Te Wake and Australian Air Express Pty Ltd (Compensation) - [2016] AATA 771

Te Wake and Australian Air Express Pty Ltd (Compensation) [2016] AATA 771 (30 September 2016)

Division

GENERAL DIVISION

File Number(s)

2015/4083

Re

James Te Wake

APPLICANT

And

Australian Air Express Pty Ltd

RESPONDENT

DECISION

Tribunal
Bill Stefaniak AM RFD, Senior Member

Date 30 September 2016

Place Sydney
The Tribunal decides that:

1. The reviewable decision dated 27 July 2015 is set aside;

2. The respondent is liable to pay compensation for the medical expenses detailed in the letter of Dr Ling dated 26 March 2015, pursuant to section 16 of the SRC Act;

3. The matter is remitted to the respondent to determine and manage the appropriate amount of compensation; and

4. The respondent shall pay the applicant's costs and disbursements in respect of these proceedings to be taxed if not agreed pursuant to section 67 (8) of the SRC Act.

..........................[sgd]..............................................
Bill Stefaniak AM RFD, Senior Member
CATCHWORDS
WORKERS COMPENSATION - entitlements - compensation in relation to medical expenses - compensation for surgery - test to be applied - whether condition requiring surgery required in relation to compensable injury - whether condition requiring surgery an injury for the purposes of the Act - decision under review set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 16
CASES
Alamos and Comcare (2014) AATA 629

Bortolazzo v Comcare ( 1997) 75 FCR 385
Canute v Comcare [2006] HCA 47
Comcare v Lofts [2013] FCA 1197
Re Luttrell and Military Rehabilitation and Compensation Commission (2012) 133 ALD 600
Re Manns and Comcare (2012) AATA 462

Scotney v Australian Postal Corporation (2016) AATA 72

SECONDARY MATERIALS
Geddes, R, Statutory Interpretation in Australia (eighth edition, LexisNexis Butterworths 2014)
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
30 September 2016
BACKGROUND

The applicant, James Te Wake, was born in New Zealand on 10 December 1964.
He emigrated to Australia in 1979 with a view to playing rugby league in Sydney. He played at a reasonably high standard (although not regular first grade) as a prop forward. His playing weight as a young adult was under 100kgs.
In 2000 he commenced employment with the Respondent (then known as Ansett Australia, now known as Australian Air Express (a subsidiary of Qantas)) - initially as a baggage handler, then as a leading hand and now as a supervisor.
On the 29 October 2013 the applicant was towing a train of dollies to be loaded onto an aircraft leased by the respondent. The coupling between the vehicle he was driving and the train became disconnected and to avoid the damaging the aircraft, he reversed his vehicle and collided with the train of dollies, one of which rose up onto the vehicle he was driving and landed hard on his left foot. The weight of the dolly and the luggage on it was in excess of 1400 kg.
Despite the fact that he was wearing safety boots, his foot was badly injured and he was rushed to hospital.
It is not contested that, as a result of the workplace injury, he suffered a left foot crush injury. He underwent a CT scan, his foot was placed in plaster, he was given crutches and was referred to orthopaedic surgeon, Dr Jeff Ling.
Following a series of medical developments and tests (as detailed below), on 26 March 2015 Dr Ling prepared an ‘Authority for Surgical Procedure”. This sought consideration to be made, by the Respondent, for the paying of the surgery in the form of left subtalar and talonavicular joint arthrodesis and bone graft (“fusion surgery”) as a result of ‘tibialis posterior tendon dysfunction’ (“PTTD”).
Whilst the Respondent accepted liability for the applicant's initial claim and paid for the various medical appointments and time off work up until this point in time, it has refused to accept liability to the request for fusion surgery. It should be noted in evidence before the tribunal the cost of such surgery was estimated to be $4071.60 (T documents page 146).
On 12 May 2015 the determination was made denying liability for fusion surgery (T documents pages 216 to 221). The respondent said that the applicant had pre-existing gout/ swelling/pain in his left leg which was symptomatic prior to his injury and represented a pre-existing condition.
A reconsideration of the determination was sought and on 27 July 2015 the determination was affirmed and the Reviewing Officer found there was no evidence from the doctors he had been referred to, namely Dr Bruce and Dr Ling that the claimant had mentioned any pre-injury complaints and accordingly this affected their reports. The reviewing officer concluded that the condition requiring fusion surgery had not been significantly contributed to by the crush injury sustained on 29 October 2013 (although the reviewing officer did indicate that it may well be appropriate for the applicant to proceed with the proposed surgery but at his own expense).
On 11 August 2015 the applicant applied to the AAT for review of this decision.
LEGISLATION AND APPLICATION TO THE FACTS
Section 16 of the Safety, Rehabilitation and Compensation Act 1998 (“the Act”) provides:
(1) Where an employee suffers 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 the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
However, as noted above, there is some dispute between the parties as to the nature of the ‘injury’ for the purposes of this section.
The Applicant submits that the fusion surgery is being obtained ‘in relation to’ the compensable injury, and that even if the treatment being sought is not a direct result of the crush injury, than there is a clear, relational connection between PTTD and the crush injury.
The Respondent, however, contends that the crush injury is the compensable injury, and that PTTD is not the subject of the proposed joint surgery. Therefore, the Respondent submits that it is necessary to determine whether the PTTD can be determined as an ‘injury’ for the purposes of the Act and submits that it really is a “disease”.
In doing so, the Respondent stated that it was apposite to cite s 5A and s 5B of the Act which relevantly provide:
5A Definition of injury
(1)       In this Act: injury means:
(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.
(2)       For the purposes of subsection (1) etc ...
…
5B Definition of disease
(1)       In this Act: disease means:
(a)       an ailment suffered by an employee; or
(b)       an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2)       In determining whether an ailment or aggravation was contributed to, to a   significant degree, by an employee's employment by the Commonwealth or               a licensee, the following matters may be taken into account:
(a)       the duration of the employment;
(b)       the nature of, and particular tasks involved in, the employment;
(c)       any predisposition of the employee to the ailment or aggravation;
(d)       any activities of the employee not related to the employment;
(e)       any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3)       In this Act:
significant degree means a degree that is substantially more than material.
APPLICANT’S MEDICAL HISTORY
Medical certification issued on 31 October 2013 diagnosed crush injury left.
The hospital discharge referral note, dated 29 October 2013, showed that the applicant presented with severe pain and swelling of the left foot. The Applicant was noted to have a past history of gout affecting the left ankle. X-ray examination revealed displaced fracture of the left fifth proximal phalanx mid shaft. (His little toe on his left foot.) A CT scan of the left foot was conducted as a gross swelling of the forefoot could not be adequately explained by the toe fracture. Metatarsal and tarsal bones fractures and possible spurs were also detected.
On 12 November 2013, Dr Ling reported that when he first saw the applicant two days after the accident, the applicant’s foot was extremely swollen. The treatment plan was elevation, icing and rest, and weight bearing only as necessary in a Camboot Walker. On 12 November 2013 there had been a significant improvement in terms of pain and swelling but the Applicant’s foot was still swollen and tender around the area of the third, fourth and fifth toe. The fourth and fifth toes remained numb.
Dr Lim indicated that the applicant would be off work for a further seven to eight weeks.
On 10 December 2013, Dr Ling reviewed the applicant and noted that he was still unable to weight bare through his forefoot.
The Applicant had returned to light duties, primarily desk and office work some three weeks earlier. Investigations demonstrated no new fractures and early signs of healing were observed to the fifth toe. Dr Ling noted that the recovery time from such an injury would be unpredictable and would depend on what structures were actually damaged during the crush process which he foreshadowed may include the nerves, lymphatic vessels and the muscle.
Dr Ling reported the above to Dr William Ma on 21 January 2014 after again seeing the applicant. He also reported that whilst the applicant’s ankle and hindfoot range of motion was symmetrical, the movement of his toes was still restricted. He noted that the applicant had not started physiotherapy as he was meant to and Dr Ling requested Dr Ma to assist in compliance with that treatment plan. He said apart from that the applicant had been compliant with his management plan otherwise.
