Tamene Desta and Australian Postal Corporation (Compensation)

Tamene Desta and Australian Postal Corporation (Compensation) [2020] AATA 2448 (24 July 2020)
Division:GENERAL DIVISION
File Number:2018/6682
Re:Fasika Tamene Desta
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:24 July 2020
Place:Brisbane

The Tribunal affirms the decision under review.
.................[SGD].............................................
Member D Mitchell
CATCHWORDS
COMPENSATION – accepted injury of lower back strain – whether the Applicant continues to suffer from the effects of the accepted injury – whether the Applicant is entitled to compensation pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Power (2015) 238 FCR 187
Dirou and Comcare (Compensation) [2019] AATA 2118
Martin v Australian Postal Corporation [1999] FCA 655
Montesalvo v Comcare [2011] AATA 319
REASONS FOR DECISION
Member D Mitchell
24 July 2020
INTRODUCTION

Mr Fasika Tamene Desta (the Applicant) is seeking review of a decision of the Respondent dated 13 September 2018.[1]
[1] Exhibit 1, T Documents, T36, pages 126-128, Reviewable Decision.
The reviewable decision affirmed a determination dated 12 June 2018[2] that there was no present liability to pay compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of the Applicant’s previously accepted ‘lower back strain’ said to have been sustained on or around 2 May 2017 (the accepted back condition).[3]
[2] Exhibit 1, T Documents, T35, pages 123-125, Determination Decision.
[3] Exhibit 1, T Documents, T36, pages 126-128, Reviewable Decision.
BACKGROUND AND CLAIMS HISTORY
The Applicant commenced employment with the Respondent in around 2015.
It is generally agreed by the parties that:[4]
(a)on 2 May 2017 the Applicant was performing his usual duties as a Delivery Driver;
(b)at approximately 3.30 pm on 2 May 2017, the Applicant in the course of performing his normal duties was lifting freight into the back of the delivery truck when he experienced a sharp pain in the lower region of his back (the incident); and
(c)as a result, the Applicant sustained injury to his lower back.
[4] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, page 3 paragraphs 3.3 to 3.5 and Exhibit 2, Respondent’s Statement of Issues, Facts and Contention, page 1, paragraph 3.1.
On 2 May 2017 the Applicant reported the incident and a Health and Safety Incident Form was completed.[5]
[5] Exhibit 1, T Documents, T3, pages 25-26, Health and Safety Incident Form.
In a Work capacity certificate – workers’ compensation dated 10 May 2017, Dr Jaideep Bali outlined that the Applicant was suffering from lower back strain and recommended treatment as being volatren, physiotherapy and SD (the Tribunal understands this to mean suitable duties which were further outlined by Dr Bali).[6] Dr Bali also referred the Applicant to have an MRI of his L-5 spine.[7]
[6] Exhibit 1, T Documents, T4, page 27, Work Capacity Certificate.
[7] Exhibit 1, T Documents, T5, pages 28-29, Request for MRI.
The Applicant lodged a Claim for Rehabilitation and Compensation form with the Respondent on 31 May 2017.[8]
[8] Exhibit 1, T Documents, T6, pages 30-40, Claim for Rehabilitation and Compensation.
The Tribunal notes at this point there appeared to be much confusion throughout the documentary evidence and the evidence provided by the Applicant in relation to the date of injury, date he first sought treatment and dates he notified his supervisor. Having reviewed all material the Tribunal is satisfied that the incident that resulted in the injury occurred on 2 May 2017, that the Applicant notified the Respondent that same day by way of the Health and Safety Incident Form and that he first sought treatment on 3 May 2017.
By determination dated 6 June 2017, the Respondent accepted liability under section 14 of the SRC Act in respect of the ‘lower back strain’ with the date of injury being 2 May 2017. The determination provided that any reasonable medical expenses for the accepted condition would be considered for payment in accordance with section 16 of the SRC Act.[9]
[9] Exhibit 1, T Documents, T11, pages 47-53, Determination under sections 14 of the SRC Act accepting liability for “Lower Back Strain”.
On 4 July 2017, the Respondent determined under section 37(1) of the SRC Act that the Applicant would commence rehabilitation in accordance with the Rehabilitation Upgrade Program dated 4 July 2017.[10]
[10] Exhibit 1, T Documents, T19, pages 69-74, Determination of a Rehabilitation Program under section 37(1) of the SRC Act.
At the referral of Dr Bali[11] the Applicant was examined by Dr David Johnson, Brain and Spinal Neurosurgeon who provided a report dated 26 July 2017.[12] Dr Johnson opined that the Applicant had a work-related strain injury and recommended that he engage in effective functional movement training.[13] Dr Johnson provided that:[14]
On examination today there are no lower limb neurological deficits. He describes pain in his central low lumbar region. There is some mild tenderness. This represents some early central sensitisation.
His imaging shows no sinister pathology and he should be able to make a full and productive recovery.
The one hindering factor that is present is [the Applicant’s] overseas trip that he planned a year ago to Ethiopia to visit family. He said that he is booked to go in about a week and the trip is for 2 months. I’ve recommended that he try his best to hold off the departure date to at least complete half of the programme before he goes, preferably all of the programme, but if he can’t delay it further to complete the remaining half of the program when he returns.
[11]    Exhibit 1, T Documents, T17, page 67, Referral of the Applicant to Dr Johnson.
[12]    Exhibit 1, T Documents, T22, pages 77-78, Medical Report of Dr Johnson.
[13]    Exhibit 1, T Documents, T22, page 77, Medical Report of Dr Johnson.
[14]    Exhibit 1, T Documents, T22, page 78, Medical Report of Dr Johnson.
On 27 July 2017, the Respondent determined under section 37(1) of the SRC Act that the Applicant would commence rehabilitation in accordance with the Rehabilitation Upgrade Program dated 27 July 2017.[15]
[15] Exhibit 1, T Documents, T23, pages 79-84, Determination of a Rehabilitation Program under section 37(1) of the SRC Act.
The Applicant travelled overseas by aeroplane for a period of approximately eight weeks to see his family. He was away from work for during the period of 1 August 2017 to 4 October 2017.[16]
[16] Transcript, page 11.
The Applicant returned to work and continued on a suitable duties plan.[17]
[17] Exhibit 1, T Documents, T25, pages 86-89 Progress Exercise Report and T26, pages 90-91, Work capacity certificate – workers’ compensation completed by Dr Bali.
From 2 February 2018 to 8 February 2018[18] and 13 February to 15 February 2018[19] the Applicant had medical certificates that provided that he had no functional capacity for any type of work. The Applicant has not returned to work.
[18] Exhibit 1, T Documents, T27, page 92, Medical Certificate from the PA Hospital.
[19] Exhibit 1, T Documents, T28, page 93, Work capacity certificate – workers’ compensation completed by Dr Bali.
The Respondent referred the Applicant to Dr David Shooter, Orthopaedic Surgeon for an Independent Medical Examination.[20] The Applicant attended an examination with Dr Shooter on 16 February 2018[21] and as a result, Dr Shooter provided a report dated 20 February 2018.[22] Dr Shooter by way of executive summary provided:[23]
…….
·     [The Applicant] had worked in his role as a Freight Handler for approximately eighteen months before developing severe back pain, which he reported on 3 May 2017, in the normal performance of his normal duties.
·     [The Applicant] has not responded to treatment, and his pain only went away after a two month pre-planned holiday to his home country where he says he did nothing and the pain went away by itself.
·     [The Applicant] has then come back and informed me that he had returned to normal duties until the pain came back again three weeks ago, with again no specific injury or accident to have caused it.
·     [The Applicant’s] Magnetic Resonance Imaging (MRI) Scan did not show any findings, and at no time has his reported pain matched any specific radicular pain.
·     I would be very guarded about [the Applicant’s] return to normal duties for any length of time, and I suspect it is in everyone’s best interest to allow his claim to be finalised and both parties to move forward. I have suggested to [the Applicant] that it may be in his best interest to seek out a different line of work.
[20]    Exhibit 1, T Documents, T29, pages 94-97, Respondent’s briefing letter to Dr Shooter.
[21]    Exhibit 1, T Documents, T31, page 102, Medical Report provided by Dr Shooter.
[22]    Exhibit 1, T Documents, T31, pages 102-117, Medical Report provided by Dr Shooter.
[23]    Exhibit 1, T Documents, T31, page 104, Medical Report provided by Dr Shooter.
Dr Shooter in outlining the Applicant’s history provided:[24]
[The Applicant] states that he did do this programme however felt it did not make any difference to his back however he then went on a pre-planned two month holiday to his home country of Ethiopia and says it was this period of prolonged rest that helped the most.
