Stewart and Comcare (Compensation)

Stewart and Comcare (Compensation) [2023] AATA 1904 (30 June 2023)
Division:GENERAL DIVISION
File Number(s): 2020/1757 & 2020/4107
Re:Yvonne Stewart
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:30 June 2023
Place:Brisbane

The reviewable decisions are affirmed.
.........................[SGD].........................
Deputy President J Sosso

Catchwords
COMPENSATION – workplace injury – journey claim – lumbar and cervical spine injuries – aggravation of underlying degenerative spinal condition – liability accepted – whether liability for condition has ceased – whether ongoing entitlement to claim medical expenses – decisions under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Woodhouse v Comcare [2021] FCAFC 95
REASONS FOR DECISION
Deputy President J Sosso
30 June 2023

The issue before the Tribunal in this matter is whether Ms Yvonne Stewart (the Applicant) continues to be afflicted by the injuries she suffered to her neck and lower back after falling at approximately 7:50 am on 13 August 2002 at the Surrey Hills Railway Station whilst on her way to work with the Department of Defence – Exhibit 1 T6 p. 48.
On 19 August 2022, the Applicant made a claim for “musculo-ligamentous strain of neck” – Exhibit 1 T6 pp. 47 – 54. The Applicant described the incident at the Surrey Hills Railway Station as follows – Exhibit 1 T6 p. 50:
“When walking on downhill slope, feet slipped on wet pathway and I fell flat onto my back.”
The Applicant described the injury/illness suffered as “sore neck & hand, bruising to hand & back”. The parts of the body affected were said to be “back, neck, left hand” and the way in which the injury affected her was “sore neck – discomfort (minimal)” – Exhibit 1 T6 p. 49.
On 14 August 2002 the Applicant was examined by her treating GP, Dr Sandra Ray, who made the following observations – Exhibit 7 p. 15:
“fell on her way to work yesterday at Surrey Hills station fell on back, Sx now pain with turning neck and left shoulder blade bruised feels unwell
O/E painful restriction of all neck movements
good range of back movements
bruise in area of left axilla”.
On 6 September 2002 Comcare accepted the Applicant’s “neck sprain” as compensable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) –

Exhibit 1 T7 pp. 55 – 56.
On 12 February 2003 Comcare also accepted liability for the Applicant’s condition of “L4/5 disc bulge” also as a result of the accident on 13 August 2002 – Exhibit 1 T9 p. 59.
On 28 August 2007, Senior Member McCabe (as he then was) of the Tribunal, by consent, determined that the Applicant suffered from 10% permanent impairment pursuant to

Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment as a consequence of her neck sprain and L4/5 disc bulge condition – Exhibit 3 pp. 13 – 14.
On 23 October 2008 Comcare extended liability pursuant to s 14 of the Act to accept the condition of “soft tissue strain of the cervical and lumbar spines with aggravation of pre-existing cervical and lumbar spondylosis”. Comcare determined to extend liability after receiving a medical report from Professor McPhee – Exhibit 1 T28 p. 128.
In four decisions made between 2019 and 2020 Comcare determined that it had no present liability for the Applicant’s medical expenses and incapacity for work as a result of the injuries sustained on 13 August 2002.
The first determination of no present liability was made on 23 September 2019 –

Exhibit 1 T71 pp. 235 – 236.
The Comcare Delegate determined that the Applicant no longer required medical treatment and time off work as result of the compensable condition of “displacement of intervertebral disc – lumbar”. Accordingly, the Delegate determined that Comcare had no present liability for medical expenses under s 16 of the Act or incapacity payments under s 19 of the Act.
The Applicant sought a reconsideration of this determination – Exhibit 1 T73 pp. 241 – 248.
The Comcare Review Officer determined on 20 January 2020 to vary the earlier determination, and in its place, decline compensation for medical treatment only. No finding was made regarding incapacity payments as these were not being sought at the time of the earlier determination – Exhibit 1 T80 pp. 273 – 276.
On 20 March 2020, the Applicant applied to the Tribunal for a review of the reconsideration decision – Exhibit 1 T2, 2a pp. 8 – 10, 2020/1757.
The third determination was made by Comcare on 14 February 2020. The Comcare Delegate determined that Comcare had no present liability to pay for medical expenses pursuant to s 16 for the compensable claim of neck sprain – Exhibit 1 T81 pp. 279 – 280. In reaching this decision, the Delegate provided the following reasons –

Exhibit 1 T81 p. 279:
“This determination has been based on a medical report from Dr Bruce McPhee, Orthopaedic Surgeon dated 19 November 2019, where he opines that you are suffering from cervical spondylosis due to aged-related constitutional factors, and that irrespective of the incident in 2002, you would more than likely suffer from neck pain due to these age-related degenerative changes.”
The Applicant requested a reconsideration of this determination – Exhibit 1 T82a p. 282.
On 29 May 2020, a Comcare Senior Review Officer affirmed the determination of

14 February 2020 – Exhibit 1 T85 pp. 287 – 291. The Senior Review Officer determined that the Applicant no longer experienced the effects of her compensable cervical spine conditions, with her ongoing symptoms reflecting the natural progression of her underlying, pre-existing condition. In reaching this conclusion the Senior Review Officer referred to a number of medical reports.
On 3 July 2020, the Applicant applied to the Tribunal for a review of this decision –

Exhibit 1 T4a pp. 29 – 31, 2020/4107.
BACKGROUND
The Applicant was born in October 1953, and at the time of the Hearing was aged 69 years – Exhibit 1 4a p. 29.
At the time of her 13 August 2002 accident, the Applicant was working with the Department of Defence. She tendered her resignation from the Department on 26 April 2005 to take effect from close of business 20 May 2005 – Exhibit 1 T10 p. 60. It would appear that the Applicant worked for the Commonwealth Government, off and on, since 1970 and commenced working with the Department of Defence in Melbourne around 1999 –

Exhibit 1 T16 p. 76.
The material presented to the Tribunal indicates that the Applicant was involved in a motor vehicle accident in 1974 – Exhibit 1 T6 p. 49.
The Applicant prepared a statement dated 26 September 2006 in which she outlined, inter alia, a history of her neck and lower back symptoms from 1993 until 2006 –

Exhibit 3 pp. 8 –12.
In the statement, the Applicant states that in 1993, as she alighted from a car, she twisted her back. It took her two months to recover – Exhibit 3 p. 8 para 2.
In 1999 the Applicant commenced working as a payroll officer with Deakin University. However, she resigned from this position within two months due to neck pain –

Exhibit 3 p. 8 para 3.
In June 2001 the Applicant “ricked” her neck when she slipped over when going to work. She did not make a claim for this injury, and stated that it resolved quickly –

Exhibit 3 p. 8 para 4, Exhibit 2 ST15 p. 486.
As previously noted, the Applicant slipped and fell when walking down a ramp at Surrey Hills Railway Station on 13 August 2002. The Applicant stated that she “landed heavily on my back and jarred my neck in the process” – Exhibit 3 p. 8 para 5.
On 10 December 2002 a CT of the Applicant’s lumbar spine was performed by

Dr Marcus Loff. The following findings were made – Exhibit 1 T8 p. 58:
“At L4/5, there is moderate broad based posterior disc bulge.
This is associated with congenitally short pedicles and common facet joints, to produce mild to moderate central spinal canal stenosis with mild circumferential compression of thecal sac and traversing nerve roots…
Mild to moderate central canal stenosis at the L4/5 level produced by a combination of bony and soft tissue elements…”
A handwritten note on the CT report by Dr Sandra Ray (GP) states as follows:
“The disc bulge will usually lessen over time.”
The Applicant took recreation leave from the end of April 2003 until the end of August 2003 and during that time travelled with her partner throughout Queensland –