At the respondent’s request, the applicant was assessed by Dr George Bruce Orthopaedic Surgeon, on 28 January 2014. Dr Bruce noted the main complaint was pain and severe swelling of the left foot. The applicant told Dr Bruce that the lateral aspect of the left foot had received the brunt of the blow. Dr Bruce was told the applicant did not have a significant past history. Dr Bruce examined the applicant and considered that the appearance of the applicant’s foot was typical of a severe soft tissue injury with residual swelling and adhesions which was consistent with the nature of his crush injury.
Dr Bruce noted that the x-rays dated 10 December 2013 indicated that the fracture relating to the proximal phalanx of the little toe was not significantly healed and appeared at risk of proceeding to a non-union and the doctor recommended follow up x-rays. Dr Bruce opined that the most severe damage had been to the soft tissue structures on the dorsum and sole of the applicants left foot, mainly on the lateral and distal areas of the foot in the metatarsal and toe region. He reported crush damage to flexor and extensor tendons, the subcutaneous tissues and the cutaneous nerves.
Dr Bruce opined (see T doc p 75- 3(b) of his report) that
there was no evidence of a congenital condition. However, there are some signs of mild vascular changes and degenerative changes in the left foot which have made a minimal contribution to his [the applicant’s] present problem.
He went on to say that “(d)…this is not an aggravation, acceleration or recurrence of a pre existing condition. This is a new injury which is a direct result of the crush injury he describes…”.
He went on to further say at page 7 of his report (see point 4 at T documents page 76) that he found the applicant to be genuine.
On 12 March 2014, Dr Ling reported to Dr Huang that there had been some improvement in the applicant’s symptoms and that he was now able to weight bare through the forefoot. Dr Ling considered the applicant would hopefully be able to get off modified duties in a few months but in the meantime physiotherapy was ongoing with lymphatic massage. Dr Ling confirmed he would review the applicant at approximately the six-month mark.
On 4 July 2014 Dr Ling saw the applicant and noted his continued improvement. The applicant was however now complaining of some new pain at the lateral aspect of his ankle and he was tender over the distal fibula. Dr Ling was not quite sure what the cause of this pain was. Dr Ling noted the applicant had normal hind foot eversion power. Dr Ling ordered a new review in six weeks as the applicant still needed the option at work of resting and elevating his foot from time to time.
On 8 July 2014 the applicant saw Dr Huang for review in respect of “intermittent flare up of left ankle and foot pain due to previous crush injury”. He again saw Dr Huang on 29 July 2014 for ankle pain which was described as “acute onchronic” and was prescribed Mobic and advised to undergo blood tests.
On 13 August 2014 Dr Ling reported to Dr Huang that the applicant had made a full recovery and had been cleared for full duties. He stated that “overall, he’s done very well for what was a considerable injury to his foot”.
This, as it turned out, was premature and was admitted as such by Dr Ling when he gave evidence. The applicant was seen by Dr Huang on 4 November 2014 in respect of aggravation of “old left ankle and foot injury”. The applicant complained of intermittent swelling and pain and Dr Huang noted that the applicant's left ankle and forefoot was swollen and tender. Dr Huang referred the applicant for an x-ray and prescribed Mobic.
The X ray that the Applicant underwent the next day revealed degenerative changes in the dorsal aspect of the tarsometatasal joint medially. There was also moderate soft tissue swelling in the left lower leg and around the ankle and a follow-up ultrasound was suggested.
An ultrasound dated 7 November 2014 reported the relevant areas to be intact and outlined normally.
On 8 November 2014 Dr Huang noted there was no structural damage and suggested symptomatic treatment.
The applicant saw Dr Chiu on 28 January 2015 complaining of increased swelling in the left distal leg and ankle over the previous three days. Dr Chiu noted that the applicant had not suffered an injury and referred him to Dr Mohan.
The applicant saw Dr Huang on 3 March 2015 with aggravation of his left ankle and foot pain and was referred to Dr Ling.
Dr Ling saw him on 4 March 2015 and reported to Dr Huang that the Applicant had recently started developing more pain on the lateral aspect of the foot in the sub fibular region and the posteromedial aspect of the ankle along the path of tibialis posterior. The applicant had reported that his ankle was rolling in more. Dr Ling considered that the applicant was suffering from tibialis posterior tendon dysfunction, likely a consequence of his crush injury. Dr Ling refer the applicant for an x-ray and MRI.
The MRI report dated 17 March 2015 concluded:
(a) Sinus tarsi synovitis
(b) Laterally located peroneus longus and brevis tendon
(c) Tinialis posterior tendinopathy
(d) 1^st tarsometatarsal joint osteoarthritis.
Dr Ling prepared a report on 26 March 2015, noting that over the past few months the Applicant had experienced increased pain in the arch of his foot and also laterally in the subfibular region. Dr Ling stated that the applicant was suffering from grade 2 tibialis posterior tendon dysfunction and he suspected that the crush injury had contributed to the evolution of the current condition, as the applicant had altered his gait necessarily, and no doubt, the injury had contributed to the conditioning of all the leg muscles including tibialis posterior.
Dr Ling did not recommend the normal standard treatment for such a condition due to the applicant's size. At this stage the applicant weighed 150 kg and accordingly there was a reasonably high risk of failure. In people of the applicant's size with that condition the standard approach would be a triple arthrodesis (referred to as “fusion surgery”) and that was Dr Ling's recommendation.
Evidence of Dr Nair
The Respondent, who had referred the applicant to Dr Bruce, now referred him to Dr Anil Nair, Orthopaedic Surgeon.
Dr Nair assessed the applicant on 1 May 2015. Dr Nair reported on the same date that the applicant complained of pain in the medial aspect of his left foot, adjacent to the medial malleolus. The applicant reported to Dr Nair that his foot had changed shape in that it had adopted an adducted posture in the last few months. He complained that he also had difficulty falling asleep due to the pain in his foot.
Dr Nair (see report T docs pages 210 to 215) diagnosed the applicant with tibialis posterior dysfunction as well as arthrosis of the mid foot. He stated that the aetiology is thought to be a degenerative tendinopathy of the tibialis posterior tendon. Significantly, whilst he stated that there were degenerative aspects to the condition, Dr Nair dismissed the suggestion that the applicant's history of gout in the left ankle was a contributing factor whilst he conceded that the applicant’s weight was likely to be a factor in the progression of his condition. He stated that in his view the condition was an aggravation of a pre-existing of this condition.
Dr Nair went on to say that “…the lack of complaints about symptoms in the medial side of his left ankle may have been due to the fact that the applicant had an overwhelming distracting injury in the lateral aspect of his left foot.” (T documents page 213). He went on to say that “[W]hilst I am not aware of alteration in gait as an aetiology of tibialis posterior dysfunction, I deem it possible that the trauma sustained to his left foot may have played a role in the genesis of tibialis posterior dysfunction” (T documents page 214).
Dr Nair agreed with the surgery proposed by Dr Ling. In his view the applicant's prognosis was guarded in view of his excessive weight and smoking, however he had “exhausted non-operative treatment options” (T documents page 215).
Evidence of Professor Sullivan and Dr Ling
On 29 September 2015 the respondent sought a further opinion from Dr (Professor) Martin Sullivan orthopaedic specialist and foot and ankle Surgeon. He examined the applicant on 13 October 2015 and provided a report dated the same day.
Professor Sullivan noted that the applicant continued to suffer pain and was particularly concerned about pain around the outside lateral border of the left ankle.
Professor Sullivan stated that the examination revealed an antalgic gait and that the applicant was unable to walk unaided. He walked with the aid of a walking stick. He examined his left foot and left ankle and amongst other things found he was tender over the base of the little toe on his left foot but this tenderness was different to the pain and tenderness that was elicited in the sub fibula region of the left ankle.
He had altered sensation distal to the area where the crush injury occurred in the left forefoot. The sensation was decreased. He had a positive single stands heel raise test on the left and the doctor was unable to fill pulses in the left ankle.
The doctor noted the Applicant was a heavy smoker and his normal weight was 135 kg.
Professor Sullivan opined the usual symptoms of stage one tibialis posterior tendon dysfunction was usually a reversible condition more often seen in younger healthy patients such as runners and other athletes. The symptoms of stage two can vary from either pain over the tibialis posterior tendon and distal medial malleolus. However, it is possible for patients to present with lateral pain which is secondary to subfibular impingement as a result of the tibialis posterior dysfunction. Patients can present with no medial symptoms which can be a trap for people who are not aware of this condition.

