs and lost my footing on the first step causing me to fall awkwardly down stairs landing on my bottom, R wrist and hitting my L knee on the Judicial Bench. I was assisted by the JR & Annette to the rear anti room were (sic) I received first aid & ambulance was called.[45]
[44] T3 - AAT 2018/7183.
[45] T3 – AAT 2018/7183.
The Applicant told the Tribunal that immediately following the fall he experienced:
Sharp pain around the lower back area, and that was essentially - and in a lot of shock. And, yes, aggravation to the right wrist, left knee, and to my neck.[46]
[46] Transcript of proceedings, 25 May 2021, 23.
The Applicant was taken to St Vincent’s Hospital where he was examined and later discharged. He did not report neck pain when he was examined at the Hospital.[47] At the time the most significant pain was in his lower back.[48]
[47] Transcript of proceedings, 25 May 2021, 59.
[48] Exhibit EA1, [11].
The Applicant told the Tribunal that when he lodged the claim he was experiencing ‘pain across the lower back, radiating down the left leg; pain in the left side of my neck; left knee and left foot, some pain there; and the right wrist.’[49] He also had a bit of pain in his chest. He had some time off work and returned to work in November 2001. He worked reduced hours in 2002, and by 2003 he was back to full-time hours.[50] By late 2003 his pain was manageable. He agreed that he told Dr Daryl Salmon in December 2003 that he only had ‘niggling pain’ to his left back and buttock and leg which was aggravated by a prolonged posture. At this time, his neck pain was ‘intermittent’.[51]
[49] Transcript of proceedings, 25 May 2021, 23.
[50] Transcript of proceedings, 25 May 2021, 59.
[51] Transcript of proceedings, 25 May 2021, 60.
On 30 October 2001, the Respondent declined liability on the basis that there was an insufficient diagnosis to support the claim.[52] In a report dated 28 November 2001, Dr Peter Giblin, orthopaedic surgeon, opined that the Applicant's injuries were soft tissue in nature and non-surgical, and recommended conservative treatment.[53] On 5 November 2001, the Applicant submitted a request for reconsideration.[54]
[52] T4 – AAT 2018/7183.
[53] T6 – AAT 2018/7183.
[54] T5, AAT 2018/7183.
On 14 December 2001, the Respondent issued a reviewable decision revoking the determination of 30 October 2001 and accepting liability to pay compensation under s 14 of the SRC Act for ‘soft tissue injuries of neck, left shoulder, lower back and right wrist’.[55]
[55] T8 - AAT 2018/7183, claim 117742/04.
On 11 January 2002, the Respondent advised the Applicant there was insufficient medical evidence to show that his claim for anti-depressants (Cipramil and Tryptanol) related to his accepted right wrist sprain.[56] The prescriptions were purchased on 8 and 21 November 2001.[57]
[56] T9 – AAT 2018/7183, claim 117742/03.
[57] T9 - AAT 2018/7183.
On 19 March 2002, the Respondent amended the description of the Applicant’s accepted condition in claim 117742/04 to include ‘specified sites of sprains and strains’ … of neck, left shoulder, lower back and right wrist.’[58]
[58] T10 - AAT 2018/7183.
The Applicant told the Tribunal that his pain ‘progressively got worse’. He gained a promotion at work, and his duties changed and became more physically demanding.[59] On 12 May 2003, the Applicant had a left lumbar facet nerve block.[60] His GP, Dr Kai Shing Cho, referred him for physiotherapy and to Dr Salmon, a pain specialist, whom he saw until he retired in 2004 and then he began to see Dr Henry Lam. In 2005, Dr Lam recommended a pain management course to help the Applicant to cope with the pain.[61]
[59] Transcript of proceedings, 25 May 2021, 61.
[60] T23 - AAT 2018/7183.
[61] Transcript of proceedings, 25 May 2021, 24.
By mid-2005 the Applicant was working full-time. He reported to Dr Lam that by the end of the day he was ‘very uncomfortable and not managing well.’ He was experiencing pain in the lower back and left leg and intermittent pain in the neck, but no pain in his arms.[62] The focus of the treatment was his lower back, and Dr Lam did not suggest that he have any scans done of his neck.[63]
[62] Transcript of proceedings, 25 May 2021, 63.
[63] Transcript of proceedings, 25 May 2021, 63.
The Applicant agreed that Dr Lam gave him a lot of advice about how he could manage his pain which included increasing his abdominal strength, decreasing his alcohol intake, and managing his use of opioids, but he did not act on this advice.[64] He was not given any other choices as to the medication he could take, although he was aware of the impact of opioids on his health.[65]
[64] Transcript of proceedings, 25 May 2021, 64.
[65] Transcript of proceedings, 25 May 2021, 65.
On 29 March 2006, the Applicant had a Trial Dorsal Column Nerve Stimulator inserted by Dr Lam.[66] It was removed after 10 days. It was recommended he have a permanent Dorsal Column Nerve Stimulator,[67] and one was inserted on 13 September 2006.[68] The Applicant told the Tribunal that the effectiveness of the treatment he has received has fluctuated. The Spinal Cord Stimulator (SCS) only gave him about 30% relief when the pain was higher. [69] When Dr Lam retired, he referred the Applicant to Dr James Yu who continued treatment with nerve blocks. On 28 March 2007, the Applicant underwent repositioning of his SCS.[70]
[66] T42 - AAT 2018/7183.
[67] T43 -AAT 2018/7183.
[68] T47, - AAT 2018/7183.
[69] Transcript of proceedings, 25 May 2021, 24, 68.
[70] T51 - AAT 2018/7183.
In June 2011, the Applicant completed a claim for compensation for his neck, lower back, left leg and right forearm after he tripped and fell on the way to work. On 13 July 2011, the Respondent denied liability under s 14 of the SRC Act for lumbar sprain and sprain of unspecified site of knee and leg (bilateral).[71]
[71] Exhibit ER2 [R7], claim 117712/05.
On 8 May 2012, Comcare accepted liability under s 14 of the Act for ‘chronic pain syndrome’[72] as an additional condition to the September 2001 claim.
[72] T61 - AAT 2018/7183.
On 17 August 2012, the Applicant underwent a revision of his Permanent SCS,[73] following which he suffered complications, including an infection. In October 2012, the Applicant underwent a return to work program.
[73] T62 - AAT 2018/7183.
Non work-related incident – July 2013
In July 2013 the Applicant was in the backyard playing with his daughter. She threw the ball to him and with his left arm he threw it backwards in a ‘flick motion’ following which he noticed an increase in pain where he had been having it since 2001. The pain was radiating down his left arm and he experienced pins and needles in his index and pointing fingers.[74]
[74] Transcript of proceedings, 25 May 2021, 26.
Following this incident, the Applicant reduced his work hours to 5.5 hours per day, four days per week. He claimed compensation for a neck injury, but this was denied because the incident occurred at home.[75]
[75] Transcript of proceedings, 25 May 2021, 68.
The Applicant told the Tribunal that prior to 2016 he did not have any symptomatology in his left arm; it was in the left part of the neck and shoulder area. He experienced intermittent levels of pain every couple of weeks.
The Applicant was referred to Professor Mark Sheridan by Dr Cho in September 2013. The Applicant told him about the ball throwing incident, and Professor Sheridan said that this would not have caused the pain going down his arm. Professor Sheridan did x-rays and scans and gave the Applicant a cortisone injection in January 2017.[76] In his report dated 11 June 2014[77] Professor Sheridan wrote that the Applicant believed that his neck problem ‘dated back to his original work injury’ in 2001.
[76] Transcript of proceedings, 25 May 2021, 27, 30.
[77] T73 - AAT 2018/7183 p. 150 -151.
In November 2014, the Applicant saw Dr John Bentivoglio. In his report dated 4 December 2014, he wrote that the Applicant reported to him the incident in September 2001 and that ‘approximately one year ago his neck symptoms worsened.’[78] In his opinion, it was difficult to relate the Applicant’s current symptoms to any specific injury 13 years ago. He referred to the scans provided to him and the ball throwing incident and considered that this is what caused the Applicant’s C7 nerve route to be trapped by his degenerative disease process and this was the cause of his symptoms.[79]
[78] T75 - AAT 2018/7183 p. 154.