Exhibit 2 ST12 p. 479:
“During this time I travelled extensively, by 4WD mainly throughout Queensland. The trip included many of the normal tourist type activities including walking, swimming and driving. My partner did the majority of driving as on many occasions we were towing a caravan and I did not feel comfortable with this. It seems to be implied that I was responsible for much of the driving and this could have aggravated my condition. I suffered minimal problems with both my neck and back and when necessary took medication including panadeine forte however this was required on very few occasions.”
Dr Ray, in a surgery note of 16 October 2003, made the following observations about this trip – Exhibit 7 p. 18:
“has been on trip and plans to move to Yamba
was feeling well while away.”
The observations of Dr Ray are consistent with observations made by Dr G A Brazenor, Neurosurgeon, who examined the Applicant on 7 February 2005. Dr Brazenor noted, after receiving information from the Applicant, that while she was on long service leave between April and September 2003 she “did a lot of swimming and she was almost asymptomatic during that period” – Exhibit 2 ST15 p. 486.
Dr Ray referred the Applicant to Dr Peter Selvaratnam, Doctor of Anatomy and Musculoskeletal Physiotherapist. Dr Selvaratnam made the following observations in a report of 20 August 2004 – Exhibit 2 ST2 p. 444:
“Thank you for recommending Yvonne. In 1992 Yvonne injured her low back while getting out of her car and rotating her spine. In 2002 she fell on her spine at the railway station resulting in cervical and lumbar pain which resolved after a few months.
Since January 2004 Yvonne has experienced pain in the cervical and trapezius region with a ‘burning’ sensation in the mid back and low back. The symptoms are constant and aggravated by neck flexion. Her work involves considerable keying and reading which could be a precipitating factor…”
Dr Selvaratnam referred the Applicant to Ms Carol Lapeyre for the purpose of assessing her workplace support requirements. In his referral letter of 25 August 2004, Dr Selvaratnam made these observations about the Applicant – Exhibit 2 ST3 p. 445:
“Yvonne has dysfunction in the cervical & lumbar region…
Could you please evaluate her work station and…posture…I have requested her to walk around every 1 hour for 5 mins…”
Ms Lapeyre assessed the Applicant and made the following notes of her conversation with the Applicant – Exhibit 2 ST4 p. 446:
“Ms Stewart stated that she initially sustained injury to the lower back when transferring out of a vehicle while rotating the trunk in 1992. She stated that she then sustained further injury in 2002 when she slipped whilst walking on a wet ramp. She described slipping onto her back at this time. It is understood that this resulted in neck and lower back pain which resolved after a few months.
She stated that since January 2004, she has experiencing discomfort at neck and upper back. She has also reported lower back pain. She described her discomfort to have progressively got worse over time. She stated that she visited her doctor who arranged a referral to a physiotherapist. It is understood that she was also prescribed an anti-inflammatory medication – Vioxx which she can only take intermittently given her other unrelated medical complaints.”
Also, at the recommendation of Dr Selvaratnam, the Applicant underwent an MRI of her cervical spine and upper thoracic spine – Exhibit 2 ST5 p. 452. The MRI revealed that the Applicant was suffering from multilevel cervical foraminal stenosis particularly at C4/5 and C5/6 – Exhibit 2 ST6 p. 453.
The Applicant was subsequently referred for an X-ray of her cervical spine, and she was examined on 21 September 2004. The X-ray results were as follows – Exhibit 2 ST8 p. 456:
“The alignment of the cervical vertebrae is within normal limits.
Early degenerative disease is demonstrated in the mid cervical spine at the C5/6 and C6/7 intervertebral disc levels, where there are small marginal osteophytes.
On the oblique views, there is bilateral mild-to-moderate narrowing of the neural exit foramina at the C5/6 level by osteophytes from the uncovertebral joints.
Elsewhere the neural exit foramina are patent bilaterally.”
In a report dated 13 October 2004, Dr Ray provided to the Department of Defence a comprehensive analysis of the Applicant’s then medical condition. Having outlined the Applicant’s medical background, Dr Ray made these observations – Exhibit 2 ST9 p. 458:
“Yvonne gave a history on 14.2.2004 [sic] of having fallen at Surrey Hills station on the way to work and landing on her back. At that time there was painful restriction of all neck movements and she was prescribed vioxx and given a certificate to rest from work for 3 days.
She had previously complained of sore neck on 10.7.1997 and 14.8.2002 and of back pain radiating into the left leg on 27.3.2001 and again on 14.10.2001.
On 3.9.2002 she again complained of back pain.
On 4.11.2002 she complained of back pain at night. There was a full range of painfree back movements at that time and full straight leg raising. She complained again on 9.1.2002 and there was some restriction of movement and straight leg raising on the right.
The CT scan revealed mild to moderate spinal canal narrowing at L4/5 caused by a broad based disc bulge and congenitally shortened pedicles and there was degeneration of the right L5 S1 facet joint.
On 10.6.2004 she complained of low back pain worse at night and of pain in the neck and shoulders for the previous 2 months.
She again complained of neck pain on 29.7.2004, and she was referred for physiotherapy.
The diagnosis is of degenerative disease of the cervical and lumbar spines.
On 13.8.2002 Yvonne fell and may have aggravated pre existing degenerative disease of the cervical and lumbar spines. She may have suffered from soft tissue injuries. I think it is impossible to be more precise at this stage.
There is obvious cause for the recent worsening of symptoms but the patient relates it to her desk work.
The patient has degenerative disease of the lumbar and cervical spines and has had symptoms for some years, in fact since before her fall. She may have aggravated this disease in the fall or her symptoms may relate to a natural degeneration over time.
I am unable to say when the effects of the injury would cease or whether the present symptoms are related to the injury, but it seems likely that her injury would have aggravated underlying degenerative disease.”
In an undated letter to Dr Wallace, which was received by Comcare on 17 November 2004, the Applicant made the following statement about her neck and shoulder pain and the accident in August 2002 – Exhibit 2 ST11 p. 476:
“I am unsure whether this condition is related to a fall I had on the way to work in 2002 where I have an accepted Comcare Claim for ‘Neck sprain and L4/5 broad based posterior disc bulge’ – Claim Reference 77144/04. I did not associate this condition with this prior to my consultation with Dr Peter Selvaratnam but due to his certificate have reinstated my claim.”
As previously noted, the Applicant was examined and assessed by Dr Brazenor on

7 February 2005. Dr Brazenor gave a neutral diagnosis of whether the Applicant’s falls had contributed to her spinal condition – Exhibit 2 ST15 p. 488:
“This lady has significant degenerative/cumulative injury changes at the lower two segments in her cervical spine and the lower two segments in her lumbar spine. I consider that the various falls described to me today may have contributed to these changes in Ms Stewart’s spine, but not necessarily. It is entirely possible that without any of those falls Ms Stewart’s spine might look exactly the same as it does on scan, and her disability may be indistinguishable from what it is today.”
During 2005 the Applicant was also examined and assessed by Dr John King and

Dr M A Khan. The reports of both Doctors are discussed below.
The next significant medical report was prepared by Dr Bruce McPhee, Spinal Surgeon, who examined and assessed the Applicant on 29 November 2006 –

Exhibit 1 T22 pp. 100 – 106.
Dr McPhee concluded that the Applicant’s degenerative cervical and lumbar spinal condition pre-dated the 2002 accident, but the accident resulted in an aggravation of her cervical and lumbar disc disease – Exhibit 1 T22 p. 103:
“There is radiological evidence of degenerative changes in the cervical and lumbar spines. These changes are long standing and would pre-date the fall on

13 August 2002. There is an acceptable nexus between this incident and the onset of neck and lower back symptoms to conclude that the circumstances relating to this incident constitutes an injury in which I believe the claimant has suffered a soft tissue strain with aggravation of cervical and lumbar degenerative disc disease (spondylosis).”
Dr McPhee also opined that the nature of the Applicant’s work was a significant factor in the aggravation of her underlying condition, and this aggravation would moderate once the Applicant ceased working – Exhibit 1 T22 p. 103:
“Subsequent to this injury, Ms Stewart has had persisting neck and lower back pain, the intensity of which has been variable. These symptoms did substantially subside during the period of leave from her job in 2003 only to intensify when she returned to her work. While the nature of her work does involve a lot of desk work with prolonged periods of typing, work would not have caused the injury to her neck or lower back nor advanced the degenerative process. The nature of her work however was probably a significant factor in the aggravation of her already existing cervical (and to a less extent lumbar) condition. This should be in the form of aggravation in as much as once she ceases this work then the symptoms should moderate. Ms Stewart claims that this is not the case and hence I believe that to a large extent her current presentation probably represents the natural history of the underlying condition.”
In addition, Dr McPhee opined that the Applicant suffered from chronic neck and low back pain, which was stable and stationary and unlikely to change significantly in the foreseeable future. However, as the Applicant’s condition was degenerative, it would be likely to run a fluctuating course over time, with periods of increased disability. Physical therapies would be unlikely to result in any substantial or sustained improvement in the Applicant’s spinal condition – Exhibit 1 T22 p. 104.
The Applicant was again examined and assessed by Dr McPhee on 1 September 2008. In his report of 3 September 2008, Dr McPhee basically repeated his diagnosis set out above – Exhibit 1 T27 pp. 122 – 127.
Dr McPhee noted that the Applicant had not worked since May 2005 and stated that the Applicant informed him that despite the absence of treatment and not working in the previous three years, she believed that there had been no change in her symptoms

– Exhibit 1 T27 p. 123.
Dr McPhee opined that there was radiological evidence of degenerative changes in the cervical and lumbar spines which were of long standing and pre-dated the August 2002 accident – Exhibit 1 T27 p. 124. As a result of the August 2002 accident, the Applicant suffered from a soft tissue strain of the cervical and lumbar spines with aggravation of her pre-existing cervical and lumbar spondylosis. There was no evidence of associated radiculopathy – Exhibit 1 T27 p. 125.
The prognosis of Dr McPhee, was that the Applicant suffered from chronic neck and lower back pain with referred somatic pain to the upper limbs, which symptoms were long standing and related to the injury she suffered in August 2002. Finally, Dr McPhee opined that the Applicant’s spinal condition was stable and stationary and unlikely to change in the foreseeable future – Exhibit 1 T27 p. 125.

