Tejay Sener and Comcare
[2014] AATA 734
•10 October 2014
[2014] AATA 734
Division General Administrative Division File Number
2013/4507
Re
Tejay Sener
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 10 October 2014 Place Perth The decision under review is affirmed.
.........................[sgd]........................................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant suffered knee injury in 2002 – respondent accepted liability to pay compensation – applicant suffered lumbosacral disc protrusion in 2004 – applicant claimed compensation – applicant's disc protrusion not contributed to in material degree by employment – applicant's disc protrusion not a disease – applicant's disc protrusion not an injury arising out of, or in the course of, employment – applicant's disc protrusion not a compensable injury – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 5A, s 5B and s 14(1)
REASONS FOR DECISION
Deputy President S D Hotop
10 October 2014
Introduction
Tejay Sener (“the applicant”) has applied to the Tribunal for review of a “reviewable decision” made on 9 July 2013 by a Review Officer of Comcare (“the respondent”) under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”).
The reviewable decision of 9 July 2013 affirmed a determination, dated 7 February 2013, by a delegate of the respondent that the respondent was not liable under s 14 of the SRC Act to pay compensation to the applicant in respect of a condition for which he had claimed compensation under that Act, namely, “L5S1 disc prolapse Leading to more frequent and severe lower back pain, sciatica, which gradually worsened Left hip and trochanter joint pain further exacerbating back pain” [sic].
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T49, pp 1–122) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:
·Exhibits A1–A3 tendered by the applicant;
·Exhibits R1–R11 tendered by the respondent; and
·the oral evidence of the applicant, Dr Tony Robinson (who was called by the applicant) and Dr Philip Hardcastle (who was called by the respondent).
The Factual Background
The following factual background appears from the T Documents and is not in dispute.
The applicant, who was born in June 1962, was employed by Commonwealth Scientific and Industrial Research Organisation (“CSIRO”) as an Experimental Scientist from January 2002 to June 2006.
On 28 October 2002 the applicant completed a “OHS&E Incident Report” form in which he indicated that at 1.15 pm on 28 October 2002 he suffered an injury to his left knee while “playing soccer with other CSIRO staff” in the following circumstances:
“ Warmed up with stretches before soccer game (about 12.30 pm). During game I ran and tried to kick ball in air backwards with right foot, but left leg on ground gave way with an audible crunching sound and feel. …” (T3)
On 27 November 2002 the applicant lodged with the respondent a completed “Claim for Rehabilitation and Compensation” form, dated 15 November 2002, in which he claimed compensation for “L (knee) internal derangement ruptured anterior cruciate ligament” and:
·indicated that he suffered that injury on 28 October 2002 at 1.15 pm;
·indicated that he first had medical treatment for that injury on 29 October 2002 which was provided by Dr Anil Lal;
·described the affected parts of his body as follows:
“ Major: Left knee
Related: lower back, left leg, left leg – hip joint, walking, gait …”:
·described how that injury now affects him as follows:
“ Unable to walk smoothly or properly → compensated gait → prolonged back pain → trouble sitting, standing, walking …:”;
·indicated that he suffered that injury “during an authorised sporting activity”. (T4)
In an attachment to the abovementioned claim form the applicant provided the following relevant additional information:
“ Q17(a)
I have injured my left knee. I heard and felt a snapping/cracking sound as I went down and felt a sharp pain on the inner side of the left knee. Later the knee swelled up.
Now, I only feel sharp pain on the inner side of the left knee when I make sudden turning movements. Otherwise I feel dull pain pretty much all over. I also feel unstable when standing, walking, or for example when climbing onto a step-ladder or down from a step ladder. It does not bend all the way without some dull pain. Towards the end of the day it swells up somewhat. My back hurts, and where the femur is connected to the hip, that hurts mildly too. Cannot confidently lock knee when walking or standing.
Q18(a)
About a month before playing same game I got tackled by one of the players. His leg swept my left leg on the outside of the left knee. The pain was nothing like the current injury but nevertheless for various reasons including having other commitments I did not play soccer for about a month. On the 28th of October that injury was still noticeable but more of an irritation than preventing me from playing. I took my time warming up before I commenced play.
Q24
The ball was kicked towards me and I felt I could intercept it. I ran after it but it was about to go out of bounds so in desperation I tried to kick the ball into play as I was still pursuing it. This meant that I would have to kick it over my head and backwards. As I tried to reach the ball with my right foot the left knee gave way with a loud snapping sound and I fell down in pain.
…” (T6)
On 19 November 2002 Dr Anil Lal issued a medical certificate relating to the applicant’s diagnosed injury, namely, “(L) knee internal derangement ruptured ant-cruciate ligament”, suffered on 28 October 2002 while playing soccer, in which he certified that the applicant was “unfit for any work duties from 28/10/02 to 5/11/02”. (T5)
On 2 December 2002 a delegate of the respondent made a determination accepting liability under s 14 of the SRC Act to pay compensation to the applicant in respect of an injury described as:
“ strain of cruciate ligament of knee (left)”
which occurred on 28 October 2002. (T7)
On 6 April 2012 the applicant lodged with the respondent a completed “Claim for Workers’ Compensation” form, dated 5 April 2012, in which he claimed compensation for “L5S1 disc prolapse Leading to more frequent and severe lower back pain, sciatica, which gradually worsened Left hip and trochanter joint pain further exacerbating back pain” and:
·indicated that he suffered that injury on 28 October 2002 at 1.15 pm;
·indicated that he first sought medical treatment for that injury on 29 October 2002 from Dr Lal;
·described the parts of his body most affected by that injury as follows:
“ Lower back, lumbar, thoracic, possibly cervical joints and pain. Eg occasional shoulder and right thumb numbness, endothermy, swelling of hands, etc. Sciatica of right leg, walking gait mechanical issues and gait compensation. More frequent daily back pain.”;
·indicated that he suffered that injury while “playing an approved game of soccer on the grounds of CSIRO”;
·described the action which caused that injury as follows:
“ I was running diagonally after a ball which was going to go out of bounds. My intent was try to kick it back inside field to keep it at play. I tried to kick the ball simultaneously whilst still running after it. The kick is called a bicycle kick.”;
·answered the question “What actually injured you …?” as follows:
“ The physical manoeuvre was executed flawlessly in my mind, however whilst attempting to do a half backward somersault and kick the ball back in play whilst running sideways my left knee anterior cruciate ligament tore, with my legs buckling under me whilst running. Instead I fell to the ground in a heap. Everyone heard the crack on my knee ligament. My knee’s pain was acute, that’s what I felt then too.
The next day I felt a real stiff and sore back, but went to the docs primarily about my knee. I think my back was further exacerbated by my compensated gait whilst waiting for Feb 2003’s Surgery.” (T34)
On 7 February 2013 a delegate of the respondent made a determination that the respondent was not liable under s 14 of the SRC Act to pay compensation to the applicant in respect of the lower back condition referred to in his abovementioned claim. (T41)
Following a request by the applicant for a reconsideration of the abovementioned determination, a Review Officer of the respondent, on 9 July 2013, made a reviewable decision under s 62 of the SRC Act affirming that determination.
Medical Material Included in the T Documents and Exhibits
Dr Anil Lal
In response to a request by the respondent for a medical report in relation to the applicant’s April 2012 claim for compensation for a lower back condition (T36), Dr Lal, general practitioner, provided a report, dated 20 August 2012, as follows:
“ …
This patient attended this service five times in relation to the incident of 28-10-2002. The most recent was on 4-11-2004 and he has not been seen by our service since that date.
He initially presented on 29-10-2002, stating he had twisted his left knee at soccer the previous day, which he was playing on his lunch break at work, on work premises. He stated he heard a ‘crunch’ and could not move, and his knee swelled up and was painful.
Examination revealed an effusion, the patient was limping and in pain, and he had a very tender medial joint line.
He was referred to St Vincents Hospital emergency department for management.
He next presented on 19-11-2002, about three weeks later, stating he had been told by the hospital that he would possibly need an anterior cruciate ligament (ACL) reconstruction in the future.
He also stated he had developed left low back pain since the accident and examination showed he had slightly tender left paravertebral muscles but a full range of movement of his lower spine.
I felt he had muscular low back pain due to postural imbalances from walking awkwardly to protect his left knee.
He was next seen on 10-12-2002, and his Comcare claim for his knee had been accepted, so I referred him to an orthopaedic surgeon for management of his ACL injury. He was referred to physiotherapy at that visit for his sore left lower back.
I believe he had his left knee ACL reconstruction as well as a lateral meniscal trim on 27-2-2003, by Mr Julian Feller, and he saw me on 7-3-2004 for post operative analgaesia.
I did not see him again in relation to his injury until 4-11-2004, some 20 months later (and more than 2 years after the original incident).
He told me that he now had right sided low back pain, and right sciatica (as opposed to the left sided low back pain on the visits of 19-11-2002 and 10-12-2002).
He told me had had seen a private surgeon in Frankston, and had had a CT scan that had shown a ‘ruptured disc’ in his lower back, as well as multilevel degenerative changes, and that he had been recommended to have a microdiscectomy. Unfortunately the CT scan report was not available to me, as I did not order the test. I have recorded in his notes on that visit that this right sided pain started in June 2004 and not long after radiated to his right leg and foot.
The pain he reported 2 years earlier in November 2002 was left sided and thought to be postural, related to awkward walking secondary to his left knee injury.
I have recorded in his notes on 4-11-2004 that since his reported disc prolapse was right sided, and his earlier symptoms were left sided, it was unlikely that the right sided disc prolapse was causally related to the original injury. The fact that the right sided pain developed in June 2004, more than 18 months after the knee injury, and more than 12 months after the successful knee reconstruction, would support this view.
However I do believe he did have a left sided low back problem with tender left paravertebral muscles, and that this problem was related to his original injury to his left knee.
In summary, I believe the patient sustained;
1.Left knee anterior cruciate ligament rupture, with a minor lateral meniscal tear associated with it, on 28-10-2002.