[The Applicant] states he then returned to work in, he thinks, September 2017 and went back to his normal duties with no pain. He has then continued to work for three or four months until around three weeks ago where again in the normal performance of his normal duties, the back pain has come back again with no specific injury or accident, and he has now been off work completely for this time period. He says that the pain is different than before although is unable to describe how, and is present in the same location, and also again running down the back of his right leg.
[24] Exhibit 1, T Documents, T31, page 107, Medical Report provided by Dr Shooter.
Dr Shooter in that report commented on the MRI scan dated 1 June 2017 opining that it was “essentially normal” and that “there are no radiological findings that would explain [the Applicant’s] pain pattern”.[25]
[25] Exhibit 1, T Documents, T31, page 108, Medical Report provided by Dr Shooter.
In relation to diagnosis, Dr Shooter in his report of 20 February 2018 opined: [26]
I suspect originally that [the Applicant] had a simple muscular strain as alluded to by Neurosurgeon, Dr David Johnson.
However, at no time has [the Applicant’s] pain been consistent with a radicular origin as has been confirmed by his Magnetic Resonance Imaging (MRI) Scan, which was essentially normal with no specific radiological findings. His physical findings were also inconsistent.
……
I am unable to provide a specific anatomic diagnosis as the clinical findings do not match [the Applicant’s] radiology, which does not match any specific nerve root or really match any other diagnostic criteria.
[26] Exhibit 1, T Documents, T31, page 110-113, Medical Report provided by Dr Shooter.
On 12 April 2018 the Applicant underwent a CT of the Lumbar Spine, the report of the same date provided that there was “moderate loss of posterior intervertebral disc height at L5/S1 level with shallow annular disc bulge. Mild bilateral neural exit foraminal stenosis without significant displacement/mass effect to the exiting/descending nerve roots.”[27]
[27] Exhibit 1, T Documents, T33, page 121, CT Lumbar Spine Radiologist Report provided by Dr Ben Jacobs.
The Applicant was referred to Dr John Albietz, Adult and Paediatric Spinal Surgeon who provided a report dated 4 May 2018 which provided:[28]
[The Applicant] has had an MRI scan and more recently a CT scan demonstrating degenerative change at the lumbosacral junction. There is no aggressive compression of a neural structures or spinal motion segment instability.
My impression is that [the Applicant] has strained through his lumbar spine aggravating lumbosacral lumbar spondylosis to cause neural irritation.
[28] Exhibit 1, T Documents, T34, page 122, Medical report provided by Dr Albietz.
On 12 June 2018, the Respondent determined as a result of the opinion of Dr Shooter, that there was no present entitlement to pay compensation under sections 16 and 19 of the SRC Act in respect of the “lower back strain”, date of injury 2 May 2017.[29]
[29] Exhibit 1, T Documents, T35, pages 123-125, Determination Decision. The Tribunal notes that the Determination referred to the date of injury being 5 May 2017, however the initial determination accepting liability in respect of the Applicant’s lower back strain accepted that the date of injury was 2 May 2017: see T11.
On 13 September 2018, the internal review officer affirmed the earlier determination.[30]
[30] Exhibit 1, T Documents, T36, pages 126-128, Reviewable Decision.
On 12 November 2018, the Applicant sought review of the decision by this Tribunal.[31]
[31] Exhibit 1, T Documents, T1, pages 7-23, Application for Review of Decision.
ISSUES
The primary issue before the Tribunal is whether as at 12 June 2018 and presently, the Respondent is liable to pay compensation to the Applicant under sections 16 and 19 of the SRC Act for the accepted back condition.
In considering this issue, the Tribunal must consider:
1.whether the Applicant continues to suffer the effects of the accepted back condition; and
2.if so, whether the accepted back condition results in the need for medical treatment, and/or results in an incapacity for work.
THE LAW
The Respondent is a licensed authority for section 98A of the SRC Act and as such references made below to Comcare can be taken to be a reference for the purpose of this matter to the Respondent.
Section 14 of the SRC Act deals with compensation for injuries and relevantly provides:
(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.
Section 16 of the SRC Act deals with compensation in respect of medical expenses and relevantly provides:
(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.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…
Section 19 of the SRC Act provides that weekly compensation payments can be made if an employee is incapacitated for work as a result of an injury and outlines the statutory formula for calculating said payments.
Section 5A of the SRC Act defines “injury” to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
EVIDENCE
Aside from the medical evidence already outlined in this decision a number of other reports were obtained by the Parties throughout the Tribunal process, these will be discussed below together with the oral evidence provided at the Hearing. The Tribunal also notes that further medical evidence of which the Respondent became aware of a short time prior to the Hearing of this matter were provided to the Applicant ahead of the Hearing. This further material was put to the witnesses at Hearing.
Evidence of the Applicant
The Applicant provided a Statutory Declaration dated 6 August 2019. In his statutory declaration the Applicant provided:[32]
I, …. do solemnly and sincerely declare I suffered a work injury whilst working for Australia Post (Star Track) on 3 May 2017.
Prior to the work injury, I did not suffer any illnesses, injuries or other mental or physical complaints and my state of health in the 3 years immediately prior to the accident was excellent.
I did not have the need to seek medical attention during the three year period immediately prior to the accident for anything other than minor medical matters.
….
During my stay in Ethiopia I was well looked after by my family and I rested while I was on holidays. The pain in my lower back was not as bad as it had been while I was on holidays, but it did not completely go away.
When I returned to Australia at the beginning of October 2017, I returned to work and then I went and met with the Exercise Physiologists Kara Santoro on 2 November 2017.
I told Ms Santoro that the holiday with my family had improved how I was feeling but within the first week of returning to work on suitable duties, my pain levels were back to where they had been, when I left on holiday.
[32] Exhibit 4, Statutory Declaration of the Applicant made on 6 August 2019.
At Hearing the Applicant appeared in person and gave evidence under affirmation. The Applicant was referred to his Statutory Declaration and he confirmed that somebody had read and explained the contents to him. He was asked about the reference to the work injury on 3 May 2017, rather than 2 May 2017 and indicated he was not sure now of the date but believed the correct date to be 2 May 2017.[33]
[33] Transcript, page 9.
In relation to the paragraph in his Statutory Declaration that referred to prior to the work injury him not suffering any illnesses, injuries or other mental or physical complaints and that his state of health in the three years immediately prior to the accident were excellent, the Applicant told the Tribunal that:[34]
·     He did have stomach problems prior to 2017.
·     These problems started sometime in 2014 when he was back home on holiday, he was eating raw meat.
·     When he came back to Australia after about a month, he felt some pain and that is why he was going to the doctor.
·     He had joint pain after two or three years but not all the time.
·     These issues did not cause him to have any time off work.
·     He managed to resolve the problem. He had an endoscopy and was told he had an infection in his tummy, and he was given a tablet and after that it was fixed.
·     He thinks he took those tablets in 2017 but he is not sure.
[34]    Transcript, page 9.
The Applicant said the rest of his Statutory Declaration was all true and correct.[35]
[35] Transcript, page 9.
In relation to the incident on 2 May 2017, the Applicant confirmed the details outlined in the incident report and told the Tribunal he had two days off work and then he returned to work on light duties inside the depot. He said his pain was too much before he went on his holiday, however on holiday he did not do any work or lifting, and he felt he was getting better. When he came back to Australia he returned to work on light duties, lifting parcels that were 5-10 kilograms and he was starting a gym program at the same time. He said the first week his pain was okay and after the first week he felt pain again. The Applicant told the Tribunal he stopped attending work in around June/July 2018. He said he had never gotten back to his normal job before he stopped working. The Applicant said he has not done any work since he stopped working at Australia Post.[36]
[36] Transcript, pages 10-12.

