Thompson and Comcare (Compensation) - [2019] AATA 714

Thompson and Comcare (Compensation) [2019] AATA 714 (16 April 2019)
Division:GENERAL DIVISION
File Number: 2017/3262
2017/3274
2017/3275
2017/4819
2017/5404
2017/7134
2017/7135
2017/7136
2017/7137
2018/2754

Re:Leon Thompson
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Deputy President Boyle
Date:16 April 2019
Place:Perth

The Tribunal affirms the decisions under review.
.......[sgd].................................................................
Deputy President Boyle
Catchwords
COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – ten applications – decisions under review affirmed
2017/3262 – requirement to provide medical certificates – s 54(1) – incapacity confirmed for specified period – Applicant required to submit a new claim for compensation – Respondent liable to pay incapacity compensation for specified period pursuant to s 20 – decision under review affirmed
2017/3274 and 2017/3275 – application of the formula in s 20 – reduction in compensation due to increase in superannuation payable – Applicant no longer pursues applications – Respondent’s application of the formula correct – decisions under review affirmed
2017/4819 – s 20 – calculation of normal weekly earnings (NWE) and inclusion of allowances – two week relevant period – decision under review affirmed
2017/5404 – calculation of NWE – request for review lodged five years out of time – should the Tribunal extend the time for review – does the Tribunal have jurisdiction to review the decision and if so, should the Tribunal grant the extension of time and was the NWE correctly calculated – Tribunal has jurisdiction to review the decision not to grant an extension of time – no acceptable explanation for delay – prejudice to the Respondent – where there is delay the whole quality of justice deteriorates – fairness as between the applicants and other persons otherwise in a like position – merits of the substantial application – extension of time not to be granted – decision under review affirmed
2017/7134 – s 20 – jurisdiction – Respondent not prohibited by s 26 of the Administrative Appeals Tribunal Act 1975 (Cth) – does the Applicant suffer from a back condition(s) – is that condition an ‘injury’ or ‘disease’ under the SRC Act – has the Applicant ceased to suffer from the injury – Applicant’s current symptoms caused by the development of degenerative spinal condition – Applicant no longer suffers from the injury – Respondent not presently liable to pay compensation in relation to injury – decision under review affirmed
2017/7135 – s 16 – does the Applicant suffer the psychological injury – does the psychological injury continue to be significantly contributed to by the Applicant’s employment by the Commonwealth – Tribunal is not satisfied that any mental ailment that the Applicant may now suffer is contributed to, to a significant degree, by the Applicant’s employment – Applicant has no entitlement to compensation for medical treatment obtained in relation to the psychological injury – decision under review affirmed
2017/7136 – s 24 – Applicant has no entitlement to permanent impairment compensation in relation to back injury and psychological injury – decision under review affirmed
2017/7137 – s 16 – gym membership – exercises that the Applicant was performing were not specifically targeted at the Applicant’s lower back condition – insufficient evidence for the Tribunal to find that the gym membership was or is reasonable for the purposes of
s 16 – Applicant not entitled to compensation for three month gym membership as it is not reasonable treatment – decision under review affirmed
2018/2754 – new ailment – whether the Applicant suffers an aggravation of the psychological injury – self-diagnosis – decision under review affirmed
WORDS AND PHRASES – ‘reasonable treatment’, ‘decision’
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) – ss 3(3), 26, 42A(4)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4, 4(1), 4(12), 5A(1), 5A(1)(a), 5A(1)(b), 5B, 5B(1), 8, 8(1), 8(2), 8(5), 8(6), 8(6)(c), 14, 14(1), 16, 16(1), 19, 20, 24, 24(7), 27, 54(1), 62, 62(1),62(3), 64, and Part II
Workers’ Compensation Act 1926-1960 (NSW)

Cases
Alamos and Comcare [2014] AATA 629
Australian Telecommunications Commission v Tzikas [1985] FCA 385; (1986) 5 AAR 173
Blackwell and Comcare [2017] AATA 1357
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Commissioner of Taxation (1999) 99 ATC 4516
Canute v Comcare (2006) 226 CLR 535
Comcare Australia v Rope (2004) 135 FCR 443
Comcare v A’Hearn (1993) 45 FCR 441
Comcare v Bozicevic (1997) 74 FCR 260; 144 ALR 132
Comcare v Holt (2007) 94 ALD 576
Comcare v John Lewis Willems [1996] FCA 1586
DHLD and Executive Director, Social Security Appeals Tribunal (2010) 115 ALD 566; [2010] AATA 377
Dunstan and Comcare [2012] AATA 567
Duong v Australian Postal Corporation [2005] FCA 991
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
HSDR and Comcare [2017] AATA 779
Hunter Valley Developments v Cohen (1984) 3 FCR 344
John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Lees v Comcare (1999) 56 ALD 84
Leslie John Burt and Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1991] AATA 302
Lucic v Nolan (1982) 45 ALR 411
McDonald v Department of Defence [1999] FCA 882
Prain and Comcare [2016] AATA 459
Prain v Comcare [2017] FCAFC 143
Re Jorgensen and Commonwealth (1990) 23 ALD 321
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Stitt and Comcare [2018] AATA 3092
Sullivan and Military Rehabilitation and Compensation Commission [2007] AATA 1337
Thompson and Comcare (2014) 141 ALD 478
Topping and Comcare (Compensation) [2015] AATA 525
Vittiglia and John Holland Group [2013] AATA 492
Warren De Courcy Brown and Comcare [1997] AATA 528
Weston and Cleanaway [2018] AATA 3740
Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21
Zizza v Federal Commissioner of Taxation (1999) 55 ALD 51

Secondary Materials
Comcare, Guide to the Assessment of the Degree of Permanent Impairment (Comcare, Edition 2.1, 1 December 2011) – Tables 9.6, 9.17
Index
Decision
Catchwords
Legislation
Cases
Secondary Materials
Reasons for Decision
Index
The Applications
1. 2017/3262 – requirement to provide medical certificates – incapacity period 6 April 2017 to 4 April 2018
2 and 3. 2017/3274 and 2017/3275 – application of the formula in s 20 of the SRC Act – incapacity period 23 June 2017 to 4 April 2018
4. 2017/4819 – calculation of normal weekly earnings (NWE) and inclusion of allowances – incapacity period 1 July 2017 to 4 April 2018
5. 2017/5404 – calculation of normal weekly earnings (NWE) as at 17 February 2011
6. 2017/7134 – no present liability decision, Back Injury
7. 2017/7135 – no present liability decision, Psychological Injury
8. 2017/7136 – permanent impairment resulting from the Injuries
9. 2017/7137 – gym membership
10. 2018/2754 – new ailment, aggravation of the Psychological Injury

Background
2017/5404
2017/4819
2017/3274 and 2017/3275
2017/3262
2017/7134, 2017/7135, 2017/7136 and 2017/7137
2018/2754
Legislative Framework
The Issues
The Hearing
Consideration
2017/7134 – no present liability decision, Back Injury
Jurisdictional Issue
Does the Applicant suffer from a lower back injury?
Evidence
Consideration

2017/7135 – no present liability decision, Psychological Injury
The issues
Does the Applicant suffer from the psychological injury?
Evidence
Consideration
Does the Applicant suffer from the psychological injury dated 3 September 2012?

2017/7136 – Permanent Impairment Claim
2018/2754 – New ailment, aggravation of the Psychological Injury
2017/5404 – calculation of normal weekly earnings (NWE) as at 17 February 2011
Explanation for Delay
Prejudice to the Respondent
Fairness as between the applicants and other persons otherwise in a like position
Merits of the Substantial Application

2017/3274 and 2017/3275 – application of the formula in s 20 of the SRC Act – incapacity period 23 June 2017 to 4 April 2018
2017/3274
2017/3275

2017/4819 – calculation of normal weekly earnings (NWE) and inclusion of allowances – incapacity period 1 July 2017 to 4 April 2018
2017/3262 – requirement to provide medical certificates – incapacity period 6 April 2017 to 4 April 2018
2017/7137 – gym membership
Summary
2017/7134
2017/7135
2017/7136
2018/2754
2017/5404
2017/3274
2017/3275
2017/4819
2017/3262
2017/7137
Decision
REASONS FOR DECISION
Deputy President Boyle
16 April 2019
the applications

The Applicant seeks the review of ten decisions by the Respondent under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). They are:
1. 2017/3262 – requirement to provide medical certificates – incapacity period
6 April 2017 to 4 April 2018
The Applicant seeks review of a decision of the Respondent dated 2 June 2017 affirming a determination dated 12 April 2017 which found that the Respondent was liable to pay incapacity compensation to the Applicant pursuant to s 20 of the SRC Act from