In 2014 the Applicant fell down a flight of stairs, resulting in right lower back pain. This accident, the injuries suffered by the Applicant and her subsequent medical treatment, were discussed in a further report of Dr McPhee of 27 June 2019 as follows –

Exhibit 1 T64 p. 212:
“Ms Stewart reinjured her lower back in 2014 when she fell down a flight of stairs. This caused right lower back pain. Initial treatment was physiotherapy. When the symptoms failed to resolve she was referred to a neurosurgeon. She was extensively investigated. She subsequently had surgery on her lower back the nature of which she does not know.
Material evidence indicates that Ms Stewart had CT and MRI scans of the lower back in May 2014 which showed multilevel degenerative changes in the lumbar spine but specifically advanced degeneration of the L4/5 intervertebral disc with a right paracentral disc extrusion. Subsequent CT scans of the lumbar spine done in September 2016 show evidence of previous right micro-laminectomy at L4/5. From the evidence it is presumed that in 2014 Ms Stewart suffered an acute extrusion of the L4/5 intervertebral disc on the right and underwent discectomy.”
It would appear that on 2 July 2014 the Applicant underwent an L4/5 microdiscectomy and rhizolysis at Macquarie University Hospital. She was released from the hospital on

4 July 2014 – Exhibit 1 T73b and c pp. 250 – 251.
In the years subsequent to this procedure, the Applicant underwent a number of scans, principally of the lumbosacral spine.
In October 2018 the Applicant was referred to Dr Laurence McEntee, Orthopaedic Surgeon, for examination and assessment. In his report of 16 October 2018, Dr McEntee made the following observation – Exhibit 1 T56 p. 187:
“Yvonne reports no problems with her back or neck prior to an injury on her way to work.”
Accordingly, the opinions expressed by Dr McEntee were predicated on the provision of incorrect and incomplete information about the Applicant’s accidents prior to 2002.
Dr McEntee made the following observations with regard to the Applicant’s cervical spine – Exhibit 1 T56 p. 188:
“I have looked at some plain x-rays as well as an MRI of her cervical spine. There is advanced degenerative disc disease at C5-6 with bilateral neuroforaminal narrowing, compressing the exiting C6 nerve roots bilaterally. There are only minor changes at other levels noted.”
Dr McEntee then dealt with the Applicant’s lumbar spine – Exhibit 1 T56 p. 188:
“In regard to her lumbar spine, her EOS scan shows that she is lacking around 10-15^o of lumbar lordosis and has early sagittal imbalance as a result. She has advanced degenerative disc disease at L4-5, her L5-S1 level being transitional and shows no signs of any degeneration. There is no overt neural compression seen in the lumbar spine, however, she has large neural exit foramens bilaterally. There are also changes in the discs at L3-4 and L2-3 but L4-5 is the main issue and, on her bone scan, she is hot across the L4-5 disc.”
Dr McEntee concluded as follows – Exhibit 1 T56 p. 188
“I have discussed with Yvonne, in regard to her low back, her symptoms mainly seem to be coming from the L4-5 disc and, in her cervical spine from the C5-6 disc and these are the levels she was told she had inured at the time of her work injury, 16 years ago. Whilst, certainly, ongoing degeneration has ensured, it appears that her work injury was certainly a significant initiating factor to her current symptoms…”
Dr McPhee again examined and assessed the Applicant on 25 June 2019 and prepared a detailed report dated 27 June 2019 – Exhibit 1 T64 pp. 211 – 222.
First, Dr McPhee dealt with the source of the Applicant’s lower back pain –

Exhibit 1 T64 p. 215:
“There is little doubt that the source of the ongoing low back pain is multifocal. It would be expected that the L4/5 intervertebral level would be the principal pain generator however there are significant changes at L2/3, L3/4 and L5/S1. More likely than not they are contributing to her symptoms.”
Dr McPhee went on to opine that the accepted diagnosis of the Applicant’s compensable injury was L4/5 disc bulge. He then dealt with the Applicant’s current condition –

Exhibit 1 T64 p. 215:
“Over the subsequent 13 years there has been a generalisation of symptoms with a change in the diagnosis to one of degenerative spondylosis. The specific injury suffered in 2002 was to the L4/5 disc. The now expanded diagnosis represents a creeping substitution over time thus subsuming the original injury which is compensable.
While there is good evidence that Ms Stewart has degenerative changes at the lower four lumbar intervertebral levels, beyond the accepted injury to the L4/5 disc in 2002 and the subsequent right discectomy in 2014, degenerative changes at the other intervertebral levels are age-related and naturally occurring. This would be expected in a 65-year-old female. Only the injury to L4/5 is accepted as the injury and changes elsewhere in the lumbar spine are not compensable.”
Dr McPhee also addressed the impact of the 2014 accident – Exhibit 1 T64 p. 216:
“The key is the compensable injury. Documents relative to this injury were previously available to me when I did the medicolegal reports in 2006 and 2008…
Furthermore, at the time of these earlier examinations, medical reports confirmed previous episodes of low back pain documented in my reports. This is contrary to her denial to her treating surgeon.
Additionally, the history is complicated by what was an acute disc extrusion of L4/5 in 2014 which was due to a fall down some stairs. This complicates the relevance and contribution of the compensable injury in 2002 to her current symptoms and impairment. In medicolegal terms at least 50% of the current impairment would be attributable to the fall downs the stairs in 2014.”
Dr McPhee gave the following diagnosis of the Applicant’s current condition –

Exhibit 1 T64 pp. 216 – 217:
“Mrs Stewart has multilevel degenerative changes in the lumbar spine. She is also post-L4/5 discectomy status. The current symptomatology and diagnosis of lumbar spondylosis subsumes the original compensable injury of an L4/5 disc bulge. This is the compensable focus. The expansion of symptoms and diagnosis relates to age-related naturally occurring degenerative changes at other levels in the lumbar spine and also to the effects of discectomy at L4/5 in 2014 which was not due to a compensable injury. … Mrs Stewart’s compensable condition has now been subsumed by a generalised lumbar spondylosis.”
Later in his report, Dr McPhee opined as follows – Exhibit 1 T64 p. 221:
“Mrs Stewart’s current condition is stable and stationary and unlikely to change significantly in the foreseeable future. There is limited prospect that there will be improvement with surgery.
However, with respect to the compensable injury of 2002, Mrs Stewart’s condition was stable and stationary more than a decade ago when I provided my medicolegal reports in 2006 and 2008.
Her current condition relates to multilevel degenerative changes. The compensable injury to the L4/5 intervertebral disc is just one level of several levels involved. The original injury to L4/5 has been subsumed by multilevel, age-related degenerative changes in the lumbar spine.
Furthermore, degeneration in the L4/5 disc has been complicated by a further injury in 2014. She had a fall and suffered an acute extrusion of the L4/5 disc which necessitated surgery. This is a separate incident in which the pre-existing degeneration in the L4/5 disc was a contributing factor. Nonetheless from 2014 onwards the major part of the impairment of the L4/5 disc is due to the acute disc protrusion and surgery.”
At the request of Comcare, Dr McPhee prepared a supplementary report dated

8 August 2019 – Exhibit 1 T66 pp. 225 – 227. Comcare asked Dr McPhee a series of questions. The first question was whether he believed the Applicant’s current presentation was related to the compensable injury sustained in 2002. Dr McPhee gave the following answer – Exhibit 1 T66 pp. 225 – 226:
“Little of Mrs Stewart’s current presentation relates to the compensable injury sustained in 2002. The effects of that injury have been subsumed by time. More than 15 years have elapsed since that incident and age-related degeneration has had an effect.
Most significantly, Mrs Stewart sustained a further injury to her back in 2014 which resulted in the onset of sciatica which was subsequently treated by discectomy. It is that event which now assumes the major role in the current presentation.”
On 11 September 2019 Comcare requested a further report from Dr McPhee. Two questions were asked; both related to the Applicant’s cervical spine condition. Dr McPhee prepared a report dated 19 November 2019 – Exhibit 1 T76 pp. 257 – 258.
The first question was whether in Dr McPhee’s opinion, the Applicant’s neck sprain had resolved and she was presenting with signs and symptoms more significantly attributable to other factors. Dr McPhee’s response was as follows – Exhibit 1 T76 p. 257:
“Virtually all of the material evidence relates to the lumbar spine. There is no material evidence that Mrs Stewart was suffering from or having treatment of chronic neck pain after 2002. All radiological studies were of the lumbar spine. There is insufficient evidence to conclude that Mrs Stewart had ongoing neck pain after the incident in 2002. On the balance of probability, any ongoing neck pain is due to the natural progression of age-related degenerative changes in the cervical spine.”
The second question was whether, in Dr McPhee’s opinion, the Applicant would be presenting with the same cervical spine symptoms and restrictions irrespective of the 2002 incident given her underlying degenerative changes. Dr McPhee’s answer was as follows – Exhibit 1 T76 p. 258:
“Given the claimant’s age of 66 years, it is almost certain that Mrs Stewart has cervical spondylosis due to age-related constitutional factors. Irrespective of the incident in 2002, Mrs Stewart would more than likely suffer from neck pain due to these age-related degenerative changes.”
The Applicant’s then GP, Dr David Dalgliesh, referred her to Dr Neil Cleaver, Orthopaedic Surgeon (Spine) for examination and assessment. Dr Cleaver prepared a report dated