On cross-examination, the Applicant told the Tribunal:[37]
[37]    Transcript, pages 12-22.
·     That he had said he had been in good health prior to the accident because he had not had back pain like that, but stomach pain for him is normal, sometimes he has a headache, but he cannot stop his job. So that is why he said what he did in his Statutory Declaration.
·     He knows the Princess Alexandra Hospital (PA Hospital).
·     When referred to an entry made by the PA Hospital dated 5 May 2017:
oHe agreed he had been to the PA Hospital on 5 May 2017, three days after the incident at work.
oHe agreed with the notation “36-year-old mail, PR for the last five months” and that is referring to peri-anal bleeding.
oHe agreed with the notation “[the Applicant] states that he has had blood in his stool for the past five months. Worse over the past three weeks”.
oHe disagrees with the notation “Also reports burning, generalised abdominal pain for the past two years.” He said sometimes maybe in two months, three month ago is one day or something.
oHe agreed with the notation: “Also reported aching pain in the wrists, elbows, knees and ankles. Worse in the carpel bones.” He did not agree that, that kind of pain would make his work as a delivery driver for Star Track difficult. He said this pain did not affect his work.
oHe agreed that the pain was bad enough though on 5 May 2017 that he attended the emergency department of the PA Hospital.
oWhen it was suggested to him that he did not mention the back injury at the PA Hospital he disagreed, he said he went to the hospital on 5 May 2017 because he could not sleep all night because he felt too much pain and Dr Bali would not give him time off work. He did not give a definitive answer in relation to which pain it was that stopped him from sleeping, whether it was a result of the bleeding, pain in the stomach and the joint pain or his back pain.
·He had seen Dr Landsburg a Rheumatologist in February 2017 in relation to the bleeding he was experiencing, and this was because he eats raw meat.
·Confirmed that he had earlier told the Tribunal that the problems with his stomach pains and joint pains only lasted two to three weeks. When asked if he continued to go to the PA Hospital in respect of the bleeding issues, stomach pains and joint pains after May 2017, he said “I was going in one time in the PA Hospital because I was going a lot of time is my back issue in that one, but I’m not sure which days…”.
·When it was put to him that he went to the PA Hospital a number of times after 5 May 2017 in respect of the bleeding, stomach and joint pain after 5 May 2017, he said it was an emergency. He said he went to the PA Hospital for two appointments for these issues.
·Confirmed he was undertaking suitable duties upon his return to work both after the incident on 2 May 2017 and after he returned from holidays on 4 October 2017.
·He did not tell Dr Johnson about his bleeding and abdominal pain.
·Confirmed he saw Dr Shooter on 16 February 2018. He disagrees he told Dr Shooter that he returned to his normal duties in September 2017. Dr Shooter’s notation that he had said he continued to work three or four months until around three weeks ago when the back pain had come back with no specific injury or accident was only partly true. He said his back pain did return and when asked what caused his back pain to return, he said: “Is doctor, why he give it to me in five to 10 kilo only lifting, that’s him, light duty like that. But I was lifting maybe in 20 or 25 box like 10 kilos only, yes. That’s why it start in my back again”.
·Confirmed he told Dr Shooter that his pain is different than what it had been before.
·He remembered going to the PA Hospital on 6 December 2018. He agreed with the recorded note that he had lower back pain for the past one year and seven months, that over the past three weeks this had been acutely worsening; over the past one day had acutely worsened again; that he was then struggling to sit down or sleep due to the pain.
·He agreed that as at 6 December 2018 he had not done any physical work since about July 2018.
On re-examination, the Applicant told the Tribunal that he no longer has the stomach problem, the bleeding or the joint pain issues. These issues, he said resolved prior to his holiday to Ethiopia in 2017 and have not returned.[38]
[38] Transcript, page 22.
Evidence of Associate Professor Iulian Nusem
By way of letter dated 6 February 2019, the Applicant’s solicitors requested that Associate Professor Iulian Nusem, an Orthopaedic Surgeon examine the Applicant and provide an Independent Medico-Legal Report.[39]
[39] Exhibit 11, Briefing letter to Associate Professor Nusem dated 6 February 2019.
Associate Professor Nusem examined the Applicant on 8 February 2019 and provided a report dated 22 February 2019.[40] Having reviewed the Applicant and supporting medical material provided to him Associate Professor Nusem provided:[41]
[40]    Exhibit 7, Report of Associate Professor Nusem.
[41]    Exhibit 7, Report of Associate Professor Nusem, page 8.
Your diagnosis:
The diagnoses are:
o    Annular disc bulge L3/4.
o    Annular disc bulge L4/5.
o    Lumbar spondylosis.
Our client’s prognosis.
The prognosis is fair – symptomatic and functional improvements are expected but full resolution of the clinical presentation is in question.
Your opinion as to the cause of our client’s complaints and disability
In my opinion [the Applicant] complaints and disabilities are related to the injury on 2 May 2017.
Associate Professor Nusem provided a supplementary report dated 27 May 2019.[42] Associate Professor Nusem opined:[43]
[42] Exhibit 5, Supplementary Report of Associate Professor Nusem.
[43] Exhibit 5, Supplementary Report of Associate Professor Nusem, page 3.
Further, Dr Shooter bases his statement of aggravation on imaging studies, while I based my report on the clinical presentation.
In my permanent impairment assessment report, I state the MRI Scan of the lumbar spine dated 01 June 2017 and CT Scan of the lumbar spine dated 25 August 2018, report lumbar spondylosis.
I agree that this is a pre-existing condition.
[The Applicant], himself, denies pre-existing symptoms in relation to his lumbar spine.
I could not find documentation to support pre-existing symptoms prior to [the Applicant’s] injury in May 2017.
Therefore, it is my opinion that [the Applicant] could have gone for many years without experiencing low back pain but for the incident on 2 May 2017.
Dr Shooter states that Dr Albietz, in his letter from 28 September 2018, was of the opinion that the imaging changes are degenerative in nature and were likely aggravated rather than caused by a specific work injury and that he would be best looking for alternative employment.
I agree with this statement.
Dr Shooter expected that the exacerbation of [the Applicant’s] lumbar spine condition should have resolved within three or four months of treatment while on restricted duties.
The majority of people who experience an episode of low back pain will improve over time. However, a sizeable proportion experience repeated episodes or recurrence and some report persistent symptoms for many years.
Taking all into account, I would consider that [the Applicant] has asymptomatic mild degenerative changes within his lumbar spine. This became symptomatic following the incident on 2 May 2017.
At the Hearing, Associate Professor Nusem gave evidence by telephone, under affirmation. In response to questions asked by Counsel for the Applicant, Associate Professor Nusem:[44]
·Confirmed that the CV attached to his reports accurately reflect his experience and qualifications and that in short, he is an orthopaedic surgeon.
·Confirmed that the facts as set out in his reports dated 22 February 2019 and 27 May 2019 are true to the best of his knowledge and that the opinions, he expressed in those reports are his genuinely held opinions.
·Confirmed that he had more recently received more imagining, being an MRI report dated 6 December 2018 and a CT of the lumbosacral spine dated 16 July 2019.
·Said that he does not think there is a major change between the MRI reports of 1 June 2017 and 6 December 2018.
·Said that the CT scan of 16 July 2019 had similar findings to previous CT scans, the only real change is the loss and the intervertebral disc heights at L2/L3 to L5/S1 levels.
·Said nothing in the new imagining changed his opinions that he set out in his reports.
[44] Transcript, pages 24-25.
On cross-examination, Associate Professor Nusem:[45]
[45] Transcript, pages 25-29.
·Confirmed that the history he set out on page 3 of his report dated 22 February 2019 was the totality of the history provided to him by the Applicant.
·Confirmed his diagnosis and that he had seen that on some of the imaging.
·Said he was not suggesting the diagnosed disc bulges were caused by the subject work incident.
·Agreed that his diagnosis of lumbar spondylosis is sort of a catch-all term which refers to degenerative conditions of the lumbar spine. He was not suggesting that the Applicant’s lumbar spondylosis had been caused by picking up the parcel back in May 2017.
·Confirmed he understood that the issue under consideration was whether as at mid-2018 the injury which the Applicant suffered in May 2017, which was described as a lumbar sprain, was preventing him from working or causing a need for medical treatment.
·When asked if he would agree that the three conditions, he had diagnosed have no relationship to the subject work incident, he said “They are not caused by the work incident, no.”
·When asked if he accepts the proposition that if there had been any symptom that the Applicant was complaining of when he saw him for the first time on 8 February 2019, those symptoms are explicable on the basis of constitutionally degenerative conditions of his spine, he said: “No, it’s not so. [The Applicant] was asymptomatic before the incident in 2017. And it is not a very high proportion of imaging that will demonstrate degenerative – lumbar spine changes. The people will be asymptomatic.” …. “So, the incident – I believe that the incident in 2017 caused [the Applicant’s] back to symptomatic.”
·In relation to the MRI dated 1 June 2017:
oAgreed that it shows normal degenerative changes for a person the Applicant’s age.
oAgreed that it does not reveal any objective evidence of any acute injury. He said “but, again, as I said, he is asymptomatic and a large proportion of people with degenerative changes imaging of them on the spine are asymptomatic individuals.”
·Agreed that in formulating his opinion he was relying on the Applicant’s self-report.
·Said the work-related condition he has diagnosed would be an exacerbation of the degenerative changes in the lumbar spine.
·He agreed with Dr Shooter’s opinion that the Applicant has a potentially constitutional degenerative spinal condition.
·When put to him that the work incident was more likely to have result in a short-term soft tissue complaint, he said: “Yes, the majority will. But, again, and in my reports from 27 May, I do mention that. And I state that the majority who experience any sort of lower back pain, will improve overtime. However, the large proportion will still experience repeated episodes of symptoms and some will report persistent symptoms for many years.”
·Said he does not consider that the constitutional condition is the causative factor of any ongoing condition, any ongoing pain and symptoms because the condition was asymptomatic prior to the incident in June 2017.