2.Left sided low back problem, probably muscular, directly related to the knee injury, probably due to postural imbalances while limping to protect his left knee. This was treated by physiotherapy and not mentioned to me again after the visit of 10-12-2002.
3.Right sided back problem with right sciatica symptoms, starting in June 2004, which I am told were due to a ‘ruptured disc’ on CT scan, which was unlikely to be related to the original incident.
…” (T38)
Mr Julian Feller
In response to a request by the respondent for a medical report in relation to a claim by the applicant for medical expenses for a left knee arthroscopy (T21), Mr Feller, Orthopaedic Surgeon, provided a report, dated 14 June 2011, as follows:
“ …
I first attended Mr Sener on 8 January 2003. He injured his left knee at a work sponsored soccer match on 28 October 2002. He had a twisting injury of the knee which gave way. The knee swelled. Although it settled he went on to have recurrent instability with change of direction activities.
Examination at the time showed a small effusion but a full range of motion. He had a positive Lachman test and a positive pivot shift test. There was no collateral laxity but there was posteromedial joint line tenderness. X-rays were unremarkable.
I made a diagnosis of chronic anterior cruciate ligament insufficiency and made arrangements for an anterior cruciate ligament reconstruction to be performed using a hamstring tendon graft.
The surgery was undertaken on 27 February 2003 at Vimy House Private Hospital. An anterior cruciate ligament rupture was confirmed. There was a small tear of the posterior horn of the lateral meniscus which was resected. The articular surfaces and medial meniscus were normal. A routine hamstring tendon reconstruction was performed with EndoButton fixation proximally and interference screw fixation distally.
Post operatively Mr Sener’s recovery was a little slow, mainly due to poor quadriceps function. He was encouraged to attend physiotherapy in this regard. However, by twelve months things seemed to have improved. He was reviewed on 31 March 2004. There was no effusion and he had a full range of motion with normal stability. Quadriceps function was better than previously but still less than normal.
Mr Sener came back to see me on 16 April 2007. He described persistent problems with his left knee.
He stated that his knee had never returned completely back to normal and he had low grade ongoing problems. He complained of intermittent aching when sitting with his knees flexed or extended and elevated. His symptoms were mainly anteromedial. He also described difficulty kneeling and complained of occasional pain with twisting. There was occasional peripatellar and infrapatellar swelling.
Mr Sener had not received any specific treatment. He had seen Mr John Griffiths, Orthopaedic Surgeon, who suggested an arthroscopy may be warranted on the basis of an MRI scan that had been performed. Apparently surgery did not go ahead.
Examination at that time showed no effusion. The knee was normally aligned. He had a full range of motion and the knee was stable. There was no tenderness or patellofemoral crepitus. Quadriceps function remained somewhat reduced, particularly that of vastus medialis.
X-rays were unremarkable. An MRI scan showed the graft to be intact. There was some abnormal signal in the posterior horn of the medial meniscus but this was not convincing of a tear. There were very mild chondral changes on the patella.
I did not feel that an arthroscopy had a high likelihood of improving the situation and that the primary issue was in fact the persistent poor quadriceps function. I suggested that Mr Sener work on improving his quadriceps strength and get back to me if necessary.
I have not seen Mr Sener since that time.
With regard to your specific questions, I am unable to make any comment about Mr Sener’s current condition as I have not seen him since 2007. At that time I believed his main problem was patellar maltracking secondary to poor vastus medialis function. There may have been some associated patella chondral damage and possibly a posterior horn injury of the medial meniscus.
At the time I felt that Mr Sener’s condition would improve with better quadriceps function. I indicated that he should come back to me if his knee had not improved after strengthening his quadriceps muscle. He did not return. As such I am unable to comment on the further prognosis at that time.
There is no evidence that Mr Sener was voluntarily exaggerating his symptoms, consciously guarding restriction of movement, displaying symptoms and examination findings inconsistent with the claimed condition, or demonstrating a range of motion during passive observation which was not replicated during clinical examination.
The original anterior cruciate ligament reconstruction occurred as a result of a soccer match which I understand was work sponsored. His continuing condition in 2007 I believe was related to poor quadriceps function. This is essentially an issue related to rehabilitation.
I do not believe that Mr Sener’s employment contributed to his reduced quadriceps function.
Without having access to information regarding Mr Sener’s current condition and any recent investigations, I am unable to comment on the potential value of an arthroscopy of the left knee at this time.
…” (T23)
In response to a request by the respondent for a medical report in relation to the applicant’s April 2012 claim for compensation for a lower back condition (T37), Mr Feller enclosed a copy of his abovementioned report of 14 June 2011 with the following letter, dated 24 August 2012:
“ …
I have previously provided a report to you, dated 14 June 2011. I have attached a copy.
Please note that I have not seen Mr Sener since April 2007.
I have reviewed my clinical notes. There is no reference to any back symptoms in these notes. As such, it is unlikely that Mr Sener complained of back problems to me.
If Mr Sener injured his back as part of the initial injury on 28 October 2002, I am unaware of it. I do not think it is at all likely that the injury to the knee would have contributed in itself to Mr Sener’s back problems.
…” (T39, p 96)
Mr Peter Moran
Mr Moran, Orthopaedic Surgeon, provided the following report, dated 30 July 2004, relating to the applicant, to Dr Alex Ross, general practitioner:
“ …
Thank you for asking me to see this 42 year old man who works as an experimental scientist and presents with recurring symptoms of right sided sciatica, present for several months. These symptoms were preceded by a twisting strain, and he describes classical S1 sciatica, which develops, interestingly, 15 minutes after rising in the morning, and usually settles within 20 to 30 minutes.
He has well preserved flexibility and has only minimal signs of dural irritation, but on his CT scan he has a large right-sided lumbo-sacral prolapse compressing the theca and displacing the S1 nerve root.
This disc prolapse is not yet stable, and I have suggested either oral steroids (50 mgs per day for 3 days), or epidural steroids as an appropriate first line of treatment. He needs to be careful to avoid any stress on the back, as it is not inconceivable that this disc could rupture further and compress the theca more significantly.
If his symptoms deteriorate, he would need to consider discectomy, and it may be worthwhile at this stage referring him to the Neurosurgical Outpatient Department at Monash Medical Centre. Regrettably, I do not manage spinal problems in uninsured patients.
Again it is surprising that Mr Sener has had so little trouble from such a substantial disc injury.
…” (Exhibit R3)
Mr John Griffiths
Mr Griffiths, Orthopaedic Surgeon, provided a report, dated 7 November 2012, to the respondent as follows:
“ …
At your request a medical report has been prepared on this 50-year-old man. Mr Sener was originally referred to me by Dr Sahhar from Highett and was seen for an initial consultation on 27th October, 2006. The problem related to the left knee. Mr Sener was unemployed at the time of the initial consultation.
There was a history of an injury to the left knee playing soccer in 2002. There was a tear to the anterior cruciate ligament and an anterior ligament reconstruction was performed in 2003 by Mr Julian Feller. Following the surgery there was intermittent pain in the left knee with difficulty kneeling down and some episodes of catching.
Initially examination of the left knee showed a mild degree of AP laxity with a negative pivot shift. The knee had a good range of movement without any effusion.
A MRI scan was performed at Cabrini Hospital on 2nd November, 2006. The anterior cruciate ligament graft was intact but there was evidence of a probable tear to the medial meniscus as well as mild chondral damage to the medial compartment of the knee. The posterior horn of the lateral meniscus was small and truncated consistent with previous meniscectomy. An arthroscopy of the left knee was discussed with Mr Sener who was undecided at that time.
Mr Sener next saw me on 25th March, 2011 for further review of his left knee. He had put on weight and had been jogging to get fit. Mr Sener attempted a beep test for admission to the police force and developed increased pain in the left knee following the beep test. There was an intermittent limp.
On examination the left knee was stable with mild medial joint line tenderness and no effusion. A left knee arthroscopy was recommended and permission was obtained from Comcare regarding this procedure.
An arthroscopy of the left knee was performed at Cabrini Hospital on 10th February, 2012. There was a mild synovitis of the joint with mild chondral changes involving the medial and lateral compartments and intra-articular adhesions. There was also moderate chondral damage involving the femoral trochlea and evidence of an old partial lateral meniscectomy. The medial meniscus was intact and the anterior cruciate ligament graft was also intact. Intra-articular adhesions were divided and a shaving was performed to the areas of unstable chondral wear.
When reviewed on 22nd February, 2012 the left knee was feeling better but there was still mild swelling. The quadriceps muscle was wasted and the wounds had healed well. An exercise program was recommended. Mr Sener has not been seen since the 22nd February, 2012.
In answer to your question regarding a back condition there is no documentation of this symptom being described to me during any of my consultations with Mr Sener. I was asked to consult on his left knee and the treatment has been detailed. I cannot relate the problem of back pain to Mr Sener’s left knee condition.
…” (T40).
The Applicant’s Evidence
The applicant tendered two letters which he had written – one addressed to the respondent and dated 26 July 2011, the other addressed to the respondent’s solicitors and filed on 3 January 2014 – as comprising his evidence-in-chief. He confirmed that the contents of each of those letters are true and correct.
The applicant’s letter of 26 July 2011 states as follows:
“ …
As requested an account of what has been happening with my knee since I last saw Dr Julian Feller.
Summary:
My knee surgery in early 2003 seemed to go well, except maybe the meniscus tears were probably not cleaned up probably [sic]. Subsequent visits to Dr Feller complaining the knee of not being quite well were explained away with poor knee fitness development, such that meniscus tears was [sic] overlooked. Other affected injuries were the rupture of lower back S1L5 disc (as I mechanically compensated and accommodated for the not fully fixed knee), and reduction in physical activity.
It is my opinion that the insufficient clean-up of medial meniscus tears indirectly lead to a sedentary lifestyle, which contributed significantly to subsequent development of illnesses such as obesity, diabetes type 2, hypertension.
In late 2002 I tore my left knee Anterior Cruciate Ligament (ACL) whilst playing soccer with other staff during lunch break, on CSRIO [sic] grounds.