3 June 2020 in which he expressed the following opinions – Exhibit 3 p. 218:
“Yvonne and myself were acquainted almost 10 years ago. We looked after her neck in a conservative fashion. She still has neck-related issues, but the subject of today’s consultation was her lower back.
Her lower back became painful following her fall in 2002. She has had on and off lower back issues. This is the worst she has been in terms of duration of pain and severity of pain. It is noteworthy that in 2014 she came under the care of a neurosurgeon who performed an L4-5 discectomy. Initially, the thought was it was successful, but really on interrogation, it didn’t do much for her long-term. She remains with back pain and right leg pain.
I am of the opinion that her right leg pain is referred pain. It doesn’t sound like radiculopathy. She has had an opinion from a specialist who suggested discography over multiple levels. I am not sure she has discogenic pain. Her story is quite classic for facet-driven or arthritic-driven pain.
She has Grade-4 arthritis in the L5-S1 facet joints far worse on the right than the left…”
The final medical report given to the Tribunal was prepared by Dr Gautam Khurana, Neurosurgeon, and dated 25 May 2021 – Exhibit 3 pp. 88 – 110. Dr Khurana evaluated the Applicant on 19 April 2021 via Zoom, with Dr Khurana operating from his offices in Canberra and the Applicant from Yamba.
In the summary and assessment section of the report, Dr Khurana made the following observations about the Applicant’s pre 2002 condition – Exhibit 3 pp. 103 – 104:
“Ms Stewart is a 67-year-old lady who reports an index work injury on 13/08/02 which, by her description, was related to a fall at a Victorian railway station on a wet surface. There appears to be a preceding history of cervical and lumbar symptomatology…The contemporary spinal imaging reports suggest pre-existing pathology at multiple levels in the cervical and lumbar regions, consistent with pre-existing symptomatology there.”
Next, Dr Khurana dealt with the 2002 and 2014 accidents – Exhibit 3 p. 104:
“What Ms Stewart probably suffered from the fall of 2002 was a temporary musculoligamentous injury/strain to the soft tissues (not the spinal structure) of the cervical and lumbar region, and this essentially resolved in a few months. What was present before the fall, and then more symptomatic from early 2004 onwards was the underlying degenerative disease process (cervical and lumbar spondylosis). What has evolved from 2004 onwards…is a chronic pain syndrome. That persists to today, punctuated in 2014 by a bona fide discal injury in 2014. I find it difficult to escape this conclusion based on the key (factual, clear, and independent) documents underlined in the above paragraph, and my own observations on the day I assessed Ms Stewart.”
[Emphasis in original]
Overall, Dr Khurana was not convinced that the Applicant was suffering, at the time of his report, from a work-related injury – Exhibit 3 p. 104:
“The distribution of symptomatology at this time appears to be quite diffuse. The examination findings include some Waddell/nonphysiological features and my observation was that there was a combination of effort-dependence and functional overlay in addition to some spondylosis in the cervical and lumbar regions. I am not at all convinced there is a bona fide work-related injury at this time, and there has not been one from a few months after the 2002 fall. Work could recurrently/temporarily symptomatically exacerbate Ms Stewart’s underlying disease process (spondylosis) but did not cause it or structurally alter it. My diagnosis is chronic pain syndrome, the organic component (50%) is cervical and lumbar spondylosis, the non-organic component (50%) is non-physiological/pain behaviour, Dr King made this diagnosis in 2005.”
[Emphasis in original]
Dr Khurana then answered a series of questions posed by the legal representatives of Comcare.
One question related to whether the Applicant’s 2002 neck and lower back pain resolved after a few months following the 2002 accident and then recurred in 2004. Dr Khurana’s response was as follows – Exhibit 3 p. 105:
“She probably had a temporary musculoligamentous strain following the 2002 fall. This was not a frank spinal injury, rather a soft tissue strain that probably resolved within a few months…”
Dr Khurana was asked if prior to the 2002 accident, the Applicant was suffering from a medical condition affecting her cervical and/or lumbar spine. His answer was as follows – Exhibit 3 p. 105:
“She had symptomatic cervical and lumbar spondylosis prior to the 13/08/02 incident…”
In addition, Dr Khurana opined that the Applicant did not suffer, in 2002, a spinal aggravation. In his opinion there was probably a soft tissue strain in the cervical and lumbar region, and probably a near complete resolution within a few months – Exhibit 3 p. 105.
Dr Khurana disagreed with Comcare’s “diagnosis” of the Applicant’s condition from the 2002 accident as “displacement of the intervertebral disc - lumbar” and “neck sprain”. In

Dr Khurana’s opinion, the contemporaneous documentation did not substantiate a lumbar disc herniation from the 2002 fall, although he opined there was one from the 2014 fall. Moreover, in his opinion the Applicant did not suffer from a cervical spinal injury in 2002 – Exhibit 3 p. 106.
In Dr Khurana’s opinion, there is no proper aetiological connection between the 2002 fall and the Applicant’s current diagnosis. In particular, Dr Khurana opined that the Applicant did not suffer a spinal injury in 2002, either to the lumbar or cervical spine – Exhibit 3 p. 106. In his opinion, the Applicant suffered in 2002 a temporary soft issue strain which probably resolved within a few months. The Applicant’s long service vacation in 2003 involved, in his opinion, activities and a self-reported account that were “completely inconsistent” with a bona fide spinal injury – Exhibit 3 pp. 106 – 107.
THE HEARING
A Hearing was convened in Brisbane on 15 – 16 March 2023. The Applicant was self-represented and Comcare was represented by Ms P Bindon. The Hearing was conducted remotely.
The Applicant gave evidence and was cross-examined on 15 March 2023.
Dr Khurana gave evidence on 16 March and was cross-examined.
No other witnesses were called by either party.
Leave was given to the parties to provide the Tribunal with written closing submissions.
Comcare provided the Tribunal with the Respondent’s Closing Submissions (RCS) dated 23 March 2023.
The Applicant provided the Tribunal with the Applicant’s Closing Submissions (ACS) dated 2 April 2023.
ISSUES
In the reviewable decisions, Comcare determined that it had no present liability for the Applicant’s medical expenses as a result of the accepted claims of cervical and lumbar spine injuries flowing from the 2002 accident.
The thrust of Comcare’s submission, is that despite originally accepting the Applicant’s lumbar and cervical spine conditions, any ongoing spinal conditions are the result of age-related and constitutional lumbar and cervical spondylosis which would be present irrespective of the 2002 accident – RCS para 5.
Further, it is Comcare’s submission, that whatever the nature of the spinal injuries sustained by the Applicant in 2002, they resolved, most probably, within a few months of the accident – RCS para 6a.
Consistent with the diagnosis of Dr Khurana, it is also the submission of Comcare that the Applicant’s current symptomology is caused by a chronic pain condition, the organic component of which is her age-related and constitutional lumbar and cervical spondylosis – RCS para 6b.
Comcare contends, again consistent with Dr Khurana’s diagnosis, that the previously diagnosed conditions of “displacement of intervertebral disc – lumbar” and “neck sprain” are incorrect, and were not sustained as a result of the 2002 accident – Exhibit 4 para 56. Instead, it is submitted by Comcare, that in 2002, the Applicant suffered a temporary musculoligamentous strain/soft tissue strain, which resolved within a few months –

Exhibit 4 para 57.
However, despite these submissions, Comcare does not seek to reverse its decisions accepting liability under s 14 with respect to the Applicant’s lower back and neck injuries arising from the 2002 accident, nor does it seek to recover any compensation paid to the Applicant in respect of those accepted injuries – RCS para 8. The Tribunal proceeds on the basis of this concession by Comcare.
The Applicant contends that the balance of the evidence presented clearly favours the conclusion that she continues to suffer a musculoligamentous strain to her neck and lumbar spinal disease as a consequence of the 2002 accident – ACS CONCLUSION para 1.
In support of this submission, the Applicant contends that the reports prepared by her GP for over 15 years, Dr Dalgliesh, as well as Dr McEntee, should carry more weight than

Dr Khurana’s report. This preference flows, firstly, it is submitted, because Dr Dalgliesh has had more access to the Applicant’s history and her physical condition over much longer period – ACS CONCLUSION para 2.
Second, the Applicant contends that there have been omissions in the documentation provided by Comcare to its solicitors and Dr Khurana. In particular, not all clinical scans, reports and medical certificates have been considered – ACS Overview para 9.
The Applicant contended that the list of pharmaceuticals she was prescribed is incomplete and does not, inter alia, take into account medicine prescribed and taken from 2002 – 2004 – ACS EVIDENCE para 2.
The Applicant’s concerns with Dr Khurana’s report is dealt with in greater detail below.
CONSIDERATION
Introduction
It is important, at the outset, to record that it is not in dispute that the Applicant has for some time been suffering pain and discomfort in her lumbar and cervical spine. A reading of the various medical reports and scans discloses that she has for many years been in pain and has required prescription medication. There is no suggestion from the material before the Tribunal that the Applicant has exaggerated her symptoms or attempted to mislead any of her treating clinicians.