[79] T75 - AAT 2018/7183 p. 154.
By mid-2015 the Applicant was having a lot of significant symptoms in his neck which caused him to take time off work.[80] He also began to experience symptoms down his arm and into his hand from his neck.[81]
[80] Transcript of proceedings, 25 May 2021, 68.
[81] Transcript of proceedings, 25 May 2021, 69.
The Applicant applied to the Respondent to have C7 disc bulge accepted as a secondary condition under the September 2001 claim. On 11 June 2015, Comcare denied liability under s14 of the SRC Act for ‘C7 disc bulge’ as a secondary condition to the September 2001 claim.[82] This decision was affirmed on 17 December 2015.[83] The delegate was not satisfied that it was possible to link the Applicant’s current C6/7 disc problem to an injury sustained in 2001.
[82] T78 – AAT 2018/7183.
[83] T86 - AAT 2018/7183.
On 9 August 2015, after his claim for a neck injury was denied by the Respondent, the Applicant wrote to Professor Sheridan and asked him to say that his neck problem might be because of poor posture at work.[84]
[84] Exhibit ER1.
In 2018, the Applicant was referred by Dr Yu to Dr Faiz Noore, pain specialist and pain psychiatrist.[85]
[85] Transcript of proceedings, 25 May 2021, 24.
Psychological condition
The Applicant told the Tribunal that he was referred to a psychologist in 2002. He first noticed symptoms of a psychological condition in 2005. He noticed ‘frequent low moods’ and being concerned about where his life is headed and its impact on his family.[86] The worsening pain in his neck, lower back, radiating down his left leg and to his right knee as well as problems with his right wrist when performing his work duties ‘all just started to take a toll and effect on how [he] was coping with it all.’[87]
[86] Transcript of proceedings, 25 May 2021, 25.
[87] Transcript of proceedings, 25 May 2021, 27.
The Applicant agreed that he experienced further psychological symptoms in 2016-17 as he was under financial stress. He told Dr Winnie Hong, a consultant pain management specialist, that he wished ‘to seek medical retirement so he can access his superannuation.’[88] He told the Tribunal that this was ‘after all avenues were exhausted at work’ and his ‘employer couldn’t find [him] suitable employment.’ The Registry manager stated that they would see if he was ‘entitled to medical retirement.’[89]
[88] T91 - AAT 2018/7183.
[89] Transcript of proceedings, 25 May 2021, 76.
The Applicant told the Tribunal that Dr Frank Chow informed him in 2016 that he had an Adjustment Disorder. Dr Chow’s report, dated 13 September 2016, states that the Applicant was “experiencing sufficient symptomatology for a diagnosis of chronic adjustment disorder.”[90] However, he did not submit a claim for a psychological condition until 2019.[91] During cross-examination he confirmed that he had experienced similar psychological symptoms after the incident in 1993, and that he was prescribed anti-depressants for ‘pain’ in 2001.[92] When he was thinking about making a claim he did not have a positive diagnosis, only what he had discussed with Dr Noore.[93]
MEDICAL EVIDENCE
Radiology Reports
[90] T92 – AAT 2018/7183.
[91] Transcript of proceedings, 25 May 2021, 77.
[92] Transcript of proceedings, 25 May 2021, 78.
[93] Transcript of proceedings, 25 May 2021, 82-83.
Low lumbar sprain - June 1993
An Ultrascan Radiology report of Dr T.G. Ecker 19 July 1993 states the Applicant suffered no fracture or dislocation in the sacrum or coccyx.[94]
[94] Exhibit ER2 [R21].
An MRI of the lumbar spine, reported on by Dr Adrian Gale, dated 6 December 1993 records a history of pain following trauma, and notes no abnormality is demonstrated. [95]
[95] ST4.
A bone scan report of Dr Matt Cheung dated 12 November 1993, notes the lumbo-sacral spine, coccyx and pelvis were scanned:
OPINION : Normal study with no evidence to suggest recent fractures.[96]
[96] Exhibit ER2 [R21].
Fractured right wrist – June 1998
A radiology report of the right wrist reported on by Dr S. Cahill dated 30 June 1998 states:[97]
Thank you for referring Mr Sprice for assessment of persisting pain following a fall 2 weeks ago.
Alignment is normal and the joint spaces well preserved. The obique view shows a faint lucency near the distal pole of the scaphoid on the radial side. This is not evident on other views, and is an unusual site for fracture, although the possibility should be considered. Elsewhere no fracture or dislocation is seen.
This area could be better defined by means of CT if desired.
[97] Exhibit ER2 [R21].
A CT scan of the right wrist reported on by Dr Mark Waterland dated 1 July 1998 states:
The CT confirms that there is an undisplaced fracture through the tubercle of the scaphoid. This confirms the findings from the study of 30/6/98. The carpal alignment is normal. No other fracture is detected. [98]
[98] Exhibit ER2 [R21].
A radiology report of the right wrist reported by Dr T.G. Ecker dated 19 August 1998 states:
A relatively minor chip fracture of the tubercle of the scaphoid bone was shown to be present. There is minimal deformity. [99]
[99] Exhibit ER2 [R21].
A bone scan report of hands and wrists, reported on by Dr. Ian Brittain, dated 2 March 2001 notes no abnormal update in the right wrist or scaphoid bone and the update in the right 5th metacarpal is probably due to old trauma. [100]
[100] Exhibit ER2 [R21].
Soft tissue injury – September 2001
Medical Imaging, St Vincent’s Hospital, right wrist, 12 September 2001 reports:
There is no distortion of the navicular fat pad and no cortical defect to suggest a scaphoid fracture. In addition, no other carpal bone fracture has been demonstrated. There is a DISI instability pattern which may reflect a ligamentous injury. [101]
[101] Exhibit ER2 [R20].
Medical Imaging, St Vincent’s Hospital, lumbar spine, dated 12 September 2001 reports:
Disc height is normally maintained and no fracture or disturbance of alignment has been demonstrated in the vertebral bodies or their posterior elements. [102]
[102] Exhibit ER2 [R20].
A radiology report of Dr Mark Waterland of the cervical spine, dated 9 November 2001 states:
The vertebral alignment is normal. Disc heights are normal. There are no bony abnormalities detected and the foramina are patent.[103]
[103] Exhibit ER2 [R20].
A CT of the lumbar spine, reported by Dr V. Thangaraj, dated 11 July 2002 notes at L4/5, a minor broad based posterior disc bulge is noted with no neural compression, and there are no other changes.[104]
[104] T16 - AAT 2018/7183.
An MRI of the lumbar spine, reported on by Dr Tim Mander-Jones, dated 19 June 2003 notes all findings within normal limits.[105]
[105] T22 - AAT 2018/7183.
An MRI of the lumbar spine, reported on by Dr Mander-Jones, dated 17 January 2005 notes that
The vertebrae align normally. The discs are maintained in height and signal intensity. No significant protrusion or neural encroachment. Developmentally, the overall dimensions of the bony spinal canal were normal.[106]
Reports of Orthopaedic Surgeons and Rheumatologists
[106] T33 - AAT 2018/7183.
Dr Charles New, Orthopaedic Surgeon
On 23 April 2019 the Applicant was examined by Dr Charles New, orthopaedic surgeon, who provided a report dated 1 May 2019.[107] Dr New stated the Applicant had ‘debilitating pain in his neck, his cervical and lumbar spine at the cervicothoracic junction, radicular pain in his left arm, pain in his right wrist and left knee as well as radicular pain predominantly on the left hand side in the L5 and S1 nerve root distribution’.[108]
[107] T8 - AAT 2020/4423 & 4489.
[108] Applicant’s tender bundle [A3].
Dr New provided a supplementary report dated 7 June 2019,[109] in which he stated the Applicant had proven radiculopathy in the cervical spine.
[109] T11 - AAT 2020/4423 & 4489, p. 30.