6 April 2017 until 4 April 2018 (at which point the Applicant would have to submit a fresh medical certificate).
The Applicant disputes the determination on the basis that he contends that he should not be required to provide yearly medical certificates and the incapacity determination should have been open-ended.
2 and 3. 2017/3274 and 2017/3275 – application of the formula in s 20 of the SRC Act – incapacity period 23 June 2017 to 4 April 2018
The Applicant seeks review of a decision of the Respondent dated 5 June 2017 which affirmed two determinations dated 24 May 2017:
(a)The first determination dated 24 May 2017 was that the Applicant’s weekly rate of compensation would be reduced on 23 June 2017 in an amount equal to the increase that he had received in his superannuation pension (in accordance with the formula in s 20 of the SRC Act).
(b)The second determination dated 24 May 2017 determined the specific rates of compensation that would be paid from 23 June 2017 to 4 April 2018, reflecting the reduction (of $5.02 per week resulting from the increase in superannuation payable) which had been determined in the previous letter.
The Applicant disputes that the application of the formula in s 20 of the SRC Act results in his weekly rate of compensation being decreased in an amount equal to the increase in his superannuation pension.
4. 2017/4819 – calculation of normal weekly earnings (NWE) and inclusion of allowances – incapacity period 1 July 2017 to 4 April 2018
The Applicant seeks review of a decision of the Respondent dated 11 August 2017 which affirmed a determination dated 5 July 2017 which determined the Applicant’s entitlement to compensation under s 20 of the SRC Act for the period 1 July 2017 to 4 April 2018.
The Applicant sought review of the decision on the basis that he contends that the following components were not included in the calculation of his NWE (2018/4819, T13):
(a)Shoe allowance;
(b)Wharf allowance;
(c)Overtime;
(d)Superannuation contributions;
(e)Annual leave loading; and
(f)Extra duty meal allowances.
5. 2017/5404 – calculation of normal weekly earnings (NWE) as at 17 February 2011
The Applicant seeks review of a decision of the Respondent dated 16 August 2017 which refused to review a determination dated 28 November 2012 on the basis that the request for review had been lodged five years out of time.
6. 2017/7134 – no present liability decision, Back Injury
The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which reconsidered (on own motion) a determination dated 5 July 2017 and determined that the Respondent was not presently liable to pay compensation pursuant to s 20 of the SRC Act in relation to ‘Intervertebral disc disorder – lumbar region’ in 2005 and an ‘aggravation of lumbar sprain (bilateral)’ in 2011 (Back Injury).
7. 2017/7135 – no present liability decision, Psychological Injury
The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which affirmed a determination dated 27 October 2017 which had found that the Applicant had no entitlement to compensation pursuant to s 16 of the SRC Act for medical treatment obtained in relation to ‘adjustment reaction with anxious mood’ in 2012 (Psychological Injury).
8. 2017/7136 – permanent impairment resulting from the Injuries
The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which affirmed a determination dated 10 October 2017 that had found that the Applicant had no entitlement to permanent impairment compensation pursuant to s 24 of the SRC Act in relation to the Back Injury and the Psychological Injury (together referred to as the Injuries).
9. 2017/7137 – gym membership
The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which affirmed a decision dated 4 October 2017 which had found that the Applicant was not entitled to compensation pursuant to s 16 of the SRC Act for the cost of a three month gym membership as it was not considered to be reasonable treatment obtained in relation to the Injuries.
10. 2018/2754 – new ailment, aggravation of the Psychological Injury
On 22 February 2018 the Applicant lodged a new claim for an aggravation of the Psychological Injury. The Applicant seeks review of a decision of the Respondent dated 18 May 2018 which affirmed a decision dated 1 May 2018 to deny liability for the claimed aggravation said to have been sustained on or around 21 July 2014.
background
The Applicant was born in July 1967. He has an agricultural science degree from university and was employed by the Department of Agriculture, Fisheries and Forestry (DA) as a Biosecurity Officer/Quarantine Officer (APS Level 4).
The Applicant says that on 17 February 2011, while undertaking an inspection of bulk fertilizer in the course of his employment, he suffered pain in his lower back. The Applicant describes the inspection process undertaken by him on that day as involving him passing samples of fertilizer through a sieve taken from five random points from each of 36 shipping containers. This required him to squat 180 times and then stand and lift the sieve containing 0.4 kilograms of fertilizer from ground level to waist height.
He reported back soreness to his supervisor Mr Ballantyne the following day,
18 February 2011.
On 9 September 2011 Dr Akinyemi issued a ‘workers’ compensation first medical certificate’ which described the issue as ‘back injury: muscular’ (2017/7134 et al., T6). The certificate records the Applicant’s description of how the injury occurred as ‘repetitive bending at work’.
On 16 February 2012 the Applicant was examined by Dr J L Pearce (specialist physician in occupational and rehabilitation medicine) for a fitness for duty assessment. Dr Pearce’s report, dated 20 February 2012, recorded that the Back Injury dated back to February 2011 and that the Applicant was at the time of his examination redeployed on light duties (2017/7134 et al., T7). Dr Pearce classified the injury as a ‘soft tissue-type injury of his lower back’ ‘mild in severity’ and remarked that it had been ‘under-treated’’. No imaging had been performed at that stage.
On 22 April 2012 the Applicant signed a claim form for workers’ compensation (2017/7134 et al., T8). He described the injury as ‘lower back pain’ and recorded that the injury had occurred on 11 February 2011.
On 19 June 2012 a delegate of the Respondent made a determination refusing liability under s 14 of the SRC Act to pay compensation to the Applicant for ‘sprain of unspecified back site’.
On 26 September 2012, upon reconsideration, the Respondent determined to accept liability for ‘aggravation of lumbar sprain sustained on 17 February 2011’.
2017/5404
By a determination dated 28 November 2012 the Respondent calculated the Applicant’s normal weekly earnings (NWE) to be $1,281.39 (2017/5404, T4). No amounts of allowances or overtime were included in that calculation.
On 10 August 2017 the Applicant requested a reconsideration of the determination dated 28 November 2012 (2017/5404, T7). On 16 August 2017 the Respondent refused the Applicant an extension of time within which to request a review of the determination dated 28 November 2012 (2017/5404, T8). On 9 September 2017 the Applicant lodged an Application for review in the Tribunal for review of that decision (2017/5404, T2). This is application 2017/5404.
2017/4819
By a determination dated 5 July 2017 (2017/4819, T12) the Respondent calculated the Applicant’s incapacity entitlements pursuant to s 20 of the SRC Act. The Applicant’s NWE was determined by the Respondent to be $1,307.02.
The Applicant requested a reconsideration of that determination (2017/4819, T13) and by a decision dated 11 August 2017 the Respondent affirmed the determination of
5 July 2017 (2017/4819, T18). On 12 August 2017 the Applicant lodged an application for review in the Tribunal for review of that decision (2017/4819, T2). That application is application 2017/4819. A review on own motion decision contained within the reviewable decision dated 21 November 2017 revoked the determination dated 5 July 2017 (see [21] below) (2017/7134 et al., T57).
2017/3274 and 2017/3275
By a determination set out in a letter dated 24 May 2017 (the first letter) the Respondent determined the Applicant’s entitlement to incapacity payments for the period 18 May 2017 to 4 April 2018 (2017/3274, T6). The Respondent’s calculations of the Applicant’s entitlements over that period were set out in a table in the first letter. On the same date the Respondent sent another letter to the Applicant (the second letter) advising that it had determined that the Applicant’s weekly rate of compensation would be reduced from 23 June 2017 onwards to take into account a superannuation payment increase of 1% effective from that date (2017/3274, T7). That change to the weekly rate of compensation to reflect the increase in the superannuation payments to be received by the Applicant was already reflected in the table in the first letter.
By emails sent by the Applicant on 25 May 2017 the Applicant requested reviews of the determinations set out in the first letter and the second letter (2017/3274, T8). By a decision dated 5 June 2017 both determinations dated 24 May 2017 were affirmed (2017/3274, T10). By an application for review dated 6 June 2017 the Applicant requested that the Tribunal review that decision to affirm the two determinations of 25 May 2017 (2017/3274, T2). This application was given application numbers 2017/3274 and 2017/3275.
2017/3262
By a determination dated 12 April 2017 the Respondent determined the Applicant’s entitlement to incapacity payments for the period from 6 April 2017 to 4 April 2018 (2017/3262, T13). The Applicant requested a review of that determination on 11 May 2017 (2017/3262, T21). By a decision dated 2 June 2017 the determination dated 12 April 2017 was affirmed (2017/3262, T24). The Applicant lodged an application for review in respect of that determination in the Tribunal on 3 June 2017 (2017/3262, T2). This is application 2017/3262.
2017/7134, 2017/7135, 2017/7136 and 2017/7137
On 4 October 2017 liability was denied by the Respondent under s 16 of the SRC Act with respect to a three month gym membership submitted by the Applicant (2017/7134 et al., T27).
On 10 October 2017 the Respondent determined that it was not liable to compensate the Applicant pursuant to ss 24 and 27 of the SRC Act for permanent impairment arising from the Injuries (2017/7134 et al., T32).
On 27 October 2017 the Respondent determined that it had no present liability to compensate the Applicant under s 16 of the SRC Act with respect to the Psychological Injury (2017/7134 et al., T43).