Professor Sullivan stated that a patient's obesity is a predisposing factor for the tibialis posterior dysfunction. The tendon pathology is more to a degenerative condition as patients get older. He went on to say:
The symptoms that the patient complained of about to his GP from 2009 through 2013 are not consistent with stage one and/or stage two tibialis posterior tendon dysfunction.
He stated generally stage two was not reversible and was not something that comes and goes. He agreed with a diagnosis of stage two tibialis posterior tendon dysfunction.
He further stated that he did not consider that the crush injury caused the condition nor did he consider that the crush injury caused the progression of the tibialis posterior dysfunction. It should be noted that he later qualified this statement to a minor degree in evidence by stating that the crush injury would be of some relevance.
He felt the surgery proposed by Dr Ling would not be reasonable if the patient continued to smoke because it involved a fusion of joints and was unlikely to be successful if the patient continued to smoke after surgery. Due to the patient's obesity soft tissue surgery would be likely to fail.
He later indicated and confirmed this in oral evidence that the surgery proposed by Dr Ling was the only surgery acceptable if surgery had to be undertaken, but that he did not consider the surgery proposed was reasonable medical treatment in respect of the accepted condition of the crush injury left foot.
Professor Sullivan went on to state that the applicant’s pre accident complaints are more likely due to episodes of gout which have resolved than the onset of tibialis posterior tendon dysfunction. He went on to say that the onset of tibialis posterior tendon dysfunction is difficult to ascertain as the patient was unable to remember when he developed pain laterally. However his age and obesity have predisposed him to this.
It should be noted here that the onset of lateral pain appears to have been after the work place accident and appears to be first noted in the later half of 2014 (after the applicant had been cleared to go back to full duties by Dr Ling in August 2014).
Further updated reports were sought by the applicant from Dr Geoff Ling ( 31 May 2016) and by the respondent from Professor Sullivan (report dated 14 June 2016 in relation to an examination undertaken on 31 May 2016). These were tendered in evidence.
Dr Ling saw the applicant on 31 May 2016.
Dr Ling noted that the applicant had lost 10 kg in the last year and was also told that he had stopped smoking. The Applicant in evidence before the tribunal later qualified this by saying that he still smoked 5 to 8 cigarettes a day but had every intention of quitting entirely prior to any operation.
Dr Ling said there had been no change in the applicant's physical status and that he still had grade 2 tibialis posterior tendon dysfunction.
He stated that weight loss and cessation of smoking would certainly decrease any risk and post-operative surgical complications in terms of infection and bone healing. He still recommended the bone fusion surgery if the applicant were to go down the surgical route as that gave the applicant the best chance of pain relief. He stated rehab would take 9 to 12 months and the applicant's risk of complication is higher than the average person because of his size and smoking history.
The doctor stated that having said that, the success rate for this operation in this condition is normally high. He went on to say that there were a number of risks including wound infection, wound breakdown, allergic reactions, deep vein thrombosis, failure of fusion of about 10% and, ongoing pain.
Dr Ling stated that he did not completely disagree with Martin Sullivan and he did not believe that the workplace injury was the sole cause of the tibialis posterior tendon dysfunction. No doubt the applicant size and age had been contributing factors over many years. However he felt the workplace injury was a contributing factor to the following reasons:
James did not have this problem immediately before this injury. His foot was completely fine with no deformity. He then sustains a severe crush injury at work to this foot with injury primarily to the lateral border of the foot. As a result, he walks with a limp for many months, walking more on the medial border of his foot due to the pain, with the foot externally rotated. This in my opinion, particularly in the context of this gentleman’s immense size, could result in increased stress along the tibialis posterior tendon, hence contributing to its demise. This is the most logical and plausible way to view what has happened given the temporal sequence of events.
Dr Lim went on to say that the applicant had two goals, firstly to continue working in any capacity possible and secondly to have a pain free foot.
If an operation did not occur the other options would include persisting with non-operative options including stability shoes, prescription orthotics, however he felt these were unlikely to give the applicant complete long-lasting relief.
On the same day Dr (Professor) Martin Sullivan also saw the applicant.
He noted that the applicant had lost 9 kg since he last saw him but the Professor stated that he felt the applicant continued to be a high risk for any fusion type surgery. His examination revealed bilateral pitting oedema and lymphoedema.
He felt the applicant's bilateral lymphoedema, weight and previous smoking history would continue to impact on his prognosis and that the anaesthetic risk is considerable. He felt the main contributing factors to his tibialis posterior tendon dysfunction were his age, smoking history, lymphoedema and obesity.
He went on to say that he did not feel that the stage 2 tibialis posterior tendon dysfunction was contributed to or aggravated to a significant degree by his employment or by the crush injury on 29 October 2013. He also felt that the proposed surgery was unlikely to result in any significant improvement in his pain and function.
It should be noted that in evidence given before the tribunal he did state that this was the only type of surgery that was acceptable if one had to have surgery, and conceded that the crush injury contributed to this dysfunction albeit certainly not to a significant degree.
Dr Ling gave evidence before the tribunal and stated that he had seen the applicant on a number of occasions (9) and was very familiar with this case. Dr Ling stated that he absolutely agreed with his diagnosis of 31 May 2016 (Exhibit F).
He explained what the medical terms meant to the tribunal and advised the tribunal that we are talking about the tendon that fits on the inside of the ankle and that pulls the foot inwards and holds the arch. In some people it degenerates and leads to a flatfoot and the stage 2 condition was a deformity where the ankle started to roll in but the hind foot still is flexible and can rock back and forth. On the applicant the tendon was swollen with fluid around it and tears along it. A hallmark of this condition is a person being unable to get up on their toes and he stated that the applicant’s foot looked exactly the same now as it did in March 2015 was still sore in some spots and that nothing had changed.
He stated that in March 2015 he suspected that the crush injury had contributed to the evolution of this current condition. He suspected this because the post tension happened after the injury and that this function normally occurs over many years.
All wear and tear can be hastened by an acute injury. As the applicant had a fracture to his outer fifth (i.e. his little toe on his left foot) he walks on the inner border of his foot more and this puts more stress on the tibialis.
Dr Ling said that this is not the only factor contributing to the condition because: “he is a big guy and he is middle-aged" but he did not have it before the injury and he developed it in the same area in the same foot. Dr Ling stated “it would be an amazing coincidence otherwise".
He stated for a stage two condition the peak is around 50 to 60 and a person with more weight is likely to get it and having flat feet does not help.
He stated there was no defect before the injury and after the injury the applicant walked more on the medium border which puts stress and contributes to its demise. The medial border is the medial inside near where the big toe is located.
He said the pain was from the crush injury and the fifth toe fracture from the crush injury.
The surgery proposed was fusion of the joints. He stated the bones needed to be a fused together. Bones are normally held apart by cartilage. He said 10% of fusion would not work. Fusion would restore the applicant’s alignment and take away most if not all of the pain.
He said the applicant had a painful gait and was spending less time standing on his leg. He held his foot externally rotated which was a product of an ankle rolled inwards. Dr Ling noted that in March 2015 the applicant had a similar gate but he did not have to use a stick at that time. It was all extremely painful for the applicant. He summarised by saying the foot points out and the ankle points in.
Under cross-examination he indicated that the swelling had persisted the many months after the bones had healed. He stated that whilst the applicant appeared well on the way to recovery, as it is the soft tissues that take the longest time to heal.
The doctor was queried about his statement and clearance for the applicant to go back to full-time duties. He replied “I always want my patients to go back to work as soon as possible. I pushed them to go back to work. He was still limping. I was not given details of what his duties were”.
He stated in retrospect he probably should have qualified his clearance for the applicant to go back to work.
He further stated that the ideal weight for the applicant should be around 110 to 115 kg and he therefore needed to lose more weight prior to any operation. There should be a further weight loss and the applicant should try wearing orthopaedic inner soles to help his feet.
When questioned further about clearing him to go to work Dr Ling stated that he didn't record everything and that he recalls the applicant still walking with a slight limp. He stated that this is a guy who sticks in your mind and he recalls him (the Applicant) being optimistic at the time that he would be able to manage going back to work full time and on full duties.
Dr Ling further stated that Professor Sullivan’s statement that the injury had nothing to do with the crushed injury was a hypothesis only and noted that if the current condition requiring a fusion surgery has got little if anything to do with the crush injury then it was an amazing coincidence that it manifested itself when it did after the applicant suffered the crush injury at work.
He stated that in a busy public and private practice he had been doing this sort of thing for four years and his failure rate in this type of operations was 5%.
During his oral evidence, Professor Sullivan affirmed his October 2015 statement stated that he had some 22 years experience as a foot and ankle specialist. He had looked at Dr Ling's report and he felt the condition was more likely due to other factors obesity, gout, smoker, aged demographic, lymphodema.
He did agree with Dr Ling in relation to the altered gait in that ‘– this would put more stress on the medial side but not that it would cause a problem with the tendon’.
In cross-examination he confirmed that the gout had resolved, there was no evidence of gout recently and that gout was not the cause of the condition.
He agreed that if surgery was to occur it should be the fusion surgery, but he reiterated that any surgery was a problem.
Professor Sullivan was read various comments he had made in his reports. He stated that he could not say what caused the onset of tibialis as it was multifactorial.
He conceded that the accident could not be ruled out. It really was a matter of degree and weight and he said it was possible there was a relationship.
He said he could not opine when the applicant was walking on the medial border of his foot and indicated it probably was when he developed tibialis but he could not be certain about anything. He went on to say that a lot of people walk on the medial border and get tendon problems.
He said that whilst Dr Ling’s opinion appeared plausible and sounded reasonable, it doesn't necessarily follow that a tendon will become dysfunctional. A tendon was like “a soggy bit of rope, it gets overloaded”. He stated that could be a contributing factor.
When Dr Nair's report was put to him (T docs P 215 question 15), Professor Sullivan answered “ I feel he has exhausted non-operative treatment".
Professor Sullivan felt that the fusion surgery “… would not lead to a significant improvement in his overall function but if you have to do surgery it’s the only surgery to do. I don't think he’ll get significant improvement in pain”.
It was also put to Professor Sullivan by Counsel for the applicant did he accept that Dr Ling's comments were more relevant coming from him because he ( Dr Ling ) was the treating doctor rather than from Professor Sullivan. Professor Sullivan replied “mine are based on lots of patients over a long period of time. I am a bit more guarded.”
In re-examination he stated the workplace injury in his view was not a significant factor but it was a factor and that smoking 5 to 8 cigarettes a day increased the risk of any operation. He stressed one cannot smoke after fusion.
APPLICANT’S EVIDENCE
James Te Wake gave evidence indicating that he was now on a diet and weighs 139 kg. He stated he still smoked 5 to 8 cigarettes a day and noted that he cannot smoke at the airport. He confirmed that his left ankle had gout and this affected his lower leg and ankle.
In relation to the lymphoedema, that is swelling in the leg below the knee, he stated he only had it in the left leg and that no medications have been prescribed, only compression socks. He had, in relation to his left foot and ankle, had x-rays, the first which occurred in 2009. He had gathered from his doctor that it was not that serious and he could walk and he did not take time off work over it. He stated he did not have any injuries to his left foot/ ankle until October 2013.
He stated he never had an injury like this before.
Because he still had problems with his left foot and left ankle with swelling he went back to the specialist in March 2015 and he stated he had pain all the time from his toes to his ankle.
When he went back to full time duties after August 2014 he said it was largely doing administrative duties and that he had been largely seated and wore a moon boot. After the boot was removed he wore compression socks and then he gave the socks away.
He said his left foot was now structurally changed and that the crush on the left side had pushed it out so that he walked on the other side. He first noticed this in early 2015. He stated he did not see any alternative to surgery with Dr Ling. He had discussed with Dr Ling special orthopaedic shoes and stopping smoking. He said Dr Ling told him that he would not be operated on unless he stopped smoking and he was aware of the risks of smoking and being overweight.
He said he would be going in to have the operation quickly if the operation were paid for. He stated he had a great job and he loved it and that he had seen Professor Sullivan and discussed losing weight with him but the alternatives to the operation were not discussed.
PARTIES’ SUBMISSIONS
Prior to looking at the submissions, assessing the evidence and applying the evidence to the law, I would at this point in time state that I am satisfied on the evidence that contrary to earlier findings made by other bodies in this matter it is not disputed that gout played no part in the applicant's current condition. Accordingly, gout is of no relevance to this matter.
In the medical reports prior to October 29 2013, mention is also made of some deterioration and possible spurs in the left foot/ankle. I can find no evidence, either in the written reports or in my notes of the proceedings before the tribunal to link these brief comments on the medical notes with any examinations or observations made after 29 October 2013.
Indeed Professor Sullivan at page 2 of his report of 13 October 2015 states
The symptoms that the patient complained of to his GP from 2009 through 2013 are not consistent with stage one and/or stage two tibialis posterior tendon dysfunction.
Accordingly, apart from the unconnected references to some deterioration prior to the accident which may or may not have something to do with the current condition the reports by the respondent’s witnesses are silent in relation to any linkage. Indeed they seem to suggest the opposite if the above report of Professor Sullivan is anything to go on.
Professor Sullivan has great experience in this area and one would expect him to link the above in some way if he felt it were relevant. He simply states that because of the applicant’s weight, smoking habits and tendency to flat feet that he would have a propensity over a long period of time that would lead to this type of condition.
In earlier documents much was made by the respondent of the fact that the applicant had not mentioned any prior issues and had not disclosed problems with gout and inflammation of the left leg/ankle or any other medical problems that may be relevant. At first blush this did appear to the tribunal to be very relevant indeed and quite problematic for the applicant, but as a result of the subsequent statements made by the experts in this matter, including the experts called by the respondent, prior conditions such as gout now appear to have little if any relevance to the development of the applicant’s condition requiring fusion surgery if the surgery is to be undertaken.
The crux of this matter seems to me to boil down to whether the current condition whereby the applicant seeks payment for fusion surgery was one that could have manifested itself at any time and that the accident had little to do with bringing it on,or, conversely, that whatever condition, if any, the applicant had could have been expected to manifest itself in some way prior to the workplace accident given the applicant’s weight (obese for over 20 years) , smoking habits, age and that the fact that it only surfaced after the crashed foot accident is a clear indication that it was that incident that led to the applicant’s current condition and problems...
The parties made written submissions with the applicant handing up their outline of submissions on the last hearing date as well as making a number of statements.
APPLICANT’S SUBMISSIONS
The applicant submitted that s 16 of the SRC Act materially provides for compensation in respect of medical expenses. Specifically
(1) – Where an employee suffers 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 the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
The applicant submitted that the phrase “in relation to" – has a broad meaning that simply signifies that there is some relationship connection between two matters: see Re Luttrell and Military Rehabilitation and Compensation Commission (2012) 133 ALD 600 citing Re Manns and Comcare (2012) AATA 462 with approval.
Also in Statutory Interpretation in Australia 8th edition, it confirms that the expression “in relation to “ is one of “broad import” and “requires no more than a relationship, whether direct or indirect, between two subject matters”.
The applicant went on to say that if there is any ambiguity, “the construction of s 16 ought be liberal in favour of the applicant “because it is beneficial legislation. (see Bortolazzo v Comcare ( 1997) 75 FCR 385 at 388 per Heerey J).