In his oral evidence at the hearing, Dr New told the Tribunal that there was no solid evidence of a diagnosis of the injury the Applicant sustained in 1993. He confirmed that he did not receive the MRI and bone scan report by Dr Gale in November and December 1993.[110] The only images he was provided with were the ones listed under the heading ‘Investigations’ in his report namely, the MRI dated 17 January 2005 and the bone scan dated 17 December 2015[111] He told the Tribunal that he would have been assisted in ascertaining any pathological damage to the Applicant’s lumbar spine if he had reviewed the December 1993 MRI scan of the lumbar spine.[112]
[110] Transcript of proceedings, 26 May 2021, 106, 109.
[111] Transcript of proceedings, 26 May 2021, 108, 119.
[112] Transcript of proceedings, 26 May 2021, 109.
Dr New was asked whether he would have been assisted by seeing the records and imaging taken when the Applicant attended at St Vincent’s Hospital following the incident on 12 September 2001. He agreed that a discharge summary would have been helpful in expressing an opinion on any pathological change to the Applicant’s lumbar spine as a result of the incident.[113] He also agreed that that it would have assisted him to see an x-ray undertaken of the cervical spine on 9 November 2001 in identifying any possible pathological damage to the Applicant’s cervical spine around that time. However, he had not seen any of the images that were taken.[114]
[113] Transcript of proceedings, 26 May 2021, 111.
[114] Transcript of proceedings, 26 May 2021, 112.
Dr New was asked whether he was given a report of a CT scan of the lumbar spine on 11 July 2002.[115] He said he had not seen this report and it would have only been useful in determining whether there was any pathological change if the images were reported as not normal. He explained that the image is only as good as the technology and a plain x-ray will not exclude all pathology. A CT scan can provide evidence of structural issues in tumours of the spine, in fractures and dislocations that are quite obvious. A single investigation helps with the diagnosis, but does not prove or disprove it.[116] He confirmed that he did not have the MRI of the lumbar spine undertaken on 19 June 2003.[117]
[115] T16 - AAT 2018/7183.
[116] Transcript of proceedings, 26 May 2021, 113 - 114.
[117] T22 – AAT 2018/7183.
Dr New confirmed that he and Dr McBurnie have a difference of opinion in relation to the presentation of radiculopathy.[118]
[118] Transcript of proceedings, 26 May 2021, 114.
Dr Murray Hyde-Page, Orthopaedic surgeon
Dr Murray Hyde-Page examined the Applicant on 19 September 2019 and provided a report dated 2 October 2019.[119] In relation to the incident on 12 September 2001, Dr Hyde-Page stated:
[119] T15 -AAT 2020/4423 & 4489.
He appears to have aggravated an old chronic lumbar back condition for which he was already under the care of a pain specialist. He aggravated an old right wrist injury where he suffered a scaphoid fracture a few years earlier and still had some ongoing pain and discomfort. He did develop some minor neck symptoms but this was not a significant problem for him especially compared to his chronic low back pain that had been exacerbated. He had some minor left shoulder and left knee symptoms that settled very well.
Subsequently in the years following this work injury he needed ongoing treatment for his chronic low back condition including lumbar spine injections and insertion of a spinal stimulator. He further aggravated his low back pain in 2011 when he tripped and fell on the way to work and in 2012 had to have the spinal stimulator replaced.
This injury only caused minor neck discomfort.
In fact he really had no significant neck symptoms after his fall in 2001 up until he
developed the acute onset of left arm pain in 2013 while playing with his daughter
and throwing a ball. It would appear that on this occasion he aggravated cervical
spondylitis or degenerative disc disease of the cervical spine which is an age related
condition that had developed. This does not at all appear to be related to his
employment as a court officer or the injuries he suffered when he fell on 12
September 2001 and when he had his fall at Holsworthy Station in 2011. With the
onset of the symptoms in 2013 after throwing a ball he has developed ongoing C7
radicular symptoms but on today’s examination he did not have radiculopathy. He
[120] T15 - AAT 2020/4423 & 4489, p. 42.
has also maintained good neck movement as well.[120]

In his oral evidence at the hearing, Dr Hyde-Page was asked whether the medical reports he had reviewed indicated that the Applicant’s back symptoms following the 1993 incident had not resolved by 1998. He confirmed that the reports indicate that the Applicant ‘had a chronic ongoing problem.’[121]
[121] Transcript of proceedings, 27 May 2021, 182.
Dr Hyde-Page was asked whether he could identify any pathological change that occurred on 12 September 2001 to any part of the Applicant’s body. He said he could not, and that this finding is supported by the images from St Vincent’s Hospital and those who attended to the Applicant who ‘were quite happy he hadn’t suffered any significant injury or major problem. There was no evidence of any fracture … or acute injury.’[122]
[122] Transcript of proceedings, 27 May 2021, 163.
Dr Hyde-Page concluded in his report that the Applicant suffers from ‘degenerative disc disease or cervical spondylitis which is an age-related condition.’[123] He further found the Applicant ‘suffers from chronic low back pain and stiffness’ and he was unable to determine its cause and the need for a lumbar spinal stimulator. He found the Applicant had no condition affecting his shoulders and his right wrist and hand has settled down completely. His ‘old scaphoid fracture had united satisfactorily’, and an X-ray done some years ago was ‘basically normal’.[124]
[123] T15 - AAT 2020/4423 & 4489, p. 43.
[124] Ibid.
Dr Hyde-Page told the Tribunal:
… cervical spondylitis is such a common condition that a minor neck sprain in 2001 would not have led to him developing these age-related changes that became obvious after 2013 when he had this acute injury throwing the ball.[125]
…
I’m of the opinion that if he had not had that injury in 2001, he still would have developed the cervical spondylitis … when he had this injury throwing the ball, he developed these symptoms. That would have happened irrespective of this fall in 2001.[126]
…
So when [the Applicant] slipped and fell and hurt his back and has very minor injury to his neck, it’s - the forces involved are so minor, even compared to a minor whiplash injury in a motor vehicle accident. I cannot conceive that that would have led on to the situation that he developed in 2013. The most common cause of cervical spondylitis and degenerative disc disease is age-related, and unrelated to any specific injury - let alone a very minor injury.[127]
[125] Transcript of proceedings, 27 May 2021, 173.
[126] Transcript of proceedings, 27 May 2021, 174.
[127] Transcript of proceedings, 27 May 2021, 175.
Dr Hyde-Page told the Tribunal that the Applicant informed him that his neck was ‘fine’ until the incident in 2013.[128] He had a bit of a minor neck injury in 2001 which settled down completely. He did not have any further ‘significant’ neck problems until the 2013 ball incident.[129] Following the ball incident the Applicant ‘developed a shooting pain down his left arm, and then his neck symptoms.’[130] The Applicant did not indicate to him that there was ‘anything unusual about the way he threw the ball.’ He did not say whether he turned his head to look at his daughter when he threw it. Dr Hyde-Page stated that if he had done so this could easily have caused an aggravation to underlying cervical spondylitis pre-existing in his neck.[131]
[128] Transcript of proceedings, 27 May 2021, 176; T15, AAT - 2020/4423 & 4489, p. 42.
[129] Transcript of proceedings, 27 May 2021, 167-168, 177.
[130] Transcript of proceedings, 27 May 2021, 176.
[131] Transcript of proceedings, 27 May 2021, 169.
Dr Hyde-Page was asked during cross-examination about his finding that there was no evidence of radiculopathy. He explained that during his formal examination of the Applicant he looked for actual sensory changes in the fingers, for example changes in reflexes, muscle weakness or wasting. He found that whereas the Applicant complained of radicular symptoms, on examination he did not have the signs for him to find that he had radiculopathy. Nerve and muscle studies can be supportive one way or the other but are not conclusive.[132]
[132] Transcript of proceedings, 27 May 2021, 172.
Dr Hyde-Page was asked whether the injury in 2001 was more significant for the Applicant’s neck than he recognised, to which he stated.
No, because as I’ve pointed out to you, it’s obvious that he was developing the age-related cervical spondylitis. And it would not be uncommon for him to have a bit of neck pain and discomfort over the years as it’s developed. Although it only became quite badly symptomatic in 2013.[133]
…
I come back to what I’ve already said, that I think the extent of the injury to his neck in 2001 was very minor. And it would not have led to him developing severe neck problems later in life.[134]
[133] Transcript of proceedings, 27 May 2021, 175.