By a decision dated 21 November 2017 the determinations dated 4, 10 and
27 October 2017 were affirmed (the review officer also undertook a review of own motion with respect to the determination dated 5 July 2017 as outlined above) (2017/7134 et al., T57). By an application for review dated 2 December 2017 the Applicant sought review by the Tribunal of the decision dated 21 November 2017 (2017/7134 et al., T2). Each decision in the reviewable decision was allocated a separate Application number and they are applications 2017/7134, 2017/7135, 2017/7136 and 2017/7137.
2018/2754
On 22 February 2018 the Applicant lodged a claim for compensation for a ‘psychological injury’ (2018/2754, T6). The Applicant claimed that it was an aggravation of the existing psychological ailment from which he was then suffering. By a determination dated
1 May 2018 that claim was denied (2018/2754, T15). The Applicant requested a review of that determination and by a decision dated 18 May 2018 the determination was affirmed (2018/2754, T19). The Applicant lodged an application for review of that reviewable decision in the Tribunal on 20 May 2018 (2018/2754, T2). That application is application 2018/2754.
legislative framework
Section 14(1) of the SRC Act sets out the Respondent’s general liability to pay compensation and provides that:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 16(1) of the SRC Act provides:
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 of the SRC Act provides that the Respondent is liable to pay compensation to an employee who is incapacitated for work as a result of an injury. That section sets out the formula for calculating the amount of compensation to which a relevant employee is entitled. Section 19 of the SRC Act, in part, provides that:
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE – AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
Section 20 of the SRC Act provides:
20Compensation for injuries resulting in incapacity where employee is in receipt of a superannuation pension
(1)Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:
(a)the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and
(b)the employee receives a pension under a superannuation scheme as a result of the employee’s retirement.
(2)Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.
(3)The amount of compensation is the amount worked out using this formula:
where:
amount of compensation means the amount of compensation that would have been payable to the employee for a week if:
(a)section 19, other than subsection 19(6), had applied to the employee; and
(b)in the case of an employee who was not a member of the Defence Force immediately before retirement-the week were a week referred to in subsection 19(3).
(4)In using the formula in subsection (3) to calculate an amount of compensation for an employee who retired before the day on which item 22 of Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 commenced, use “SC” instead of “5% of the employee’s normal weekly earnings”. For this purpose:
SC means the amount of superannuation contributions that the employee would have been required to pay in that week if he or she were still contributing to the superannuation scheme.
(Original emphasis.)
Section 4 of the SRC Act defines ‘medical treatment’ to mean:
(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c)dental treatment by, or under the supervision of, a legally qualified dentist; or
(d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e)an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
(f)the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g)treatment and maintenance as a patient at a hospital; or
(h)nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i)any other form of treatment that is prescribed for the purposes of this definition.
‘Injury’ is defined in s 5A(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), 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.
‘Disease’ is defined in s 5B of the SRC Act as follows:
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
‘Ailment’ is defined in s 4(1) of the SRC Act as follows:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
the issues
The Respondent identifies the issues to be determined by the Tribunal in these matters as follows (Respondent’s outline of submissions, para. 15):
(a)from what, if any, lower back condition does the Applicant presently suffer?
(b)is that condition properly understood as an ‘Injury’ or a ‘Disease’ for the purposes of the SRC Act?
(c)if it is properly described as an Injury, has the Applicant ceased to suffer from that Injury?
(d)does the Applicant continue to suffer the Psychological Injury?
(e)if so, does the Psychological Injury continue to be significantly contributed to by the Applicant’s employment by the Commonwealth?
(f)whether the impairment arising from both the physical and Psychological Injuries are permanent such that they are likely to continue indefinitely?
(g)if so, whether the degree of permanent impairment is at least 10% WPI by reference to the Guide to the Assessment of the Degree of Permanent Impairment (Comcare, Edition 2.1, 1 December 2011) (the Guide)?
(h)whether the Applicant suffers a new ‘ailment’, being an ‘aggravation of major depressive disorder, recurrent episode’ that was significantly contributed to by his employment by the Commonwealth?
(i)
should the Tribunal extend the time for review of the initial determination dated

8 November 2012 and if so, was the Applicant’s NWE correctly calculated as at the date of injury. This involves considering:
(i)
does the Tribunal have jurisdiction to review the decision dated

16 August 2017?
(ii)if so, should the Tribunal, standing in the shoes of the review officer, grant the extension of time?
(iii)
if so, was the Applicant’s NWE correctly calculated in the determination of

8 November 2012?
(j)have the Applicant’s entitlements to compensation for incapacity for work been correctly calculated, pursuant to s 20 of the SRC Act for the period 6 April 2017 to 4 April 2018? This involves considering:
(i)what is the effect of the increase in the Applicant’s superannuation pension?
(ii)should shoe allowance, wharf allowance, overtime, superannuation contributions, annual leave loading and extra duty meal allowance be included in a calculation of the Applicant’s NWE?
(k)is the Applicant required to produce further medical evidence to support a claim for incapacity payments extending beyond 4 April 2018?
(l)with respect to the Application under s 16 of the SRC Act for a three month gym membership:
(i)whether the gym membership treatment falls within the meaning of ‘medical treatment’ under the SRC Act which necessarily requires consideration of whether it is ‘therapeutic treatment’
(ii)if so, whether it is obtained ‘in relation to’ the Injury; and
(iii)whether it is treatment that was reasonable for the Applicant to obtain in the circumstances?
The Applicant, while identifying a number of additional issues and using slightly different language to that used by the Respondent, in substance, identifies the same issues identified by the Respondent.
In additional to the substantive issues raised by the parties, the Respondent also raises a jurisdictional issue in relation to one of the applications. That issue is dealt with separately below.
the hearing
The applications were heard on 8 and 9 October 2018. The Applicant represented himself with the assistance of his wife. The Respondent was represented by Ms Slack.
Evidence was given at the hearing by the following witnesses:
(a)the Applicant;
(b)Dr Stephen Proud;
(c)Mr Philip Hardcastle; and
(d)Dr Lawrence Terace.
The following documents were admitted into evidence:
(a)Applicant’s Statement of Facts, Issues and Contentions with attachments received 12 September 2018 (Exhibit A1);
(b)
Email to Dr Terace from the Applicant and his wife dated 24, 29 and

30 September and 11 October 2018 (Exhibit A2);
(c)
Email from the Applicant to the Tribunal with attachments one to seven dated

4 February 2018 (Exhibit A3);
(d)
Applicant’s Statement of Facts, Issues and Contentions received

18 December 2017 with attachments (Exhibit A4);
(e)Applicant’s response to the report of Dr Terace dated 10 October 2017 (Exhibit A5);
(f)T-documents for application 2016/1589 (Exhibit A6)
(g)Applicant’s bundle of documents (Marked for Identification as Exhibit A7);
(h)Respondent’s Statements of Facts, Issues and Contentions dated 9 November 2017 and 17 August 2018 (Exhibit R1);
(i)Report of Dr Terace dated 15 September 2017 and Supplementary Report of Dr Terace dated 21 September 2018. This also includes the letters of Instruction and Curriculum Vitae of Dr Lawrence Terace (Exhibit R2);
(j)Briefing letter to and report of Dr Hardcastle dated 22 May 2018 with attachments (Exhibit R3);
(k)Briefing Letter to and report of Dr Hardcastle dated 4 July 2018 (Exhibit R4);
(l)Tribunal Documents for all matters heard (Exhibit R5);
(m)Letter of instruction to Tandara Medical Centre dated 16 May 2012 (Exhibit R6);
(n)Clinical Framework for the Delivery of Health Services (Victorian Work Cover Authority) (Exhibit R7);
(o)Applicant’s Permanent Impairment Claim Form dated 3 April 2017 (Exhibit R8); and
(p)2011 Payslips for the Applicant (Exhibit R9).
The following submissions were provided by the parties after the hearing:
(a)Respondent’s outline of submissions filed 23 October 2018;
(b)Applicant’s submissions filed 20 November 2018;
(c)Respondent’s reply filed 23 November 2018; and
(d)Applicant’s response to the Respondent’s reply filed 23 November 2018.
CONSIDERATION
As set out above, there are ten separate applications lodged over the period from June 2017 to May 2018. They fall into several categories and the Tribunal’s decision in some of the applications will be impacted by the decisions in others. For instance, if the Tribunal makes certain findings as to whether there is any liability, there will be no need to consider the applications which deal only with the calculation of the rate or amount of entitlement if the Tribunal finds there is no liability.
I will deal with the applications in the order that the parties addressed them in their submissions made after the hearing.
2017/7134 – no present liability decision, Back Injury
The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which reconsidered (on own motion) a determination dated 5 July 2017 and determined that the Respondent was not presently liable to pay compensation pursuant to s 20 of the SRC Act in relation to the Back Injury – ‘Intervertebral disc disorder – lumbar region’ in 2005 and an ‘aggravation of lumbar sprain (bilateral)’ in 2011 (2017/7134 et al., T57).
Jurisdictional Issue
As noted above, the Respondent raised a potential jurisdictional issue in relation to this application in its outline of submissions filed after the hearing.
In summary the potential jurisdictional issue identified by the Respondent (Respondent’s outline of submissions, paras. 16-21) is as follows:
(a)
The medical certificate issued to the Applicant by his general practitioner on

31 May 2017 certificated the Applicant as unfit for work from 31 May 2017 to

31 August 2018 (2017/3262, T26 at 98-99).
(b)On 5 July 2017 the Respondent determined that the Applicant was entitled to incapacity payments and calculated the amount payable pursuant to s 20 of the SRC Act (2017/7134 et al., T12).
(c)On 27 July 2017 the Applicant requested a review of that determination (2017/4819, T13). The determination was affirmed in a reviewable decision dated 11 August 2017 (2017/4819, T18). That is, it was determined that the Applicant continued to be entitled to compensation payments calculated in accordance with the Respondent’s determination of 5 July 2017.
(d)On 12 August 2017 the Applicant lodged an application in the Tribunal for review of the reviewable decision of 11 August 2017 (2017/4819, T2).
(e)By the review on own motion decision contained within the reviewable decision dated 21 November 2017 (2017/7134 et al., T57), the Respondent revoked the determination dated 5 July 2017. By that determination on own motion the Respondent determined that the Applicant was not entitled to any incapacity payments under s 20 of the SRC Act.
(f)Section 26 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) relevantly provides:
(1)Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:
…
(b)     the parties to the proceeding, and the Tribunal, consent to the making of the alteration.
…
(2)A reference in subsection (1) to the alteration of a decision is a reference to:
(a)     the variation of a decision;
(b)     the setting aside of a decision; or
(c)     the setting aside of a decision and the making of a decision in substitution for the decision set aside.
(g)Section 4(12) of the SRC Act defines ‘proceeding’ as:
(12)A reference in this Act to the institution of a proceeding under Part VI in respect of a reviewable decision is a reference to the making of an application to the Administrative Appeals Tribunal for review of that decision.
(h)
Because the Respondent did not review the reviewable decision of