The submission in paragraph 17 stated that the reviewing officer’s findings about the respondent's liability, pursuant to section 16 of the SRC Act, to pay compensation for the joint arthrodesis surgery had not been made adhering to the test articulated by section 16. That is, neither the determination nor the reviewable decision determined whether the surgery was being obtained “in relation to” the applicant’s compensable injury.
The submission went on to submit that the wrong determinations have been used. Paragraph (20) of the determination stated that the reviewing Officer was not satisfied that the condition from which the complainant was currently suffering had been significantly contributed to by the injury sustained on 29 October 2013.
This test is one which is objectively higher or more demanding. The applicant further takes umbrage with paragraph (30) of the reviewable decision which stated “I must be satisfied that the claimant continues to suffer from the effects of the injury sustained on 29 October 2013 and that any such need for treatment arises as a result of that injury “- again a more stringent test
Paragraph (38) of the reviewable decision stated – “Overall, I find that I am not satisfied that the left subtalar and talonavicular joint arthrodesis and bonegraft" has been significantly contributed to by the crush injury sustained at work with AaE on 29 October 2013 and as such I am of the view that the recommended surgery is not related to his employment with AaE”.
The applicant contended that the test used in the respondent’s statement of facts and contentions is not the correct one, that is, it is not relevant to say whether the crush injury did not cause or contribute to a significant degree to the aggravation of the condition because the correct test is it merely has to be in relation to the compensable injury. In this respect, the applicant states Professor Sullivan’s reports are of little use.
The applicant went on to say that the current condition is a likely consequence of the crush injury and that it follows that the surgery proposed is being obtained in relation to the compensable injury.
The applicant further stated that Dr Ling confirms after his examination of the applicant on 31 May 2016 that “I think the workplace injury is a contributing factor” and provides an account as to why, focused upon the temporal sequence of events. The applicant submitted this is a compelling account and one which the tribunal should prefer.
Finally Dr Nair who was engaged by the respondent to provide an independent medical expert report stated that “yes Mr Te Wake’s weight is likely to be a factor, however it is my opinion that the injury has played a role in the genesis of his condition.”
Dr Nair detailed that the applicant’s current condition was ‘tibialis posterior dysfunction and stated
whilst I am not aware of alteration of gait as an aetiology of tibialis posterior dysfunction, I deem it possible that the trauma sustained to his left foot may have played a role in the genesis of tibialis posterior dysfunction( PTTD).
The applicant went on to say that, therefore, as the compensable injury has played a role in the PTTD, which the joint arthrodesis surgery is now being sought to address, it is submitted that this procedure is being obtained in relation to the compensable injury.
The applicant, despite expressing serious reservations about the utility of Professor Sullivan’s evidence, did state :
It is noted that Dr Sullivan confirms that ‘unsteadiness of gait ’may be complained of for people with PTTD. The applicant's gait has been affected and, so, the applicant submits that this is demonstrative of him being someone who suffers from PTTD. Dr Sullivan says nothing of substance to allow the tribunal to resolve the issue before it, with respect to section 16 of the SRC Act.
The applicant submitted that the case of Somerville v Comcare ( 2016) AATA 289 at [29] is authority which ought guide this tribunal because it demonstrates that it is appropriate for the tribunal to determine reasonableness by considering whether the joint arthrodesis surgery will alleviate and reduce the effects of exacerbations of the applicants condition and provide pain relief and restoration.
At paragraph 29 in Somerville the tribunal stated
… I have ultimately concluded that it is not unreasonable for Ms Somerville to obtain occasional physiotherapy treatment, with a view to alleviating and reducing the effects of exacerbations of her condition, including reducing pain and restoring function. In my view, the expected cost of such treatment is not unreasonable having regard to the likely benefit to Ms Somerville.
The applicant quoted a number of other cases, one which was the case of In Alamos and Comcare (2014) AATA 629 which was cited with approval in the matter of Scotney v Australian Postal Corporation (2016) AATA 72 at paragraphs 93 and 94..
[93] …in Alamos and Comcare ( 2014) AATA 629, the tribunal found that it was necessary to consider all the circumstances, and not only the beneficial effects which may be obtained by the suggested treatment. The tribunal found that some but not necessarily all of the relevant factors in relation to the ultimate determination are:
. the benefit of the treatment to the injured worker;
. the long-term effect of the treatment;
. whether the treatment is likely to cure the injury or significantly reduce its effects;
. whether the treatment maintains the status quo; and
. the cost of ongoing treatment.
[94]… in relation to the above, no one factor is more determinative than the other. Any determination is fact specific and often the tribunal will balance all of these factors when determining whether a suggested treatment is reasonable.
The applicant submitted that the proposed treatment was reasonable in all the circumstances for the applicant to claim and firstly they relied on Dr Ling's opinion who made this recommendation against a background of being the main treating doctor of the applicant.
Secondly, Dr Ling opined that this was a reasonable treatment that would give the applicant the best chance of pain relief and any other non-surgical options were ‘unlikely to give him complete, long lasting relief", and;
Thirdly the Applicant relied on Dr Nair's opinion who agreed with the treatment program recommended by Dr Ling and Dr Nair stated- ‘I feel that he has exhausted non-operative treatment".
The applicant noted that Professor Sullivan’s view about reasonableness did not appear to take into account the fact that the applicant will not be smoking post surgery and that he has demonstrated a willingness to achieve the best health he can to encourage a positive result post surgery.
RESPONDENT’S SUBMISSIONS
At the request of the parties, the respondent was given an opportunity to lodge written submission and the applicant a further chance to lodge submission in reply. Both parties did this.
The respondent agreed with paragraphs 1 and 2 of the applicant’s Outline and stated that for convenience sake it would refer to the surgery proposed by Dr Ling as the "joint surgery” and the condition that is claimed to require the joint surgery as "PTTD".
The respondent agreed that on 1 November 2013 it accepted that it was liable to pay compensation to the applicant in accordance with the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”) in respect of a “crush injury left foot” (the "crush injury”) sustained on 29 October 2013. The crush injury was sustained in the course of the applicant’s employment with the respondent.
The crush injury caused soft tissue damage on the dorsum of the applicant’s left foot, and an x-ray showed a fracture of the phalanx of the little toe. The damage concerned soft tissue structures on the dorsum and sole of the left foot, mainly on the lateral and distal areas in the metatarsal and toe region (Dr Bruce, Orthopaedic Surgeon, 28 January 2014 - T29/70-78). Dr Bruce did not diagnose that the applicant was suffering from or had developed PTTD.
Although the respondent disputed that the applicant has suffered an ‘injury’ that requires surgery for which compensation is payable and that the joint surgery is not, in any event, reasonable in the circumstances; it conceded the joint surgery proposed by Dr Ling, should it be ever undertaken, was the type of joint surgery that is appropriate in his circumstances for treating PTTD.
The respondent submitted that the determination and the reviewable decision correctly applied s 5B of the SRC Act because PTTD is not a ‘crush injury’ i.e. either a ‘disease’ or ‘an injury (other than a disease)’. Moreover, if it was and which the respondent denies, s 5B was correctly applied because PTTD meets the description of the definition of ‘ailment’ as defined by s 4(1) of the SRC Act, being: “any physical or mental ailment disorder, defect or morbid condition (whether of sudden onset or gradual development)''.
The respondent went on to say that further, , PTTD is not for the purposes of the SRC Act an ‘injury (other than a disease)’ because it does not involve a physiological change that arose out of, or in the course of, the applicant’s employment with the respondent.
The respondent said the applicant had made no submission that PTTD is an ‘injury (other than a disease)’ for the purposes of the SRC Act. The Outline, and the presentation of the applicant’s case before the Tribunal, including cross examination of Professor Sullivan, merely asserted that on the construction of s 16(1), the crush injury was ‘an injury’ in relation to which medical treatment was to be obtained and that it was, therefore, reasonable for the applicant to obtain that treatment in the circumstances. (See s 5A and s 5B of the SRC Act; Military Rehabilitation and Compensation Commission v May [2016] HCA 19.
The respondent submits that the Outline misconstrued the application of s 16 of the SRC Act because:
(a)       The injury suffered by the applicant on 29 October 2013 in the incident was   the crush injury, not PTTD. The crush injury is not the subject of the   proposed joint surgery;
(b)       There is no evidence that at the time that the incident occurred that the   physical structures within the applicants left ankle associated with PTTD   were damaged (e.g. fractures to the calcaneal/talus: clinical and/or   radiological scans showing tendonopathy of the tibialis posterior tendon);
(c)       No diagnosis was made proximate to the incident that the posterior tibial   tendon (the “tendon”) suffered any pathological or physiologic change as a                   result of the incident. The applicant had, according to Dr Ling, recovered   from the crush injury and has certified him fully fit for fulltime normal duties;
(d)       The applicant relied upon the opinion of Dr Ling in which the applicant   developed “increased hindfoot valgus on the side” and is “too many toes   sign positive” which was said to have developed because the applicant had              to “alter his gait" as a result of the crush injury;
(e)       Dr Ling in his evidence in chief described PTTD as a “new problem” in   respect of when he examined the applicant on 26 March 2015 some 17   months after the incident;
(f)        Dr Nair, Orthopaedic Surgeon, who examined the applicant on 22 April   2015 adverted to PTTD as progressive with an aetiology “thought to be a   degenerative tendinopathy of the tibialis posterior tendon" (T62/210-  215);and
(g)       Professor Sullivan in his viva voce evidence provided a description of, and   aetiology of, PTTD as being generally due to ‘degenerative tendinopathy of               the tibialis posterior tendon’.
In relation to section 16 of the SRC Act, the respondent said that the commencing point in correctly construing and applying s 16 in respect of any liability to pay for the cost of medical treatment in respect of ‘an injury’ is s 14(1) of the SRC Act: not s 16(1).
Relevantly s 14(1) provides:
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.
In considering the correct approach to be adopted in construing the SRC Act, although dealing with a psychological impairment that developed as a result of an employee who had sustained a prior back injury, the High Court observed in Canute v Comcare [2006] HCA 47 relevantly at [8] and [9]:
The concept of "an injury" is a term of pivotal importance in the structure of the Act... At this juncture, three things may be observed about the concept of "an injury". First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment if is liable to pay compensation in respect of "the injury". Secondly, the term "injury" is not used in the Act in the sense of "workplace accident". The definition of "injury" is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term "injury" is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to "disease" or "physical or mental" injuries and, at least to that extent, if assumes that an employee may sustain more than one "injury" [emphasis added]
It went on to submit that the court noted and spoke approvingly at [25] of the approach adopted by Hill J in the appeal from the Tribunal where Hill J held that:
the AAT had erred in failing to consider whether the chronic adjustment disorder was itself "an injury" for the purposes of the Act. His Honour remarked that:
The fact that the two injuries were caused by a single event... is not a relevant question under the Act. The Act is concerned with injuries, not incidents.
This is correct, having regard to the considerations discussed earlier in these reasons.
(see [2005] FCA 299: (2005) 40 AAR 327 at 336.)
In Comcare v Lofts [2013] FCA 1197 Mortimer J„ observed:
“[60] The hierarchy of provisions in the SRC Act (see Canute [2006] HCA 47; 226 CLR 535 at [37] indicates that it is the occurrence of an injury which both “actuates and defines the ambit of Comcare's duty" to pay compensation. In Canute, the Court used this description when speaking about Comcare's duty under s 24 of the SRC Act, but the description applies with equal force to Comcare’s duties under other provisions, including ss 14 and 16."
The respondent went on to say that the circumstances in the present case are essentially no different to those that concerned the High Court in Canute: an initial definitive injury (crush injury) with a ‘sequela’ (PTTD). The applicant sustained a crush injury to his dorsal forefoot along with a fracture of the proximal phalanx of his little toe and subsequently in point of time developed symptoms and changes to his hindfoot. Those changes were not the subject of a recorded clinical observation by a specialist and/or diagnosis until 26 March 2015, some 17 months post the incident.
The indisputable facts are that the applicant has ‘developed’, to adopt Dr Ling's viva voce evidence, ‘a new problem’, that for the purposes of the SRC Act constitutes an ‘ailment’. The question thereafter is whether the new problem’ being an ailment, was a ‘disease’ (injury) under s 5A of the SRC Act, and if so, ‘an injury' to which the cost of medical treatment to be obtained is in relation to ‘the [that] injury'?
Having determined that PTTD was an ‘ailment,’ the respondent was statutorily bound to apply s 5B to the facts. In the circumstances, s 5B cannot be satisfied for the reasons advanced by the respondent's delegates.
The respondent then made further submissions in relation to causation, PTTD and the crush injury.
It submitted that the only connection principally advanced by the applicant as to the cause of PTTD and the crush injury is that the applicant’s gait was affected in such a manner as to cause a dysfunction (tears - fissures - elongation to the point of effective failure) to the tendon.
There was also an asserted ‘logic’ (temporal sequence of events): that because the crush injury occurred there was an inescapable progression, according to Dr Ling, that with assumed (not observed in the relevant period) walking more on the medial border of his foot due to pain, with the foot externally rotated such that the tendon became dysfunctional.
The respondent said that the applicant’s evidence was that post the incident on his return to work he was desk bound undertaking computer based administrative tasks. That is, his employment post the incident did not involve him ‘hobbling around' on the medial border of his left foot.
No evidence was provided in his statements (Exhibits ‘D’ and ‘E’) or elicited from the applicant in his evidence that he was doing anything more than being seated at work or at home. Exhibit D at [14] page 2, not only accords with his viva voce evidence but also indicates that post injury he would stay at home with his foot elevated.
Exhibit E was to a similar effect. The applicant states at [8] page 1 that post the incident that he could “not stand up for long periods. I have to sit down after a short period.” The applicant goes on to state that he “has been limping around for about a year and a half’ (Exhibit E: at [10]). However, this assertion is controverted by the applicant's prior statement and the fact he was not ‘limping around at work’, to any extent, because he was desk bound.
The respondent went onto submit that the hypothesis advanced by Dr Ling was not supported by the facts averred to by the applicant as to the frequency of his ambulation after the incident.
Dr Nair provides a hypothesis that the applicant’s PTTD was caused by an aggravation of a pre-existing condition without expressly identifying what the pre-existing condition was i.e. the crush injury or dysfunctional tendon.
He accepted that the applicant’s (obese) weight is “likely to be a factor; however it is my opinion that the (crush) injury played a role in the genesis of this (PTTD) condition” (T62/213).
The respondent noted that 'playing a role’ is not sufficient to satisfy the statutory requirements of s 5B of the SRC Act because there has been no probable contribution, to a significant degree, by the applicant’s employment to the cause or aggravation of PTTD.
However, the basis for his hypothesis is similar to that of Dr Ling: he assumes that the “complaints of symptoms in the medial side of his left ankle may have been due to the fact that he had an overwhelming distracting injury in the lateral aspect of his left foot”[emphasis added].
Dr Nair also opines that: “whilst I am not aware of alteration in gait as an aetiology of tibialis posterior dysfunction, I deem it possible that the trauma sustained in his left foot may have played a role in the genesis of tibialis posterior dysfunction” [emphasis added]. Dr Nair was only satisfied that there was a ‘possible’ not ‘probable’ causal connection between the applicant's alleged ‘altered gait' and PTTD.
The responded further submitted that …”on the question of whether there was a logical connection between the crush injury and the cause of PTTD, both Dr Ling’s and Dr Nair's approach is not logical but illogical”. It involves what is recognised in law and philosophy as an inappropriate deduction well known as:
Post hoc ergo propter hoc (Latin: "after this, therefore because of this") is a logical fallacy (of the questionable cause variety) that states "Since event, Y followed event X, event Y must have been caused by event X."
The logical approach as to the cause of the applicant suffering PTTD is rooted in medical science not subjective ‘logic’. Professor Sullivan, a medical practitioner at professorial level actively involved in training orthopaedic surgeons for 2 decades in conditions affecting the lower limbs, has provided the causal basis for the applicant developing PTTD that has nothing to do with the crush injury sustained by the applicant as: the applicant is within the age group that is at risk to the development of PTTD: the applicant is morbidly obese and has been for some 2 decades; the applicant suffers from bilateral lymphedema of the lower limbs (an appearance like elephantiasis), and that he has a likely genetic flaw of flat feet.