[134] Transcript of proceedings, 27 May 2021, 175.
Dr Hyde-Page was referred to reports by Dr Salmon in 2003 and 2004, and was asked whether they referred to the Applicant’s neck. He told the Tribunal that ‘none of them report anything about his neck. It’s all about the lumbar spine being the issue.’[135] He agreed that the reports of Dr Lam in 2005 and 2006 make no mention about the Applicant’s cervical spine,[136] and it is ‘all about treating his back pain and pain down his leg.’[137] He also agreed that Dr Steven Ng’s report in 2008 made no mention of the Applicant’s neck, ‘[i]t’s all about the back problem.’[138]
[135] Transcript of proceedings, 27 May 2021, 184.
[136] Transcript of proceedings, 27 May 2021, 185-186.
[137] Transcript of proceedings, 27 May 2021, 186.
[138] Transcript of proceedings, 27 May 2021, 188.
In relation to work contribution, Dr Hyde-Page stated in his report:
I consider that he has developed an abnormal pain reaction after his injury in September 2001. There is really no explanation as to why he has had such an ongoing chronic low back complaint since then. I would say however that he did aggravate a pre-existent chronic low back complaint with his injury on 12 September 2001 and this aggravation or exacerbation has now ceased. He clearly had severe back symptoms before this injury as I have noted in the report earlier and the nature of his fall would not have caused a permanent aggravation.
I have already noted that his cervical spine injury was very minor on 12 September 2001 and he had no significant cervical spine symptoms when he had a fall in 2011 either. He only developed significant symptoms in a non-work related incident throwing a ball with his daughter in 2013 and it was then that scans showed he had severe cervical spondylitis or degenerative disc disease (this is interesting in comparison to the scans of his lumbar spine that are basically normal for a man of his age and he does not have degenerative disc disease or spondylitis).
Overall I am satisfied that his employment at the Family Court from 1998 to 2016 has not made a significant contribution to his back and neck conditions.[139]
[139] T15 - AAT 2020/4423 & 4489, p. 44.
In his oral evidence at the hearing, Dr Hyde-Page explained his reference to the Applicant having ‘developed an abnormal pain reaction after his injury.’ He stated:
The overall conclusion I came to that he seemed to have far more pain and restriction of movement than I would have expected from the nature of his injuries and the underlying pathology and his general position.[140]
[140] Transcript of proceedings, 27 May 2021, 163.
Dr Hyde-Page further commented in his report:
A diagnosis of chronic pain syndrome is not really meaningful as one needs to find an underlying cause for his pain. Certainly in his lumbar spine it’s not accepted that he has chronic back pain due to chronic ligament strain and as his MRI scans are normal, there is really no indication as to why he has had such a chronic back problem that dates back to the early 1990’s.
He has made a full recovery of his left shoulder and arm, as well as his right wrist. His neck condition is unrelated to his injury and he only has symptoms related to his cervical spondylitis.[141]
[141] T15 - AAT 2020/4423 & 4489, p. 44.
Dr Hyde-Page reported that he was not satisfied that the Applicant suffered from a permanent impairment as a result of the compensable injuries sustained on 12 September 2001.[142]
[142] T15 - AAT 2020/4423 & 4489, p. 45.
Dr Loretta Reiter, Consultant Rheumatologist
The Respondent obtained a report on the papers from Dr Loretta Reiter, dated 6 March 2020.[143] Dr Reiter diagnosed cervical spondylosis and facet joint degenerative disease, possible C7 nerve root impingement due to an osteophyte disc complex which was due to degenerative disease, no diagnosis in relation to the right wrist, mild facet joint degenerative disease affecting the L4/5 and L5/S1 level. She noted alcohol was playing a significant role in the Applicant’s presentation. She stated:
In my opinion degenerative cervical and lumbar spine disease is most likely the cause of his current complaints of neck/cervical spine and lumbar spine. In my opinion, he has never had a left upper arm, shoulder work-related condition, as the onset of his left upper limb symptoms was after he was throwing a ball with his daughter in his backyard at home. It did not occur whilst he was at work. More than likely given his age he is developing early right wrist degenerative joint disease, but he has not had any recent imaging to assess if this is the case.[144]
[143] T28 - AAT 2020/4423 & 4489.
[144] T28, - AAT 2020/4423 & 4489, p. 134.
During her oral evidence at the hearing, Dr Reiter stated that in her opinion imaging is the best evidence of whether the Applicant suffered any identifiable pathological damage in 1993, 1998, 2000 and 2001. She said that she would not have been assisted in forming a view on this by having examined the Applicant in 2020.[145] However, she conceded that ‘there are always limitations in a file review.’[146]
[145] Transcript of proceedings, 27 May 2021, 191, 194.
[146] Transcript of proceedings, 27 May 2021, 195.
During cross-examination, Dr Reiter was asked about reports by the Applicant to Dr Barrie Tait in March 2002 and Dr Salmon in June 2002 that he had ‘intermittent left neck pain.’[147] He later reported to Dr Salmon in 2002 that he had central pain invoked at the extreme inflection and extension. Dr Reiter commented that these reports were inconsistent, and she cannot explain them ‘pathophysiologically’. In relation to reports by the Applicant to Dr Salmon in January and March 2003 and Dr James Cairns in March 2012 of ‘occasional cervical thoracic pain on the left side’, Dr Reiter commented that this is ‘very different to the extreme’ presented by Dr Salmon. She observed that it was unclear exactly when the Applicant’s neck pain started as there is ‘no documentation of him presenting with it until months after’ and it ‘could have occurred at any time.’[148]
[147] Transcript of proceedings, 27 May 2021, 198-199.
[148] Transcript of proceedings, 27 May 2021, 203, 204.
Dr Reiter stated in her report she disagreed with Dr Noore that the Applicant had radicular pain in his lower limbs as there was no evidence of nerve root impingement on any imaging of the lumbar spine. In her oral evidence at the hearing, Dr Reiter stated that the neurologist report dated February 2016 which identified C7 radiculopathy would have occurred when he had symptoms in his upper limb. The scan of the Applicant’s cervical spine in February 2017 shows that there is a prominent posterior disc osteophyte complex at the C5, C6 level which is indicative that the Applicant had degenerative disease in other areas which takes years to occur.[149]
[149] Transcript of proceedings, 27 May 2021, 207-208.
Dr Reiter stated in her report that she did not consider that the Applicant was suffering from any work-related condition.[150]
Reports of Psychiatrists
[150] T28 - AAT 2020/4423 & 4489, p. 135.
Dr Robert Lewin, Psychiatrist
The Applicant was referred by the Respondent to Dr Robert Lewin who examined the Applicant on 27 March 1998 and provided a report dated 2 April 1998.[151] Dr Lewin reported:
Mr Sprice has been abusing alcohol over a number of years and it is likely that his alcohol abuse predates the fall at work. In the aftermath of this fall, he reports that he used alcohol more frequently and in greater quantities in order to relieve pain and to help him sleep. He currently has a significant drinking problem.
It is my opinion that there is an underlying personality vulnerability.
He describes ongoing pain and the orthopaedic specialist and other medical specialists are of the view that this symptom should have resolved by now on the basis of physical symptoms alone. It is my opinion that Mr. Sprice's pain arises essentially from emotional causes and that this relates to his unresolved feelings of sadness and loss following the break up of his relationship with his girlfriend. This could be described as an unresolved grief reaction. Grieving is a normal human emotion, rather than a pathological process.[152]
[151] ST21.
[152] ST21, 72.
Dr Lewin noted in relation to causation:
It is likely that there was a period of time when he experienced pain as a response to that injury. It is my opinion that any response to physical injury has long since ceased. The enduring problems, which remain unresolved problems are problems to do with his emotional state and are unrelated to a fall at work in June 1993.[153]
[153] ST21, 73.