11 August 2017 in the reviewable decision dated 21 November 2017, and only reviewed a determination, it was entitled to make the review of own motion decision, even though an application for review had been lodged in the Tribunal with respect to a separate reviewable decision arising from the same 5 July 2017 determination. Accordingly, the Respondent has not acted without power and the Tribunal has jurisdiction to consider both matters: Warren De Courcy Brown and Comcare [1997] AATA 528.
The Applicant makes no submissions on this issue. The Tribunal agrees with the Respondent’s analysis of the operation and interaction of the SRC Act and the AAT Act. The prohibition under s 26 of the AAT Act on the decision-maker altering its decision the subject of an application to the Tribunal does not apply to the 21 November 2017 reconsideration on own motion of the 5 July 2017 determination. As the Respondent submits, the prohibition in s 26 of the AAT Act is against altering the decision which is the subject of an application. The decision of 21 November 2017 did not alter, or purport to alter, the 11 August 2017 decision the subject of the application 2017/4819 lodged by the Applicant on 12 August 2017. Rather the 21 November 2017 decision ‘reconsidered’, pursuant to s 62 of the SRC Act, the determination made by the Respondent on

5 July 2017. That reconsideration on own motion pursuant to s 62(1) of the SRC Act was a separate reviewable decision for the purposes of s 64 of the SRC Act. That separate reviewable decision is the decision review of which is sought in application 2017/7137.
The Respondent was not prohibited by s 26 of the AAT Act to act within its powers in making the reconsideration on 21 November 2017. I find that the Tribunal has jurisdiction to review the decisions the subject of applications 2017/4819 and 2017/7137.
Does the Applicant suffer from a lower back injury?
The parties identify the issues in this application slightly differently.
The Applicant says that the issues are:
(a)Does the Applicant suffer from a work related back injury dated 17 February 2011?
(b)What is the correct injury classification for the back injury the Applicant is diagnosed with?
(c)Does the Applicant continue to suffer from a work related back injury suffered on 17 February 2011?

The Respondent identifies the issues relevant to this application as (Respondent’s outline of submissions, paras. 15):
a.What lower back condition, if any, does the Applicant presently suffer from?
b.Is that condition properly understood as an ‘Injury’ or a ‘Disease’ as those terms are used in the SRC Act?
c.If it is properly described as an Injury, has the Applicant ceased to suffer from that Injury?
While the thrust of both statements of issues are very similar, I think that the Respondent’s identification of the issues more correctly identifies the questions that the Tribunal will have to answer.
The factual circumstances surrounding the Applicant incurring the back injury are not in dispute. Liability for the Applicant’s back condition was accepted by the Respondent in September 2012 as ‘aggravation of lumbar sprain sustained on 17 February 2011.’ Payments were made under various provisions of the SRC Act thereafter in respect of the injury.
The fundamental dispute between the parties is that the Applicant asserts that he still suffers from the lower back injury suffered on 17 February 2011 (Applicant’s submissions para. 48). The Respondent argues that ‘on the balance of probabilities, the Applicant has ceased to suffer from the work related Injury and that what ails him presently is the degenerative condition’ (Respondent’s outline of submissions para. 38) or ‘in the alternative, that the correct and preferable decision is to determine that the Applicant continues to suffer from the physical Injury but is fit to return to pre-injury hours in a role that does not include repetitive lifting of more than 10kg, repetitive forward bending, sitting and standing or driving over rough terrain’ (Respondent’s outline of submissions para. 46).
Evidence
The Applicant points to the following evidence to support his claim (Applicant’s closing submissions for 2017/7134):
(a)letter from the People Strategies Manager (Australian Quarantine and Inspection Service) dated 14 February 2012 (2017/7134 et al. T2/48-49) which states:
In February 2011 Leon suffered a low back injury (L 2-4) whilst conducting a bulk fertiliser inspection. Leon attended his General Practitioner and was diagnosed with a low back injury (muscular) and since this time has had regular treatment including physiotherapy. Leon’s latest Medical Certificate indicated that his condition persists and that he needed to avoid repetitive bending/lifting and avoid repetitive use of the affected part.
Since Leon’s injury he has continued to work and we have worked with Leon in restricting the tasks which appear to aggravate his injury (i.e. machinery inspections, bulk fertiliser inspections, tailgate inspections and personal unpacks.)
(b)Workers’ compensation claim submitted on 30 April 2012.
(c)On 26 September 2012 workers’ compensation approved for ‘aggravation of lumbar sprain’.
(d)The MRI report of Perth Radiological Clinic dated 17 October 2012 (2017/7134 et al., T12/95) states:
L4/5: There is disc desiccation and posterior annular fissuring. This is associated with diffuse disc bulge. This indents the ventral aspect of the thecal sac but does not impinge upon the forming L5 nerve roots or the exiting L4 nerve roots at this level. Mild facet arthropathy is noted bilaterally at this level.
It is also stated in the report at the comments section at the bottom of the same page: ‘Mild degenerative changes are noted at L3/4 and L4/5 disc with shallow disc bulges not causing canal stenosis or nerve root impingement.’
(e)The Applicant contends that the medical documentation supports that the injury sustained by the Applicant on 17 February 2011 was as a result of trauma due to the repetitive bending and lifting over a long period of time carrying out fertiliser inspections. The Respondent does not dispute that agreeing that the lower back condition ‘is properly described as an “injury simpliciter” within the meaning of
s 5A(1)(b) of the Act’ (Respondent’s closing submissions para. 35).
(f)Report of Dr Shetty dated 9 July 2013 (2017/7134 et al., T14/100) wherein Dr Shetty is asked the question: ‘Is/was the aggravation suffered by Mr Thompson related to: his/her employment as a Quarantine Officer?’ and Dr Shetty’s answer was: ‘Yes, Mr Thompson reported back pain following the reported incident.’ Then at 1(c) the question was asked of Dr Shetty: ‘Is/was the aggravation suffered by Mr Thompson related to: a pre-existing, congenital, constitutional or under-lying condition?’ In his answer Dr Shetty states: ‘There is no pre-existing condition to account for his back pain.’ In answer to the question at 1(e): ‘Is/was the aggravation suffered by Mr Thompson related to: underlying degeneration as part of the natural aging process?’ Dr Shetty states: ‘There are [sic] no significant degeneration.’
(g)In a report dated 17 December 2013 the causal link between the Applicant’s employment and the Injury was indicated by Dr John Bell, orthopaedic surgeon, (2017/7134 at al., T17/112 at point 5). Dr Bell states ‘[t]he low back pain problems suffered by Mr Thompson do appear significantly related to his injury at work which occurred on 17 February 2011. There are no other obvious causes.’
(h)In a supplementary report of Dr John Bell dated 29 April 2014 (2017/7134 et al., T18/117), Dr Bell outlined Facet Joint Arthropathy as ‘in addition to my major diagnosis of soft tissue injury of lumbosacral spine region in February 2011.’ He also states ‘[a]s outlined by the title given above, it was an injury caused by trauma.’ Dr Bell also stated:
If it were not for the injury on 17 February 2011, then he would likely not continue to suffer with the soft tissue injury of his low back region.
I believe the relationship of his continuing low back pain is significantly related to the original injury that occurred at work on 17 February 2011 … (2017/7134 et al., T18/118).
(i)The report of Dr Geoffrey Graham dated 18 February 2016 (2017/3262, T6/40) states:
Mr Thompson gives a history suggestive of minor degenerative change in his low back and this would appear to be consistent with the reported radiological findings and the minimal findings on clinical examination. I would recommend that he avoid repetitive bending and lifting, heavy lifting especially from a low level or work with a constantly bent back.
(j)Dr Phillip Hardcastle states in the report dated 22 May 2018 (R3):
… This does support that the current symptoms he is having do still relate to that particular injury date at work where he was involved with repetitive activities.
In that report Dr Hardcastle, in answer to the question of whether the Applicant continues to suffer from the effects of a 2005 injury and/or an ‘aggravation of a lumbar sprain (bilateral)’ with a date of injury 17 February 2011, says ‘In my opinion he has fully recovered from the injury of 9 November 2005 and that he has had an injury of 17 February 2011 which is continuing to give symptoms’ (R4, page 7).
(k)In that same report (R4/8) Dr Hardcastle also commented that:
He does have evidence of transitional vertebra. However, the pain that he reports from my clinical assessment is around the L4 level which is above where the congenital anomaly is. Certainly I could not identify any sacroiliac pain from my assessment so I do not consider he has evidence to support a Bertolotti’s syndrome, despite the presence of transitional vertebra.
There are pre-existing degenerative changes in the facet joint at the L3/4 level and disc bulging consistent with degeneration which would be considered pre-existing. From my assessment it is likely that these were aggravated as a result of this work.
(l)
Dr Clem McCormick in his report dated 4 July 2018, part of Dr Hardcastle’s report of 4 July 2018 (R4), having reviewed both the reports of the MRI scan dated