Evidence of Dr John Albietz
At the Hearing, Dr John Albietz gave evidence by telephone, under affirmation. In response to questions asked by Counsel for the Applicant, Dr Albietz:[46]
·Stated that he is an Orthopaedic Surgeon, he performs spinal surgery and completed his fellowship in 2005.
·Confirmed that he saw the Applicant in May 2018.
·Confirmed he had recently been provided with a CT lumbar spine scan dated 16 July 2019 and an MRI scan dated 6 December 2018 and having reviewed these imagining reports the views he provided in his report of 4 May 2018 did not change.
[46] Transcript, page 31.
On cross-examination, Dr Albietz:[47]
·Said that although MRI and CT scans are somewhat different essentially there was no significant change between them.
·Said the 6 December 2018 MRI showed that there as some mild lumbar facet degenerative change.
·When asked if the objective findings, as demonstrated in the scan, were likely be product of severe symptoms, he said: “Well, I suppose symptoms and pathology don’t always go together. You know, in saying that, they can cause symptoms, but the severity of them is difficult to tell. But looking at them, no, I wouldn’t say it would cause severe symptoms”.
·After being read the history the Applicant provided on 6 December 2018 to the PA Hospital (Exhibit 14) he said that pain is subjective and with the level of pain being reported he would have also referred the Applicant for a scan. He confirmed that it is a reasonable assumption that the MRI scan of 6 December 2018 was not indicative of the level of symptoms that the Applicant was complaining of.
·Said he accepts that the Applicant suffers from constitutional degenerative change of his spine.
[47] Transcript, pages 32-35.
Evidence of Dr David Shooter
In addition to the report dated 20 February 2018 discussed previously in this decision, having been provided with further material Dr Shooter also provided a supplementary report dated 24 April 2019.[48] In this report Dr Shooter opined:[49]
In my opinion, his pain is degenerative in nature, as well as likely having some intrinsic lumbar spine muscle dysfunction, as referred to by Dr David Johnson, Neurosurgeon, in his report. It is telling both that his pain resolved during his overseas holiday, the radiological appearance of his spine worsened, as per the Computed Tomography (CT) Scan, dated 25 August 2018 while he was on a two month holiday, had a period out of work, was on restricted duties, and received treatment. This would definitely suggest the natural history of a degenerative condition, as opposed to having been caused by work.
…..
…. I would still consider that while [the Applicant] may well have had a work related exacerbation of his possible low grade intrinsic back degeneration, this should have resolved within three to four months of treatment while on restricted duties. To me, it is telling that his pain resolved completely when he left the country for two months and did no lifting activities, and was also not receiving any treatment or regular review.
[The Applicant’s] pain then recurred when he went back to his normal duties and I would interpret this as being that he is just not someone who is suitable for heavy work or lifting activities, as opposed to his normal duties having caused an injury. This is a subtle distinction that Associate Professor Iulian Nusem, Consultant Orthopaedic Surgeon, has seemingly ignored or not appreciated in his report.
[48] Exhibit 6, Supplementary Report of Dr Shooter.
[49] Exhibit 6, Supplementary Report of Dr Shooter, pages 4 and 7.
At the Hearing, Dr Shooter gave evidence by telephone, under affirmation. In response to questions asked by Counsel for the Respondent, Dr Shooter:[50]
[50] Transcript, pages 37-43.
·Confirmed that his qualifications as set out in his CV was correct and that he is an Orthopaedic Surgeon.
·Confirmed he had examined the Applicant on 16 February 2018 and provided a report dated 20 February 2018 together with a supplementary report dated 24 April 2019.
·Confirmed that the history outlined in his report of 20 February 2018 reflects what the Applicant had told him.
·In explaining the MRI report dated 1 June 2017 told the Tribunal:
oThe MRI report shows that it is essentially normal.
oBy ‘normal’ there is no gross disc bulge pressing on a nerve root, there is no central canal stenosis, which means there is no tissue in the Applicant’s spinal canal pressing on the nerves and there is no moderate or severe arthritis in any area.
oWhere the report talks about mild facet joint arthropathy, annular bulges but then no nerve root impingement, these findings are very common in the backs of most people.
oStatistically probably 40% of males in their 40’s or 50’s will have disc bulges and those number keep going with age. So almost everyone will have minor findings like this in their back.
·When asked whether if at the time of the June 2017 MRI scan the Applicant was still incapacitated for work, still complaining of back pain and at this time still complaining of symptoms radiating down his right leg, whether he would have expected to find on an MRI scan some objective evidence of injury or some sort of positive finding, said: “Yes, absolutely. So, you can have bulging with root impingement or bulging with no root impingement. Where there is no root impingement that implied that the bulge is only small, because it hasn’t got big enough to move significantly out of its normal area to then press on a nerve root. That is what is being described in this MRI from June 2017.”
·Confirmed he had been through the PA Hospital records and saw the reference on 5 May 2017 to the Applicant presenting with rectal bleeding, some abdominal pain and some pain in various joints.
·When asked what his view was of the Applicant’s presentation to the PA Hospital just 3 days after the work incident, said he would be thinking that “in a gentleman presenting with this sort of pain pattern, relapsing/remitting back pain, and then turning up with recurrent abdominal pain, fleeting joint pains, is that there may well be some underlying rheumatological diagnosis at play here. Something that had not been diagnosed simply because no one’s been looking for it and I would be really looking at that as a cause of some of these problems, as opposed to his work-related incident, given that his reported injury was possibly lifting something up to 20 kilos, which is what is listed as his work duties, and then having pain out of proportion to his physical findings, pain out of proportion to this radiological findings but then having a whole suite of other symptoms: the rectal bleeding, the fleeting other joint problems that does sound like a relapsing/remitting type pattern, which can be very common with rheumatological issues.”
·Said that, “so now knowing about those issues and having seen the rest of his PA notes, I would be thinking that there is something underlying his back pain, possibly rheumatological in nature. That has not yet been diagnosed.”
·In relation to the CT Scan of 12 April 2018, told the Tribunal that it indicated a moderate loss of height in the L5/S1 disc height, some mild neural exited foraminal stenosis without significant distortion of the exiting L5 nerve root. He considered this to only be a very mild change from the original MRI and essentially identical to the scan from 20 February 2018. The only difference is that the radiologist from the scan in February has assigned the neuroforaminal exit narrowing to having congenitally short pediculus. So, in other words the Applicant was born with a spine that is not quite the same as everyone else’s but still basically good enough. Whereas the radiologist from April is assigning it to slightly increased loss of vertebral disc height. “So, again, not really consistent with a lifting injury or an injury of any kind”.
·In relation to the scan dated 26 August 2018, said what the report is saying is that there may be a bit of extra pressure on both the L5 and L4/5 nerve roots and the S1 nerve roots, compared to the scan from back in April. As far as he was aware the Applicant was off work from May 2018 so this could easily be considered the natural history of his underlying problem.
·In relation to the MRI scan dated 6 December 2018, said it reported that there is no nerve compression at any level and the intervertebral discs are normal.
·When taken to the 6 December 2018 PA Hospital record and asked whether the pain symptoms reported by the Applicant were in any way reflected in the MRI finding, said: “No they are not. On face value the report and the progress notes have no relationship. In the notes he’s reporting radicular pain, as they have documented. So: ‘Pain running down his right leg. Struggling to sit down. Struggling to sleep 8/10 pain. No other trauma. No other injury.’ There is no relationship between what is written in the progress note and the MRI report.”
·In relation to the CT scan report of 17 July 2019 and the earlier MRI reports, said:
“… they are different modalities designed to look at different types of structures. But when there is a moderate to severe change, that should be comparable. Now as I was mentioning earlier that an MRI is basically a picture of the water content of the cells. If you have swelling you can see that on an MRI. If I was to punch you in the shoulder and take an MRI scan six hours afterwards, the scan would pick that up, a CT scan would not. If I was to hit you with a chair and put a crack in your leg, the MRI would pick that up within a couple of hours, a CT scan might only pick up if the bone was displaced. But if someone has severe enough changes, you know, they’re talking – the first line of the findings:
Moderate to severe loss of posterior intervertebral disc heights at L4/5 and L5/S1.
So ‘moderate to severe loss’ when we look at the actual criteria for this, this means at least two-thirds to complete loss of the disc height, that is something that is visible on an x-ray, that is something that an MRI would pick up, if it was there. I would agree that if the MRI was talking about subtle nerve root oedema or subtle nerve root swelling, I would not expect a CT scan to pick that up. But when they are talking about moderate to severe loss of disc height, that is something that is visible on a plain film, just a simply x-ray, let alone an MRI scan.
…….
So, all of the changes described on the CT from July 2019 should have been visible on the MRI from December 2018 and they are not.”
·When asked what he says the casual link between the lifting incident in May 2017 and the findings of July 2019, said:
“I mean I would have to, in all honesty, say that I cannot say that there is a link. I am quite happy to accept that he may well have had an exacerbation of his pre-existing back problems, with a musculo skeletal strain from May 2017. We would normally expect that to settle down in three months, but perhaps six months. But anything after that should be the natural history of whatever underlying problems that he has. We see everything completely resolved in December 2018, by which time he has been off work for seven months or so, I believe. While still being off work for some months up to July 2019, suddenly he has more – slightly more severe changes than he had in the first place. So, there’s clearly something else going on, other than his work to be causing this.”