The Tribunal had the benefit of listening to the Applicant give evidence, albeit remotely. It was tolerably clear to the Tribunal that the Applicant attempted to answer the questions asked of her honestly and forthrightly. Understandably, the Applicant was, at times, defensive of her position, but the Tribunal has no reason to doubt the sincerity of her testimony.
It is then, important in this context to focus at the outset on the Applicant’s recollection of key events, some of which occurred decades ago.
The Tribunal was presented with a report dated 7 October 2021 prepared by

Dr Swapna Sebastian, Consultant Neurologist. The Applicant saw Dr Sebastian because she was suffering from migraines. Dr Sebastian, in the course of her report, made the following observations – Exhibit 3 p. 34:
“Yvonne tells me that her memory has been slowly getting worse. She forgets things mid-sentence. Short term memory seems to be the problem. Registration of recent events is an issue.”
In addition to short term memory loss, it became clear during the Applicant’s testimony that she also had difficulty remembering key events that occurred many years previously. Quite properly, Comcare noted that this was understandable and entirely consistent with general human experience – RCS para 18.
Comcare pointed out the various times the Applicant was unable to remember key information about previous accidents – RCS para 21.
In response the Applicant made the following submission – ACS EVIDENCE para 24:
“I agree that I have not been able to remember all details over a period of almost 50 years and would challenge anyone who has not got the benefit of having written records to refer to to [sic] remember all the details on which I was questioned. Especially when considering that I was quite distressed after being misled by the Respondent’s legal team in relation to having a support person with me during my “interview”’. I would submit that the Respondent has erred in suggestion that documentary evidence supports the more reliable basis and would argue the contrary.”
The Tribunal draws no adverse inferences against the Applicant because her memory of events many years ago is not crystal clear; that state of affairs is common to most people.
The Tribunal also does not draw any adverse inferences concerning the Applicant informing various treating medical professional about matters in the past which are contradicted by contemporaneous written evidence. As observed previously, the Tribunal formed a favourable opinion about the honesty and candour of the Applicant.
However, where there is a difference between contemporaneous documentation and the Applicant’s less than perfect recall of past events, the Tribunal relies on the contemporaneous documentation.
Comcare set out in its Closing Submissions a number of instances when the Applicant has made statements that are either contradicted or not supported by contemporaneous documentation – RCS paras 21 – 22. Some of the examples given by Comcare include:
(a)
Dr Khurana asked the Applicant if she had experienced back or neck pain prior to the 2002 accident. According to Dr Khurana, the Applicant said “during the 1990s…I cannot recollect any issue with my neck and back…I was not suffering from any neck or back pain before that 2002 fall….no problems whatsoever…It’s hard to remember” – Exhibit 3 p. 90. This statement is contradicted by Dr Ray, who in a letter (previously quoted) of 13 October 2004 noted that the Applicant “had previously complained of sore neck on 10.7.1997 and 14.8.2002 and of back pain radiating into the left leg on 27.3.2001 and again on 14.10.2001” – Exhibit 2 ST9

p. 458. Also, as previously noted, the Applicant in her statement of

26 September 2006, observed that she had resigned as a payroll officer at Deakin University in 1999 after two months “due to my neck pain which was exacerbated by the nature of this position” – Exhibit 3 p. 8 para 3; and
(b)
the Applicant states that she has experienced constant headaches since 2004 resulting from her neck injury. She also stated “…I did not previously suffer from these headaches” – Exhibit 1 T4c p. 37. Comcare draws the Tribunal’s attention to the surgery consultation notes of the Applicant’s then treating GP, Dr Ray, of

8 July 2002, 23 July 2002, 25 July 2002 and 1 August 2002 – Exhibit 7 pp. 14 – 15. On each of these occasions, which were immediately before the August 2002 accident, the Applicant was complaining of headaches;
(c)the Applicant also claimed that while on extended leave in 2003 she was taking medication, including Panadeine Forte. She also testified that she was prescribed Panadeine Forte by Dr White in January 2003. Comcare draws the Tribunal’s attention to the Applicant’s record of medical expenses for the workers’ compensation claims which discloses that the first Panadeine Forte prescription claimed which was filled was on 2 January 2007 - Exhibit 8 p. 1. It became clear during the cross-examination of the Applicant that she was inferring that Dr White had prescribed her Panadeine Forte “because I can’t remember back 25 years” – Tr. 15.3.2023 p. 37. The Tribunal notes, however, that the record of medical expenses, only includes claims paid by Comcare. It does not include medication privately purchased and is, therefore, incomplete.
Apart from these examples provided by Comcare, the Tribunal also notes that the Applicant incorrectly informed Dr McEntee that she had “no problems with her back or neck prior to an injury on her way to work in 2002” – Exhibit 1 T56 p. 187. Dr McPhee in his report of

27 June 2019 directly contradicted that statement – Exhibit 1 T64 p. 212:
“In the history provided by the surgeon, he states that Ms Stewart had no problems with her back prior to the injury on her way to work in 2002. This is contrary to her previous advice...”
A further example is to be found in the report of Carol Lapeyre who assessed the Applicant on 1 September 2004 for the purpose of assessing her workplace support requirements. Ms Lapeyre referred to the Applicant’s 2002 accident and then said it “is understood that this resulted in neck and lower back pain which resolved after a few months” –

Exhibit 2 p. 446.
This report is inconsistent with the Applicant’s claims that her spinal problems following the accident never resolved and the pain she experienced did not resolve after a few months. However, at the Hearing the following exchange occurred between Ms Bindon and the Applicant – Tr. 15.3.2023 pp. 25 – 26:
“…Well, her report’s at ST4 on page 446, and she also records that your pain after the fall resolved after a few months. Do you accept that she would’ve made that assertion based on what you told her?---Yes. I would, because I was only taking medication as required on the odd occasion. So, to me that more or less resolving, because to me it’s only if pain’s continuous over a period of time then it hasn’t resolved.
Yes. I understand. So, in your mind the pain after the fall had resolved after a couple of months?---No. It hadn’t.
Well, Carol Lapeyre has recorded that that’s the history that you informed her of and I understand your evidence to be that in your mind you hadn’t been experiencing continuous pain and therefore it had resolved?---If it had resolved why would I have required a workstation assessment? The only reason I required that was because I was experiencing problem[s]. If I didn’t have the problem she wouldn’t have come in to do the assessment…
Your evidence was that you hadn’t been experiencing continuous pain and that’s why in the history reported to Carol Lapeyre you recorded that your pain from the fall had resolved after a couple of months. That’s right, isn’t it---Well, as I said, I can’t recall what I said.
Okay?---Because it’s so long ago.”
As will be seen, again, the Applicant, understandably, did not remember what she told Ms Lapeyre in 2004, and the Tribunal has no reason to doubt the veracity of Ms Lapeyre’s account of what she told at the time.
In conclusion, the Tribunal refers to the following submissions of Comcare –