I saw a GP at St Vincents Emergency Ward that day, and then my GP in Richmond within the next few days, to get a referral to an orthopaedic surgeon. Some time during seeing my GP and seeing Dr Julian Feller I also hurt my back real bad. Probably significantly from the fall during the soccer event, then also from gait compensation during the waiting period. This in later examination turned out to be a ruptured S1L5 disc, but because the focus was on my knee at the time, my back didn’t get the attention it needed until the fragments of the herniated disc started pressing on my sciatica nerve.
I have seen Dr Julian Feller since surgery (Feb 2003) on several occasions.
There were those appointments that were to do with recovery from surgery, and progress with physiotherapy. And there were those appointments where I complained about my knee catching, or not feeling quite right.
For example, during the routine recovery appointments I was tested for the hop. And even in the last test I was not able to hop as well using my left leg only, as I was able to do so with my right leg.
So in later appointments I complained about my left knee not feeling quite right, and sometimes catching etc.
From what I recall Dr Julian Feller’s response was generally along the lines of ligaments, or tendons within the knee joint not being strong enough yet.
At one point I wrote to him and asked him to give me a certificate to play soccer, or sport, even though at the time I wrote that request I also said I was not quite ready yet. He provided that certificate. That request was in April 2004, and although I could not find a copy of that certificate I do recall seeing it, and providing it to the then OHS officer at CSIRO. I’m confident the OHS officer will vouch for it, and I also have requested a copy of the email I sent Dr Fellers office asking for that certificate, along with a brief note by their staff saying they sent it. See attached.
The point being we both expected my knee to recover such that I should be able to go back to playing strenuous sports like soccer. After all, I had chosen Dr Feller because of his reputation for reconstructing ACL’s of sports players. My knee never did get well enough to give me confidence to play soccer, and I never did play soccer since then, and left CSIRO in June of 2006.
I think I may have seen Dr Feller last around 2006 or maybe late 2005 as my left knee still didn’t feel quite right. But he didn’t feel the need for a CAT scan nor MRI, and still felt I needed knee strengthening exercises.
I subsequently saw Dr Griffiths, who did order an MRI, and was of the opinion that the meniscus was torn. See attached copy of letter. I tried to get Comcare to action an arthroscopy then, as Dr Griffiths recommended, but because Dr Griffiths was not involved with the 2003 surgery he could not say whether it was related to the same injury and earlier surgery, or not.
Since leaving CSIRO I tried to start my own small business, which the business idea of involved fixing pc’s, building and selling pc’s, and some radiation safety awareness training. However, after a 7 week training course and approval plus NEIS grant from DEEWR, I ended up spending an inordinate amount of time designing my web-page, and doing more courses (Cert IV in Training and Assessment, Advanced Radiation Safety Officer course). After 4 years I still hadn't started trading, but had subsequently become obese from sedentary living for over 4 years.
With my sedentary lifestyle my knee wasn’t stressed and aside from the occasional twist in the car, or getting in and out of the car I didn’t have any major issues with it.
However the sedentary lifestyle meant I put on a lot of weight, and eventually I became obese. I tried to go for walks and lose weight, but half an hour a week or so wasn’t cutting it.
It wasn’t until my GP diagnosed me in early January 2010 with Diabetes Type II that I was motivated into action. See attached OGTT test results. Sure I was in denial, but also I didn’t want to be categorised as a diabetic. I felt the OGTT test was done incorrectly, and that although I may have been glucose intolerant I didn’t think I was yet diabetic.
I was motivated to empty my pantry of most fat, high-carb, high-sugar, and high-calorie processed foods. I was also motivated to go for more frequent walks.
At first my calves would swell up and cramp up after only 10 to 20 minute walks per day. But day by day I extended the duration and lengths of those walks, until within about a week I was doing 2 hr walks a day, over an 11 km path.
By second month I had lost a fair amount of weight and was feeling confident so I got out my road bike, oiled it, and took it for an 11 km ride. It was quite refreshing. So I included bike rides in my weekly exercises. I was riding at least 3 days a week, ranging from 11 km's a day to 33 km's a day, plus my daily 11 km walks.
My weight loss plateaued however, so I added jogging to my repertoire, and included city-return bike rides at least once a week as well as 3 days of 33km bike rides. City return is 90 to 110 km from where I live. And the jogging in the beginning was only 2 laps of a soccer oval. That was very tough on my cardio system, at first.
By March, my weight continued to drop, and I was becoming more confident. 11Km Walks a day barely made a dent in my caloric energy usage. And I was now jogging 10 laps around the soccer oval in under 6 minutes. Jogging, but not running, nor strenuous sprinting.
I also felt confident enough to set my mind to enter the Around the Bay in a Day 250 km bike ride coming up in October. So I planned to start training for it.
In April my weight had dropped down below 70 kgs. That's a loss of 22+ kgs in just 4 months. And I was fit, strong, confident. My knees weren't giving me any new problems from the ones I described above.
In April I saw an Endocrinologist, who after running me through the necessary blood tests determined I no longer had Diabetes. So I relaxed somewhat on my gruelling exercise regime, and completely on my low calorie diet.
I tried to maintain some exercise routine, but once the Diabetes monkey was off my back, it was hard to stay motivated. For some weeks I lapsed into a state of lethargy, and yet was still consuming the same amount of food. So my weight was going back up.
I then focussed on the upcoming Around The Bay (ATB) bike event. I started training for that. My training involved regularly riding to Mordialloc and back (33 kms) at least 3 days a week, and at least one city and back ride a week (100kms). I joined an over 50’s casual riding group which also did 40 to 60 km bike rides a week.
But I also realised I could no longer go back to a sedentary life if I wanted to stay healthy. And that I had to find a career that included fitness as part of its role.
Meantime I kept training for the October ATB ride.
By September I was fit enough to go for longer rides, such as Melbourne to Sorrento (200 kms round trip) and back. And I think I did that trip as a practice run twice. Just to make sure I can do the distance. So when October came around I had no difficulty and did the 250 km ride in under 11 hours. Not as fast as the younger fitter riders on state of the art carbon road bikes (6 hrs), but quicker than hundreds of others.
After the ATB event I needed a focus, a new motivation.
The Victoria Police were on a recruitment campaign around then. And though I was nearly 50, and would not probably pass the medical, I nevertheless felt confident that if I trained I could pass the fitness test. I sat the written Police entry exam in October, and passed it well.
One of the fitness tests included a Beep test. The Beep test is a shuttle fitness test where one runs back and forth across a 20 metre distance, to the timing of an audible beep, which increases in frequency every minute. Such that one tries to fit in more and more 20 metre laps per a minute, until one reaches the limit of their physical fitness and is exhausted. In earlier years males needed to run level 9, shuttle 5 to pass, but in recent years this had dropped to level 6, shuttle 10 for both males and females. So the new lower pass mark was advantageous to me.
However, despite my level of fitness, I didn't initially have cardio fitness, and I only attempted the beep test no more than 2 to 3 times a week. And only after my 10 lap warm-up jog around the soccer oval. At first I had trouble completing level 3 before running out of breath, and heart rate over 180 bpm. But week by week, eventually I had reached level 6, and was on the cusp of achieving the requisite level. But at that speed of reaching the 20 metre mark, and turning at high speed (well, reasonably high for a 50 year old), my left knee started hurting.
Up till then my left knee posed no significant problems. I mean, it still felt mildly different than the right knee, but I had become accustomed to it, and had learned to accommodate that different feeling. Sure it still felt not as good as my right knee. And I couldn't hop on it, but until then I didn't have to. I hadn’t started sprinting before the beep test, and I didn’t have to.
However if I wanted to pass the beep test, I had to start introducing running and sprinting, as well as jumping and skipping routines. In order to get that explosive strength required to keep up with the beep at the higher shuttle levels.
I was just beginning to make it into level 6 when my knee hurt. So I backed off. My knee swelled up the following day, so I took a couple of weeks off jogging, cycling, and the more strenuous exercises. That was late October. When the swelling came back down I recommenced my jogging as well as cycling, but not sprinting, running, or beep test. The knee seemed to handle that well.
But when I later tried the beep test, with its rapid turns at the 20 metre mark, it swelled up again. That’s when I saw my GP, who referred me to a Physiotherapist.
I tried to allow my knee to recover, then tried jogging and cycling, even beep test once or twice more around November onwards, but from December onwards even the cycling dried up. At this stage it was swelling up and sooner, and seemed to be getting worse even with jogging and cycling. From January onwards it hurt without even exercise. Though because of the hurt and my concern I didn’t do any exercise other than walking either. Basically I was becoming despondent, and my motivation went down. I started worrying about my knee. It was only my left knee which was problematic, not my right knee.
I put two and two together and asked my GP to refer me to Dr Griffiths who repeated the need for an arthroscopy. And around that time I re-opened my claim number with Comcare.
I’m of the belief that Dr Feller probably did a good job with the ACL reconstruction, but with the clearing up of any meniscus tears, or whatever he may have missed some, or left some out.
Dr Feller was initially also reluctant to take me on as a patient because he preferred not to do Workcover cases. So I’m wondering if perhaps he was reluctant to do a scan in subsequent appointments because he didn’t feel ComCare would cover it? I don’t know of course, but if ComCare and Workcover make it difficult for specialists to do the required tests to ensure the surgery went well, then maybe that’s why he never ordered an MRI after surgery.
Of relevance is that another friend had his right knee ACL replaced by another surgeon. But apparently the clean up of the torn meniscus wasn’t done sufficiently, and he did get Comcare to pay for Dr Griffiths to clean up the torn meniscus. Whereas mine was thwarted.
These days I exercise about 2 hrs (walking), and unfortunately I eat what I want. My knee hasn’t swollen up since about January, but then I haven’t been doing any sprinting, or the beep test since then either. I have tried some jogging, some cycling, but my knee now seems to feel something wrong with it, in a more pronounced way than pre 2010. I am disappointed and perhaps somewhat depressed about my knees predicament. And I do want to, and need to increase my exercises, get my activity levels up, else I will no doubt lapse into Diabetes. If I haven’t already.