17 October 2012 and CT scan dated 22 June 2018, states: ‘Considering the 6 year interval between the scans, and comparing different modalities, I consider that the rate of progression is not rapid and the changes between the studies are mild…’ He further states: ‘Overall I do not consider any new pathology has developed between the studies.’
(m)The Applicant also cites the following passages from Dr Hardcastle’s 22 May 2018 report (R3):
i.The history is one where he is doing some repetitive bending and appears to have had a strain in his lower back in the mid-line regions (spinous processes), around the L4 level. I note that from my review of the medical documents when he was initially reviewed by Dr Pearce, that the tenderness was in that same area of the back (Dr J L Pearce report, 20 February 2012) which certainly supports his ongoing symptoms being still related to that area of pain where he has previously not had any symptoms from. This does support that the current symptoms he is having do relate to that particular injury date at work where he was involved in repetitive activities.
ii.I would consider that given he was asymptomatic before the nature of the work duties undertaken on that day, that the aggravation was significant to a pre-existing degenerative condition...
iii.There are pre-existing degenerative changes at both levels which appear to have been aggravated to a significant extent as a result of the reported injury.
The Applicant also refers the following reports for descriptions of the symptoms he suffers and the activities and circumstances which activate the symptoms:
(a)Report of Dr John Bell dated 17 December 2013 (2017/7134 et al., T17/109) which states:
… The low back pain is usually dull when resting. It is sore after gymnasium activities. Cold weather and coughing does not bother the low back. He gets spasms on occasions. It goes up and down the low back with periods of improving and periods of worsening. He tries to keep a baseline of what he can do. Carrying his youngest child makes his back very sore. Also, standing for any length of time makes it sore… He finds that starting a mower or a generator gets very sore if it does not start quickly. He cannot trampoline with his children much.
(b)Dr Sandra Gongora’s report dated 2 August 2017 (2017/7134 et al., T22/164-165) which states that:
… He reports that standing is tolerated for 45 minutes, he avoids most movements of his back like bending, twisting and lifting, carrying a backpack can make him go in agony after a while, even carrying his camera to take his kids photos could be a trigger for his back pain. However, he feels well running up to 1km and swimming… Mr Thompson reports that driving is ok as his position will be kept neutral, however in a passenger seat on a bumpy road and a few turns could be a cause of soreness.
(c)In paragraphs 39 to 42 of his submissions the Applicant refers to various reports/comments/opinions from exercise physiologists, as well as his own evidence, as to which exercises and exercise programs best suited the Applicant to avoid aggravation of his back condition and which activities caused aggravation of symptoms.
The Applicant also went into some detail of the gym activities and programs that he has undertaken and his ability to handle these (Applicant’s closing submissions for 2017/7134 para. 39-42).
The Applicant submits that:
(a)…that there is no evidence of a significant degenerative condition, but rather mild age related degeneration that was within normal range, asymptomatic and showing little if any progression. The pain suffered by the applicant from the original injury on 17th February 2011 as shown in all medical reports is consistent with the injury described as a diffuse disc bulge and annular fissure and any pain suffered by the applicant is a result of the original injury dated 17 February 2011. The level and type of activity that cause the applicant pain have remained the same since the injury date in 2011 until the current date and has not got any worse, this supports the applicants’ statement that it is the back the injury causing pain symptoms and not any degeneration (Applicant’s closing submissions for 2017/7134 para. 26);
(b)…All the medical reports up to this point have described any degeneration as being mild, minor and asymptomatic prior to the injury. All the existing medical evidence gives the statement that any pain experienced by the applicant related to the injury date and related to the bulging disc and annular fissure at L4/5 which was a product of the trauma activity on the 17 February 2011. Nowhere in the written medical evidence is there any mention of the applicant suffering from significant degeneration or “severe arthritis”. The applicant strongly disagrees with the diagnosis of severe arthritis and submits that this statement given in verbal evidence should be disregarded in favour of the existing medical findings in writing that are available to this tribunal. (Applicant’s closing submissions for 2017/7134 para. 43);
(c)The applicant submits that medical evidence would show that other new activities would start to cause pain as well over time if Dr Hardcastle’s evidence regarding the progression of degeneration were to be accurate. The applicant has shown that this is not the case. In fact as Dr Clem McCormick (Refer page 3 paragraph 3-4 of the attachment 4 to the applicants statement of issues facts and contentions which is the supplementary report of Dr Hardcastle dated 4 July 2018) states “…changes between the studies are mild…Overall I do not consider any new pathology has developed.” This statement supports the applicant’s evidence that the mild, minor and asymptomatic degeneration has not progressed, not gotten worse and has not overtaken the original injury. (Applicant’s closing submissions for 2017/7134 para. 45); and
(d)…As the medical evidence shows no progression of the degeneration and it continues to be mild it cannot be found that the degeneration has taken over from the original injury and is now the cause of the applicants’ ongoing pain and the applicant submits that the trauma activity resulting in injury is still the primary cause of back pain. Dr Hardcastle in his verbal testimony on the witness stand made the statement that “The work performed by the applicant over the many years of his employment would have contributed to degeneration of his lumbar spine. (Applicant’s closing submissions for 2017/7134 para. 47).
The Respondent identifies the following evidence as relevant (Respondent’s Outline of Submissions paras. 27-34):
(a)The initial examining doctors described the injury as follows: Dr Akinyemi described the injury as ‘back injury: muscular’; Dr Pearce described it as ‘soft tissue-type injury of his lower back’. An x-ray performed on 25 May 2012 revealed mild spondylosis L2/3, L3/4, L4/5 (2017/7134 et al., T9/ 90). Partial sacralisation of L5. An MRI performed on 17 October 2012 revealed mild degenerative changes at L3/4, L4/5 (2017/7134 et al., T12/ 95). Dr Devasish Roy was requested by the Respondent by letter dated 16 May 2012 to provide a report. Dr Roy’s response to one question was: ‘Muscular spasm – pain side of spine, no neurological symptoms or signs’ (2017/7134 et al., T10/91).
(b)Dr Shetty, the Applicant’s then general practitioner, provided a report to the Respondent dated 9 July 2013 (2017/7134 et al., T14). Dr Shetty noted that he first discussed the back injury with the Applicant in detail on 8 October 2012. Dr Shetty’s diagnosis was ‘lower back strain or mechanical low back pain’. In response to a question about pre-existing conditions, Dr Shetty responded: ‘There is no pre-existing condition to account for his back pain’. (The Respondent points out that it is unlikely that Dr Shetty had access to the X-Ray done in May 2012 as that was sent to Dr Roy’s practice, not Dr Shetty’s). Dr Wong, who examined the Applicant on 24 September 2013, considered that the Applicant was suffering from ‘mechanical back pain’ (2017/7134 et al., T15).
(c)
The Applicant was reviewed by orthopaedic surgeon Dr John Bell on

12 December 2013. The doctor produced a report dated 17 December 2013 (2017/7314 et al., T17). Dr Bell concluded: ‘In summary, [the Applicant] strained his low back when reaching forward taking the 2kg samples for sieving in February 2011 and he has had continuing low back pain problems ever since.’ Dr Bell classified the injury as ‘soft tissue injury lumbosacral spine region in February 2011’. In response to a question about whether the condition was related to a pre-existing or constitutional condition, or the natural progression of an underlying condition, the doctor responded: ‘The low back pain problems suffered by [the Applicant] do appear significantly related to his injury at work which occurred on
17 February 2011. There are no other obvious causes.’ Dr Bell clarified in a supplementary report dated 29 April 2014 (2017/7134 et al., T18) that ‘it was an injury caused by trauma’ and confirmed that the Applicant continued to suffer from the soft tissue injury sustained in February 2011.
(d)
Dr Geoffrey Graham, occupation physician, provided a report dated

18 February 2016 (2017/3262, T6). Dr Graham, contrary to the other examining doctors, diagnosed the Applicant’s condition as ‘minor degenerative change in the low lumbar spine’.
(e)
Dr Sandra Gongora, occupational physician, examined the Applicant on

24 July 2017, and produced a report dated 2 August 2017 (2017/7134 et al., T22). Dr Gongora noted that the Applicant reported pain at a level of usually 1/10, but that could reach 10/10. The doctor concluded that the Applicant ‘suffered from a work related injury to his lower back from which he never completely recovered.’ Dr Gongora was asked about whether the condition was related to his employment or a pre-existing condition, the natural progression of an underlying condition. In response, Dr Gongora concluded that the Applicant’s current physical condition was triggered by the work-related incident reported in February 2011, but said that the imaging investigations revealed anatomical changes which may have made full and complete recovery difficult. Dr Gongora then remarked that: ‘The transitional vertebrae or Bertolotti’s syndrome is commonly the cause of back pain which occurs due to lumbosacral transitional vertebrae (LSTV). It is a congenital conditional but is not usually symptomatic until late twenties or early thirties.’

Dr Gongora did not express, at least not clearly, any conclusion that Bertolotti’s syndrome was the cause of the condition. However, in response to another question, Dr Gongora concluded: ‘In [the Applicant’s] case there is an underlying anatomical/structural change. It is very difficult to isolate the effects of his anatomical changes, the effects of the injury and the depression/anxiety he has been diagnosed with.’
(f)In his report dated 22 May 2018 Dr Hardcastle opined that:
…when [the Applicant] was initially reviewed by Dr Pearce, that tenderness was in the same area of the back (Dr J L Pearce report, 20 February 2012) which certainly supports his ongoing symptoms being still related to that area of pain where he has previously had not any symptoms from. This does support that the current symptoms he is having still do relate to that particular injury date at work where he was involved with the repetitive activities.’
Dr Hardcastle described the condition variously as: ‘…a combination of mechanical inflammatory low back pain from mid to lower lumbar region without neural compression’ and ‘…a strain type injury, most likely to the intervertebral disc in the mid-lumbar spine at L3/4 and L4/5’.
(g)In response to a question about the contribution of the Applicant’s employment to the condition, Dr Hardcastle opined: ‘…given he was asymptomatic before the nature of the work duties undertaken on that day, that the aggravation was significant to a pre-existing degenerative condition…’ Dr Hardcastle disagreed with Dr Gongora’s conclusion that the Applicant suffered from Bertolotti’s syndrome. However, he did conclude that there were degenerative changes in the facet joint at L3/4 and disk bulging consistent with degenerative, but that these were likely aggravated to a significant extent as a result of his work.
(h)
As to the effect of the degeneration, Dr Hardcastle concluded that: ‘I am not of the opinion at this stage that the symptoms have overtaken the effects of the lumbar pre-existing condition.’ Similarly, in response to a question about whether the effects were still suffered, he remarked: ‘…taking into account he was asymptomatic before and accepting his veracity, then with the work precipitating the degenerative condition it still would be considered related to the work injury’.