On cross-examination, Dr Shooter:[51]
[51] Transcript, pages 44-51.
·Confirmed that he examined the Applicant in February 2018 and that he had seen a lot more information since then. When asked, in having regard to everything he now knows what his best explanation for the pain was that the Applicant was recording in February 2018, he explained that is a difficult question to answer, however in his view it could not be related to the Applicant’s work tasks as he did not consider lifting levels of 10 kilos to shoulder height and 20 kilos to waist height was heavy listing and there was no specific injury or accident to cause it.
·Said that when he says ‘work-related’ he means he would look for a pattern of duties that could have either caused a specific injury or people who develop attritional injuries because of highly repetitive movements or things like that, and generally they would need to be exposed to that sort of activity for years and years. He said he would not consider the Applicant’s injury to be a work-related attritional injury given the length of his employment and level of lifting, rather he said he wonders if the Applicant is someone who has some pre-existing injury with their back that these types of duties have brought out.
·When asked if his view would be different if the lifting being undertaken by the Applicant involved boxes weighing up to 40kg, said it might, but it would depend on how often the Applicant was doing it and what condition he was in when he was lifting it. He said his understanding was that the Applicant’s job description did not include lifting to that weight and referred to the Guardian Exercise Rehabilitation document dated 8 November 2017 where in the section entitled “Work-related Job Requirements” it listed “Lifting up to 10 kilos shoulder height and up to 20 kilos floor to waist height.”
·When asked if he accepted that the mild degenerative changes apparent in June 2017 are a possible explanation for at least some of the pain described by the Applicant, said:
“I would accept it is a possible explanation for some of the pain and I actually accepted that in my original report, where I stated that I felt that Dr Johnson’s diagnosis of a musculo skeletal stain was probably correct and we would normally expect something like that to settle down in four to six months, which, seemingly, it improved in that timeline. Anything ongoing from that would be the natural history of his underlying condition.”
·When asked if he was able to identify when he says the Applicant’s exacerbation of that nature resolved, said:
“No, because his initial injury was in May. I did not actually see him until April 2018. When I did see him, he later says it did not, but he initially told me that his pain had completely settled down during his overseas holiday. I would have taken that as being the time at which his pain – his exacerbation had settled. Somewhat longer than I might expect, but everybody performs differently when it comes to recovering from back injuries. The psychology plays a major part in there as well. If you see Dr Johnson’s report, he is extremely dubious about [the Applicant’s] recovery, given that he was taken off on holiday in the middle of his treatment regime. When I saw [the Applicant] he had already decided that physiotherapy was not going to help, in which I have noted in my report. The patient’s response to the pain does have a big impact on how they actually recover, regardless of what the treatment actually is.”
·Agreed that some patients that have experienced an exacerbation of the kind he has mentioned report persistent symptoms for many years, however he said that you will find that most of those patients often have some major injury that has actually started it.
·Agreed with the proposition of Associate Professor Nusem that the Applicant had pre-existing changes to his spine of which as far as he was aware were asymptomatic.
·When asked if Associate Professor Nusem’s proposition that the Applicant’s changes to his spine became symptomatic following the incident on 2 May 2017 is a possible explanation of events, said:
“Well, that would be called an exacerbation. But he has not had a high energy injury, there has been no major trauma. He’s been performing the duties he’s been performing for 18 months. He has very mild pre-existing changes. We have a series of CT scans, 12 April, 26 August, all of which are fairly similar. We then have the MRI of 6 December 2018, where they have entirely disappeared. That very much sounds to me like an exacerbation that has resolved, or an underlying diagnosis that has a relapsing/remitting pattern, such as something rheumatological in nature that is yet to be diagnosed. That is not consistent with a work-related injury that has not healed.”
·When asked if the lifting on 2 May 2017, in fact, involved boxes of up to 40 kilograms, would that make it a more reasonable explanation, said:
“And if that was the case, I would expect to see a change in the radiology to reflect that. Instead we have it completely disappearing in December 2018 before coming back in July 2019 with no second injury, him being off work. Making this work-related does not explain the change in the imaging. And the fact that during this whole time period the pain was presumably at the same level or getting worse. So, there is a distinct mismatch between his recorded mechanism of injury, the course of his radiology and his reported pain.”
·When asked to comment on the proposition that what is present based on all the material is that the Applicant was asymptomatic before 2 May 2017 and then has complained of symptoms in his back since 2 May 2017, said:
“…. this does not equate to causation. It is very common to have underlying problems that are asymptomatic then have something minor happen. The exacerbation of your injury, or whatever you want to call it, then settles down and you are then left with the underlying changes now exposed and symptomatic. We see that all the time with hip and knee arthritis, with shoulder arthritis, rotator cuff tendonitis. The patient has aggressive changes on radiology that are clearly present for years, but they have no symptoms. They then do something fairly minor and they then have severe pain, out of proportion to what’s happening, and they make a very poor recovery because we are looking at the natural history of their underlying condition.”
·Said his opinion is what occurred is that the Applicant had a work-related exacerbation that has since resolved, and we are now looking at the natural history of his underlying problems. Underlying conditions can overtake the exacerbation or co-exists until the exacerbation resolves.
·When put to him that he cannot pinpoint when exactly the exacerbation resolved and this becomes more specifically the progress or progression of the underlying condition, said:
“Well, it depends on how you want to consider your timeline. If we look at the accepted statistics, as laid out in the AMA guide to Evaluation of Disease and Injury Causation, they will usually say six to eight weeks. So, in theory at least, his exacerbation should have settled down by June 2017 and any ongoing symptoms would have been the underlying condition. I usually find it takes a bit longer than that. I will normally say three to six months, sometimes a little bit longer, and to my viewing that would correspond with what [the Applicant] told me when his pain settled down when he went on his holiday.
In fact, he is now saying, I believe, in his written statement, that the pain did not actually get better and misspoke when he saw me. So, we now have someone who has been through a full course of treatment, has been removed from, presumably, the noxious stimuli of the work environment, we have an MRI showing complete resolution of all the radiological changes, yet his pain is no better. That is not a timeline consistent with a work-related injury.”
·When asked if what he is saying is that even if there had been a continuation of the symptoms, not a resolution, that at some point what you are looking at is an exacerbation that has then been overtaken by the progression of the underlying condition, said:
“If you want to use that phrasing, yes. As I said in my report, I consider his pain – he has had a work-related exacerbation we would usually expect that to settle and I would normally expect that to settle in three to six months, but statistics would suggest six to eight weeks, that is the accepted medico-legal literature. I tend to be a little more generous. But his pain does not match his radiology. His pain does not match his mechanism of injury. There is a distinct mismatch between his presentation, the radiology and his reported pain. This is not a timeline that is consistent with a work-related injury, on the basis of the radiology that we have.”
·In relation to whether the objective imagining can explain the Applicant’s pain, said:
oThe objective imaging can to his satisfaction determine that this is not work-related, that is the issue, as the imaging does not necessarily explain his pain because his pain is far out of proportion to the imaging he had had.
oAt the same time the Applicant had the December 2018 MRI he was turning up to the PA Hospital complaining of 8/10 pain, that is not normal. That would suggest that there is something else going on that is unrelated to his work. By that stage he had been off work for at least seven months. So, if this is work-related why has it not settled with him being out of work and undertaking an appropriate regime?
oWith having what is, essentially, very mild degenerative changes that at one stage completely disappear, why do they come back while he is off work? Usually degenerative changes do not disappear, so that would suggest to me that there was something else going on that is not related to his work.
oHe viewed the imaging himself. He was not aware that most of it existed at the time he provided his supplementary report, however he did a search on the various servers when he got the summons material and he had contained the Applicant’s consent in the original IME report. He looked at the MRI from 6 December 2018 and while he is not a spine surgeon, he agrees it is a pretty normal looking MRI. He is also of the view that the other CT scans all look moderately normal as well.
oHe did a years’ worth of spine training during his term, so he is relatively happy to say he can diagnose a cauda equine, which is complete compression of the spinal cord. He is happy to delegate subtle things to the radiologist or the spine surgeons, but anything relatively major he is happy to say that he can pick that up.
oHe saw nothing on the scans to make him doubt the reports.
·When asked if he is relying on the imaging and his understanding that the Applicant was lifting only 20 kilograms to waist height to say the matter was not work-related, said:
“Well, we look at everything together. We look at the patient’s reported pain. We try and match that to the physical findings, when we see them. We would then try and match that to the objective findings. We get radiology clinical examination, et cetera.
Even with high level repetitive lifting, we should have seen an improvement when he stopped. If we are now saying that he routinely lifted objects of up to 60 kilos and, again, I would point out that is not what he told me and is not what is in the occupational therapist report as being his normal duties, then we should have seen an improvement when he stopped. He gives no history of a sudden jerk, a sudden onset, a rock rolled under his foot and he suddenly had to grab something. There is no injury. All he has is the performance of his normal duties in a normal fashion. There is no smoking gun in the history.”
·When asked if there had not been the exacerbation in May 2017, is he able to say when the Applicant would have had problems from the underlying degenerative nature of his spine, said:
“Well, look, realistically no. If we look at his work history, he seems to move on from jobs every two to two and half years. If he had stopped doing this particular type of work, he could well have had the pain anyway. The chances are, he may never had got any pain with his work, if he had continued. He could have started developing the pain while sitting in a chair at home. I cannot say with a greater than 50% certainty, when he may have otherwise developed pain.”
At the conclusion of the evidence of the Applicant and expert witnesses, the Respondent, with agreement from the Applicant’s Counsel tendered documents dated 9 November 2017[52] and 11 October 2017[53] that formed part of the PA Hospital records. These documents provide reference to the Applicant’s abdominal pain, rectal bleeding and joint pain issues having not in fact resolved before he went overseas. Rather these documents show that the Applicant was still afflicted with those issues after he returned from overseas.
CONTENTIONS
[52] Exhibit 15, Letter from Dr Naomi Runnegar, Infectious Diseases Physician dated 9 November 2017.
[53] Exhibit 16. Letter from Dr Ferris Satyaputra, Infectious Diseases Registrar dated 11 October 2017.
Applicant’s Contentions
At Hearing, in closing submissions,[54] Counsel for the Applicant contended that as the Respondent’s decision on 12 June 2018 had the effect of ceasing the Applicant’s pre-existing entitlements under the SRC Act, it is for the Respondent “to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made:” in accordance with the decision in Comcare v Power (2015) 238 FCR 187 at [70].
[54] Transcript, pages 53-56 and page 60.
The Applicant contends that the Tribunal should accept the evidence of Associate Professor Nusem and Dr Albietz over that of Dr Shooter.
The Applicant contended that the facts of most relevance are that contrary to what Dr Shooter had understood, the task analysis identities lifting up to 60 kilograms, lifting and carrying. That is important because it is consistent with the account of the lifting that was recorded by Associate Professor Nusem that on the day in question the cartons that the Applicant was lifting weighed between 10 and 40 kilograms. This is the starting point from the Applicant’s perspective, it is not an injury as Dr Shooter thought emanating only from lifting 20 kilograms to waist height but in fact an injury emanating out of an incident that involved lifting a number of cartons weighing between 10 and 40 kilograms. Further, the Applicant never got back to his normal duties.
The Applicant contended that there is no doubt there was an injury, therefore the question in relation to section 19 of the SRC Act is whether the Applicant’s incapacity for work is as a result of that injury, result of does not require a direct proximate cause, it encompasses something indirect, and it certainly does not require that the injury be the sole or dominate cause of the incapacity.
The Applicant submitted that it is clear that there is some level of incapacity and no doctor has suggested there is no incapacity. Dr Shooter’s report accepts genuine complaints of pain and further suggests that the Applicant should be looking at different work, and as such it is contended that if the Applicant cannot do his pre-injury job then that is an incapacity.
The Applicant contended that it is sufficient if the injury contributes in a material sense to the incapacity for the test of “is it the result of the injury” to be satisfied relying on Federal Court authorities outlined in the Applicant’s written submissions.[55]
[55] Applicant’s Outline of Submissions dated 22 January 2020, handed up by the Applicant’s Counsel at Hearing, pages 3-4, paragraph 18.
The Applicant submitted that there is difficulty in saying the cause of the ongoing pain is not really the exacerbation that happened at work, it is just the natural progression that is overtaken the injury, and the natural progression of a degenerative condition. The Applicant contended that it is not enough to say that, well if the worker would have arrived at this state of incapacity because of the underlying condition anyway that, that means the incapacity is no longer a result of an injury. The Applicant referred the Tribunal to section 7(6) of the SRC Act[56] and seeks to rely on the decision of the Federal Court in Martin v Australian Postal Corporation [1999] FCA 655 (Martin) providing the following application:[57]
In Martin v Australian Postal Corporation [1999] FCA 655, Burchett J adopted the well-known passage from The Darling Island Stevedoring and Lighterage Co. Limited v Hankinson (1967) 117 CLR 19 where Barwick CJ said: “acceleration by work in an employment of a pre-existing disease not itself arising out of … the employment because in itself an injury” and the “incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity. In Martin, the employee had osteoarthritis, but it had produced no symptoms prior to a work-related aggravation or acceleration. Justice Burchett held that the case “fell precisely within the reasoning” in Darling Island and that the disability suffered by the employee remained a result of the aggravation.
[56] Applicant’s Outline of Submissions dated 22 January 2020, handed up by the Applicant’s Counsel at Hearing, pages 4, paragraphs 19-21.
[57] Applicant’s Outline of Submissions dated 22 January 2020, handed up by the Applicant’s Counsel at Hearing, page 4, paragraph 21.
The Applicant contended that if the employment started the symptoms it is not to the point that now it can be said that the symptoms are emanating from a degenerative condition because they had their start in the workplace injury, and that is the thrust of what Associate Professor Nusem explained in his oral evidence and supplementary report – that the Applicant doing his job prior to 2 May 2017 with no symptoms, no back problems, no restrictions, no incapacity, he had an incident at work that brought on the onset of pain.
The Applicant contended that although Dr Shooter accepts that there was at least an exacerbation and while he says that statically it tends to resolve or go away, and the pain is not from the exacerbation anymore, the pain is from the underlying conditions regardless of the expected timeframe it remains the case that it is the incident at work that has bought on the pain. The Applicant contents that this means that if the correct test is applied this is an incapacity that has resulted from the injury sustained on 2 May 2017, at least in the sense of that is what started the symptoms. The Applicant submitted it is that incident that rendered symptomatic, a condition that otherwise and previously was not.
The Applicant submitted that for the Tribunal to affirm the reviewable decision, it must be positively satisfied at some point that the incapacity suffered by the Applicant is no longer the result of his work injury. The Applicant submits that the evidence of Associate Professor Nusem and Dr Albietz cannot satisfy the Tribunal of this and should their evidence be accepted than this is a continuing work-related incapacity.
The Applicant contented that the evidence of Dr Shooter should not be preferred by the Tribunal as:
·Dr Shooter is approaching the matter from a different perspective than the Act approaches it, and on his view if there is a work related exacerbation then after the statistical period, whether its weeks or months, one then concludes that anything after that is no longer work related because one would expect the exacerbation to resolve, and so anything that is left must be resulting from the underlying condition.
·Dr Shooter cannot say but for this exacerbation when the Applicant might have reached the state that he has. He might have had the symptoms come on in his work, he might have had them come on sitting at home, he might have gotten a new job and had them come on from that.