The respondent then submitted that Professor Sullivan had also noted that with the progression of PTTD those who suffer from the condition, frequently develop a tendency to walk on the medial aspect of the affected foot as a result of the condition itself. Taking into account the factors identified by Professor Sullivan, there has been no probable contribution, to a significant degree, by the applicant's employment to the cause or aggravation of PTTD. The contributing factors to the cause of the applicant suffering PTTD do not stem from the applicant's employment, but ostensibly arise from lifestyle choices, hereditary factors and a non-work related bilateral ailment.
Despite Dr Ling, in his evidence, claiming to have a substantial practice in the treatment of PTTD, he nonetheless, only obtained his accreditation as an orthopaedic surgeon in 2012 and he re-examined the applicant in March 2015 when he proffered his ‘hypothesis’. A 'hypothesis' that is not supported by Professor Sullivan, who has practiced exclusively in surgery of the lower limbs for some 20 years and a hypothesis which is doubted by Dr Nair.
The respondent submitted that Professor Sullivan’s opinion should be preferred and that the correct and preferable decision is to affirm the reviewable decision.
The respondent concurred with the Applicant’s Outline in respect of the following:
(a)The question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from the particular injury (Re Jorgensen and the Commonwealth (1990) 23 ALD 321 at 325).
(b)The relevant factors to be taken into account will need to consider all of the circumstances, and not only the beneficial effects which may be obtained by the suggested treatment, includes but is not limited to:
·the benefit of the treatment to the injured worker;
·the long-term effect of the treatment;
·whether the treatment is likely to cure the injury or significantly reduce its effects;
·whether the treatment maintains the status quo; and
·the costs of ongoing treatment.
The respondent also submitted that other relevant considerations include, without being exhaustive:
·the likely recurrence of and extent of the symptoms, should the proposed treatment fail;
·the potential worsening of the symptoms, should the proposed treatment fail; and
·other factors which may substantially increase the risk of the failure of the treatment.
In this matter, in regard to the evidence of Dr Ling, and notwithstanding that authorisation for the proposed joint surgery was sought:
(a)that absent a significant reduction in the applicant’s weight (45- 50kgs);
(b)the cessation of the applicant smoking cigarettes (claimed at present to be 5 - 8 cigarettes per day); and
(c)the need for conservative treatment to be attempted.
The proposed joint surgery is not, at this juncture, foreseeably reasonable.
The respondent stated that Dr Ling admitted in his oral evidence that he not as yet attempted to pursue the ‘conservative’ treatment that needed to be provided before surgery was warranted. The respondent urged the tribunal to take the view that “this admission of itself is sufficient for the Tribunal to find that the joint surgery is not presently reasonable.”
The respondent went on to say
3.4.     The opinion expressed by Professor Sullivan, given the fact that the applicant on his own admission has not, save for some fluctuations, lost any weight - he remains at more or less 150kg, and had not ceased smoking cigarettes should be preferred. It should be noted that Dr Ling and Professor Sullivan reported that the applicant had stated to each of them in their recent examinations of him, that he has ceased smoking. He admitted to the Tribunal that he had never completely ceased smoking and continues to do so. The factors substantially increase the risk of non-fusion as Professor Sullivan asserts and Dr Ling accepts.
3.5.     Moreover, as Professor Sullivan opined, the applicant is faced with a further factor inhibiting the likely success of the joint surgery due to him suffering from lymphedema. In his viva voce evidence, the applicant denied, somewhat surprisingly, that he had not suffered from bilateral lymphedema despite there being uncontested evidence from medical witnesses that he had suffered from this condition for a number of years. He admitted only to experiencing some unilateral left lower limb swelling.
3.6.     Dr Ling had not taken this factor into account in seeking authority for the joint surgery.
The respondent submitted that in conclusion Professor Sullivan’s firm evidence was that the joint surgery was unlikely to result in any significant improvement in the applicant’s left ankle function or the level of pain he alleges he suffers.
APPLICANT’S SUBMISSIONS IN REPLY
The applicant made a number of submissions in reply.
Firstly in relation to compensation in respect of medical expenses for the compensable injury, the applicant submitted that the “injury” that should be the sole focus of this review application is the “crush injury left foot”. This is described in the applicant’s principal submission handed up at the conclusion of the hearing as the “compensable injury”.
The applicant further submitted that the basis upon which he maintains that the joint arthrodesis surgery (described in the respondent’s principal submission as the “joint surgery” and in the principal submission (and this submission) as the “joint arthrodesis surgery”) is compensable is the terms of s 16 of the SRC Act itself.
The applicant submitted that there was no need for the Tribunal to apply the principles outlined in Canute to resolve this application. The applicant accepted the pivotal importance of the concept of “injury” in the SRC Act and that compensation is unseverably tied to an injury. However, there was no need for the Tribunal to embark on the task of determining whether the PTTD is, itself, an “injury”.
Section 14 of the SRC Act has been referred to as a “gateway provision.”. By the respondent accepting liability for the compensable injury, it opened up the possibility of the applicant making claims for, inter alia, compensation in respect of medical expenses of that injury (i.e. the compensable injury).In Lofts at [8] to [10], Mortimer J made the following important observations about the construct of the SRC Act and, in particular, s 16:
(a) Firstly, the phrase, “Subject to this Part” is the drafting device by which the remainder of Pt II of the SRC Act (read with the definitions) is able to qualify and define the liability imposed by s 14 (at [8]);
(b) Secondly, through the use of the words “in accordance with this Act”, s 14 directs attention to the nature and extent of compensation payable, matters which are set out in provisions other than s 14 . see Comcare v Lofts (2013) 217 FCR 220 (Lofts) at [8] by Comcare in its submission to the Federal Court . Reference is therein made to Lees v Comcare to support this point (and the first point) (at [8]);
(c) Thirdly, liability turns on the concept of, materially, “injury”. It is through the definitions and qualifications of this term (amongst others) that other parts of the SRC Act also restrict liability. The term “injury” is central to the operation of the SRC Act, as the High Court made clear in Canute (at [9]);
(d) Fourthly, s 16 deals with one kind of compensation that is payable: namely, such amounts of compensation for the cost of medical treatment as the respondent determines appropriate (at [10]).
The applicant went on to say that Canute expressly admits of the possibility of the PTTD being claimed for as an “injury” by the applicant, who could seek the benefit of the “gateway provision” for the PTTD. If the PTTD were found to satisfy the terms of s 14 of the SRC by being an injury, it may be the case that s 16 of the SRC Act could be called on by the applicant for compensation for the joint arthrodesis surgery and, possibly, other medical expenses and types of compensation permitted to be sought by Pt II of the SRC Act. To be clear, however, the applicant did not claim the PTTD as a separate “injury”.
It was then submitted that the possibility of the applicant claiming PTTD as an “injury” does not mean that the joint arthrodesis surgery cannot be compensated for as medical treatment which is sought in relation to the compensable injury. This is so because there was submitted to be a proper basis for the applicant claiming the costs of the joint arthrodesis surgery by regarding these costs as “related to the injury that is identified for the purposes of the SRC Act .”
The linchpin of the applicant’s case is this: s 16 requires that the costs of medical treatment be “in relation to” the compensable injury and the phrase “in relation to” takes on a positively broad meaning, as a matter of orthodox statutory construction. This, therefore, requires the Tribunal to merely be satisfied that there is a “some relational connection between two matters.
The applicant further submitted that if Parliament had intended to limit treatment of the compensable injury to treatment only of the compensable injury itself, it would have used a far more restrictive preposition (for example, by using “of’) instead of “obtained in relation to”.
The medical treatment sought is the joint arthrodesis surgery and the applicant said that to demonstrate that it is in relation to the compensable injury, it is necessary for the Tribunal to examine why the joint arthrodesis surgery is sought and it is sought because it arises because of the applicant’s PTTD .and because the PTTD developed after the crush injury.
The applicant advanced the following, as additional submissions arising from the hearing.
14.      Firstly, Dr Ling stated in his evidence in chief he believed that the PTTD happened after the crush injury. Dr Ling further elaborated that PTTD is a wear and tear phenomenon that can be exacerbated by an acute injury. Dr Ling explained, then, as a matter of logic, the connection between the PTTD and the compensable injury, as follows: because the applicant had a fracture on the outer border of his left foot, he walked on the inner border of his foot, which placed stress on the inner tendons of his hind food. In so stating, Dr Ling made clear that he did not consider the compensable injury to be the sole cause of the PTTD and that there were other pre-disposing factors, such as his age and his weight. However, Dr Ling did state that if the compensable injury and the PTTD were not related, this would be an amazing coincidence.
15.      Secondly, there were three important concessions obtained by Professor Sullivan during his cross-examination:
(a)       Professor Sullivan was directed to the final paragraph of page of his report dated 13 October 2015 (Exhibit G) wherein it states “The onset of the tibialis posterior tendon dysfunction is difficult to ascertain... ”. Professor Sullivan described the PTTD as a multifactorial problem in his cross-examination. Professor Sullivan was asked whether he could confidently say the compensable injury did not contribute to the condition. In response, Professor Sullivan conceded that no, he could not, noting that some things are weighted more than others;
(b)       Professor Sullivan was asked whether, at the very least, there is a possibility of a relationship between the compensable injury and the PTTD and he responded that yes, it was possible;
(c)       Professor Sullivan was directed to Dr Ling’s report dated 31 May 2016 (Exhibit F) wherein it states at page 2:
“I do not completely disagree with Martin Sullivan, I do not believe that the workplace injury was the sole cause of the tibialis posterior tendon dysfunction. No doubt this gentleman’s size and age have been contributing factors over many years. However, I think the workplace injury is a contributing factor. The reasons I think this are as follows. James did not have this problem immediately before this injury. His foot was completely fine with no deformity. He then sustains a severe crush injury at work to this foot with injury primarily to the lateral border of the foot. As a result, he walks with a limp for many months, walking more on the medial border of his foot due to the pain, with the foot externally rotated. This, in my opinion, particularly in the context of this gentleman’s immense size, could result in increased stress along the tibialis posterior tendon, hence contributing to its demise. This is the most logical and plausible way to view what has happened given the temporal sequence of events. ”
Professor Sullivan was asked whether he agreed there was some merit in what Dr Ling was opining. Professor Sullivan responded in agreement that there was some merit.
16.      Thirdly, the description of the PTTD as a “new problem” by Dr Ling must be viewed in the context that he was describing the advent of the PTTD itself. It does not mean, respectfully, that Dr Ling (and Professor Sullivan’s concessions) about the relationship
17.      Fourthly, that multiple orthopaedic specialists (Dr Ling and Dr Nair) detail the left foot trauma played a role in the genesis of the PTTD (Dr Nair’s language), it is, respectfully, refuted that the “logical connection” between the compensable injury and the PTTD injury is “illogical” (see para 2.9, respondent’s submission).
18.      Therefore, the applicant submits that the joint arthrodesis surgery is being sought in relation to the compensable injury. This is because the joint arthrodesis surgery has a relational connection to the compensable injury, given the demise of the posterior tendon being, at the very least, contributed to by the applicant’s alteration of gait after the compensable injury.
On the question of the reasonableness of the proposed surgery the applicant submitted it was reasonable surgery in all the circumstances for the applicant to obtain. And advanced the following as additional submissions arising from the hearing.
“Firstly, Dr Ling stated in evidence in chief that on 31 May 2016, when Dr Ling examined the applicant, he complained of pain at his fibula at the outer aspect of his hind foot and that this pain was consistent with the diagnosis of PTTD.
22.      Secondly, Dr Ling was asked by the Tribunal what the joint arthrodesis surgery would do. In response, Dr Ling stated that it will take away a substantial amount of pain that the applicant is complaining of and restore alignment.
23.      Thirdly, Dr Ling in evidence in chief, and by reference to paragraph “o” of his report dated 31 May 2016 (Exhibit F), stated that another option for pain relief is an an orthotic (Dr Ling explained an orthotic to be a device placed in shoe to fix alignment issues). However, Dr Ling stated that an orthotic doesn’t tend to fix pain completely and the chance of an orthotic being successful for the applicant is even smaller due to his size.
24.      Fourthly, during cross-examination, Dr Ling was asked about his authority request for the joint arthrodesis surgery (Exhibit A at T56, page 146 and Exhibit B). At one juncture, Dr Ling was told that the case was about the surgery he was proposing to perform but was asked whether, in fact, he wanted to first look at alternatives and then, in the future, if not effective, he would want to proceed to perform the operation. Although Dr Ling stated that this was the best way to proceed, it is respectfully submitted that Dr Ling’s response must be taken in context. In particular, Dr Ling was being tested about his recommendation. As is, respectfully, clear, whether any surgery is going to be successful or not cannot be stated with certainty. Accordingly, the task is one of weighing up risks and benefits and considering alternatives. It is submitted that Dr Ling has embarked on this task and he has stated in his report (Exhibit F) at “i” what he considers to be the risks. These are thorough and demonstrate Dr Ling has engaged with risks. Further, his evidence about the orthotic demonstrates he has engaged with the alternatives. “
The applicant further submitted that:
(a)       Dr Ling gave a clear view that he did not consider that an orthotic would work because of the stage of the applicant’s disease (that is, the PTTD) and because he is a bigger man;
(b)       Although Dr Ling stated that he did not consider the surgery to be done “then and there”, the totality of evidence, including Dr Nair’s views about exhaustion of exploration of non-surgical options, suggests that the joint arthrodesis surgery is going to be the best option of all options (including non-surgical options and doing nothing). Professor Sullivan during cross-examination was referred to Dr Nair’s statement about exhaustion of non-operative treatment and agreed that non-surgical options had been exhausted. This, therefore, goes a long way to satisfy the reasonableness test, as set out in the applicant’s principal submission;
(c)       The matters of the applicant’s weight and his smoking status, which are being dealt with on an ongoing basis, ought not stop the Tribunal giving approval to the joint arthrodesis surgery. The applicant has demonstrated that he is committed to dieting and, in cross-examination, stated that he wanted to get his life back in order and needed to give up smoking;
(d)       In respect of the applicant’s weight, and, respectfully, contrary to the respondent’s submission (at para 3.2), the applicant has and is continuing to lose weight. In 2011 he was 150kg. As at the date of hearing he was 139kg and knew that he had to diet, because he was told to by Professor Sullivan.
The applicant then noted that in relation to the issue of smoking, the Tribunal had asked Professor Sullivan whether the joint arthrodesis surgery would be reasonable if the applicant did not smoke for three months before the surgery and three months after. Professor Sullivan responded that this was “better” in terms of preventing failure of fusion. The applicant submitted that the Tribunal need not be satisfied that the applicant will never smoke again but, instead, that during the lead up to and after the joint arthrodesis surgery he does not smoke. The applicant further submits that he has demonstrated himself to be committed to the surgery by his weight loss regime and his candid admission that he needed to get his life back in order and give up smoking. The applicant concluded that the joint arthrodesis surgery was reasonable for the PTTD (see paragraph 1.7, respondent’s submission) and reasonable in the circumstances.
Counsel for the applicant also made some comments on the credibility and demeanour of the applicant. He submitted that although genuine in answering his questions to the Tribunal, it was plain that the hearing was a foreign experience to the applicant. Further, the applicant did not reveal himself to be a good historian. Respectfully, counsel said, he ought not be punished for this.
Counsel concluded that “…[w]hat is evident is that the applicant has demonstrated himself to be committed to the joint arthrodesis surgery.”
CONSIDERATION
Fundamentally the applicant asks the tribunal to accept that he suffered an injury because of his employment (no one disputes that) and that where this occurs, pursuant to s 16 of the SRC Act.., “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. “
The Act goes on to make it quite clear that this includes fees, charges, medical expenses and reimbursement for same if these fees, charges, medical reimbursements et cetera are occasioned in relation to the treatment .