Dr Hardcastle suggested that if a further CT scan revealed instability, it may be concluded that the pre-existing condition had overtaken the effects of the work injury, but there was insufficient evidence to say. Dr Hardcastle did not alter his opinion in a supplementary report dated 4 July 2018 after reviewing a CT scan performed on 22 June 2018.

The Respondent submits that, having regard to the available evidence, the Respondent accepts that the Applicant’s back condition is properly described as an ‘injury simpliciter’ within the meaning of s 5A(1)(b) of the SRC Act, and not a disease within the meaning of s 5A(1)(a) of the SRC Act (Respondent’s Outline of Submissions para. 35). The Respondent submits, however, that the Injury must be seen in the context of the active degeneration that was present in the Applicant’s spine at the time he suffered from the Injury and at the present time.
The Respondent identifies the activities that the Applicant describes that he is able to undertake (Respondent’s Outline of Submissions para. 36). These include the following:
At the gym:
a. Does one of three types of cardiovascular exercise: rides a bike for 20-30 mins; walks on treadmill for 20-30 mins; or uses an elliptical machine for 5 mins.
b. Performs the following exercises on the ‘machines’:
i.On knees uses a machine where he rotates and pulls the rope down and across body;
ii. Seated, stationary row;
iii. Reverse sit sups on a machine;
iv. Bench press with free weights with the a bar that weighs 15kg and sometimes he adds 5kg of weight to each side (25kg in total);
v. Arm curls with the dumbells – 3-4kg each.
c. He then performs a floor routine that involves:
i. Strengthening his abdominal muscles by performing single leg raises on back – alternate one arm up one leg down;
ii. Lying on back, legs straight and simultaneously raised off the ground;
iii. Planking;
iv. Sitting on an exercise ball, lift one leg up and then other leg up.
d. He then spends 20 minutes sitting in the sauna then 20 minutes in the spa where he may stretch his hamstrings.
At home, the Applicant:
…
c. Gardens in a ground level garden;
d. Whipper snippers;
e. Mows – he has a push mower that has to pull start. To get it to work, he pulls it 8-10 times in one go;
f. He plants tree cuttings.
The Respondent notes that the Applicant’s evidence was that the Applicant could not wear a backpack because it hurt his back and could no longer jump on the trampoline as he had been able to do.
The Respondent noted that during his evidence the Applicant had remained seated for over three hours from 10.52am to 2.05pm.
The Respondent refers to Dr Hardcastle’s evidence in relation to the CT scans at the hearing which showed ‘he had advanced degeneration in the facet joints in the back and they are likely to give more symptoms’ and it is ‘becoming more likely that the degeneration has become the cause of the symptoms’ (Respondent’s Outline of Submissions para. 37). The Respondent submits that in response to all of the questions posed by the Applicant about what was causing his pain, Dr Hardcastle responded by referring to the degenerative condition. Further, according to the Respondent,

Dr Hardcastle explained that there was ‘nothing in the radiological evidence which we would say made a structural difference.’
It is the case that at the hearing Dr Hardcastle was consistent in his responses to the Applicant that, in his view, his back issues were now caused by degenerative changes rather than the injury of 17 February 2011. The following extract from Dr Hardcastle’s evidence at the hearing goes to that point and also to the submission that the Applicant makes at paragraphs [53(c)] and [53(d)] above:
[APPLICANT]: And my job as a quarantine officer is to sample the fertiliser for weed seeds, because the fertiliser goes straight onto the farming property. We're – we're required per container to take five sample lots per container?
[DR HARDCASTLE]: Yes. No, I've read all that.
[APPLICANT]: So my question is, is doing that activity on that day, would that have aggravated any condition that I – I – – -?
[DR HARDCASTLE]: Yes, that could easily – and that's what I've said, is that – I've said there has been an aggravation of the pre-existing degenerative condition as a result of those work activities. That's what I've said. And then I've said that under normal circumstances, you would expect over a period of three months that in a lot of people that would settle down, but in you, it has been more protracted, the recovery, than normal, but still in that group where they do have protracted recovery. But there's no definitive pathology on the original MRI scan. There's no radiological thing there that has resulted from that that we would say, look, that has made a structural difference to your spine outside of the normal degeneration. We accept that it has caused a strain and swelling and it has caused pain, and that pain has been protracted for a long period, and it's because by doing those activities you got such a bad aggravation that we're suggesting that by going back to the type of work that you're doing, that there are some restrictions put on you so that that doesn't happen again.
[APPLICANT]: So on 17 February there was an aggravation of – of some degeneration, knowing (indistinct) 44-year-old person. That degeneration – did that accelerate the degeneration that occurred? For example, if I did not 40 participate in that activity on that day, I concede that I might have it but I might not have the loading pain that I suffer from today, or would be -?
[DR HARDCASTLE]: – you know, the thing you've got to appreciate there to is that there are a number of different factors, and one is your own body fitness, which it seems like you've been able to maintain well, which is a good, positive factor. The degenerative process does continue on. You know, we're not – we're not getting any younger, is the things. And when you do have an aggravation of doing other things while that aggravation is healing, other areas can start giving problems, and so that's why we try to – the – nowadays, we're looking when we're treating people with more acute problems, with – we try to get them into the water and do hydrotherapy and keep them active and keep them – and not resting them, like it used to be. It used to be the – the main treatment initially. Now we're looking more at activity, but activity within limitations. But you've had – you've had an injury there. I've said that in the report, that that injury has continued, and that it has caused some limitations, but it – it – but it hasn't stopped your capacity for physical work and doing work with restrictions, and that's just something that has happened at that point in time that has precipitated – but probably with the type of work that you were doing, at some stage you were going to get – start getting more mechanical problems in your back.
(Transcript at 128-9.)
Consideration
The principal medical evidence in this matter is that of Dr Hardcastle. This is not a case where we have two competing sets of medical evidence. While there is a fairly extensive history of medical examination and some diagnoses, it is not a case where the doctors have drawn different material conclusions as to the Applicant’s current medical condition.
Much of the Applicant’s case seemed to be trying to establish that there was a work injury in February 2011. That is not disputed. The undisputed chronology is that there was: an injury simpliciter suffered at work on 17 February 2011; a first medical certificate for a back injury issued by Dr Akinyemi in September 2011; an examination undertaken by
Dr Pearce on February 2012; a workers’ compensation claim submitted by the Applicant in April 2012 and acceptance of liability by the Respondent for the back injury in September 2012. After that date the Applicant received payments under various provisions of the SRC Act. The issue is whether the Applicant still suffers from that injury and, if he does, whether he is fit to return to his pre-injury work.
The most recent report, in fact the only report that could be considered to be addressing the Applicant’s current condition, is that of Dr Hardcastle of 22 May 2018 supplemented by his report dated 4 July 2018. The Applicant submits that Dr Hardcastle’s evidence at the hearing conflicted with his original report and is ‘inconsistent with any other medical report in regards to the applicant’s back injury’ (Applicant’s submissions for 2017/7134 para. 43). That is not the case. There is, from the MRIs and other reports, evidence that there is degenerative change in the Applicant’s spine as there is in most people of the Applicant’s age according to Dr Hardcastle. Further, as noted above, the other reports on which the Applicant relies do not talk to his current condition. Dr Hardcastle’s reports do.
Dr Hardcastle’s reports were and his oral evidence was thorough and consistent. The best explanation of the effect of Dr Hardcastle’s opinion is set out in the exchange that he had with the Applicant in cross-examination quoted at [60] above. As is often the case with medical opinions, they are just that, an opinion of the individual. They are not, or at least should not be, absolute statements of certain fact.
What the Tribunal has to do is to make its own decision based on the best evidence available and come to the correct and preferable decision based on that evidence (see Shi v Migration Agents RegistrationAuthority (2008) 235 CLR 286; Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21, 28 [41] per Perry J (White and Wigney JJ agreeing); Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60). In the present case, the best, most current evidence from someone with requisite qualifications, is the evidence of Dr Hardcastle, both in his reports and his evidence at the hearing. Contrary to the Applicant’s submission, Dr Hardcastle’s views are not contradicted by, or even inconsistent with, the opinions expressed by other doctors in earlier reports or certificates. In any event, none of these other doctors was called to give evidence.
What then do Dr Hardcastle’s reports and his evidence at the hearing relevantly indicate? In his report dated 22 May 2018 (R3) Dr Hardcastle advised:
Do you consider that the applicant continues to suffer from ‘intervertebral disc disorder – lumbar region’ with a date of injury of 9 November 2005; and/or ‘aggravation of lumbar sprain (bilateral)’ with a date of injury of
17 February 2011 (the lumbar condition)?
In my opinion he has fully recovered from the injury of 9 November 2005 and that he has had an injury of 17 February 2011 which is continuing to give symptoms.
In relation to the critical issue, the issue on which the Respondent based its reconsideration of no present liability, Dr Hardcastle in that same report says as follows:
Have the effects of a pre-existing or non-work-related condition overtaken the effects of the lumbar condition?
This is always a difficult question to answer but it has to be accepted that he continued to work in a light duties capacity following the injury with persistent symptoms and maintained a reasonable level of activity in this period. I am not of the opinion at this stage that the symptoms have overtaken the effects of the lumbar pre-existing condition, accepting his veracity in relation to the information that has been provided.
Unfortunately the meaning of the answer to the last question is not altogether clear. It was accepted for many years by the Respondent that the Applicant’s injury of