Counsel for the Applicant submitted that the Applicant’s evidence should be accepted, in that the symptoms continued ever since May 2017. He admits his symptoms got better and that attests to his genuineness as he could have said it was still painful while he was overseas, but he had been genuine and upfront all the way through. This is outlined in the initial exercise report dated 8 November 2017.
The Applicant contented this is not a case as Dr Shooter thought where there is three or four months of normal work, no pain, it is actually a case of in a week, about a week after the Applicant is back on light duties, he is feeling his symptoms again. Counsel for the Applicant submitted this is perfectly understandable given the nature of the work that he is doing compared to resting up on holidays.
The Applicant contented that the objective imaging does not deny that the Applicant had an asymptomatic back prior to 2 May 2017, the onset of the symptoms resulting from a work incident on 2 May 2017, a continuation of those symptoms, a fluctuating degree ever since and that way a continuing work related incapacity. The Applicant contends that the imaging does not offer a clear explanation for the pain, but that is of no particular significance because it certainly does not identify a break in the chain of causation once one has regard to the proper factual history.
Respondent’s Contentions
At Hearing in closing submissions,[58] the Respondent contended that in matters like this regarding the withdrawal of benefits there should be good and cogent proof which can justify that decision and in this case such proof is readily evident.
[58] Transcripts, pages 56-60.
The Respondent acknowledged that it accepted the liability for the particular injury, being the lower back strain, but what they say is, that, that particular injury has resolved and moreover what potentially continues to afflict him, are, along with a number of matters, framed in the negative, certainly not that earlier work related injury.
The Respondent contended that essentially the matter comes down to what medical evidence the Tribunal accepts, and it says the evidence of Dr Shooter should be preferred. In relation to the evidence of Dr Albietz, the Respondent asked the Tribunal to consider that he was a treating doctor of the Applicant for a short time and has not assessed this issue from a point of view of a medico-legal context nor had he seen much of the records. In relation to the evidence of Associate Professor Nusem, the Respondent contends he was relying upon the history that he was given by the Applicant and that history in simple terms is that no symptoms prior to 2 May 2017, symptoms thereafter, so they have to be interconnected. The Respondent contends that Associate Professor Nusem opinion was simplistic and does not take account of all of the evidence.
The Respondent referred the Tribunal to the decision of Senior Member McCabe (as he then was) in Montesalvo v Comcare [2011] AATA 319 who said:
Students of logic – and of dead languages – are familiar with the expression ‘post hoc ergo propter hoc’. Loosely translated it means ‘The fact that one event follows another does not necessarily mean the first event caused the second.’ A temporal connection between two events will often be present where there is a causal connection, but one should hesitate before concluding a temporal connection of itself indicates a causal relationship between the two events unless alternative explanations for the second event have been considered and discounted, and perhaps not even then.
The Respondent contended that, that passage reflects the unacceptable simplistic way in which Associate Professor Nusem has approached the case and that calls for some examination of the Applicant’s evidence. The Respondent contended that the evidence of the Applicant, show him to be inherently unreliable and referred to paragraph 2 of the Applicant’s Statutory Declaration where he said:
Prior to the work injury I did not suffer any illnesses, injuries or other mental or physical complaints and my state of health in the three years immediately prior to the accident was excellent.
The Respondent submitted that the objective reality is that there was something completely different and something which gave rise to at least a hypothesis emanating from Dr Shooter, which might provide some explanation for the symptoms that the Applicant is suffering.
The Respondent asked that the Tribunal take into account the divergence between the Applicant’s complaint of symptoms and what is shown in the MRI in December 2018 and also the non-disclosure of the pervasive condition that he had in 2017 in respect of the medical treatment to the other medical practitioners, particular to Associate Professor Nusem.
The Respondent contended that the Tribunal should not prefer the evidence of Associate Professor Nusem as in their view the history he took was ‘skimpy’, he had not had recourse to any of the records from the PA Hospital which they submit Dr Shooter clearly went over with a fairly fine toothed comb.
The Respondent contended that the Tribunal should prefer the evidence of Dr Shooter as:
·He demonstrated a good understanding of the history, of which they say the Applicant now retreats from however the Applicant had told Dr Shooter that he had returned to his normal duties.
·The only real limitation that the Applicant had at the time in question was that he could not lift anything heavier than 15 kilograms and that he could fulfil all of the other duties, normal duties associated with his work.
·He gave evidence of his understanding of the guides in respect of the medical literature as to how long one would expect an injury, the initial injury, to remain before it would alleviate.
·He delved into the records clearly enough to raise the hypothesis of the inflammatory conditions.
The Respondent contended that Dr Shooter brought a measure of intellectual rigor to the matter, which they say Associate Professor Nusem did not demonstrate.
The Respondent contended that it is important not to lose sight of the reference to the word ‘exacerbation’ or the fact that when it is used it was either associated, prefaced by the word ‘time limit’ or some word similar, similar meaning, or clearly used in that sense, that is it is accepted that the Applicant had a short term exacerbation of his condition but as Dr Shooter says thereafter things moved on an there are reasons why. Dr Shooter said it is just impossible to locate a work-related cause in respect of the continuing symptomology with all the inconsistences that went with it.
CONSIDERATION
The first question for the Tribunal in this matter is whether the Applicant continues to suffer from the effects of the accepted back condition or whether the work-related lower back strain injury has ceased. If the Tribunal finds that the Applicant no longer suffers from the effects of the accepted back condition, the matter ends there.
While the Tribunal accepts that the Applicant continues to experience pain symptoms in his back, the Tribunal has difficulties accepting the contentions of the Applicant that these pain symptoms have always been present since the date of injury, being 2 May 2017 and continue to be a result of the accepted work-related lower back strain injury, sustained on 2 May 2017.
The Tribunal is cognisant that given this matter deals with the withdrawal or cessation of workers’ compensation benefits there is effectively an onus on the Respondent to satisfy the Tribunal that there are circumstances which justify finding that compensation payments should no longer be made. To that end the Tribunal must be satisfied that the Applicant ceased to suffer the effects of the accepted back condition.
For a number of reasons set out below the Tribunal is satisfied that the Respondent has discharged their onus in this respect and the Tribunal considers that the Applicant no longer suffers the effects of the accepted lower back strain condition.
First, there has been no dispute that on 2 May 2017 the Applicant suffered a lower back strain during the course of performing his normal duties. The Respondent accepted liability for the injury. A strain is usually not a chronic condition, but rather its effects are expected to resolve within weeks or months of it being sustained. While the specialist medical evidence before the Tribunal differs in the respect of whether the initial injury has resolved, the Tribunal for reasons outlined below prefers the opinion of Dr Shooter in this regard.
Second, the Tribunal is concerned by the reliability of the evidence given by the Applicant. Up until the date of Hearing the Applicant had maintained the position that in the three years leading up to the work-related injury, he had not suffered any illnesses, injuries or other mental or physical complaints and his state of health was excellent. This was not in fact the case. The evidence outlined at Hearing and in the relevant exhibited documents clearly showed that at 5 May 2017, the Applicant had been suffering from “burning generalised abdominal pain for the past two years” and had for the past 5 months had blood in his stool and was at that time reporting aching pain in his “wrists, elbows, knees and ankles. Worst in carpal bones.”[59] The Applicant confirmed the contents of the referenced document were correct.
[59] Exhibit 13, Progress Notes from the PA Hospital dated 5 May 2017.
The Tribunal does not accept the Applicant’s explanation that he had not considered that he needed to disclose this previous medical history as it was not related to his back injury and did not prevent him from going to work. The Tribunal notes that the Applicant had not provided this medical history to Dr Bali, Associate Professor Nusem, Dr Albietz or Dr Shooter. Interestingly, in the PA Hospital notes referred to dated 5 May 2017,[60] being just three days after the work-related incident there is no reference to the Applicant reporting any back pain.
[60] Exhibit 13, Progress Notes from the PA Hospital dated 5 May 2017.