RCS paras 23 – 34:
23“Despite these evidential difficulties, the Applicant has nonetheless sought to maintain her overall evidence that her neck and back symptoms were felt ‘continuously’ from the time of the fall on 13 August 2002 to the present time. The Respondent submits that the Tribunal cannot sensibly accept that evidence in the face of the matters set out above.
24The Respondent submits that much of the Applicant’s evidence was indeed a reconstruction of events or a submission based on her case narrative, rather than being evidence of events based on her memory. This is not said in any critical way and is entirely understandable for a litigant-in-person dealing with events that occurred a long time ago. However, the Respondent submits that for this reason, the independent documentary evidence provides the more reliable basis for the Tribunal’s findings in the present case.”
The Tribunal agrees with Comcare’s submission, and proceeds accordingly.
Medical evidence
Comcare primarily relies on the 25 May 2021 report and oral testimony of Dr Khurana.
As previously noted, Dr Khurana prepared an extremely detailed report and he sets out at length the Applicant’s medical history and her responses to the various questions he asked of her at her assessment.
One matter needs to be addressed at the outset. The Applicant specifically asked if she could have a support person with her when she was being assessed by Dr Khurana. This request was rejected. A Senior Associate with McInnes Wilson Lawyers (who represented Comcare) emailed the Applicant on 18 January 2021 and provided the following response to her request regarding a support person – Exhibit 3 p. 21:
“We have made enquiry with MLCOA who have scheduled the assessment with Dr Khurana as to whether he will allow you to bring in a support person. We have been advised that Dr Khurana will not allow a support person in the assessment.
We have also been advised that the main reasons are that in the past some support people have become quite aggressive/slanderous and because Dr Khurana wishes to avoid any intervention by a support person into the assessment process.
We acknowledge this is not the answer you were hoping to receive, nevertheless, please let me know if you wish to discuss further.”
[Emphasis in the original]
At the Hearing Dr Khurana denied that he had refused to allow the Applicant to have a support, in fact he testified: “I always welcome support people to be present if someone brings them in, you know, within reason…I don’t have a policy of not allowing a support person…” – Tr. 16.3.2023 p. 57.
The Applicant stated that not only was she denied the help of a support person, but contrary to advice she was given, Dr Khurana had a staff chaperone with him throughout the assessment. The Applicant stated that she did “not agree that I was informed of this as I would not have proceeded with the interview had I known” – ACS EVIDENCE para 1.
It defies logic that McInnes Wilson Lawyers would have unilaterally rejected the Applicant’s request for a support person at her assessment with Dr Khurana, and given detailed reasons. The Tribunal formed the view that it is more likely than not that Dr Khurana did in fact inform the Senior Associate in the manner outlined in the email.
While not much turns on this in terms of the ultimate disposition of the matter, it is patently clear to the Tribunal that the Applicant approached the appointment with Dr Khurana, and underwent the examination and assessment, in an emotional state and in a less than ideal environment. It is likely that she was more emotional than she would otherwise have been, and the assessment was conducted in stressful circumstances. The value of some aspects of Dr Khurana’s report is therefore not as great as they otherwise would have been.
Accordingly, when Dr Khurana recounts that the Applicant’s recollection of her history was “rather vague and somewhat disjointed” (RCS para 26a), that she found it difficult to remember specifics without access to documents and was at times emotional, then it is necessary to put the examination carried out by Dr Khurana on 19 April 2021 in context.
It is also important to note that Dr Khurana downplays the severity of the 2002 accident, whilst placing much more emphasis on the severity of the 2014 accident. With respect to the 2002 accident, Dr Khurana critiques the report of other Doctors who examined and assessed the Applicant.
The first Doctor whose report is critiqued by Dr Kharana, is Dr M A Khan, Orthopaedic Surgeon. Dr Khan examined and assessed the Applicant on 22 September 2005 and prepared a comprehensive report dated 6 December 2005 – Exhibit 1 T16 pp. 69 – 79.
Dr Khan refers to the 2002 accident and observed that the Applicant “fell heavily on her back and also jarred her neck” – Exhibit 1 T16 p. 70. In addition, Dr Khan, described the fall as “a severe one…in which she jarred both her neck and lower back as she fell heavily on her back…” – Exhibit 1 T16 p. 76.
Dr Khan also referred to the X-rays and scans he had been provided with –

Exhibit 1 T16 p. 75:
“The results of the x-rays of her cervical spine arranged by Dr. David Wallace, dated 21^st September, 2005, revealed multi-level disc degenerative disease which was maximal at C.5-6 level.
The M.R.I. scan of the cervical spine, dated 5^th January 2005, confirmed that due to osteophyte formation at the C.5-6 disc space has contributed to mild spinal and canal stenosis at this level and this also was associated with facet joint arthropathy and foraminal stenosis bilaterally.
The C.T. scan of the lumbar spine, dated 10^th December 2002, arranged by Dr. Sandra Ray, did reveal disc bulge at L.4-5 level with congenital narrowing of the spinal canal. The disc bulge at L.4-5 level had contributed to mild spinal canal stenosis at this level. She also had evidence of facet joint arthropathy in the lower part of the back.”
The cervical spine diagnosis of Dr Khan was as follows – Exhibit 1 T16 p. 76:
“…as a result of a fall, she has developed a flare up of cervical disc degeneration at C.4-5 and C.5-6 level of the spine with brachial neuralgia and pins and needles in both her hands.
As a result of this, she gets referred pain down both hands and pain in both her shoulder blades radiating from the neck. She gets pins and needles in both her hands which disturbs her at night. It also flares up when she performs any strenuous duties, bending her neck or using her hands…”
With respect to the Applicant’s lumbar spine, Dr Khan opined as follows –

Exhibit 1 T16 p. 77:
“She also has discogenic pain at the lower part of the lumbar spine at L.4-5 level with a flare up of disc degeneration and mild spinal canal stenosis. This is also consistent with the history of a fall on 13^th August, 2002…”
Finally, Dr Khan made these observations – Exhibit 1 T16 p. 78:
“The diagnosed conditions… are consistent with her employment and were materially contributed to by her employment which has aggravated a pre-existing, quiescent, degenerative disc disease in her cervical and lumbar spine and has resulted in some soft tissue or musculo-skeletal injury to her neck and lower back.”
It is not clear to the Tribunal that there is any inconsistency in Dr Khan’s opinion that the 2002 accident was “severe” and the 2002 workers’ compensation claim completed by the Applicant. In that document the Applicant simply stated that when she was “walking on the downhill slope, feet slipped on wet pathway and I fell flat onto my back” –

Exhibit 1 T6 p. 50. The Applicant set out in the claim form what occurred and her short description is consistent with Dr Khan’s opinion that the accident could be categorised as being “severe”.
While Dr Khurana disagreed with the diagnosis of Dr Khan, he was in general agreement with the views expressed by Dr John King, Neurologist, in his report of 26 April 2005 – Exhibit 1 T11 pp. 61 – 63.
The primary focus of Dr King’s report was the Applicant’s cervical spine condition, although he did make reference to a CT of the lumbar spine performed on 10 December 2002 which disclosed mild to moderate central spinal canal stenosis at the L4/5 level produced by a combination of bony and soft tissue elements – Exhibit 1 T11 p. 62.
Dr King diagnosed the Applicant as follows – Exhibit 1 T11 p. 62:
“She suffers from cervical and lumbar degenerative disease with osteophytic changes at C5-6 and C6-6 with bilateral mild to moderate narrowing of the neural exit foraminae at C5-6. These changes could give rise to pain radiating down the arms in the C6 distribution. There are no physical signs however of C6 root compression. I believe that the neck pain is largely related to spasm of the muscles of her neck which is due to a combination of psychological factors and to a lesser extent the degenerative disc disease.”
Dr Khurana agreed with Dr King that the Applicant was suffering from underlying degenerative spinal changes with superimposed psychological issues, which both Dr King and Dr Khurana labelled as chronic pain syndrome.
However, Dr Khurana disagreed with Dr King’s opinion that the Applicant’s neck issues were connected with the 2002 accident.
Dr King was of the opinion that the Applicant’s incapacity for work was, at least, partially due to the side-effects of the 2002 accident – Exhibit 1 T11 p. 63:
“I do consider that she is partially incapacitated for work and that the incapacity results from injuries in 2002 and 2004.”
Dr King referred to the Applicant suffering a fall in 2004, and then opined –

Exhibit 1 T11 p. 63:
“I would consider that if in fact this fall occurred, which seems likely, it would have aggravated the pre-existing neck pain from August 2002 which had previously been accepted by Comcare.”
Dr Khurana also referred to the reports of Dr McPhee, which are discussed above.
The essential difference between the opinions expressed by Dr Khurana and Dr McPhee relate to the opinions expressed by Dr McPhee in his December 2006 report. Whilst

Dr McPhee was of the opinion that the lumbar and cervical spine pain experienced by the Applicant was causally related to her 2002 accident, Dr Khurana opined that it was non-work related and instead was a manifestation of chronic pain syndrome – Exhibit 3 p. 100.
Dr Khurana, however, was in agreement with the views expressed by Dr McPhee in his

27 June 2019 report wherein he opined that the Applicant’s compensable injury had by that time been subsumed by a generalised lumbar spondylosis – Exhibit 3 p. 101. In addition, Dr Khurana concurred with the views expressed by Dr McPhee in his 19 November 2019 report, that the Applicant’s cervical spondylosis was due to age-related constitutional factors – Exhibit 3 p. 101.
The Tribunal also had the benefit of receiving oral testimony from Dr Khurana at the Hearing of 16 March 2023.
It is not necessary to set out at length that testimony as it was consistent with the views expressed in his report. Dr Khurana was extensively cross-examined by the Applicant. Although the Applicant is not legally trained, she asked a series of relevant questions.

Dr Khurana answered each of the questions posed in a direct and succinct manner. The Tribunal was impressed with the testimony of Dr Khurana. He clearly is a well-qualified professional and was an impressive witness.
Conclusion
The Tribunal has been assisted by the closing submissions of both parties.
Comcare’s Closing Submissions, prepared by Ms Bindon, comprise a comprehensive and detailed critique of the medical evidence before the Tribunal. Ms Bindon very helpfully provides a summary of the testimony of Dr Khurana which comports with the Tribunal’s understanding of his testimony – RCS paras 27 – 33.
The earlier “medical” evidence about the nature and impact of the 2002 accident on the Applicant’s lumbar and cervical spine is mixed.
For example, Dr Selvaratnam, Physiotherapist, in his 20 August 2004 report, opined that the Applicant’s cervical and lumbar pain from the August 2002 incident had resolved within a few months – Exhibit 2 ST2 p. 444.