The applicant submits that on the basis of the accepted facts clearly the proposed treatment and payment for it arises in relation to the injury.
Not so says the respondent. The respondent states that section 5B of the Act applies because the PTTD, i.e. the condition suffered by the applicant was not a crush injury and was either a disease or an injury other than a disease which meets the description of the definition of ailment as defined in section 4(1) of the Act as being “any physical or mental ailment, disorder, a defect or morbid condition ( whether of sudden onset or gradual development)”.
Further, the respondent submits PTTD is not for the purposes of the Act ,”an injury (other than a disease)” because it doesn't involve a physiological change that arose out of, or in the course of the applicant's employment with the respondent..
Further,S5B (1) states that a disease means an ailment or aggravation of an ailment – that was contributed to, to a significant degree, by the employees employment by the Commonwealth or a licensee.
This is a much higher test than that proposed by the applicant.
The tribunal listened carefully to the evidence of Doctors Ling and Sullivan and read carefully the evidence of Doctors Bruce and Nair as well as considering the various medical reports and notes tendered in evidence.
It is worth noting that the respondent initially requested the applicant to be examined by Dr George Bruce, orthopaedic surgeon and medical legal specialist. Dr Bruce in my reading of his statement gave a report that was quite favourable to the applicant. The respondent is quite correct in noting that Dr Bruce was not told everything and there was no discussion about any previous issues and that therefore this should qualify his prognosis.
Specifically he was not told of previous problems with swelling and gout. This would be an excellent point except for the fact that gout no longer appears to be an issue. As I mentioned earlier I also cannot see any actual connection made by anyone in evidence between the October 2013 incident and the medical reports that showed what appeared to be previous degeneration in the left foot including some spur like deformities.
It would seem logical to me that if there was anything to be made of any potential degeneration in the immediate area of the crush injury and the left foot and ankle generally prior to the injury at work, then this would have been highly relevant so as to show that there was a precondition which could explain the condition which the applicant wants the respondent to pay the fusion operation for.
It may be, on a closer reading of the report, that this observation actually referred to a degeneration and deformity that was caused by the accident i.e. it was part of the “crush injury” rather than a previous existing condition at the time of the crush injury .This appears to me to be a logical observation.
There was no such evidence adduced to establish any link between this finding and the onset in 2014/15 of the condition that a fusion operation is now sought to remedy. I would certainly have expected Professor Sullivan to explore this but the closest he got was to discuss a pre-existing condition which the applicant in his view would have as a result of his lifestyle and weight and also the fact that he had what is colloquially known as flat feet.
Similarly with Dr Nair, it appears that he was not advised of any preconditions and a similar comment could be made perhaps in relation to him and his evidence in that regard. But, because of the above, and the fact of the medical notes in previous doctors reports prior to the crush injury not containing anything that both parties deem to be relevant as a pre-existing ailment/ injury ,this is not an issue.
The evidence of Dr Bruce and Dr Nair, both of whom were asked by the respondent to examine the applicant, did not particularly help the respondent's case. They may not be of great use to the applicant's case except that in Dr Nair’s case he does support the surgery contemplated and seems to corroborate Dr Ling generally in a number of areas.
It also appears from Dr Bruce’s report that although he is not told of any prior medical issues, he also finds none upon his examination of the applicant.
I accept that Professor Sullivan has been in this business for 22 years and therefore has accumulated far more experience than Dr Ling who has had only four years experience.
I was perhaps a little surprised that neither Professor Sullivan nor Dr Ling gave evidence along the lines of them having treated ‘X’ number of cases where persons of similar habits, similar size and similar age to the applicant had the same or at least a similar problem. For whatever reason, they did not do so.
The applicant indicated that he had suffered from swelling in his left leg, foot and ankle before the accident at work, but there was no evidence ventured that he was ever adversely affected by any of his previous ailments or indeed that he had ever walked with an altered gait before now .He indicated any previous problems had never stopped him doing his job or working overtime.
When he gave evidence he appeared to be some pain and had difficulty walking and walked with the aid of a walking stick. I found him to be a reasonable witness who appeared to be doing his best to answer questions and recount events. I had no reason to disbelieve what he said in relation to his observations and description of how the incident affected him and continued to affect him. He seemed to me to be a witness of truth.
I feel the several contradictions mentioned in the respondent’s submissions are not necessarily contradictions as such and were not particularly inconsistent with earlier statements and were more in the nature of additional detail.
Professor Sullivan saw the applicant on two occasions and Dr Ling saw him on nine occasions, albeit with a greater gap between the second last occasion and the last occasion on 31 May 2016 than was the case between Professor Sullivan’s first and second occasion.
I think there is considerable strength in the proposition that had this condition suffered by the applicant been a long standing one or one that he had a pre-disposition to suffer then we all could have expected some evidence in the way of previous medical notes or doctors reports or evidence from his employer that would indicate the condition manifesting itself at an earlier stage than it did.
He is a middle-aged man of 52 years age, nearly 49 at the time of the injury at work. It appears he has been a heavy smoker since he was 15 and he has been a big man much of his life. (Professor Sullivan referred to him as being obese for at least the last two decades.) It is not unreasonable to expect some manifestation of this condition prior to now.
Whilst I respect the views and was grateful for the assistance given by Professor Sullivan, I prefer the evidence of Dr Ling for a number of reasons, even though I note that he has a lot less experience that Professor Sullivan.
Firstly, Dr Ling has seen the applicant on many more occasions than the Professor and indeed is his treating Doctor. His diagnosis is also backed up by Dr Nair another expert the applicant was sent to and who stated that whilst the applicant's weight is likely to be a factor, “however it is my opinion that the crush injury played a role in the Genesis of this condition" (T documents at page 213).
Secondly, Dr Ling’s evidence and opinion are inherently logical in that there is no evidence of any pre-existing condition that has manifested itself in any way prior to 29 October 2013. If there was a pre-existing condition it was dormant. Accounts of previous swelling are accepted as having no relationship to the problems the applicant is currently encountering.
The applicant injures himself at work in a successful attempt to save significant damage to an aircraft. Unfortunately for him in the process he is injured. The injury takes a fair while to heal and after a pre-mature clearance by Dr Ling in August 2014 it becomes quite clear that his problems are not over and he develops further complications that are diagnosed as the relevant ailments/condition that is the subject of this matter.
There is an inherent logic in the fact that a person injured as he was would walk tending to favour one part of his foot rather than the other and it seems to be quite clear on the evidence that this too was a factor in terms of the development of the condition.
It is also quite clear that his weight complicates the matter, but there is a principle in workers compensation that one takes the employee as one finds them- in this case a rather large employee who smokes who has been working with the respondent for some 13 years at the time of the injury. The current condition is diagnosed and the only accepted operation is the fusion operation, which all sides agree is the only way to go if one has to go down the path of having an operation.
.Also the operation, if successful, will help alleviate the pain, and the pain is in the area of the little toe and then going along the foot ( i.e.-the area of the crush injury ). It is the little toe that is broken in the accident. There is it seems, at the very least ,a clear linkage to the proposed operation and the alleviation of pain in the area damaged by the accident.
In summary, Dr Ling seems quite logical and is expressing the obvious when he talks about the applicant only developing this very painful problem after the injury and not showing any of the symptoms that he now shows before the injury.
I now make some comments in relation to the respondent’s submissions.
In 2.3 of the respondents submission, I think it is incorrect to say that the applicant was doing nothing more than being seated at home or at work and that post injury he would stay at home with his foot elevated. My recollection of his evidence was that his duties were mainly sedentary and that he could not stand up for long periods. He has had to walk with the aid of a stick since mid 2015: “I have been limping around for about a year and a half” (paragraph 10 of the applicant’s statement dated 20 June 2016). His statements basically are a litany of what he can no longer do, but it is incorrect to paint a picture of a man who is basically seated all the time. He does walk, albeit with difficulty, both at work and outside of work. It is a question of degree.
I would also respectfully note with regard to the respondent's contention in 2.9 of its submissions that one could equally use the maxim Res Ipsa Loquitor (the facts speak for themselves). It is really a question of assessing all the evidence and applying it to the law.