Further the Applicant’s evidence was that his stomach complaints for which he attended the PA Hospital on 5 May 2017 were resolved prior to him leaving for his overseas holiday in August 2017. Evidence presented by the Respondent being reports from the PA Hospital dated 11 October 2017[61] and 9 November 2017[62] paint a different picture. Dr Naomi Runnegar in her report of 9 November 2017 provided that the Applicant “has ongoing symptoms of abdominal pain and PR bleeding and these are not common symptoms associated with these parasitic infections anyway and I do not think they are relevant. I think the key to excluding any significant pathology is the colonoscopy and review with gastroenterology team which are pending…”[63]
[61]    Exhibit 16, Letter from Dr Ferris Satyaputra, Infectious Diseases Registrar dated 11 October 2017.
[62]    Exhibit 15, Letter from Dr Naomi Runnegar, Infectious Diseases Physician dated 9 November 2017.
[63]    Exhibit 15, Letter from Dr Naomi Runnegar, Infectious Diseases Physician dated 9 November 2017.
Dr Shooter in his report dated 20 February 2018 and in his oral evidence at Hearing indicated that the Applicant had advised him at the examination that took place on 16 February 2018 that his pain had resolved while on holidays. The Applicant however in his Statutory Declaration dated 6 August 2019 and at Hearing said that his pain had gotten better but had not completely gone away while he was on holidays. He further provided that within the first week of returning to work on suitable duties after his holiday his pain levels were back to where they had been prior to his leave. The Tribunal notes that various rehabilitation associated documents make reference to Applicant reporting he experienced some pain soon after returning to work and that he was making steady progress both objectively and subjectively in relation to his rehabilitation and pain experience in November 2017,[64] however that is not what he told Dr Shooter.
[64] Exhibit 1, T Documents, T25, page 86, Progress Exercise Report and Exhibit 10, Initial Exercise Report, dated 8 November 2017, page 1.
Third, the expert medical evidence before the Tribunal all agrees that the Applicant had a constitutional degenerative spinal condition. The divergence in the expert medical evidence arises in relation to whether or not the Applicant’s accepted back condition had resolved at 12 June 2018 when the Respondent determined it was no longer liable to pay compensation in relation to the condition. The Applicant contends that the Tribunal should prefer the evidence provided by Associate Professor Nusem and Dr Albietz and the Respondent contends that the Tribunal should prefer the evidence of Dr Shooter.
Associate Professor Nusem saw the Applicant on 8 February 2019 and provided a report primarily for the purposes of assessing permanent impairment and as a result the history taken appears to have been limited. The Tribunal’s reading of Associate Professor Nusem’s reports dated 22 February 2019 and 27 May 2019 is that his view is that as the Applicant denies pre-existing symptoms to his lumbar spine prior to the work-related event on 2 May 2017, as such, any subsequent symptoms continue to result from that event. Associate Professor Nusem provided the view that while the majority of people who experience an episode of lower back pain will improve over time a large number experience repeated episodes or recurrence and some report persistent symptoms for many years. Associate Professor Nusem told the Tribunal that in formulating his opinion he was relying on the Applicant’s self-report.
The evidence of Dr Albietz in relation to diagnosis was not inconsistent with that provided by either Associate Professor Nusem or Dr Shooter. What is interesting is that Dr Albietz in his oral evidence having been referred to an MRI report dated 6 December 2018 and associated hospital admission notes, opined that it was a reasonable assumption that the MRI scan of 6 December 2018 was not indicative of the level of symptoms that the Applicant was complaining of.
The Applicant contended that the evidence of Dr Shooter should not be preferred by the Tribunal, criticising his evidence on the basis Dr Shooter had initially understood the injury to occur lifting cartons up to 20 kilograms each rather than 40 kilograms each and that the Applicant had returned to his normal duties rather than suitable duties and that he was unable to give an exact point in time for which he says the Applicant’s accepted lower back strain condition resolved.
The Respondent in response contended that the Tribunal should prefer the evidence of Dr Shooter on the basis that he demonstrated a good understanding of the history, he referred to medical literature as to how long one would expect an injury to persist, he delved into the records clearly enough to raise the hypothesis of the inflammatory conditions and that he bought a measure of “intellectual rigor to the matter” that Associate Professor Nusem did not. The Tribunal agrees with this contention.
In giving evidence at Hearing, it was clear to the Tribunal that Dr Shooter had engaged fully with the history given to him by the Applicant and established through the documentary material provided to him, the relevant imaging reports and in particular the new information that had been received in relation to documents produced by the PA Hospital. As a result, at Hearing the Tribunal considers that Dr Shooter in engaging with the additional material went a step further than his earlier provided reports in that he was able to give a more holistic view of the status of the Applicant’s ongoing pain symptoms.
The Tribunal is satisfied that Dr Shooter indicated that his overall view when looking at all the relevant material would not have changed had he of understood the initial injury occurred while lifting cartons up to 40 kilograms in weight or that he had not returned to full pre injury duties. What he had relied upon was the Applicant’s self-report and the relevant return to work suitable duties documents.
Dr Shooter vigorously engaged with the various imaging reports of the Applicant’s lower back and identified a number of inconsistencies in relation to particular findings, at one point in time he indicated that the imaging showed that previously identified findings had resolved. Dr Shooter told the Tribunal that the imaging and pathology as it related to the Applicant did not accord with the pain symptoms he reported. Further in considering the Applicant’s stomach pain, bleeding and joint pain as reported in the PA Hospital notes he considered there was possibly something underlying the Applicant’s back pain, possibly rheumatological in nature, that has not yet been diagnosed.
The crux of Dr Shooter’s opinion is summed up in his response to the question asking if what he is saying is that even if there had been a continuation of the symptoms, not a resolution, that at some point what you are looking at is an exacerbation that has then been overtaken by the progression of the underlying condition. Dr Shooter said:[65]
If you want to use that phrasing, yes. As I said in my report, I consider his pain – he has had a work-related exacerbation we would usually expect that to settle and I would normally expect that to settle in three to six months, but statistics would suggest six to eight weeks, that is the accepted medico-legal literature. I tend to be a little more generous. But his pain does not match his radiology. His pain does not match his mechanism of injury. There is a distinct mismatch between his presentation, the radiology and his reported pain. This is not a timeline that is consistent with a work-related injury, on the basis of the radiology that we have.
[65] Transcript, page 50.
As can be seen in the evidence of Dr Shooter set out above, he accepts that the Applicant’s had pre-existing changes to his spine of which as far as can be established were asymptomatic prior to the 2 May 2017 work related incident. Dr Shooter provided that the initial lower back strain would be called an exacerbation, noting however that there was no high energy injury, no major trauma, the Applicant was performing his duties for 18 months, the pre-existing changes to his spine were very mild, there are a number of CT Scans which are fairly similar and then an MRI in December 2018 where changes previously identified have entirely disappeared and as such it sounds like an exacerbation that has resolved, or an underlying diagnoses that has a relapsing/remitting pattern, such as something rheumatological in nature that is yet to be diagnosed. Dr Shooter’s opinion is that the present situation is not consistent with a work-related injury that had not healed.
Having considered the evidence provided, the Tribunal prefers the opinion of Dr Shooter over Associate Professor Nusem. The Tribunal considers that Dr Shooter has engaged with the relevant material in a more fulsome and objective manner.
Under evidence in chief and cross-examination, Dr Shooter maintained his view that the imaging results of which he told the Tribunal he had himself reviewed the images and could find no fault with the associated reports; the possibility of an undiagnosed medical issue underlying the Applicant’s back pain; and that he was certain that the initial lower back strain had resolved as some point and the Applicant’s underlying conditions had taken over.
Fourth, as the Tribunal accepts the evidence of Dr Shooter it is satisfied that there are other factors that could be responsible for the Applicant’s reported ongoing symptoms which include the degenerative changes in his spine and the other potential underlying conditions not yet diagnosed as referred to by Dr Shooter.
It is clear in this case that the Applicant has not disclosed his full medical history to the medical practitioners seeking to treat him or to provide medico-legal reports in relation to his claim for workers’ compensation. This together with the opinion of Dr Runnegar gives weight to Dr Shooters hypothesis that a potential underlying undiagnosed medical condition may be responsible for the Applicant’s pain symptoms.