Dr Lewin noted that the Applicant was convicted of a high range PCA, following a drink driving charge in 1992. The Applicant admitted to Dr Lewin that he was a problem drinker. He also said he had problems controlling his urge to gamble since 1993.[154] Dr Lewin noted:
He also reports that he has used THC to relieve pain on a fairly regular basis. There does not appear to be any current problem with the use of analgesic medications.[155]
[154] ST21, 69.
[155] ST21, 70.
Dr Faiz Noore, Pain Medicine Physician and Consultant Psychiatrist
In a report dated 10 November 2019, [156] Dr Noore noted the Applicant had musculoskeletal pain at the neck (radiating into his left arm), lower back pain with radiation down both lower limbs and right wrist pain. He stated the Applicant developed pain at these sites after the three separate falls at work in 1993, 1998 and 2001.[157] Dr Noore diagnosed the Applicant with Major Depressive Disorder with Anxious Distress. He stated:
[156] T19 - AAT 2020/4423 & 4489.
[157] T19 - AAT 2020/4423 & 4489, p. 67-68.
Mr Sprice suffers from Major Depressive Disorder with Anxious Distress. This condition is chronic, it has been present for more than two years The aetiology is multifactorial and includes persistent pain from his work related injury, inability to work, financial stress from earning less than he was, the stressful nature of the workers’ compensation process including repeated clinical evaluations by health professionals acting for the various stake holders in this case. Additional factors maintaining the depression include his wife’s poor state of health and his alcohol consumption. Mr Sprice’s Persistent Depressive Disorder has fluctuated within the moderate to severe range during his treatment.[158]
…
In my opinion, the various factors contributing to his Major Depressive Disorder in descending order of magnitude are listed below:
1. Work related injury and musculoskeletal pain 60%;
2. Alcohol Use Disorder 10%;
3. Medicolegal – workers compensation related 10%;
4. Financial stress - caused by not earning his pre-injury salary 10%;
5. Family stress and strain 10%.[159]
[158] T19 - AAT 2020/4423 & 4489, p. 60.
[159]T19 - AAT 2020/4423 & 4489, p.61.
Dr Noore provided a subsequent report to Comcare dated 7 April 2020, in which he reported the Applicant had a number of falls which resulted in injuries, and that injuries were a recognised risk factor for degenerative spinal disease or spondylosis.[160] He stated:
I think his fall in 2001 caused a neck injury which contributed to his cervical spine spondylosis or degenerative disease and intermittent R arm symptoms. The incident in his backyard precipitated nerve root impingement from the osteophyte disc complex bringing a process which had started in 2001 to clinical attention. Thus, in my opinion, Mr Sprice’s work related injury does have a role in contributing to his neck and right arm pain.[161]
[160] T34 - AAT 2020/4423 & 4489.
[161] T34 - AAT 2020/4423 & 4489, p. 159.
Dr Ravindra Mutha, Consultant Psychiatrist
The Respondent obtained a report on the papers from Dr Mutha dated 6 March 2020.[162] Dr Mutha diagnosed the Applicant with Adjustment Disorder with anxiety and depressive features, Alcohol Use Disorder, Opioid Related Disorder (not otherwise specified) and Sedative, Hypnotic or Anxiolytic Related Disorder not otherwise specified and likely cluster C personality traits (avoidant).[163]
[162] T29 – AAT 202/ 4423 & 4489.
[163] T29 – AAT 2020/ 4423 & 4489, p. 143
During his evidence at the hearing, Dr Mutha told the Tribunal that in his opinion the Applicant did have anxiety and depressive symptoms predating 2001, and he was prescribed anti-depressants. He stated:
On balance though I would be of the impression that he already had mood symptoms, although he was not officially diagnosed with depression prior to 2001. He certainly had anxiety and depressive symptoms right from 1994 onwards because of chronic pain, and that would have had - in fact terms of decision making by the physician to prescribe him antidepressants.[164]
[164] Transcript of proceedings, 28 May 2021, 217.
Dr Mutha told the Tribunal that there are other factors in addition to the Applicant’s chronic pain, namely his alcohol use and family stressors, which have had an impact on his anxiety and mood symptoms from 1994.[165] In relation to the Applicant’s alcohol abuse, Dr Mutha stated:
Alcohol use disorder long pre-dated the onset of anxiety and depressive features. Also, alcohol use disorder pre-dates claim 117742/1 (fall at work in June 1993) although there is evidence to suggest that his alcohol consumption further increased after the fall at work in June 1993.[166]
[165] Transcript of proceedings, 28 May 2021, 230, 233, 235.
[166] T29 – AAT 2020/ 4423 & 4489, p. 144.
Dr Mutha said that although he only did a file review, he believes that had he seen the Applicant he would have made the diagnosis of Adjustment Disorder. He placed a high emphasis on Alcohol Use Disorder and the multiple medications the Applicant was prescribed which would have contributed to the depressant effect resulting in anxiety and depression.[167] He agreed that chronic pain is a ‘big complement’ in his psychological symptoms, but not the only complement which has resulted in the Applicant’s ongoing depressive symptoms.[168]
[167] Transcript of proceedings, 28 May 2021, 236, 241.
[168] Transcript of proceedings, 28 May 2021, 236, 242.
In relation to any employment contribution Dr Mutha stated in his report:
Mr Sprice did not require any treatment through psychiatrist post incident on 12 September 2001. On the balance of probability, adjustment disorder with depressive and anxiety features is not directly related to the incident on 12 September 2001, and rather explained by family and financial stress and pain as a result of non-work related incident of throwing a ball with his daughter in 2013 with subsequent scans indicating severe cervical spondylitis or degenerative disc disease as a part of age related condition. Also, combination of long-term alcohol misuse, opioid based and benzodiazepine prescriptions has adversely affected his mental health.[169]
[169] T29 – AAT 202/ 4423 & 4489, p. 145.
In relation to treatment, Dr Mutha stated inpatient alcohol detox may be appropriate and the Applicant’s medication regime should be reviewed in discussion with a pain and addiction specialist. Dr Mutha noted the most significant factor preventing the Applicant from returning to work was ‘underlying motivation to seek change from long-term sick role to that of a gradual improvement in his overall functioning’.[170]
[170] T29 – AAT 202/ 4423 & 4489, p. 147.
Dr Antonella Ventura, Consultant Psychiatrist

Dr Ventura assessed the Applicant at the request of the Respondent on 1 December 2020 and provided a report dated 8 December 2020.[171] The Applicant told Dr Ventura he experiences pain across his back, in his right knee and in the C6/C7 area of his neck, which radiates down to his left arm. The Applicant stated his most intense pain is that which he experiences in his left leg and associated pins and needles in his left foot. He stated he started experiencing depressed mood in around 2005.[172]
[171] Medical report of Antonella Ventura, dated 8 Dec 2020.
[172] Medical report of Antonella Ventura, dated 8 Dec 2020, p.6 – 7.
Dr Ventura diagnosed the Applicant with the DSM-5 diagnosis of Somatic Symptom Disorder with Predominant Pain, Major Depressive Disorder, Chronic and Alcohol Use Disorder. She considered the Alcohol Use Disorder to be constitutional and was not satisfied that there has been any aggravation of the Alcohol Use Disorder by the workplace incidents.[173]
[173] Medical report of Antonella Ventura, dated 8 Dec 2020, p. 10.
Dr Ventura stated that the Applicant’s Somatic Symptom Disorder and the Major Depressive Disorder arose from the pain experienced from his workplace injury.[174] In her view the Applicant’s chronic pain continues to contribute to his Major Depressive Disorder, but she was unable to comment on causation in relation to the pain, as it is outside her expertise.[175] She stated that she disagreed with Dr Mutha’s opinion that the Major Depressive Disorder was caused by alcohol. The Applicant developed Major Depressive Disorder ‘after he realised that his experience of pain was not improving and became despondent on how it affected his everyday life.’[176]
[174] Medical report of Antonella Ventura, dated 8 Dec 2020, p.11.
[175] Medical report of Antonella Ventura, dated 8 Dec 2020, p.12.
[176] Medical report of Antonella Ventura, dated 8 Dec 2020, p. 12.