My knee feels uncomfortable when getting up and about, when climbing stairs. Especially when climbing stairs, I find that I am compensating by lifting from the left hip. I can feel that because by end of day my left hip feels tired and tender. Nowadays every morning I have a bad back. And am taking Diclofenac (Voltaren generic) frequently to relax my lower back muscles so I don’t walk around like a duck all day. Before I would’ve only taken diclofenac maybe once every 3months.
Hope the above account helps in your quick decision making. The accounts and dates may not be accurate as I am mostly relying on memory. If you have any questions please contact me.
…” [sic] (original emphasis) (T25)
The applicant’s letter of 13 January 2014, which was written in response to a request for information by the respondent’s solicitors, states as follows:
“ …
a)Details of how you sustained the back condition that is the subject of your claim for workers compensation.
As I write this a lot has happened since my knee injury in 2002. I’ve had resurgery on the knee in 2012, a bout with diabetes in 2010, my father passed away in 2012, I changed jobs several times, I have been overseas twice, I got a new job, moved interstate [from Vic to WA], etc. So my memory of the event is not fresh.
However with reference to my letter to Comcare dated 26 July 2011 (T25), I state
‘sometime between seeing my GP and seeing Dr Julian Feller I also hurt my back real bad. Probably significantly from the fall during the soccer event, then also from gait compensation during the waiting period.’
This is consistent with my current recollection that my back did hurt during and immediately after the soccer event, I did report it to my GP when reporting my knee, and sometime later, either while waiting for the Specialists appointment (Dr Feller), or while waiting for the surgery, or during the recovery after the surgery my back hurt so bad that I was bedridden with severe back pain for a period of about 4 days to a week. I recollect my back hurting with shooting pain even when breathing, and definitely when turning about in bed, and going to the toilet.
I’ve already declared that I’ve had chronic back pain before the knee injury. And all x-rays I’ve had dating from before the knee injury did not show spinal or disc injury. Though during the appeals process documents became available for the first time to me indicating I had a ‘narrowed’ L5S1 disc around 1984, but that it was not ruptured. I now believe the fall, plus the following compensatory gait may have exacerbated and caused the rupture of the weak disc. And my experience of severe back pain coincides or corresponds with that.
I believe stating any more than the above would be already straining my stretched memory on the matter, as well as speculating beyond my limited medical comprehension.
b)A timeline capturing each period or episode of back pain or exacerbation of your condition.
Pre 2002
I’ve had back pain very sporadically since about 1980. Though I rarely had cause to visit the doctor about it more than once every 6 months to once every 2 years about it. They basically couldn’t do much but suggest rest, and some back strengthening exercises anyway.
2002 to 2004
In late 2002 I was playing soccer and I tore my anterior cruciate ligament of the left leg, fell down, and also hurt my back in the process. There was a several month period while I waited for surgery in early 2003. During this period I had to be careful that I didn’t put my knee out of joint as the ACL was still torn and putting my knee out of joint caused pain. However that put a strain on my walking, turning, etc, and that strain was felt also in my back.
After surgery I took 18 months to recover. Longer than usual perhaps. I had seen Dr Feller that my leg wasn’t quite right after surgery several times and as late as 2007. But even well into 2004 I had not regained full strength and use of my operated leg, and it was still affecting my compensated gait.
Mid 2004
By mid 2004 I started developing Sciatica. At first my right toe was numb and painful but over a period of a few months this spread to my whole right foot and the pains and sensations shooting up my ankle and leg. I saw my then GP at Highett, who referred me to specialists and medical imaging. Which indicated a ruptured L5S1 disc. Up till then (and since the 2002 knee injury) no proper diagnosis or imaging of my lower back had been carried out.
Post 2005
I was in the waiting list for neurosurgery but meanwhile I was getting Osteopathic attention on my back. Somehow I hurt my back again, and took a few days off work. When I recovered my sciatica was gone. When I did finally get my neurosurgery appointment the specialists said I was lucky and that the pieces of disc pressing on the sciatica nerve may have moved away from the nerve thus relieving some of the pressure, hence the symptoms disappearing. I no longer needed neurosurgery.
2006+
Prior to 2002 I would have back aches at the frequency of once every 6 months to once every 2 years. Since the fall my back aches are now almost daily. Particularly in the mornings I wake up with a stiff back. For example if I oversleep my back hurts more than usual. To counter this I had been taking Diclofenac, in an effort to ward off stiff back syndrome by relaxing those involuntary muscles. It seemed to have some remedial effect but wasn’t complete. Also in 2011 I was advised by Comcare Liaison officer that diclofenac is bad for my kidneys. When I asked about this with my GP’s they also confirmed that it was bad for my kidneys, but that they thought I only took it sporadically. I had in fact been taking it daily to manage my back aches.
Some days my back is so sore and stiff I can’t straighten up for the whole day. Other days I’m good to go within an hour. Once I’m warmed up I can do most things other healthy people can do. Though if I end up doing a lot of lifting my back does pack it in, and I do have to lay down and rest up my back.
c)When you were diagnosed with your back condition and the events that led to the investigation and diagnosis of your back condition.
Pre 2002 back condition.
I was probably diagnosed as early as the late 70’s, or early 80’s for back aches. I just went to the GP and said my back hurts.
Post 2002 event
When I saw my GP at Richmond after my knee injury I told Dr Lal my back was also sore. But in my opinion he didn’t diagnose it adequately. He sent me for physiotherapy, when perhaps he should’ve requested some sort of medical imaging.
I had mentioned my back to Dr Julian Feller too, but he was a bit terse about that, and wanted to concentrate on the knee.
I didn’t get a diagnosis of L5S1 disc rupture until my sciatica had progressed to the stage of significantly affecting my mobility. That was mid 2004.
d)The medical practitioners you reported your back condition to and sought treatment from.
Pre 2002
Mostly Richmond Clinic GP’s.
Post 2002
Dr Lal of the Richmond Clinic,
Dr Julian Feller,
Drs at the Highett Clinic,
Specialists that the Highett Clinic referred me on to,
Specialists at the Monash Medical Centre,
Osteopath at Mornington Peninsula,
Drs at the Belvedere Park Medical Centre.
e) The events that led to you submitting your claim for workers’ compensation for ‘L5/S1 disc prolapse leading to more frequent and severe lower back pain, sciatica which gradually worsened, left hip and trochanter joint pain further exacerbating back pain’ on 5 April 2012.
Initially I did mention my back in the 2002 knee claim too. But that wasn’t addressed properly by Dr Lal, Dr Feller, nor Comcare.
In 2006 I tried to open up the Comcare case regarding my knee, and I wasn’t successful then. Regarding my back I was advised by Comcare that I’d be even less successful.
In 2011 I attempted to re-open my Comcare knee case again, and this time I was successful. I obtained resurgery. My back aches had become more frequent, and also with the support and advice of Comcare advisors I filled out a separate claim for the back.
f) Details of how your back condition has impacted upon you in the past and how it currently impacts on you.
The frequency and severity of morning back stiffness and back aches is increasing. This affects my mobility, the types of work I can or cannot do. For example, in 2012 I obtained part time work as a Night Filler with Coles supermarkets. But because I was careful for my back I was too slow, and my job description was changed to Customer Service (Checkout operation). Knee pain and back pain also constrains the range of physical fitness activities I can get involved in. So instead of more intense exercises such as weight lifting at home or in a gym I am relegated to less intense and more time consuming activities such as walking, cycling, swimming, which when I’m time poor I can’t do as much. Thus affecting my long term fitness, my long term weight management and obesity related diseases.
The ball of my right foot is beginning to hurt in an unusual manner again. I don’t know whether the sciatica is returning, but it doesn’t feel like it’s a joint pain, but rather strange sort of internal cut, or fold, or unusual sensations of the flesh around the ball of my right foot. Basically I fear the sciatica related to the L5S1 disc rupture is returning, or may return.
When my lower back is out, it affects my posture, gait [I walk around like a duck until the back gets better], and this then puts strain on other parts of my spine. In the last 5 years or so I’ve experienced pain in my left trochanter, pain in the lumbar region, pain in the thoracic region, numbing sensations of thumbs, fingers, arms and shoulders, etc. I’m concerned of a zipper effect of the injury in my lower back propagating up and down my spine and getting more frequent and worse as time goes on.
…” (part of Exhibit A1)
In cross-examination the applicant gave evidence to the following effect:
·he had suffered pain in his lower back from time to time since the time he was a “young adult”;
·he had suffered that back pain “once or twice a year”, probably related to lifting;
·he did not make a claim for compensation for his L5/S1 disc prolapse, which was first revealed following a CT scan in 2004, until April 2012;
·his claim for compensation, which he made in November 2002, included a reference to lower back pain;
·he had also made enquiries of Comcare during 2005 and 2006 regarding making a further claim for compensation but was then advised against doing so, but in early 2012 he was advised that he could make a claim regarding his back and he did so in April 2012.
The Evidence of the Medical Witnesses
Dr Philip Hardcastle
Dr Hardcastle, Consultant Orthopaedic Surgeon, confirmed that he had prepared a report, dated 4 March 2014, relating to the applicant and that he adhered to the contents of that report.
Dr Hardcastle’s report of 4 March 2014, which is addressed to the respondent’s solicitors, states as follows:
“ …
Thank you for your letter of 24 February 2014 requesting an independent assessment of Mr Tejay Sener who was reviewed on 4 March 2014.
I acknowledge your list of enclosures including the following:
·X-ray reports lumbar spine (10 January 1984).
·CT lumbar spine (2 July 2004).
·CT lumbar spine (9 March 2005).
·Dr Peter Moran letter.
·Dr John Griffiths letter.
·General practitioner notes Dr Anthony Sahhar including clinical attendances.
·Dr Andrew Danks’ letter.
·Dr Simon Bower letter.