The same opinion was expressed by Ms Lapeyre in her report of 2 September 2004, although both her opinion and that of Dr Selvaratnam would appear to be the recounting of the self-reporting of the Applicant – Exhibit 2 ST4 p. 446.
It should be noted that the Applicant denies that her condition resolved after a few months of the August 2002 accident. In her statement of 5 January 2022, the Applicant claims that she continues to have “recurrent pain and disability since 2002 and this has continued at varying levels up to the present time” - Exhibit 6 para 22.
An equivocal report was prepared by Dr Ray on 13 October 2004. As will be recalled,

Dr Ray opined as follows – Exhibit 2 ST9 p. 458:
“On 13.8.2002 Yvonne fell and may have aggravated pre existing degenerative disease of the cervical and lumbar spines. She may have suffered from soft tissue injuries. I think it is impossible to be more precise at this stage.”
As Dr Ray was the Applicant’s treating GP, and not a specialist, it is entirely understandable why she would have given this qualified diagnosis.
A further qualified opinion was given by Dr Brazenor in his report of 7 February 2005. In that report Dr Brazenor opined as follows – Exhibit 2 ST15 p. 488:
“This lady has significant degenerative/cumulative injury changes at the lower two segments in her cervical spine and lower two segments of her lumbar spine. I consider the various falls described to me today may have contributed to these changes in Ms Stewart’s spine, but not necessarily. It is entirely possible that without any of those falls Ms Stewart’s spine might look exactly the same as it does on scan, and her disability may be indistinguishable from what it is today.”
Dr King examined the Applicant a few months after Dr Brazenor’s report. As noted above, Dr King was of the opinion that the Applicant’s cervical spine condition was due to a combination of psychological factors (chronic pain syndrome), and, to a lesser extent, degenerative disc disease. However, Dr King opined that the Applicant was partially incapacitated for work and “that incapacity results from the injuries in 2002 and 2004” – Exhibit 1 T11 p. 63.
The Tribunal infers from Dr King’s report, that he was of the opinion that the physical aspects of the Applicant’s condition (degenerative disc disease) were aggravated, inter alia, by the injuries suffered in the August 2002 accident.
In his letter to the Applicant of 23 May 2005, Dr King was more direct in linking the spinal pain suffered by the Applicant to the 2002 accident – Exhibit 1 T13 p. 65:
“As I understand it, the fall in August 2002 when you were on your way to work, was accepted by Comcare as work-related injury. I presume this relates to both your neck and your lower back. Such an injury would be expected to aggravate the pre-existing back pain which occurred after 1993…”
The first report which gives unqualified support for the proposition that the Applicant’s spinal condition was made worse by the 2002 accident, is that of Dr Khan. Dr Khan opined as follows – Exhibit 1 T16 pp. 76 – 77:
“…in my opinion, as a result of a fall, she has developed a flare up of cervical disc degeneration at C.4-5 and C.5-6 level of the spine with brachia neuralgia and pins and needles in both her hands…
She also has discogenic pain at the lower part of the lumbar spine at L.4-5 level with a flare up of disc degeneration and mild spinal canal stenosis. This also is consistent with the history of a fall on 13^th August, 2002.”
Dr Khurana points out a difference in the self-reporting of the Applicant as recorded in

Dr Khan’s report compared with the report of Dr King.
Dr King noted that the Applicant injured her back in 1993 and “was subject to pain thereafter, but it was worse following a fall in August 2002…” – Exhibit 1 T11 p. 61. In comparison,

Dr Khan made these observations in his report – Exhibit 1 T16 p. 76:
“Her previous injury occurred in 1993 when she was working for C.S.I.R.O. for 24-years. In 1993 she got out of a car, she twisted her back. It took her two months to recover from this injury, but eventually it improved.”
It will be seen that the two accounts are not necessarily at odds. Dr Khan did not say that the Applicant totally recovered from the effects of the 1993 accident, simply that the Applicant’s condition improved. It is open for the Tribunal to infer, based on the accounts in these two reports, that the Applicant may have suffered some pain after the 1993 accident, but it improved over time.
It should be noted that Dr McPhee, in his report of 1 December 2006, reported that the Applicant informed him of the 1993 accident – Exhibit 1 T22 p. 101:
“Ms Stewart states that symptoms arising from this incident resolved.”
It would appear to the Tribunal that the most likely inference that can be drawn from these accounts, is that the pain associated with the 1993 injury resolved at some time thereafter, but before the August 2002 accident.
However, Comcare sets out further suggested problems with Dr Khan’s report –

RCS para 36.
First, attention is drawn to Dr Khan’s statement that the Applicant had been seeing her GP regularly at monthly intervals – Exhibit 1 T16 p. 71. It is pointed out that the Applicant attended on her GP on four occasions in the four months after the August 2002 accident in relation to neck and back pain, and then not again until June 2004 – RCS para 36a.
Comcare is correct, but in the opinion of the Tribunal the overall diagnosis of Dr Khan is not undermined by this discrepancy.
Second, Comcare draws the Tribunal’s attention to that part of Dr Khan’s report headed “DIAGNOSIS” and suggests that conclusions reached therein are given without proper explanation. With due respect to Comcare, that part of the Dr Khan’s report has to be read in conjunction with the totality of his report, and not in isolation. It is tolerably clear to the Tribunal from a reading of the totality of the report why he reached the conclusion he did.
The Tribunal, however, pays significant regard to the various reports of Dr McPhee which have been set out at length above. Of all the Doctors who provided reports on the Applicant’s spinal condition, only Dr McPhee had the advantage of personally physically examining and assessing the Applicant over an extended period of time.
Dr McPhee, as will be recalled, observed in his first report of 1 December 2006 that the radiological evidence he was provided indicated degenerative changes in the cervical and lumbar spine. He was of the opinion that there was an acceptable nexus between the 2002 accident and the onset of neck and lower back symptoms. He opined that the Applicant suffered a soft tissue strain with aggravation of her cervical and lumbar degenerative disc disease – Exhibit 1 T22 p.103.
Dr McPhee re-examined the Applicant and provided a second report dated

3 September 2008. The opinions expressed in this report basically mirrored the views expressed above in the report of 1 December 2006 – Exhibit 1 T27 pp. 122 –127.
Dr McPhee is an experienced spinal surgeon, and both of the above reports were prepared after he saw the Applicant in person and examined her. Dr McPhee was thoroughly briefed and both of his reports comprise thorough reasoning with no obvious errors or omissions.
Dr Khurana’s report was prepared remotely. He did not have the benefit of personally examining the Applicant. This, of course, does not undercut the professional conclusions he reached, but it does mean that that he did was not able to have personal contact with the Applicant. Moreover, the opinions given about the Applicant’s condition in 2002 and in the years immediately following, concern events almost two decades before Dr Khurana assessed the Applicant. The reports of Dr McPhee, in comparison, were prepared only a few years after the 2002 accident.
It is also the case that the Applicant was distressed at the time of her assessment by

Dr Khurana, having been denied the emotional and other assistance of a support person. The Tribunal has no reason to doubt that the distress caused to the Applicant would have had an adverse impact on her interactions with Dr Khurana.
For these reasons, the Tribunal prefers the conclusions reached by Dr McPhee in his reports of 2006 and 2008 to those of Dr Khurana in his report of 2021. The Tribunal concludes that the Applicant’s accident of August 2002 resulted in an aggravation of her underlying and constitutional degenerative spinal disease. It may be, as Dr King and

Dr Khurana opine, that there is both a physiological and psychological component to the Applicant’s expression of pain. The Tribunal believes it is tolerably clear that the Applicant may have been suffering from, and continues to suffer from, an ailment which has been described by both Dr King and Dr Khurana as chronic pain syndrome. However, the Tribunal also accepts that in 2002, when the Applicant fell on her way to work, the injuries she sustained resulted in an aggravation of her pre-existing degenerative spinal condition.
Before proceeding further, it is important to deal with one aspect of the Applicant’s submissions.
In her Closing Submissions, the Applicant properly acknowledges that she is not a qualified medical practitioner and, accordingly, cannot independently diagnose her medical conditions – ACS EVIDENCE OF THE APPLICANT para 21b.
Despite this, the Applicant contends that “there has not been any evidence provided to support an underlying degenerative condition prior to 13/8/2002, especially in the absence of any radiological reports or scans” – ACS DOCUMENTARY EVIDENCE OF OTHER SPECIALISTS para 35. Moreover, in her statement of 5 January 2022, the Applicant makes the following submission – Exhibit 6 CONTENTIONS para 57 e-f:
“…I believe the degenerative changes are as a result of the progression of the deterioration to both my lumbar and cervical spine following my fall on the 13/8/2002.”
As set out above, there is uniformity amongst the specialists who have examined and assessed the Applicant, that she was suffering prior to the 2002 accident with a degenerative spinal condition. The Applicant’s assertion that the absence of radiological evidence prior to the 2002 accident therefore excludes the ability of expert medical professionals to diagnose constitutional degenerative spinal disease is incorrect.
Attention must be now directed to the critical issue before the Tribunal, namely whether Comcare has present liability to pay for the Applicant’s medical expenses as a result of her compensable lumbar and cervical spine injuries.
Reference can first be made to the Full Federal Court decision of Woodhouse v Comcare [2021] FCAFC 95 (Woodhouse). Their Honours Collier, Rangiah and Derrington JJ made the following observations:
102“It may be accepted that the import of the Full Court’s reasons at [89] is that Comcare’s liability to pay compensation in respect of incapacity for work depends on it being liable to pay compensation in respect of any injury: s 14. Likewise, it is implicit in the passage in Lees referred to above that, if there is no entitlement to compensation pursuant to s 14, then there is no entitlement to compensation pursuant to s 19.
103The applicant contended those authorities do not support the further proposition that if an ‘injury’ ceases for the purposes of the SRC Act, then an employee’s entitlement to compensation pursuant to s 14 (and in turn pursuant to ss 16 and 19) also ceases (even if that was the result in those cases in the absence of contentions raised by the applicant in this appeal). She submitted that the reference to ‘injury’ in ss 16 and 19 includes injuries which have ceased for the purposes of the SRC Act.
104These submissions must be rejected. As the authorities referred to make clear, the satisfaction of the requirements of s 14 is essential to Comcare’s liability to pay compensation. The Act operates such that only injuries within the scope of that section can be the subject of compensation. A determination that the section is satisfied is an acceptance by Comcare that its liability exists. Other sections control the content, duration and means of satisfying how the liability is met or how compensation is paid, but they do not extend liability beyond the section…It follows that if an injury ceases to be compensable under s 14 in respect of a relevant period of claim, no compensation is payable in respect of it under s 19.”
The Tribunal has been presented with recent medical report from three specialists.
The Applicant relies on the report of Dr McEntee of 16 October 2018 and letters dated