Dr Anthony Dinnen, Consultant Psychiatrist
Dr Dinnen interviewed the Applicant via Skype on 18 November 2020 and provided a report dated 25 November 2020.[177] The Applicant reported to him that his psychological symptoms had their onset in around 2005.[178]
[177] Applicant’s tender bundle [A7].
[178] Applicant’s tender bundle [A7], p. 29.
Dr Dinnen diagnosed the Applicant with Major Depressive Disorder attributable to his chronic pain and disability, resulting from his ‘injury to his spine for the main part’.[179] He continued:
In my opinion the amount of attention this patient has received, over at least the last twenty years, for his chronic pain and disability could not give rise to anything other than a significant psychiatric disorder.
I do not agree with the reasoning that there are other factors contributing to his condition. These were certainly not reported by the patient at interview. Nowhere in all of the documentation I have reviewed have I seen any substantive account of ongoing personal stressors which would contribute to this major depressive disorder. Certainly, there is no evidence of any personal matters outside the workplace which would contribute to the depressive illness to any significant extent.[180]
[179] Applicant’s tender bundle [A7], p. 33.
[180] Applicant’s tender bundle [A7], p. 33.
During his oral evidence at the hearing, Dr Dinnen summarised his opinion in relation to the Applicant:
I considered that his psychiatric response to the physical injury and the pain consequent to it, and the disability, and on a restriction of function caused by the physical injuries had led to an ongoing psychiatric illness which I agreed with the treating doctor, Dr Noore, whose opinions I had reviewed, was classified appropriately as a major depressive disorder. As I wrote in that opinion I considered the condition was consequent to the chronic pain and disability from which he had suffered for many years.[181]
[181] Transcript of proceedings, 26 May 2021, 125.
During cross-examination, Dr Dinnen agreed that he does not know whether the Applicant was suffering from Major Depressive Disorder in 2005, and he would have to rely on the reports of those who saw him at the time. He believes that the Applicant has suffered from ‘various levels or severities, of depressive disorder from about 2002 onwards, which would have fluctuated through the years’, and when he examined him these were at the point that warranted the diagnosis.[182] He agreed that the Applicant may have fulfilled the criteria for a diagnosis of major depressive disorder before September 2001.[183] Dr Lewin’s findings in 1998 indicated that ‘there is a significant abnormality of psychological function’ in the Applicant at that time, and he ‘would certainly be regarded as someone who would be in need of some psychiatric management.’[184]
[182] Transcript of proceedings, 26 May 2021, 131.
[183] Transcript of proceedings, 26 May 2021, 139.
[184] Transcript of proceedings, 26 May 2021, 141.
In relation to Dr Mutha’s diagnosis of Adjustment Disorder, Dr Dinnen stated that he considered this diagnosis as ‘not altogether inappropriate’. He did not agree with Dr Mutha or Dr Ventura that the Applicant’s condition ‘was due to alcohol, plus or minus substance use disorder.’[185] In his view, a person ‘who is a chronic user of alcohol over many years would not lead to a severe depressive disorder’ as occurred in the Applicant’s case ‘in the presence of chronic pain and disability.’[186] In his opinion, the Applicant’s drug and alcohol abuse were ‘irrelevant … to the overall assessment of depressive symptoms in the context of chronic pain and disability.’[187] In his experience, it is very uncommon for chronic use of alcohol to cause a psychiatric response.[188]
[185] Transcript of proceedings, 26 May 2021, 126.
[186] Transcript of proceedings, 26 May 2021, 126.
[187] Transcript of proceedings, 26 May 2021, 126, 146.
[188] Transcript of proceedings, 26 May 2021, 127.
In relation to the diagnosis of Somatic Symptom Disorder, Dr Dinnen stated that he does not agree it was appropriate. The Applicant does not have ‘disproportionate and persistent thoughts about the seriousness of [his] symptoms’. In his view, these seem appropriate from the documentation he had reviewed and his interview with the Applicant.[189] Nor did the Applicant have ‘a persistently high level of anxiety about health or symptoms.’[190]
SUBMISSIONS
[189] Transcript of proceedings, 26 May 2021, 127.
[190] Transcript of proceedings, 26 May 2021, 128.
Applicant
The Applicant agrees with the Respondent that the compensability of the 2001 injuries is central to the resolution of the major issues in the review.[191]
[191] Applicant’s written post-hearing submissions at [3.1].
The Applicant submits that the Tribunal should reject any submission that it should treat this matter as a Hannaford case (Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 (‘Hannaford’)) in the absence of any fatal flaw with the original determination of liability, which the Applicant says is not present.[192]
[192] Applicant’s written post-hearing submissions at [4.9].
The Applicant contends that the High Court’s decision in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (‘May’) does not mean that the condition must be able to be physically seen, tested or x-rayed. If that were so, no psychiatric condition (for example, post-traumatic disorder) would be able to qualify as an ‘injury (other than a disease)’, no matter how sudden, dramatic or catastrophic to the individual the events might have been. That would be an absurd conclusion not justified by the Court’s reasoning.[193]
[193] Applicant’s written post-hearing submissions at [3.9].
The medical staff at St Vincent’s Hospital found the Applicant’s claimed presence of pain in his lower back shortly after the fall sufficiently compelling and credible to treat it with an opioid pain killer. The symptoms of pain in the back and other parts of the body following blunt trauma to those parts of the body is a perfectly consistent description of a physiological change or disturbance, or an ‘injury’.[194] The evidence shows that acceptance of the Applicant’s 2001 injuries by the Respondent endured for 17 years before a different approach to dealing with them was adopted.[195]
[194] Applicant’s post-hearing written submissions at [3.14 - 16].
[195] Applicant’s post-hearing written submissions at [3.16].
Respondent
The Respondent submits that the decision in Hannaford applies to decisions of the Respondent in the same way it applies to findings of the Tribunal.[196] The Tribunal must determine whether there was an ‘injury’ for the purposes of the relevant sections of the SRC Act, and if so, the effects it had (if any) on the Applicant’s body in the relevant periods. The Tribunal’s decisions do not affect any liability of the Respondent to pay compensation other than in respect of the claims before it regarding the period 2018-2020.[197]
[196] Respondent’s Reply Closing Submissions on Points of Law dated 16 June 2021 at [7].
[197] Respondent’s Reply Closing Submissions on Points of Law at [8].
There is no probative evidence of any definite or distinct ‘physiological change’ or ‘physiological disturbance’ to the Applicant which occurred in 2001 which, if not ‘sudden’, is at least ‘identifiable’. This matter does not turn on weighing closely competing evidence. There is simply no probative evidence of pathological damage.[198] It follows that the incident in 2001 never met the requirements in s 4 of the SRC Act, such that it ever produced an ‘injury’ that could lead to compensation being paid under the SRC Act.[199]
[198] Respondent’s Outline of Closing Submissions dated 28 May 2021 at [1].
[199] Respondent’s Outline of Closing Submissions dated 28 May 2021 at [2].
As a consequence of there being no ‘injury’ in 2001, all of the decisions under review ought to be affirmed to the extent they are said to involve any ‘injury’ occurring in 2001, or any psychological ailment caused by the 2001 ‘injury’.[200] The decisions can be affirmed on the basis of new factual findings about what occurred in 2001, which arise from applying May to the evidence currently available.[201] This does not require or result in reversing any prior favourable decisions to the Applicant.[202]
[200] Respondent’s Outline of Closing Submissions dated 28 May 2021 at [3].
[201] Respondent’s Outline of Closing Submissions dated 28 May 2021 at [4].
[202] Respondent’s Outline of Closing Submissions dated 28 May 2021 at [5].
Should the Tribunal decide there was no ‘injury’ in 2001, the only other matters to be resolved are the extent that the 2000 incident involving the Applicant’s thumb (if it was ever an ‘injury’) or the wrist fracture in 1998 (if it is found to have occurred on a journey home), continue to create impairment or incapacity almost 20 years later, such that there is any ongoing entitlement to compensation in respect of those incidents.[203] The Respondent contends there was never an ‘injury’ in 2000, again because of the absence of identifiable pathological damage. In respect of 1998, it is unlikely there was an ‘injury’ or alternatively the wrist fracture resolved in 1999, and there was no such impairment or incapacity that means that any of the decisions ought not be affirmed.[204]
[203] Respondent’s Outline of Closing Submissions dated 28 May 2021 at [19].