17 February 2011 had caused the symptoms and the issue now, as the Tribunal understands the Respondent’s case, is whether the degeneration of the spine has now overtaken the accepted injury as being the cause of the Applicant’s present symptoms. If that understanding is correct, then it is odd to speak in terms of the ‘symptoms’, presumably the symptoms of the accepted injury, ‘overtaking the effects’ of the pre-existing lumbar degeneration, or the continued development of that degenerative condition. I would have thought that the issue would be whether the effects, the pre-existing degenerative condition had now overtaken the injury of February 2011 as the cause of the symptoms, not vice-versa.
Some clarification was, however, provided in the evidence of Dr Hardcastle at the hearing:
[MS SLACK]: Thank you, Doctor. I was also wondering about whether that evidence impacted on your view about whether it was the strain or the work incident that occurred in 2011 or the degenerative condition?
[DR HARDCASTLE]: Correct. Well, I would be of the opinion that given the period of time since the work injury and looking at the radiology, that it is more now becoming related to the underlying pre-existing condition and that he is, you know, he is showing good signs of improvement from that aggravation of 2011 as he did from the previous one of 2005 and that it is now the clinical picture – unless there has been a change in the symptoms because you have only provided the information on his activities that yes, there has been objective improvement there and probably getting close to getting back to the pre-injury situation – or pre-aggravation situation taking into account that, you know, there's radiological normal degenerative features in his spine that as we get older give problems.
[MS SLACK]: So they would be the cause of the symptoms?
[DR HARDCASTLE]: It's becoming more likely that these are getting to be the cause of the symptoms
[MS SLACK]: And just objectively, you are a spinal surgeon. Based on the history that you took and the evidence that Mr Thompson gave yesterday, how debilitating on the grand scheme of things is Mr Thompson's back condition?
[DR HARDCASTLE]: Well, from my clinical assessment there was no evidence of a constant – what shall we say – there's no evidence of a major inflammatory problem or cancer or infection. He has more mechanical pain and it appears to be more discogenic and appears to be coming from the (indistinct) facet in origin but as I said in that report, you need to do diagnostic injections before you can say whether it is disc or facet, as I was teaching the students this morning that disc pain is normally worse when you bend forward and facet pain when you bend back, that there is an overlap and it's not sort of 100 per cent, there are differences but certainly he's got – on the latest CT scan he's got quite – on the scan he has got quite advanced degeneration in the facet joints at the back and they are likely to give symptoms – ongoing symptoms. The good thing is that he is able to do that amount of activity in the gym that you're talking about when, you know, in relation to the degeneration that's there, it's good for him because if he sat around and didn't do anything he would just freeze up regardless of the injury, he would be a lot worse off.
[MS SLACK]: And on that, does the evidence that you've heard this morning have any impact on your opinion on the restrictions that you've referred to in your report on Mr Thompson's ability to work?
[DR HARDCASTLE]: The general restrictions, he could lift heavier weights on an intermittent basis but I still wouldn't recommend on a repetitive basis and again with lifting, lifting is a sort of a term but it's where the lifting is, if he has got to reach in to a compartment to get small amounts of something and lift, you know, 10 kilograms or five kilograms and do it 100 times in a day I'd be a bit cautious about that but he could certainly – you know, he could certainly lift heavier weights on a non-repetitive basis and he could still – you know, he could, using good technique he could probably manage up to the 10 kilogram weights on a sort of repetitive basis as long as they are not away from his body and putting an extra stress on. Because it's not even – it's not related to his injury per se, the lifting, it's as we 10 get older our discs get weaker and or facet joints get more arthritis and if we're lifting heavier weights repetitively away from our body we're putting a lot of extra stress on our body, so it's not – and because we're older – and because he's older, one has got to modify his, you know, his heavy physical activities that he could do 20 years ago but now because of the joint are worn and the discs are showing signs of degeneration, they are more susceptible to tears if incorrect techniques are used.
[MS SLACK]: And Mr Thompson said in his evidence yesterday that when he was doing suitable duties he was working in an office, at a desk, but sometimes he would have to do what he called "site inspections" so he'd just go and look at a truck and say, "Is that a truck? Yes, it's a truck" or "Is that something? Yes, it's something" – not actually physically inspecting it. Based on the information that has been provided this morning and the history you took in your report, is that something that he would be capable of doing?
[DR HARDCASTLE]: Yes, and I'd encourage more visits to trucks, you know, the more up and about and walking because I learned in my medical training that bed rest was rehabilitation for the grave and you know, long periods of sitting is not the best thing, it's been recommended that we get up and move now a lot more regularly.
(Transcript at 121-122.)
Based on the evidence, in particular the evidence of Dr Hardcastle, I am, on the balance of probabilities, satisfied that the Applicant’s current symptoms are caused by the development of his degenerative spinal condition and that the injury of 17 February 2011 is no longer the cause of his symptoms. He no longer suffers from the injury of

17 February 2011 for the purposes of the SRC Act.
I am, in any event, also of the view that based on the evidence of the Applicant’s physical mobility and capabilities, that, even if the Applicant did continue to suffer from the injury, he is fit to return to pre-injury hours in a role that does not include repetitive lifting of more than ten kilograms, repetitive forward bending, sitting and standing or driving over rough terrain (see report of Dr Hardcastle dated 22 May 2018, R3/7).
Accordingly, the Tribunal affirms the reviewable decision of 21 November 2017 which reconsidered, on own motion, the Respondent’s determination dated 5 July 2017 and determined that the Respondent was not presently liable to pay compensation in relation to the Back Injury.
2017/7135 – no present liability decision, Psychological Injury
The Applicant seeks review of a decision of the Respondent dated 21 November 2017 which affirmed a determination dated 27 October 2017 which had found that the Applicant had no entitlement to compensation pursuant to s 16 of the SRC Act for medical treatment obtained in relation to ‘adjustment reaction with anxious mood’ in 2012.
The issues
The Respondent identifies the issues (Respondent’s submissions para. 15) relevant to this application as being:
(a)Does the Applicant continue to suffer the Psychological Injury?
(b)If so, does the Psychological Injury continue to be significantly contributed to by the Applicant’s employment by the Commonwealth?
The Applicant identifies the issues (Applicant’s submissions for 2017/7135) as:
(a)
Does the Applicant continue to suffer from the psychological injury dated

3 September 2012?
(b)Is the Applicants’ psychological injury contributed to by symptoms of his existing physical injury and conditions of his employment?
While the two expressions of the issues are slightly different, their effect is the same given the definition of the term ‘Psychological Injury’ (see [1] above) used by the Respondent.
Does the Applicant suffer from the psychological injury?
As indicated in the Applicant’s statement of issues (see [75] above) the claimed psychological injury relevant to this application is that of 3 September 2012 (the 2012 Psychological Injury). There is a separate claim for a psychological injury, being an aggravation, with a claimed date of injury of 12 November 2014 (the 2014 Psychological Injury). That claimed injury is the subject of application 2018/2754 and is dealt with later in this decision.

In his closing submissions the Applicant says of application 2017/3274:
The applicant, giving respect to the expertise of Legal Counsel for the respondent on this matter gave his undertaking at the Tribunal hearing on Tuesday 9th October 2018 that he would not pursue his application under 2017/3274 based on her legal interpretation that the calculations were legally correct and there was little chance of success on this claim. An undertaking was given that this would be further addressed in her submissions. Despite no further evidence to support the respondent Counsel’s view on this matter being offered in the Respondent’s submission, the applicant will still accept the veracity of her findings during the hearing on this matter and withdraws further claim under 2017/3274.
The Tribunal takes this to be the Applicant no longer pursuing this application. The Tribunal would have, in any event, found that the Respondent’s application of the formula in s 20 of the SRC Act was correct and that the reduction in the amount of compensation payable under the SRC Act to reflect the increase in the Applicant’s superannuation payments was in accordance with the SRC Act.
The Tribunal therefore affirms the decision of the Respondent dated 5 June 2017 which affirmed the determination which was set out in the Respondent’s letter dated

24 May 2017 notifying the Applicant that his weekly rate of compensation would be reduced on 23 June 2016 in an amount equal to the increase that he had received in his superannuation pension increase (in accordance with the formula in s 20 of the SRC Act).
2017/3275
In his closing submissions the Applicant says of application 2017/3275:
The applicant, giving respect to the expertise of Legal Counsel for the respondent on this matter gave his undertaking at the Tribunal hearing on Tuesday 9th October 2018 that he would not pursue his application under 2017/3275 based on her legal interpretation that the calculations were legally correct and there was little chance of success on this claim. An undertaking was given that this would be further addressed in her submissions. Despite no further evidence to support the respondent Counsel’s view on this matter being offered in the Respondent’s submission, the applicant will still accept the veracity of her findings during the hearing on this matter and withdraws further claim under 2017/3275.
The Tribunal takes this to be the Applicant no longer pursuing this application. The Tribunal would have, in any event, found that the Respondent’s application of the formula in s 20 of the SRC Act was correct and that the reduction in the amount of compensation payable under the SRC Act to reflect the increase in the Applicant’s superannuation payments was in accordance with the SRC Act.
The Tribunal therefore affirms the decision of the Respondent dated 5 June 2017 which affirmed the determination dated 24 May 2017 which determined the specific rates of compensation that would be paid from 23 June 2017 to 4 April 2018, reflecting the reduction of $5.02 per week resulting from the increase in superannuation payable.
2017/4819 – calculation of normal weekly earnings (NWE) and inclusion of allowances – incapacity period 1 July 2017 to 4 April 2018
The Applicant seeks review of a decision of the Respondent dated 11 August 2017 (2017/4819, T18) which affirmed a determination dated 5 July 2017 which determined the Applicant’s entitlement to compensation under s 20 of the SRC Act for the period