·Ortho Support correspondence.
·Various Comcare documents and claim forms.
BACKGROUND
Mr Sener was born in Turkey. He said he came to Melbourne at age eight and he was there from 1970 to 2013 apart from a period when he went back to Turkey in 1977-1979 at boarding school.
He seemed to have a whole different variety of occupations and said that he did a period of labouring in a tomato factory, sales for approximately a year with several companies and drove taxis from 1986 to 1991 and still did this occasionally until 2007.
He reports getting six different university degrees including Applied Physics with Honours in Science and has done an incomplete Masters’ Degree in Biomedics and Engineering Science as well as getting some graduate diplomas and certificates. Overall, he said he has done thirteen years of tertiary education over a period of eighteen years.
He said that he went to CSIRO and worked there from 2002 until June 2006 as an experimental scientist and subsequently radiation safety officer and then he left there. Other work he has done since then include six months of night fill, working twelve to fifteen hours a week around 2011 and he went back to Turkey for a few months in 2012. He did another trip in 2013 for several months due to his father’s death. He said that he had been unable to return to Turkey under normal circumstances because of National Service issues as he had not complied with these when he was younger.
He said that he started work on 27 July 2013 as a radiation safety officer at Curtin University where he is working full time and continues to. He is not only computer literate, but he has had several businesses in the past in between some of the areas of work that I have referred to above, building various computers privately. He has not done this for some time but is considering it more from a private aspect.
PAST HISTORY
He has had hypertension and he had diabetes 2 in the past in about 2010, but he lost 27 kg and underwent a fitness program when his left knee started to give him some more problems and this has helped his diabetes.
He reports having bilateral plantar fasciitis releases on both feet. One in 1998, and the other in 2001.
He had a knee injury in 2002 when he was working as an experimental scientist, and at lunch time they played soccer once a week which involved running. He said that in the process of doing this he was trying to do a bicycle kick behind him when he sustained an injury to his left knee and he underwent an ACL reconstruction in early 2003. He has done reasonably well with this, but had a further arthroscopic procedure of the left knee in 2012 which has improved the situation a reasonable amount.
He has had a previous haemorrhoidectomy on two occasions and a colonoscopy.
He said that he has had some minor motor vehicle accidents without injury and he denies any previous forefoot pain that he has got currently, prior to playing soccer when he sustained his injury.
He said he has had a long history of low back pain and cannot really recall any injury and it generally worried him about once every six months with an occasional visit to the doctor, but no specific treatment. He said there was increased symptoms after the ACL injury to his knee.
PERSONAL DETAILS
He is single without children and is a non-smoker who does not drink alcohol. His main hobbies are riding his bicycle, which he was doing regularly in Melbourne I understand, but he has problems here because of the hills and there are other priorities at the current time. His car is also in Melbourne, so he has not been driving and he is currently renting his accommodation.
DETAILS OF INJURY
He reports that he had his left knee injury doing the bicycle kick that I have referred to above in 2002 as part of the lunch time regular soccer game they played at work. He said he had some low back pain at the time which persisted. The enclosed reports have made reference to left sided low back pain. He said that there was one period which was either before or after his knee surgery that he was bedridden for about four days and he said that it was around 2004/2005 that he developed some right leg pain and saw his general practitioner and was referred to a specialist.
There is a report enclosed from Dr Peter Moran of 30 July 2004 referring to right sided sciatica and S1 nerve root involvement and the CT scan showing a large right sided lumbosacral protrusion displacing the S1 nerve. He considered a conservative regime was appropriate.
PROGRESS
He was subsequently seen by Dr Simon Bower, Neurologist on 7 June 2005 because of some urinary dribbling thought to be of neurologic origin, possibly from his low back. He makes the point that his back pain settled down and that he was seeing a psychiatrist at that time as well as still working with CSIRO. On his neurologic examination he reported this as being normal with normal straight leg raise and at that time an MRI showed a lateral L5-S1 disc protrusion impinging on the S1 nerve root which he did not think warranted surgery and was not of the opinion that there was any serious neurologic case. Dr Bower referred him on for urologic treatment or investigation for this bladder dysfunction.
He was subsequently seen by Andrew Danks, Chairman of Neurosurgery who makes reference to him being seen by registrars on a number of occasions and some sensory deficit in the right foot with the effects of the sciatica having resolved and made reference to him having some osteopathy at times in this period and he recommended some strengthening exercises and no further review.
He was subsequently reviewed by Dr Griffiths, Orthopaedic Surgeon on 7 November 2012 with reference to his left knee and at that time there is no mention of any specific problems in relation to his low back. He arranged for an arthroscopy which showed mild synovitis and some mild chondral changes of the medial and lateral compartments and femoral trochlear with evidence of an old partial lateral meniscectomy and an intact medial meniscus and the ACL graft was also reportedly intact.
He reports improvement following the arthroscopy and his reference to the back condition in this document is that ‘there is no documentation of this symptom being described to me in any of my consultations with Mr Sener. I cannot relate the problem of back pain to Mr Sener’s left knee condition’.
From the history provided by Mr Sener it is fairly similar to the enclosed reports where he refers to having been put on the wait list for surgery but it was an eighteen month list and the symptoms improved quite a lot in this period and he did have some osteopathic treatment. Since then though, he said that the frequency and severity of the back and right leg pain has increased a bit and in the last six months he has been getting occasional pain generally once or twice a month in the low back if he is tired or involves himself in any lifting that may be physically demanding and this lasts for one or two hours and is relieved with Diclofenac which is an anti inflammatory.
He still gets some foot pain on the right, more with regular walking and he said for the first ten minutes of walking the pain can increase and then it is not too bad, but generally if he is putting pressure on it for a period of time he tends to get used to the symptoms. Temperature has no effect and he is comfortable sitting and there are no complaints of tingling or numbness.
Current medications for his medical conditions include Coversyl, Zanidip and Dithiazide and uses Diclofenac for more significant pain, generally once every one to two months.
STATUS AT PRESENT
He does not have any specific back problems except in these periods referred to above.
He said in the morning he starts with some difficulty, and then gets good once he is mobile, not having any pain, and if he is having symptoms he said that it takes about one to three hours to get going properly. He does not have any night symptoms and I have referred to the leg symptoms he is getting above.
There do not appear to be any specific aggravating factors for his low back pain.
CURRENT ACTIVITIES
He has about a twenty five minute walk to work but generally will get the bus if he can. He is living in a four bedroom house which he rents and it is full of a lot of his text books and computers. He is not doing any specific computer rebuilding at the current time.
Around the house he can get the inside duties done and occasionally vacuuming. He gets low back pain if he does any gardening and this can last for a few days, particularly if he has done a lot of weeding, and he has only got a small lawn to mow. He generally only shops occasionally, getting light items, and it [sic] he has to do a bigger shop he will get a taxi to do this. Socially, he is reasonably busy with all his social interactions but not playing any sports I understand.
On his self assessed Oswestry questionnaire he reported the following:
·Pain is very mild at the time of assessment (1-2/10 on the Visual Analogue Scale).
·Painkillers give moderate relief from pain.
·Can look after himself normally but it is very painful.
·Can sit in his favourite chair as long as he likes.
·Pain prevents him standing more than one hour.
·Pain prevents him walking more than 2 km.
·Pain prevents him lifting heavy weights but can manage light to medium weights if conveniently positioned.
·Sleep can cause back ache if he spends a long time lying down.
·No sex life to speak of and unrelated to pain.
·Physical activities socially cause back pain.
CLINICAL ASSESSMENT
He was a well looking man with short brown hair and a normal gait. He was 165 cm in height, weighing 88 kg.
Upper Limbs
He had no laxities, swellings, callosities or tremor and a full range of upper limb movement.
Back/Spine
He had normal curves with some tenderness between L5 and S1 more on the right with forward flexion the fingertips coming to the ankle, extension of 20 degrees, lateral flexion the fingertips came to the knees and rotation was 75 degrees to both sides in the sitting position with normal spinal rhythm. There were no non organic findings.
Lower Limbs
The left leg was slightly longer than the right and he had relatively normal alignment with burn scars over the right patellar region with contraction particularly on the medial side and operative scars from his ACL reconstruction on the left.
His straight leg raising was 95 degrees on both sides.
Reflexes were symmetrical and intact with motor and sensory examination normal.
Left knee examination demonstrated no effusion with no local tenderness and movement from 0 – 150 degrees to observation being equal to the right and the knee was stable with negative rotation and Apley’s compression and distraction tests were negative.
Right foot examination demonstrated no real local tenderness or any other abnormal features either standing or examining the foot non weight bearing on its sole surface and even compressing it from medial to lateral did not cause any pain. I could not detect any neuromas.
He could walk on his toes, heels and squat fully.
Quadriceps circumference was reduced by 2 cm on the left, 10 cm above the patella and calf circumferences were equal to measurement.
INVESTIGATIONS
1.Plain X-rays Lumbar Spine (10 January 1984)
This has been reported as normal though they have made reference to slight narrowing at L5-S1 and a spina bifid occulta at S1.
2.Plain X-rays Lumbar Spine (10 November 1997)
There is normal alignment and a spina bifida occulta is present at S1 with slight narrowing most likely at L5-S1 with no other abnormality.
3.CT Abdomen (10 June 2009)
No report was available.
4.CT Lumbar Spine (2 July 2004)
These films were not available for review and have been reported as normal between L1 and L5 with at L5-S1 a right postero-lateral disc protrusion and impingement of the right S1 nerve root has been reported. They also make reference to mild multi level bilateral facet degeneration.
5.CT Lumbar Spine with MRI (9 March 2005)
This reports again a right sided disc protrusion at L5-S1 causing impingement.
OPINION
Mr Sener has a long history of low back pain with the initial x-rays taken in about 1984 and he has had recurring evidence of mechanical symptoms since then. There is a reported aggravation as a result of doing what would be considered an extension type force on the lumbar spine when kicking the ball in what he describes as a bicycle kick. Following this, there is reference to some left sided pain in the low lumbar spine with the predominant problem relating to his left knee where there is evidently was [sic] a lateral meniscal tear and an ACL rupture which had been treated and currently causing minimal symptoms. His clinical findings for his knee also demonstrate good stability.