[204] Respondent’s Outline of Closing Submissions dated 28 May 2021 at [19].
CONSIDERATION AND REASONS
The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.
1. Does the Applicant continue to suffer from the effects of any of the accepted conditions?
The first issue for the Tribunal’s consideration is whether any of accepted conditions for which the Applicant claims an ongoing entitlement to compensation can be considered an ‘injury (other than a disease)’ for the purposes of the SRC Act.
Whereas the parties agree that the Tribunal must identify an ‘injury (other than a disease)’, they disagree that the reasoning in May must be applied to physical injuries, mental injuries and mental ailments in precisely the same way.
What is an ‘injury (other than a disease)’?
In May French CJ, Kiefel, Nettle and Gordon JJ observed that whether there is an ‘injury’ in the primary sense at [52]:
…will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state…
Similarly, in Kennedy Cleaning v Petkokska (2000) 174 ALR 626 , Gleeson CJ and Kirby J stated that ‘… a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state … may qualify for characterisation as an ‘injury’…’ at [39]. In Australian Postal Corporation v Burch (1998) 156 ALR 483 the Full Court of the Federal Court found a stroke to be an injury because, in the circumstances, it was ‘…a disturbance of the normal physiological state … or an ascertainable lesion or dramatic physiological change’ at 488.
French CJ, Kiefel, Nettle and Gordon JJ in May emphasised that ‘suddenness’ will not always be necessary for there to be an ‘injury (other than a disease)’. Their Honours stated that suddenness may nevertheless be ‘useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease’ at [47]. Their Honours cited the following passage from May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 with approval:
The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was, instead, “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind.[205]
[205] May at [57] citing (2015) 233 FCR 397 at 444 [205]-[207].
Their Honours went on to state, ‘subjectively experienced symptoms, without an accompanying physiological or psychiatric change’ are not sufficient to be a disease or an injury at [57]. That is, merely ‘feeling unwell’, or experiencing symptoms, will not be sufficient to establish an injury. What is also needed is ‘physiological evidence, pathology or a known diagnosis to explain the symptoms’: Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886 at [63] quoted in May per Gageler J at [82].
Their Honours referred to the evidence of a possible physiological change or disturbance in Mr May that may demonstrate ‘any substantial pathology to explain Mr May’s symptoms’. For example, there was no objective evidence of Mr May’s swollen tongue or dizziness, or pathology to support his account of those symptoms, apart from diarrhoea and upper respiratory tract infections, which were treated and subsequently resolved. The medical evidence indicated a lack of any pathology consistent with Mr May’s symptoms, which meant that no diagnosis could be made. Mr May did not suffer from a diagnosable psychiatric disorder and no psychiatric disturbance could better account for his symptoms. In May, the nature of the symptoms was relevant to the type of evidence that may be available, for example, a swollen tongue. Mr May asserted, and the Tribunal accepted, that he felt unwell. But the ‘nature and incidents of the physiological change’ suffered by Mr May were not established. Accordingly, there was no ‘injury’ in the primary sense.
In his separate judgment in May, Gageler J also identified the need for a definitive physiological change or disturbance for a condition to qualify for characterisation as an ‘injury (other than a disease)’. His Honour stated at 487 [78]:
The understanding of an injury as a definite or distinct physiological change or disturbance was first expounded in cases in which catastrophic consequences of pre-existing medical conditions came to be recognised as capable of constituting injuries. The exposition has remained particularly useful in cases within that category. The analysis undertaken in those cases has always looked beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alterations: destruction of tissue, collapse of vertebrae, rupture of blood vessels, occlusion of an artery, development of a lesion. The point of explaining an injury in terms of a definite or distinct physiological change or disturbance has been to highlight the necessity for such an analysis to be undertaken.
(Footnotes omitted.)
The authorities make clear that in order for the Applicant’s accepted conditions to be an ‘injury (other than a disease)’ there must be evidence of a physiological change to a part of the Applicant’s body.
2. Are the accepted conditions an ‘injury (other than a disease)’?
To determine whether the Applicant’s accepted conditions are an ‘injury (other than a disease)’ requires consideration of whether the ‘nature and incidents of the physiological change’ suffered by the Applicant are established on the evidence. This assessment requires consideration of the nature of the symptoms described by the Applicant, and whether there is evidence, not just that he felt unwell or experienced pain, but that there is evidence of pathology consistent with the symptoms he claims to have experienced.
For the reasons that follow and following the principles in the relevant authorities, the Tribunal finds, on the basis of the evidence before it, that the Applicant did not sustain an ‘injury (other than a disease)’ under s 5A(1)(b) of the SRC Act to any part of his body, including his lumbar spine, cervical spine and right wrist. There is inadequate probative evidence to support a finding, as required in the words of the High Court in May, that the Applicant suffered ‘something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’.[206]
Lumbar and cervical spine
[206] May at [75].
In relation to the injuries the Applicant claims to have suffered following the fall at work on 12 September 2001, the Tribunal finds, for the reasons that follow and based on the evidence of the medical experts, that the Applicant did not sustain an ‘injury (other than a disease)’.
The evidence of the three medical witnesses with relevant expertise, namely Dr Hyde-Page, Dr New and Dr Reiter, is consistent in relation to their opinions that there is no evidence of pathological change to the Applicant’s lumbar and cervical spine in September 2001 to support a finding that he suffered an ‘injury (other than a disease)’. Both Dr Hyde-Page and Dr Reiter, having considered the contemporaneous evidence, including the records and imaging from St Vincent’s Hospital following the incident on 12 September 2001, were unequivocal that there was no evidence of ‘a sudden and ascertainable or dramatic physiological change or disturbance of the [Applicant’s] normal physiological state’. Dr Hyde-Page’s evidence in chief was that he could not identify any pathological change that occurred on 12 September 2001 to any part of the Applicant’s body.[207] He also stated that this finding is supported by the images from St Vincent’s Hospital undertaken on the day of the incident. The records from the Hospital record that those who attended the Applicant ‘were quite happy he hadn’t suffered any significant injury or major problem. There was no evidence of any fracture … or acute injury.’ Dr Reiter gave consistent evidence about the absence of any indication of pathological change at this time.[208] Dr Hyde-Page gave evidence in cross-examination that, even absent anything at all occurring in 2001, the Applicant would have suffered the same condition he now suffers.[209] Both he and Dr Reiter agree that the Applicant has a degenerative condition which would have become symptomatic in any event regardless of the September 2001 incident.[210]
[207] Transcript of proceedings, 27 May 2021, 163.
[208] Transcript of proceedings, 27 May 2021, 190 – 208.
[209] Transcript of proceedings, 27 May 2021, 173.
[210] T15, AAT - 2020/4423 & 4489.

Neither Dr Hyde-Page nor Dr Reiter was satisfied that there was any likely causative relationship between the September 2001 incident and the Applicant’s later complaints about pain in his cervical spine. Dr Hyde-Page stated that the forces involved in the Applicant’s fall onto his buttocks were insufficient to cause damage to the cervical spine. He commented that the records of investigations and treatment which followed the September 2001 incident were in relation to the Applicant’s lumbar spine and there is no record of the investigations or treatment of the cervical spine.[211] This is consistent with the Applicant’s self-report to Dr Hyde-Page that he had no significant cervical symptoms until 2013.Dr Reiter stated that the mechanism of the Applicant’s fall did not involve neck trauma and the cervical spine x-ray done on 9 November 2001 was ‘completely normal.’[212] The Applicant’s later reports in relation to his neck in 2002-2003 were inconsistent as they involved different parts of the neck, different symptoms and different movements provoking them.[213]
[211] Transcript of proceedings, 27 May 2021, 185.
[212] Transcript of proceedings, 27 May 2021, 208.
[213] Transcript of proceedings, 27 May 2021.