1 April 2019 and 10 November 2022 – Exhibit 3 pp. 213 – 214, 217, 73.
As previously noted, Dr McEntee’s report is predicated on incorrect information. He stated that the Applicant informed him that she had no problems with her neck or back prior to the 2002 accident – Exhibit 3 p. 213. This is not correct, and the thrust of Dr McEntee’s report proceeds on the assumption that the 2002 accident was the first time that the Applicant injured her neck and lower back. Insofar as this assumption is not accurate, the diagnosis of Dr McEntee is, at least, questionable.
As previously noted, Dr McEntee opined that notwithstanding “ongoing degeneration has ensued, it appears that her work injury was certainly a significant initiating factor to her current symptoms” – Exhibit 3 p. 214.
However, as Comcare points out this opinion is not supported by reasoning to justify this conclusion. Comcare makes the following submissions, with which the Tribunal is in agreement – RCS paras 37 - 38:
(a)Dr McEntee was not engaged to provide an opinion on the effects of the fall, and specifically, the impact of the fall on the Applicant’s underlying degenerative condition, or, conversely, if she did have a constitutional degenerative condition prior to 2002;
(b)Dr McEntee was not provided with key information from the time of the 2002 accident and the subsequent period. In particular, he appears not to have been provided with the reports of Drs King, Brazenor and McPhee. Of more importance, it would appear that Dr McEntee was not given imaging reports from 2002 to 2018, and based his opinions on imaging reports for the scans he ordered in 2018;
(c)the Applicant conceded in cross-examination that Dr McEntee’s opinion was based entirely on her self-reporting and the 2018 scans;
(d)Dr McEntee was not called to give oral evidence before the Tribunal, and therefore Comcare was not given an opportunity to ascertain the basis for the opinions expressed in his report of 16 October 2018.
The Tribunal has the benefit of recent reports of Dr McPhee, all of which were discussed above.
In the first report of 27 June 2019, Dr McPhee deals with the Applicant’s lumbar spinal condition.
Dr McPhee noted that the Applicant had incorrectly informed Dr McEntee that she had no problems with her back prior to the 2002 accident – Exhibit 1 T64 p. 212.
Dr McPhee sets out and summarises the results of multiple CT and MRI scans performed in the period 2011 – 2018 – Exhibit 1 T64 p. 214. He then opines that the source of the Applicant’s ongoing lower back pain is “multifocal” – Exhibit 1 T64 p. 215.
Specific attention is given to the impact of the 2014 accident on the Applicant’s lumbar spine condition. In Dr McPhee’s opinion this accident “complicates the relevance and contribution of the compensable injury in 2002 to her current symptoms and impairment. In medicolegal terms at least 50% of the current impairment would be attributable to the fall down the stairs in 2014” – Exhibit 1 T64 p. 216.
Dr McPhee concluded that the Applicant suffered from multilevel degenerative changes in her lumbar spine, and the diagnosis of lumbar spondylosis subsumes the original compensable injury of the L4/5 disc bulge. Moreover, the expansion of symptoms relates, in Dr McPhee’s opinion, to age-related degenerative changes in other levels of the lumbar spine and the effects of a discectomy at L4/5 which was not due to the 2002 accident – Exhibit 1 T64 p. 216.
The Tribunal notes that after a lengthy and carefully prepared analysis of the Applicant’s lumbar spinal condition, Dr McPhee concluded that “Mrs Stewart’s compensable condition has now been subsumed by a generalised lumbar spondylosis” – Exhibit 1 T64 p. 217.
In a report dated 19 November 2019, Dr McPhee deals with the Applicant’s cervical spine condition – Exhibit 1 T76 pp. 257 – 258.
As previously noted, Dr McPhee opined that there was no material evidence that there was insufficient evidence to conclude that the Applicant was suffering ongoing neck pain after the 2002 accident, and that, on the balance of probability, any ongoing neck pain was due to the natural progression of age-related changes in the cervical spine –

Exhibit 1 T76 p. 257.
Dr Khurana agreed with Dr McPhee’s diagnosis – Exhibit 3 p. 101.
Although the Tribunal did not have the benefit of observing Dr McPhee give evidence, it does have the benefit of receiving a number of well-reasoned reports prepared over a

13 year period. Dr McPhee’s reports are objective, clear, evidence-based and compelling. The Tribunal places considerable weight on the opinions expressed by Dr McPhee.
Having considered all of the evidence presented, the Tribunal concludes that any lumbar and cervical spine ailments now afflicting the Applicant relate to her underlying constitutional and degenerative spondylosis. The Tribunal accepts, based on the preponderance of medical evidence, that the Applicant did suffer compensable injuries to her neck and lower back in 2002. However, as Dr McPhee convincingly reasons, so far as the lumbar spinal condition, the natural progression of the Applicant’s degenerative condition together with the impact of the 2014 accident and subsequent surgery, have subsumed the compensable injury of the L4/5 disc bulge. The Tribunal differs from Dr McPhee, in concluding that the Applicant did suffer a compensable injury to her neck in 2002, however agrees with

Dr McPhee and Dr Khurana, that the Applicant’s degenerative cervical spinal condition has subsumed any compensable injury.
It is not possible for the Tribunal to sensibly conclude when, on the balance, the compensable injuries were subsumed by natural degenerative changes and the effect of intervening accidents. However, with respect to the Applicant’s lumbar spine, it is more likely that the effects of the 2014 accident subsumed the effects of the 2002 accident.
As the Full Federal Court pointed out in Woodhouse, if an injury ceases to be compensable pursuant to s 14 of the Act, then no compensation is payable in respect of medical expenses pursuant to s 16 or compensation pursuant to s 19.
In this matter, the medical evidence supports Comcare’s submission that the compensable injuries suffered by the Applicant have ceased for the purposes of the Act. Consequently, the Applicant’s entitlement to the payment of medical expenses pursuant to s 16 has likewise ceased.
The Tribunal does not doubt that the Applicant continues to suffer back and neck pain. It may be, as Drs King and Khurana opine, that there are both physical and psychological components to that pain. It is also not disputed that the pain suffered by the Applicant has been severe and that her quality of life has subsequently suffered.
However, the issue before the Tribunal is not whether the Applicant is suffering pain and discomfort, but whether the effects of her fall in 2002 have been subsumed by either ongoing degenerative changes or other intervening acts, or a combination of both.
As outlined above, the preponderance of medical evidence supports the proposition that the effects of the compensable injuries have ceased and, accordingly, Comcare is no longer liable to pay, inter alia, medical expenses pursuant to s 16 of the Act.
DECISION
The reviewable decisions are affirmed.

I certify that the preceding 199 (one hundred and ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

...................[SGD]...................
Associate

Dated: 30 June 2023

Date of hearing: 15 March 2023 & 16 March 2023

Date of final written submission: 2 April 2023

Applicant:
By video

Solicitors for the Respondent: Ms Carmen King
McInnes Wilson Lawyers

Counsel for the Respondent:

Ms Prue Bindon

[2023] AATA 1904

30 June 2023

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Remedies

Statutory Construction

Appeal

Procedural Fairness

Date of hearing:	15 March 2023 & 16 March 2023
Date of final written submission:	2 April 2023
Applicant:	By video
Solicitors for the Respondent:	Ms Carmen King McInnes Wilson Lawyers
Counsel for the Respondent:	Ms Prue Bindon