He subsequently developed more significant symptoms relating to the right side with radiculopathy and he has subsequently been referred to the Neurosurgical Clinic where the disc protrusion appears to have settled by natural causes and he has had no further evidence of radiculopathy or sciatica reviewing the enclosed reports from the Neurosurgical Department that I have referred to above under Progress.
Currently the situation is stable and his mechanical back symptoms are consistent with the natural history of degenerative disease at the lumbosacral level for which there was evidence of [sic] in the early initial x-rays of 1984 and has been shown also in the subsequent CT scans reports that have been reviewed.
In his own quite detailed statement which unfortunately is undated, he makes reference to the sciatic type symptoms in relation to the right leg starting in mid 2004 and he said that there was, as I have referred to above, a significant improvement over a period of time in relation to this. The information provided in this document is consistent with that provided to myself and from your enclosed reports.
Reviewing the overall situation, taking into account his initial x-rays and the symptoms complained of, then his history is consistent with what does normally happen to the lumbar spine in terms of progression of the degeneration. The disc protrusions themselves can be part of this natural history and do not have to be specifically related to any trauma, quite often occurring on a spontaneous basis.
He did report after the specific incident where he injured his knee that he had pain on the left side. Taking into account that this was more of an extension injury and this is likely to have been to the posterior facet joint though possibly the intervertebral disc on the left but the injury as reported is not consistent with one that would specifically cause a disc protrusion or any significant tear of the intervertebral disc that may lead to a subsequent disc protrusion. An extension injury can bruise the disc or aggravate a pre-existing tear which do occur through natural progression the degeneration, but from the information provided, it is most unlikely that there has been a specific injury of any significance to the intervertebral disc on the right where a subsequent disc protrusion and radiculopathy occurred.
In reply to your specific questions:
4.1What condition/s, if any, does the Applicant suffer from? Please identify each separate condition and outline the basis for your opinion.
He currently has evidence of mechanical low back pain secondary to degenerative disease at the lumbosacral junction. He has very minor knee symptoms of no specific relevance and some right forefoot pain of uncertain aetiology but most likely related to local pathology and not referred from the low back. The most likely cause is some bursitis in the intertarsal region adjacent to the digital nerve.
4.2What history or [sic] the claimed condition (‘L5-S1 disc prolapse leading to more frequent and severe lower back pain, sciatica which gradually worsened, left hip and trochanter joint pain further exacerbating back pain’) discomfort [sic] the Applicant give at examination? Please obtain an account of how the injury occurred and how his symptoms have progressed.
I have outlined the history that he gave which is consistent with the information provided, appreciating that there will be small differences given the long period of time elapsed. I took specific note of how he injured his back with the bicycle kick and have outlined this above. He developed left sided back pain after this and then at a later date the right sided leg pain has started which he refers to about 2004.
4.3Did the Applicant’s employment with CSIRO contribute to the claimed condition? If so, did the Applicant’s employment contribute to the claimed condition to a significant degree? Please note, a significant degree means a degree that is substantially more than material.
It is not my opinion that there has been any contribution to his low back condition as a result of the injury as reported in 2002 except potentially an aggravation of a pre-existing degenerate condition on the left hand side which has resolved. It is not my opinion that the injury contributed to the subsequent disc protrusion.
4.4Is there a relationship between the Applicant’s left knee condition (which arose during the soccer game on 28 October 2002) and the claimed condition? Please outline the basis for your opinion.
It is not my opinion that the left knee condition has had any specific effect on the low back pain. It can cause some increase in symptoms for a short period while there is a lot of limping and restricted movement usually following surgery with the knee brace, but any effect of this is temporary unless there is a definitive specific injury for which there is no history of such.
4.5Does the Applicant suffer an underlying, pre-existing or constitutional condition relevant to the claimed condition? If so, what is the nature of this condition and why did it arise?
He does have a degenerate condition involving L5-S1 which on the initial x-rays in 1984 show the possibility there of the process being present with some narrowing at L5-S1. He also has a spina bifida occulta at S1 which does weaken the low back in that region making it more prone to symptoms.
4.6What is your diagnosis of the Applicant’s current symptoms and your opinion as to the nature and extent of the current symptoms?
Current symptoms relate to mechanical back pain due to the lumbosacral degeneration. Currently symptoms are relatively mild and intermittent.
4.7Please obtain a detailed account of the Applicant’s current treatment regime, including its precise nature and frequency.
He is not having any specific treatment now apart from taking anti inflammatory medication with Diclofenac for more significant symptoms generally once a month or every two months.
4.8 What is your opinion as to future treatment and medication requirements?
He does not require any further specific treatment apart from being advised to do some regular walking and exercise and utilise the anti inflammatories on an intermittent basis.
4.9 What is your prognosis as to the Applicant’s condition?
His prognosis is that the degenerative condition is following its natural history and he does not have any specific evidence clinically of any instability with an excellent range of movement and good spinal rhythm. His lumbosacral level should self stabilise or fuse in time which should be within the next five to ten years, given that the overall period of degeneration for a segment from the onset of the degeneration to spontaneous or natural fusion on average is about forty years and at that stage any symptoms usually resolved from the segment.
4.10Are there any non-work related factors which have caused or contributed to the Applicant’s condition, and if so, please indicate what these factors are. If you do not consider the work related effects of the condition have ceased, when do you consider they will cease?
There is unlikely to be any specific non-work related factors on the history provided where there is no specific injury, appreciating that lifting computers is part of his home business and doing some of these types of activities working in confined spaces behind computers and such like can be an aggravating factor, but he does not report any specific aggravations and it does appear that it is more the natural history of degeneration.
4.11Is there any evidence of non-organic factors and voluntary or involuntary exaggeration of the symptoms or signs? Please explain.
I could not find any non organic factors or voluntary or involuntary exaggeration.
…”(Exhibit R10)
In his examination-in-chief Dr Hardcastle gave the following evidence:
·the L5/S1 disc prolapse suffered by the applicant, which was revealed in a CT scan in July 2004 and a MRI in March 2005, was a right-sided disc prolapse;
·it is “most unlikely” that a disc prolapse in that position would cause symptoms in the left lumbar area;
·a disc prolapse causing left lumbar symptoms would be located in the “central or central-to-left” area;
·if the applicant had suffered that disc protrusion in the soccer accident of 28 October 2002, he would have experienced symptoms resulting from that disc protrusion within a few weeks, and no later than six weeks, thereafter;
·an extension force on the lumbar spine (as would have occurred in the soccer accident of 28 October 2002) is much less likely to cause a disc protrusion than a flexion force on the lumbar spine;
·the medical evidence in relation to the applicant’s lumbar spine is “against” the proposition that his soccer accident on 28 October 2002 caused his L5/S1 disc protrusion;
·it is “most unlikely” that the applicant’s L5/S1 disc protrusion was caused by his soccer accident on 28 October 2002.
In the course of his questioning of Dr Hardcastle, the applicant noted the following factual inaccuracies which he said were in Dr Hardcastle’s report:
·in the second paragraph under the heading "BACKGROUND”, he worked in a tomato “farm”, not a tomato “factory”;
·in the third paragraph under the heading “BACKGROUND”, he did not complete six university degrees; rather, he enrolled in courses in six different universities but completed only one degree course, namely, in applied physics.
Dr Tony Robinson
Dr Robinson, Orthopaedic Surgeon, confirmed that he had prepared a report, dated 29 April 2014, regarding the applicant and that he adhered to the contents of that report.
Dr Robinson’s report of 29 April 2014, which is addressed to the applicant, states as follows:
“ …
Thank you for your letter dated the 22nd of April 2014 regarding Mr Tejay Sener.
I saw Mr Sener at your request in my consulting rooms on the 29th of April 2014 in order to supply the following medico/legal report.
HISTORY OF INJURY:
Mr Sener sustained an injury to his back and left knee at work in October 2002.
The patient was playing soccer with other CSIRO employees.
Mr Sener was doing a bicycle kick when he injured his left knee and low back.
The patient experienced immediate pain and swelling in the left knee. He also experienced low back pain when he fell.
Mr Sener returned to work after the soccer game but left mid afternoon.
The patient either went to the hospital or to a GP. His main problem was pain in the left knee. However, the patient did mention pain in his low back area.
Mr Sener was referred to an orthopaedic surgeon with regard to his left knee. The patient had physiotherapy to his back.
Eventually in February 2003 Mr Sener had an anterior cruciate reconstruction of his left knee.
Unfortunately due to his abnormal gait pattern the patient’s pain in his low back increased around this period of time. At one stage Mr Sener had to rest in bed for four days.
Mr Sener did undergo an MRI in approximately 2004 as he developed not only low back pain but referred pain down the right leg. The patient was found to have a disc protrusion at L5/S1.
The patient underwent osteopathic treatment.
Mr Sener had a further acute attack of pain but after this episode the sciatica subsided.
The patient saw a neurosurgeon in 2004 or 2005. However, the pain in the right leg had settled by this period of time. Thus no operation was indicated.
Mr Sener has undergone a second knee arthroscopy where he underwent debridement of the joint.
PRESENT SITUATION:
Mr Sener is complaining of pains in the following areas:
1.Low back.
This is constant pain situated centrally and on the left and right sides.
The constant pain increases with the following:
(a) On first waking up in the morning.
(b) Flexion and extension is not a problem.
(c) The patient avoids lifting.
(d) Standing up from a squatting position.
(e) After a physically active day.
The low back pain is associated with the following:
(a) Stiffness of the back.
(b) No radiation down the legs.
(c) Pins and needles in the dorsum of the right foot.
(d) Aching sensation at the top of the right foot.
(e) Tightness at the back of the right leg.
Mr Sener had a history of recurrent low back pain from the age of seventeen.
The patient would see his general practitioner once every two years.