In 2.10 of the respondent’s submission, the respondent indicates that the applicant has been morbidly obese for some two decades and that he suffers bilateral lymphedema of the lower limbs which is an appearance like elephantiasis and that he has a likely genetic flaw of flat feet.
All of this is actually consistent with the fact that one would expect some manifestation of this condition prior to the crush injury. However, nothing has occurred during that period of at least two decades. It is only after the crush injury and only until after a further period of time when he starts limping around and favouring one part of his foot over the other that this condition surfaces as a problem.
The crush injury and the resultant problems caused by it, which amongst other things led to his change of gait, appears to be a much more probable explanation for his current condition.
I must say when I look closely at the respondent's submissions, they actually tend to back the above up in that the applicant only started a tendency to walk on the medial aspect of the affected foot after the crush industry. In my opinion it is far more likely than not that the contributing factors to the cause of the applicant’s condition stem from his employment rather than arising from his lifestyle choices, hereditary factors and a non-work-related bilateral ailment.
The lack of any evidence of the condition manifesting itself in the 20 years up to October 2013 is strong objective evidence in my view to back up the opinion of Dr Ling.
It may be that this is a coincidence. I accept that he would have a tendency to develop this condition. But the fact was he had shown no signs of it before.
I accept that the condition, if he had it, was dormant. Had the injury not occurred who is to say he may have gone another 10 years before this dormant condition was activated. I do not have to be satisfied beyond reasonable doubt, but I feel I can be comfortably satisfied as to the link between the crush injury and the condition of PTTD , and certainly I am satisfied on the balance of probabilities.
It is not uncommon for doctors like lawyers to have different opinions. My role is to sift through all the evidence and come up with the correct or at least the preferable decision.
The intent of this legislation is to ensure that workers are properly compensated as a result of injuries received at work and any ongoing consequences of those injuries. The legislation has its checks and balances as it is important to ensure not only fairness to the worker but fairness to the employer and in this instance to the Australian taxpayer to ensure that the worker is not trying to claim at the employer/taxpayers expense for some ailment or injury that has little, if anything to do with the injury that worker suffered at work.
Clearly in my mind this is not such a case.
In determining whether the joint fusion surgery is reasonable I note the respondent concurs with the outline of the applicant and in relation to the relevant factors to be taken into account I do accept, as the parties do, that this proposed surgery is the only type of surgery that could reasonably be undertaken.
Whilst I have considerable sympathy for Professor Sullivan’s view that the proposed surgery is unlikely to result in any significant improvement in the applicant’s left ankle function or the level of pain he alleges he suffers, there is considerable strength in the argument that all other options have been exhausted. Indeed the decision maker seemed to accept this, even though the decision maker was proposing the applicant pay for the operation himself.
I agree with the respondent that the relevant factors are those listed in paragraph 3.1 of the respondent’s submission (which I quoted from Jorgensen’s case –(1990) 23 ALD at page 325).
Taking into account all the evidence, I am satisfied that the suggested treatment would be of benefit to the applicant and that if successful it would have a positive long-term effect and would enable the worker to get back to a greater variety of duties at work than he currently is performing.
If successful an operation would be likely to cure the injury or at least reduce its adverse effects, and at around $4,071.60 it is not particularly costly as far as it goes. Indeed for $4,071.60 a successful operation would value add greatly to the applicant's ability to perform a range of duties with the employer.
I agree with 3.1(C) of the respondent’s submission in that the three other conditions listed would be relevant, namely:
·the likely recurrence of and extent of the symptoms should the proposed treatment fail;
·the potential worsening of symptoms should the proposed treatment fail; and
·other factors which may substantially increase the risk of the failure of the treatment.
It is certainly a valid point to consider what would happen if the treatment would fail. At best, the Applicant would be no better off. The possibility of further operations and the cost involved is a relevant factor if the treatment failed. The evidence suggests there is a 5 to 10% chance of the treatment failing. Dr Ling indicates in his experience he has about a 5% failure rate.
It is clear that the applicant needs to lose more weight and stop smoking prior to undertaking the operation. He has indicated he will do so. Time will tell. The evidence is clear that he cannot smoke until the joints fused mend and settle- which will take between 9 to 12 months after the operation. He also needs to lose around another 30 kg or whatever is necessary to get down to between 110 and 115 kg to undertake the operation. Were this to happen however, I accept that the proposed surgery, whilst somewhat of a gamble, would be reasonable and if successful would be a win-win situation for both parties.
As a result of my above findings, I should finally add that I do not accept the submission in paragraph 3.7 of the respondent or Prof Sullivan’s evidence that the joint surgery is unlikely to result in any significant improvement in the applicant’s left ankle function or the level of pain he alleges he suffers. Whilst I respect it, it seems at odds with the other medical evidence from the Drs Nair and Ling who indicate that if there is a successful operation it will indeed do just that.
It is a shame there is not a better way forward that will help the applicant without the need for surgery of this type.
Correct application of the law
I accept that if the test is, as the applicant submits, simply to find that the proposed treatment would be medical treatment obtained in relation to the injury, being treatment that it was reasonable for the employee to obtain in the circumstances , then I'm certainly so satisfied.
If the test is, is it appropriate medical treatment obtained in relation to a disease being an ailment suffered by the employee or an aggravation of such ailment, that was contributed to, to a significant degree, by the employees employment with the Commonwealth or a licencee,( the section 5B scenario ) then I would say the following.
Firstly, I am not satisfied that any ailment suffered by the applicant was anything other than dormant if it existed at all at the time of the injury.
However, I note it could well be classified as an injury if it did not exist as at the time of the accident, in that it did cause problems in the left foot and ankle for the applicant that needed surgery and assuming the causal link to the injury suffered on 29 October 2013. It could therefore be classed as an injury in that it arose out of the original injures and was a side-effect of the original injury. If this was the case the applicant would not have to satisfy the test that it was contributed to “to a significant degree” by the employee’s employment as it would satisfy the definition of injury. The “in relation to” test would apply which the current situation clearly in my view satisfies.
At any rate, I am comfortably satisfied and certainly satisfied on the balance of probabilities of a very definite causal link between the condition and the injury suffered at work by the applicant in October 2013.
Secondly, if section 5B of the Act is to apply and that the condition can be defined as a disease namely an ailment suffered by the applicant or the aggravation of such ailment then I accept on the evidence before me it was contributed to a significant degree by the applicant’s employment by the respondent for the reasons given above (i.e.- the crush injury clearly in my view caused or at least significantly contributed to the aggravation of such ailment).
All the doctors to various degrees seem to accept that the applicant had a predisposition to such a condition as PTTD. As indicated earlier, there is nothing to say that it would not have remained dormant for the next 10 years or maybe forever if something did not trigger it. Clearly, the crush injury and the alteration of gait as a result of the pain caused by the crush injury and the overcompensation effect of weight transfer the applicant adopted (in his changed gait) seems to me to have been that trigger.
DECISION
The Tribunal therefore decides:
(d)The reviewable decision dated 27 July 2015 is set aside.
(b) The respondent is liable to pay compensation for the medical expenses detailed in the letter of Dr Ling dated 26 March 2015, pursuant to section 16 of the S RC act.
(c)The matter is remitted to the respondent to determine and manage the appropriate amount of compensation; and
(d)The respondent shall pay the applicant's costs and disbursements in respect of these proceedings to be taxed if not agreed pursuant to section 67 (8) of the SRC Act.

I certify that the preceding 259 (two hundred and fifty nine) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member
.......................[sgd].................................................
Associate
Dated 30 September 2016

Date(s) of hearing 4 May and 22 June 2016

Date final submissions received 11 July 2016

Counsel for the Applicant S Richardson

Solicitors for the Applicant Shine Lawyers

Counsel for the Respondent J Wallace

Solicitors for the Respondent HWL Ebsworth

Division	GENERAL DIVISION
File Number(s)	2015/4083
Re	James Te Wake
APPLICANT
And	Australian Air Express Pty Ltd
RESPONDENT

Tribunal	Bill Stefaniak AM RFD, Senior Member
Date	30 September 2016
Place	Sydney

Date(s) of hearing	4 May and 22 June 2016
Date final submissions received	11 July 2016
Counsel for the Applicant	S Richardson
Solicitors for the Applicant	Shine Lawyers
Counsel for the Respondent	J Wallace
Solicitors for the Respondent	HWL Ebsworth