Dr New also was unable to identify any particular pathological damage to any part of the Applicant’s body that resulted from the incident on 12 September 2001. He was not provided with any radiology prior to that undertaken in 2005, nor the contemporaneous records of investigations from 2001 and 2002, which would have allowed him to express an informed opinion about any pathology that arose from the incident. Dr New was not asked to identify any pathological damage to any part of the Applicant’s body in 2001, and he clearly stated that he had no imaging of investigations from that period to which he could refer.
On the basis of the evidence before it, the Tribunal cannot be satisfied that the Applicant suffered an ‘injury (other than a disease)’ on 12 September 2001. It makes this finding for reason that there is no probative evidence that any identifiable structural abnormality or damage occurred to any part of the Applicant’s body following his fall at work on this date.
3. Is the Tribunal empowered to make findings of fact contrary to those on which s14 liability was accepted by the Respondent?
In Hannaford, the Full Court of the Federal Court considered whether the Tribunal is empowered to make findings of fact that are contrary to those found by the original decision-maker under s 14 of the SRC Act, in circumstances where the AAT is undertaking a review of determinations under s 16 and s 19 of the SRC Act.
Conti J, with whom Heerey J and Dowsett J agreed, stated the following at [57]:
… it should be concluded, upon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part…’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.
Conti J concluded at [59]:
I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRC Act [sic] and in the events which happened:
(i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and
(ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and
(iii) to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.
In short, it matters not, upon the true construction of the SRC Act, that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford’s claim originally made on 1 May 2002 had been accepted.
In Portors v Comcare [2018] FCA 914 at [26] Robertson J succinctly stated the effect of Hannaford:
The decision stands as authority for the proposition that in relation to its decision-making under, in particular, ss 16 and 19 of the Act, the Tribunal has power to make a finding of fact contrary to a finding of fact made in an original decision under s 14 even where the s 14 decision remains in force.
This approach, which recognises the progressive and evolving nature of decision-making under the SRC Act, is consistent with that adopted by the Full Court of the Federal Court (Allsop CJ, Reeves and Derrington JJ) in Commonwealth v Snell (2019) 269 FCR 18; [2019] 57 FCAFC at [77]:
…There is nothing which requires commencing the decision-making process with any predisposition that any relevant material ought not to be considered merely because the issue to which it is relevant has been determined as part of an earlier decision. To the contrary, the power to reconsider earlier decisions negates the suggestion that the entity exercising the power should or could refuse to take into account any relevant material. To do so would necessarily diminish the power to reconsider. Additionally, it may deny a claimant their entitlement under the compensation scheme or impose on an employer a liability for compensation for which it is not responsible. It would also impose a rigidity on the flexible and continuous decision-making process provided for in these compensation schemes.
On the basis of these authorities, the Tribunal does not accept the Applicant’s submission that it is not open to the Respondent to argue in these proceedings that the Applicant never suffered an ‘injury’ for the purposes of ss 16 and 19 of the SRC Act. In accordance with the principles outlined in Hannaford, the AAT can revisit whether liability was correctly accepted by the Respondent for the accepted conditions under s 14 of the SRC Act.
The Tribunal is satisfied, on the balance of probabilities, that the factual findings on which the Respondent made decisions in relation to the accepted conditions was based are not supported by the evidence. Accordingly, the Tribunal cannot be satisfied that the Applicant suffered an ‘injury (other than a disease)’ on 12 September 2001 and finds that the Applicant has no present entitlement to compensation under the Act for the accepted conditions.
It follows that any condition arising out of the Applicant’s fall on this date also cannot be an ‘injury’ for the purposes of the SRC Act. The effect of this conclusion does not disturb the Respondent’s liability under s 14 of the Act for the Applicant’s accepted conditions. It does, however, support a determination that the Respondent has no further liability to pay compensation under ss 16, 19, 24 and 29 of the Act in respect of these conditions.
Right wrist
The Applicant fractured his right scaphoid in June 1998 on a journey home from work. The Applicant sprained his right wrist at work on 4 December 2000 when he was moving a trolley. His claims for compensation for both injuries were accepted by the Respondent.
Dr Reiter’s evidence to the Tribunal is that based on the material she reviewed, including medical reports, clinical notes and imaging, the Applicant’s right scaphoid fracture was fully healed by 1999. Dr Giblin reported on 28 November 2001 that the Applicant’s right wrist was normal.[214] The records of Dr Lim and Dr Salmon in the relevant period do not reveal any notable right wrist complaints.[215] The clinical examination of the Applicant’s right wrist by Dr Tait in March 2002,[216] and Dr Ng on 4 September 2008 which included multiple tests involving the wrists and hands,[217] were unremarkable.
[214] T6 – AAT 2018/7183.
[215]. T21, T23-T32, T3– AAT 2018/7183.
[216] T11 – AAT 2018/7183.
[217] T56– AAT 2018/7183 p. 11.
Dr New noted in his report dated 1 May 2019 that the Applicant experienced ‘pain in his right wrist’. He agreed however in cross-examination that he did not have the relevant imaging or records,[218] to enable him to provide an evidence-based opinion in relation to this injury. The Tribunal prefers the evidence of Dr Reiter who reviewed relevant medical reports, clinical notes and imaging, and the findings contained in the medical reports of Dr Tait and Dr Ng in relation to the Applicant’s right wrist over those of Dr New, for the reason that their opinions are based on examinations of the Applicant and relevant imaging.
[218] For example, from 1998 and 1999, March 2001 and September 2001 in Exhibit ER2 [R21].
On the basis of the evidence before it, the Tribunal finds that the injuries the Applicant sustained to his right wrist in 1998 and 2000 have healed, and he no longer continues to suffer the effects of these injuries.
Is the Respondent liable for the Applicant’s ongoing medical treatment, compensation for incapacity, permanent impairment, non-economic loss or household services?
As the Tribunal has found that there was no ‘injury’ to the Applicant’s lumbar and cervical spines in September 2001 as required by s 4 of the SRC Act, and he no longer continues to suffer the effects of the injuries to his right wrist in 1998 and 2000, no question arises as to whether an ‘injury’ continued to manifest from 2018-2020. As such, the Respondent is not liable for any incapacity, impairment, non-economic loss, or need for treatment or household services.
Accordingly, the Tribunal finds that the Applicant is not entitled to each of the respective compensation claims he has made under ss 16, 19, 24, 27 and 29 of the SRC Act.
Is the Respondent liable for the Applicant’s claimed psychological condition?
The Applicant cannot suffer a psychological ailment, where the employment contribution is constituted by the claimed September 2001 ‘injury’, unless there was such an ‘injury’. For the reasons stated above, the Tribunal finds that the Applicant did not suffer an ‘injury’ as a consequence of his fall at work in September 2001. As such, the Respondent is not liable for the Applicant’s claimed psychological condition.
The evidence before the Tribunal supports a finding that the Applicant’s diagnosed psychological condition, whenever it arose, was a result of non-employment factors. In Dr Mutha’s opinion, the Applicant’s Adjustment Disorder is a result of family and financial stress and pain consequent to non-work-related incidents.[219] Dr Dinnen’s opinion in relation to the Applicant’s diagnosed Major Depressive Disorder that is a consequence of the chronic pain and disability he suffers, is based upon the assumption, contrary to the findings of the Tribunal, that the Applicant’s pain has an employment contribution.
[219] T29 - AAT 2020/4423 & 4489.
DECISION
The Reviewable Decisions which are the subject of the six applications for review are affirmed.

I certify that the preceding 160 (one hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

.............................[sgd]...........................................
Associate
Dated: 6 December 2021

Date(s) of hearing: 25, 26, 27 & 28 May 2021

Date final submissions received: 16 June 2021

Counsel for the Applicant: Mr L. Gray

Solicitors for the Applicant: Turner Freeman Lawyers

Counsel for the Respondent: Ms S. Wright

Solicitors for the Respondent: Australian Government Solicitors

Date(s) of hearing:	25, 26, 27 & 28 May 2021
Date final submissions received:	16 June 2021
Counsel for the Applicant:	Mr L. Gray
Solicitors for the Applicant:	Turner Freeman Lawyers
Counsel for the Respondent:	Ms S. Wright
Solicitors for the Respondent:	Australian Government Solicitors