However, the pain was not present at the time of the accident in October 2002.
2.Left knee.
The patient is not experiencing any pain.
Mr Sener does not complain of any swelling, giving way or locking.
The only problem in the region is muscle cramp in the lower left leg which occurs once every six months.
TREATMENT:
1.The patient does not take any medication.
2.Mr Sener has had two operations on his left knee.
3.The patient has not had any steroid injections into his lumbar spine or knee.
4.Mr Sener does not use a brace for his back or knee.
5.Some x-ray reports were available in the notes you kindly supplied.
A plain x-ray of the lumbar spine was carried out on the 10th of January 1984. There may be some slight narrowing at the L5/S1 disc space.
A plain x-ray of the lumbar spine was carried out on the 10th of November 1997. This was reported as being normal.
A CT scan of the lumbar spine was carried out on the 2nd of July 2004. This showed a moderate sized disc protrusion at L5/S1. The disc protrusion abutted the right S1 nerve root. There was multilevel bilateral facet joint degeneration.
An MRI of the lumbar spine was carried out on the 9th of March 2005. This showed a right sided disc protrusion at L5/S1 with impingement on the right S1 nerve root.
FUNCTION:
1. At the time of the accident Mr Sener was working as a scientist for the CSIRO. The patient’s job mainly involved desk work and some walking.
Following the accident in October 2002 Mr Sener was off work for one month. He then returned to normal duties on a full-time basis.
Following his anterior cruciate reconstruction Mr Sener was off work for one month.
Finally the patient had two weeks off work following his arthroscopy.
Mr Sener has one to seven days off every six months because of his back pain.
Sitting at work is not a problem.
The patient avoids lifting loads at work.
At present Mr Sener is working at Curtin University as a radiation safety officer. He is able to cope with these duties.
Unfortunately he still needs to have one to seven days off every six months because of his low back pain.
2. Mr Sener used to play social soccer. He has not been able to return to this activity. The patient would play one to two games a week.
The patient used to enjoy cycling. He would cycle five to seven times a week. He has not been able to return to this activity. However, the patient states that he would experience low back pain with attempting to cycle.
Mr Sener used to enjoy regular walks. He would walk up to eight hours when he had the time.
3. Sitting is not a problem.
Mr Sener can stand for approximately thirty minutes.
The patient is able to jog for twenty minutes.
Mr Sener feels that he could walk for two hours maximally.
4. The patient does not have any problems driving.
5. Mr Sener can stand to get dressed. However, he has to lean against an adjacent wall or other structures when doing so.
6. The patient is renting at present. He still has to do some gardening. The patient experiences pain with gardening and after gardening. The pain usually lasts for one to one and a half days.
Mr Sener sits when gardening.
The patient does not have to mow any lawns.
EXAMINATION:
I examined the following areas:
1. Left knee
I noted full extension.
There was wasting of the thigh muscles by 4 cm on measurement.
There was a 4 cm medial proximal tibial wound. This is where the hamstring tendons were taken for the anterior cruciate graft.
I could not detect an effusion.
There was no tenderness on light palpation.
The McMurray’s and the patellar grind tests were normal.
I noted Grade 2 medial collateral ligament laxity.
There was a Grade 2 Lachman test.
The draw and pivot shift tests were normal.
Range of movement of 0° - 120°.
2. Lumbar spine.
I noted normal lumbar lordosis.
I could not detect any tenderness on light palpation.
With regard to range of movement, flexion was 90° and extension was 20°.
Lateral flexion was 40° to the left and 50° to the right.
Rotation was 30° on both sides.
3. Neurological status of the legs.
Straight leg raises were normal.
Reflexes were decreased but equal on both sides.
Power was Grade 5/5.
There was normal touch sensation from L4 to S1.
4. I noted satisfactory pedal pulses.
DIAGNOSES:
1. Satisfactory anterior cruciate reconstruction of the left knee.
2. Soft tissue inflammation of the lumbar spine at the L5/S1 disc level.
With regard to your specific enquiries, I will answer them as itemised:
1. Mr Sener suffers from disc degeneration and protrusion at L5/S1.
This is based on the patient’s history, examination and investigations.
2. The disc protrusion at L5/S1 caused right sided sciatica due to compression of the S1 nerve root on this side.
This occurred spontaneously in 2003 or 2004. There was disc disease at L5/S1 which was pre-existing. The disc spontaneously protruded to the right side in 2003 to 2004.
This resulted in referred pain down the right leg due to sciatica.
In general, sciatica can resolve spontaneously. In this case this has occurred.
3. I believe the patient’s employment with CSIRO contributed to the condition. The patient developed a disc problem at L5/S1 due to the accident. This resulted in the disc eventually protruding one or two years later.
The patient had a history of recurrent low back pain from the age of seventeen. However, there was no pain at the time of the accident.
As Mr Sener did not have any pain at the time of the soccer accident I believe the soccer accident has caused the disc trauma at L5/S1 with subsequent protrusion over the next one to two years.
5.[sic] I believe Mr Sener tore his anterior cruciate ligament when playing soccer in October 2002. This necessitated an anterior cruciate reconstruction at a later date.
The major injury to the left knee is consistent with the anterior cruciate tearing.
The patient does not suffer any underlying pre-existing condition with regard to the left knee.
However, the patient does have a pre-existing problem with the low back. However this was dormant at the time of the soccer injury in October 2002.
6.The diagnosis is soft tissue inflammation of the disc at L5/S1. The patient has undergone a satisfactory anterior cruciate reconstruction of the left knee.
7. I have already mentioned the treatment Mr Sener has undergone to date.
8.Future treatment should consist of the patient’s own exercise program in the form of swimming or going to the gym three times a week.
If the pain was to significantly increase then Mr Sener may benefit from injections at the L5/S1 level.
I do not think medication is necessary at present. However, I believe the patient may need to have inflammatory medication in the future due to inflammation of the disc at L5/S1.
9. The patient’s prognosis with regard to the left knee is very good.
The patient’s prognosis with regard to the lumbar spine is guarded.
10.I do not think there are any non-work factors related to the patient’s left knee or low back conditions.
11.I do not think there are any non-organic factors or involuntary exaggeration of the patient’s symptoms or signs.
…” (Exhibit A2)
In his examination-in-chief Dr Robinson gave the following evidence:
·the “bicycle kick” performed by the applicant in the soccer accident of 28 October 2002 would not have caused the relevant disc to protrude – rather, it would have “hyper-extended” his back and put some force on the facet joints of his lower lumbar spine;
·the applicant “may have done damage” to the relevant disc in his lumbar spine when he fell on the ground;
·the applicant’s abnormal gait following his left knee injury may have caused muscular problems and twisted his lumbar spine but would not have caused the relevant disc in his lumbar spine to protrude;
·likewise, the applicant’s abnormal or compensated gait during the period of his recovery from the anterior cruciate reconstruction of his left knee would not have caused the relevant disc in his lumbar spine to protrude.
In cross-examination Dr Robinson gave the following evidence:
·he was unaware that the low back pain which the applicant reported to his general practitioner soon after the accident of 28 October 2002 was left-sided low back pain;
·a right-sided lumbar disc protrusion will sometimes produce symptoms on the right side of the back but it may produce “generalised low back pain”;
·a lumbar disc is more vulnerable to protrusion in a flexion of the lumbar spine than in an extension of the lumbar spine;
·it is possible that the applicant’s lumbar disc herniated when he fell to the ground after performing the “bicycle kick” in the soccer accident of 28 October 2002 and subsequently, about 18 months later, “completely herniated and touched the S1 nerve root”.
In response to a question from the Tribunal, Dr Robinson reiterated that it was “possible” that the applicant’s fall on 28 October 2002 caused the herniation of the applicant’s lumbar disc but that he could not go so far as to say that it was “probable” that this was the case.
Additional Medical Evidence
The applicant also tendered in evidence a letter, dated 28 July 2014, from Sarah Young and John Watson of the Interprofessional Health and Wellness Centre, Curtin University, addressed to “Physio”, which states as follows:
“ …
Thank you for taking over the care of this patient.
Mr Sener has been receiving treatment at the Curtin Physiotherapy Clinic since the beginning of July 2014 for two unrelated complaints – cervical pain and sciatic nerve sensitivity.
Mr Sener’s cervical pain is caused largely by mid cervical stiffness (particularly into left lateral flexion) and tightness of the left upper traps. He has responded well in the short term to cervical spine mobilisations and soft tissue work. However, these gains have not been maintained between visits.
Mr Sener’s sciatic nerve sensitivity is caused largely by lumbar spine stiffness and is worsened by increases in intra-abdominal pressure. He has responded well to rotation mobilisations and rotation based exercises.
…” (Exhibit A3)
The Relevant Legislation
The SRC Act, as in force at all material times, relevantly provided as follows:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
…”
“ 14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…”
Before 13 April 2007 the terms “injury” and “disease” were defined in s 4(1) of the SRC Act as follows:
“ 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
“ disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
With effect from 13 April 2007, the terms “injury” and “disease” have been, and are presently, defined in (respectively) s 5A and s 5B of the SRC Act as follows:
“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.
…”
“ 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.
…
(3) In this Act:
significant degree means a degree that is substantially more than material.”
The Issue
The issue for the Tribunal’s determination is whether the respondent is liable under s 14 of the SRC Act to pay compensation to the applicant in respect of the lower back condition and associated conditions for which he claimed compensation in April 2012 (see paragraph 11 above).
Consideration and Findings
The applicant’s lower back condition
On the basis of the medical evidence before it, the Tribunal is satisfied, and finds, that:
·as at January 1984 the applicant’s lumbar spine was normal, apart from a slight narrowing at the L5–S1 level and a spina bifida occulta at the S1 level;
·as at July 2004 the applicant’s lumbar spine was normal at the L1–L2, L2–L3, L3–L4 and L4–L5 levels but, at the L5–S1 level, there was a right postero-lateral disc protrusion abutting the right S1 nerve root.