As the Tribunal has found that the Applicant does not continue to suffer the effect of the accepted back condition, it is not necessary to consider the secondary questions relating to the need for medical treatment or resulting incapacity for work.
For completeness the Tribunal notes that the Applicant raised relevant legal tests that apply in the context of incapacity and diseases, in particular drawing the Tribunal’s attention to section 7(6) of the SRC Act and the decision in Martin. The Tribunal does not consider these propositions to apply in the current matter[66] as the Respondent has accepted liability for the approved lower back strain injury on the basis that it was satisfied that the Applicant had suffered an injury that arose out of or in the course of his employment.[67] The SRC Act differentiates between an injury[68] and a disease[69] – the relevant test for an injury is whether or not it arose out of, or in the course of, an Applicant’s employment, whereas the relevant test for a disease is an ailment or aggravation of such ailment. It is clear to the Tribunal based on the evidence before that, the Respondent accepted liability for “lower back strain”, a strain is an injury and the Respondent has not accepted liability for a disease. Therefore, the Tribunal rejects the Applicant’s contentions in relation to section 7 of the SRC Act which deals with provisions relating to diseases.
[66] For reasons that follow those outlined by Senior Member Tavoularis in Dirou and Comcare (Compensation) [2019] AATA 2118 at [11]-[13].
[67]    Exhibit 1, T Documents, T11, pages 47-53, Determination under sections 14 of the SRC Act accepting liability for “Lower Back Strain”.
[68]    Section 5A of the SRC Act.
[69]    Section 5B of the SRC Act.
CONCLUSION
For the purposes of sections 16 and section 19 of the SRC Act, the Tribunal finds that there is no present liability to pay compensation in relation to the previously accepted lower back strain injury as the effects of that injury have ceased.
Accordingly, the decision under review is affirmed.

I certify that the preceding 102 (one hundred-two) paragraphs are a true copy of the reasons for the decision herein of

Member D Mitchell

......[SGD]...................................
Associate
Dated: 24 July 2020

Date of Hearing: 22 January 2020

Counsel for the Applicant: Mr Matthew Black

Solicitors for the Applicant:

Counsel for the Respondent:

IM Lawyers

Mr Charles Clark

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 2448

24 July 2020

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Remedies

Causation

Statutory Construction

Judicial Review

Procedural Fairness

Date of Hearing:	22 January 2020
Counsel for the Applicant:	Mr Matthew Black
Solicitors for the Applicant: Counsel for the Respondent:	IM Lawyers Mr Charles Clark
Solicitors for the Respondent:	Sparke Helmore Lawyers