The Tribunal, on the basis of the applicant’s evidence, is satisfied, and finds, that:
·the applicant experienced back pain once or twice per year from about 1980;
·he suffered increased lower back pain following the soccer accident of 28 October 2002;
·by mid 2004 he was experiencing sciatic pain and pain in his right leg which significantly affected his mobility;
·he continues to experience lower back pain.
Is the applicant’s lower back condition a compensable “injury” within the meaning of s 14 of the SRC Act?
The applicant contends that he suffered a lower back injury in the soccer accident of 28 October 2002 and that his ongoing lower back pain is causally related thereto.
It is common ground that the soccer accident of 28 October 2002 occurred in the course of the applicant’s employment by CSIRO.
The questions whether the applicant suffered a lower back injury in the soccer accident of 28 October 2002, and whether his ongoing lower back pain is causally related to that accident, are essentially medical questions which are to be determined by the Tribunal on the basis of the medical evidence before it.
There is medical evidence before the Tribunal that the applicant suffered left-sided lower back pain as a result of the soccer accident of 28 October 2002, namely, the report of Dr Lal, dated 20 August 2012 (set out in paragraph 14 above), which notes (relevantly) that, following the applicant’s initial presentation on 29 October 2002 regarding his left knee, he subsequently presented on 19 November 2002 complaining of left low back pain since that accident, which Dr Lal described as “muscular low back pain due to postural imbalances from walking awkwardly to protect his left knee”, and again on 10 December 2002 when Dr Lal referred him to physiotherapy “for his sore left lower back”. Dr Lal also noted that the applicant did not mention left-sided low back pain to him after the consultation of 10 December 2002 but that, at his next consultation on 4 November 2004, the applicant complained of right-sided low back pain and right sciatica.
The Tribunal notes that, although the applicant’s compensation claim in November 2002 (see paragraph 7 above) referred not only to his left knee condition, but also to his “lower back” and “prolonged back pain”, the respondent’s determination of 2 December 2002 accepted liability under s 14 of the SRC Act to pay compensation to the applicant for his left knee condition but did not refer to his lower back condition (see paragraph 10 above). The Tribunal also notes that the applicant did not request the respondent to reconsider that determination, as he was entitled to do under s 62(2) of the SRC Act, and no reconsideration of that determination was undertaken, and no reviewable decision was made in relation to that determination, by the respondent under s 62 of the SRC Act. Accordingly, the matter of the applicant’s entitlement to compensation under s 14 of the SRC Act, pursuant to his claim in November 2002, is not presently before the Tribunal.
What is presently before the Tribunal, following the applicant’s claim for compensation in April 2012 and the respondent’s determination of 7 February 2013 and reviewable decision of 9 July 2013 (see paragraphs 11–13 above), is the question of the applicant’s entitlement to compensation under s 14 of the SRC Act for a lower back condition (and relation conditions), the subject of that claim.
The lower back condition, which is the primary subject of the applicant’s compensation claim in April 2012, is described therein as “L5S1 disc prolapse”.
The Tribunal has found (see paragraph 37 above) that, as at July 2004, the applicant had, at the L5–S1 level of his lumbosacral spine, a right postero-lateral disc protrusion abutting the right S1 nerve root. The Tribunal notes that there is no medical evidence before it referring to the existence of that L5–S1 disc protrusion prior to July 2004, and that the medical evidence which is before the Tribunal indicates that the only abnormality of the applicant’s lumbar spine in the period from January 1984 and prior to July 2004 involved minor degenerative change at the L5–S1 level and a spina bifida occulta at S1.
Although the Tribunal is unable, on the basis of the evidence before it, to determine the precise date on which the applicant suffered the abovementioned right postero-lateral disc protrusion, the Tribunal notes that, in his report of 20 August 2012 (set out in paragraph 14 above), Dr Lal refers to his notes of the applicant’s consultation on 4 November 2004 ( a copy of which is in evidence – Exhibit R5) which record that the applicant’s right-sided back pain started in June 2004 and not long after radiated to his right leg and foot. On the basis of that evidence the Tribunal is reasonably satisfied, and finds, that the applicant suffered the abovementioned right postero-lateral disc protrusion at the L5–S1 level of his lumbosacral spine (“the lower back condition”) in or about June 2004.
Having regard to the Tribunal’s finding that the applicant suffered the lower back condition in or about June 2004, the question whether that condition is a compensable “injury” within the meaning of s 14 of the SRC Act falls to be determined in accordance with the relevant provisions of the SRC Act as in force at that time.
Is the lower back condition a “disease”?
The lower back condition will be a “disease” (as defined in s 4(1) of the SRC Act at the relevant time), and thus an “injury” (as defined in s 4(1) of the SRC Act at the relevant time), if it constitutes:
“ an ailment or an aggravation [of an ailment] that was contributed to in a material degree by the [applicant’s] employment by [CSIRO]”.
The medical evidence before the Tribunal, which bears directly on that issue, may be summarised as follows:
·Dr Lal, in his report of 20 August 2012, opined that the applicant suffered left-sided low back pain in the soccer accident of 28 October 2002, and that it was unlikely that the right-sided disc prolapse and right-sided low back pain suffered by the applicant from June 2004 were causally related to that soccer accident and the left knee injury and left-sided low back condition suffered by the applicant in that accident;
·Dr Hardcastle, in his report of 4 March 2014, opined that, although the applicant may have aggravated “a pre-existing degenerate condition on the left hand side” of his lower back in the soccer accident of 28 October 2002, any such aggravation “has resolved” and has not contributed to the subsequent disc protrusion suffered by the applicant in 2004;
·in his oral evidence Dr Hardcastle opined that it was “most unlikely” that the applicant’s L5–S1 disc protrusion was caused by the soccer accident of 28 October 2002;
·Dr Robinson, in his report of 29 April 2014, opined that the applicant’s CSIRO employment contributed to his lower back condition in that he “developed a disc problem at L5/S1 due to the [soccer] accident” of 28 October 2002 resulting in that disc “eventually protruding one or two years later”;
·however, in his oral evidence, Dr Robinson went no further than to opine that it was “possible” that the applicant suffered a herniation of the L5/S1 disc in the soccer accident of 28 October 2002, and he opined that his fall in that accident would not itself have caused the protrusion of that disc – rather, that protrusion occurred spontaneously about 18 months later;
·neither Dr Hardcastle nor Dr Robinson opined that the left knee injury which the applicant suffered in the soccer accident of 28 October 2002 contributed, whether of itself or by reason of its causing the applicant subsequently to have an abnormal or “compensated” gait, to his suffering the L5/S1 disc protrusion in 2004.
In the Tribunal’s opinion, the abovementioned medical evidence, on balance, clearly supports the proposition that the lower back condition was not contributed to in a material degree, or at all, by the applicant’s employment by CSIRO – in particular, by the soccer accident of 28 October 2002 or by the compensable left knee injury suffered by the applicant in that accident.
Accordingly, the Tribunal, on the basis of the medical evidence before it, finds that the lower back condition is not a “disease”, as (at the relevant time) defined in s 4(1) of the SRC Act.
Is the lower back condition otherwise an “injury”?
The lower back condition will otherwise be an “injury” (as defined in s 4(1) of the SRC Act at the relevant time) if it constitutes either:
“ an injury (other than a disease) … arising out of, or in the course of, the [applicant’s] employment” by [CSIRO]”;
or:
“ an aggravation of a physical … injury (other than a disease) … being an aggravation that arose out of, or in the course of, that employment”.
Having regard to the abovementioned medical evidence, the Tribunal is of the opinion that that evidence, on balance, clearly supports the proposition that the lower back condition suffered by the applicant in or about June 2004 was not causally related to his employment by CSIRO – in particular, to the soccer accident of 28 October 2002 or to the compensable left knee injury suffered by the applicant in that accident. Accordingly, the Tribunal finds that the lower back condition did not arise out of the applicant’s employment by CSIRO, within the meaning of the applicable definition of “injury” in s 4(1) of the SRC Act.
Although there is evidence before the Tribunal regarding the time when the applicant suffered the lower back condition (on the basis of which the Tribunal has found that he suffered that condition in or about June 2004), there is no evidence before the Tribunal regarding the circumstances in which that condition was suffered by the applicant at that time. More specifically, there is no evidence before the Tribunal to the effect that the applicant suffered the lower back condition in the course of performing his CSIRO employment activities or that his suffering that condition was incidental to the performance of those activities. The Tribunal notes Dr Robinson’s opinion, expressed in his report of 29 April 2014, that the L5/S1 disc protrusion suffered by the applicant occurred “spontaneously”. Similarly, Dr Hardcastle stated in his report of 4 March 2014:
“ Reviewing the overall situation, taking into account his initial x-rays and the symptoms complained of, then his history is consistent with what does normally happen to the lumbar spine in terms of progression of the degeneration. The disc protrusions themselves can be part of this natural history and do not have to be specifically related to any trauma, quite often occurring on a spontaneous basis.”
Having regard to the evidence before it, the Tribunal cannot be satisfied that the lower back condition arose, or was suffered, in the course of the applicant’s employment by CSIRO, within the meaning of the applicable definition of “injury” in s 4(1) of the SRC Act.
Accordingly, the Tribunal, on the basis of the evidence before it, finds that the lower back condition is not otherwise an “injury”, as (at the relevant time) defined in s 4(1) of the SRC Act.
The lower back condition is not a compensable injury
It follows, from the findings set out in paragraphs 52 and 57 above, that the lower back condition is not a compensable “injury” within the meaning of s 14 of the SRC Act.
Conclusion
The Tribunal concludes, therefore, that the respondent is not liable under s 14 of the SRC Act to pay compensation to the applicant in respect of the lower back condition (and associated conditions, the subject of his claim for compensation dated 5 April 2012).
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop ...............[sgd D Brodie].............................................
Administrative Assistant
Dated 10 October 2014
Dates of hearing 18, 19 September 2014 Applicant In person (unrepresented) Counsel for the Respondent Ms G Walker Solicitors for the Respondent Sparke Helmore
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