1 July 2017 to 4 April 2018 (2017/4819, T12).
The Applicant sought review of the decision on the basis that he contends that the following components were not included in the calculation of his NWE:
(a) Shoe allowance;
(b) Wharf allowance;
(c) Overtime;
(d) Superannuation contributions;
(e) Annual leave loading; and
(f) Extra duty meal allowances.
In the Applicant’s opening submissions, the Applicant confirmed that he no longer pressed the Application as it relates to shoe allowance, superannuation contributions, annual leave loading and extra duty meal allowance. The following exchange took place on the first day of the hearing:
[MS SLACK]: I think that’s in 2017/4819, and just so I’m clear, because a lot of prep will go into this otherwise. So there’s shoe allowance, wharf allowance, overtime, superannuation, annual leave loading, extra meal allowance. Just to confirm, is it only wharf allowance and overtime, is that what you said?
[MR THOMPSON]: That’s what my statement of facts say.
Accordingly, the only issues that were agitated at the hearing were whether wharf allowance and overtime should be included in the calculation of the Applicant’s NWE.
The above position is reflected in the Applicant’s closing submissions in which he advised has position as being:
3.The applicant gave his undertaking at the Tribunal hearing on Tuesday 9th October 2018 that he would not pursue his application under 2017/4819 for Shoe Allowance, Superannuation Contributions, Annual Leave Loading and Extra Duty Meal Allowance and withdraws claim for these under application 2017/4819.
However, in his closing submissions the Applicant identifies the issues relevant to this application as being:
• Is the applicant entitled to receive the pay increase awarded to Department of Agriculture staff dated 26 July 2017 as part of the calculation of his normal weekly earnings?
• Is the applicant entitled to have overtime allowance included in the calculation of his normal weekly earnings?
• Is the applicant entitled to have wharf allowance included in the calculation of his normal weekly earnings?
The Tribunal refers to the first of the above bullet points. The Applicant has sought to add this element to this claim after the hearing. The Applicant’s relevant SIFC identified the elements of this particular application as being:
2017/4819
H)Was the applicant earning or entitled to earn overtime or wharf allowance on the 17 February 2011 and/or the 3 September 2012 (dates of injury) and were these entitlements included in the calculation of normal weekly earnings (NWE).
The Tribunal notes that even the heading for this application in the Applicant’s closing submissions is “2017/4819 Overtime Allowance & Wharf Allowance payable for the period 1/7/2017 to 4/4/2018”. There is no reference to adjustments to take into account changes to award rates.
Whether the calculation of NWE under s 8 of the SRC Act should include for any increases in award rates because of s 8(6) of the SRC Act, in particular s 8(6)(c), may be a legitimate question, however, it was not part of the reviewable decision, was not raised by the Applicant’s request for a review in his email of 27 July 2017, was not part of the claim as made by the Applicant in this application and was, accordingly, not addressed by the Respondent.
Accordingly, even if the Tribunal were of the view that it had jurisdiction to consider this late-added element of the application notwithstanding that it was not a matter raised in the original determination, the Applicant’s request for reconsideration or the reviewable decision of 11 August 2017, it would be inappropriate for the Tribunal to make any decision on this element given the Applicant’s statements in his SIFC and at the commencement of the hearing and given the fact that the Respondent has not been given the opportunity to answer this element of the claim.
Section 8(1) of the SRC Act relevantly provides:
(1)For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
(NH x RP) + A
where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee’s average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
Section 8(2) of the SRC Act provides:
(2)Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:
NH x OR
Where:
NH is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and
OR is the employee’s average hourly overtime rate of pay during that period.
The Respondent in its closing submissions contends as follows:
118.The Applicant initially contended that his overtime should be calculated on the basis of the hours of overtime he worked in the 12 months prior to his injury. However, in his oral evidence he referred to it needing to be averaged over a 3 year period. In an Annexure to his undated Statement of Facts, Issues and Contentions the Applicant has detailed all of the overtime he worked in the period from 2 April 2009 to 16 March 2011.
119.To succeed, the Applicant would first need to convince the Tribunal that the relevant period should be extended from the two weeks prior to 17 February 2011 that his NWE was based on and, why the relevant period should be three years in length. The Applicant has provided no basis to justify doing so other than that it would allow him to demonstrate that some overtime was paid to him. That is not a sound reason and rather, indicates that the overtime worked by the Applicant was not regular or frequent and was rather, sporadic. Even in the 12 months prior to the date of the physical Injury that is apparent. That does not constitute overtime worked “on a regular basis”. Irregular overtime is not included in the calculation of NWE: Comcare v Pires (2005) FCA 747.
The Tribunal agrees with the Respondent’s submissions. The Respondent in making the calculation of the Applicant’s normal weekly earnings at the time of his injury, which the Tribunal considers to be 17 February 2011 for the purposes of this application, applied the normal practice of having regard to a two week period leading up to that date. While it may have been the case that over a much longer period before the injury, the Applicant appears to argue somewhere between 12 months and three years, he may have at times worked additional overtime, that is not the normal period accepted as being the appropriate period for the calculation and may not be indicative of what he was actually earning at the time of the injury. As was noted in McDonald v Department of Defence [1999] FCA 882 in which the Federal Court held that ‘the starting point for the calculation of an employee’s normal weekly earnings is what he was paid in the two weeks before the injury’. Nothing that the Applicant put before the Tribunal would indicate that the two weeks leading up to the injury would ‘not fairly represent the weekly rate at which the employee was being paid … before the injury’ (s 8(5) of the SRC Act) for there to be an exercise of the discretion under s 8(5) to calculate that figure on the basis of a longer period.
The Tribunal accordingly affirms the decision of the Respondent dated 11 August 2017 which affirmed a determination dated 5 July 2017 which determined the Applicant’s entitlement to compensation under s 20 of the SRC Act for the period 1 July 2017 to

4 April 2018.
In relation to the Applicant’s claim for a wharf allowance to be included in his NWE calculation, the Respondent cites page 55 of the Enterprise Bargain Agreement

2011-2014 which was included in the material provided by the Applicant as part of his SIFC which provides:
58.1Wharf Allowance recognizes the ongoing aspect of the climatic and other environmental conditions, rather than infrequent attendance in an external environment. To be eligible for this allowance, being permanently based means the employee’s usual place of work for a minimum period of a fortnight. Cessation of payment would also align with the last full period of attendance (i.e. fortnight rather than part thereof). The activities to which the allowance will apply will be
(a)sea container risk management policy;
(b)Giant African Snail inspections;
(c)on wharf breakbulk surveillance;
(d)timber/machinery inspections undertaken outside.
58.2Other than the above activities, employees are excluded if performing activities at depots within a port environment.
58.3The Secretary will approve a payment of an annual allowance, to eligible employees of $1000 per annum. The allowance will be paid on a pro rata basis each fortnight.
As the Respondent points out, the Applicant was located in the ‘WA Regional Office’ from 3 September 2009 to 31 July 2013. The Applicant contends that he ‘was paid Wharf allowance between 04 January 2012 until 29 February 2012, this was suspended as I was on a temporary transfer to the regional office but my substantive position remained at Fremantle Cargo…I was assigned back to Fremantle shipping for which I was entitled to wharf allowance prior to my psychological injury on 3/09/2012…on the 3/09/2012 my substantive position was located at Fremantle Cargo of which I would have been receiving wharf allowance anyway’ (2017/5404, T2/9). There is no evidence to substantiate the Applicant’s contention that his substantive position was at Fremantle Cargo. Rather, his employee profile refers to his substantive position as being located at the WA Regional Office (2017/4819, T26/74). Further, there is no documentary evidence to establish that he ‘would have been receiving wharf allowance anyway’. The Applicant’s oral evidence was that others at Fremantle Cargo were receiving Wharf allowance but no documentary evidence to substantiate that claim, or that their circumstances are the same as those as the Applicant, has been provided. Further, as the Tribunal understands the Applicant’s duties at the relevant time, the Applicant was not undertaking the duties described in the EBA as being covered by the wharf allowance.
The Respondent also notes that an email dated 18 August 2017 from DA (2017/4819, T23) identifies the periods for which the Applicant was paid wharf allowance. It shows that the Applicant was paid one hour of wharf allowance on only each of the following dates:
(a)4 January 2012;
(b)18 January 2012;
(c)1 February 2012;
(d)15 February 2012; and
(e)29 February 2012.
None of these dates fall within the two week relevant period prior to either date of the Injury (17 February 2011 or 3 September 2012). Even if the relevant period were extended to 12 weeks, the period would not include the dates on which the Applicant was paid wharf allowance.
On the basis of the above it is the Tribunal’s view that it was correct not to include any wharf allowance in the calculation of the Applicant’s NWE.
The Tribunal therefore affirms the decision of the Respondent dated 11 August 2017 which affirmed a determination dated 5 July 2017 to determine the Applicant’s entitlement to compensation under s 20 of the SRC Act for the period 1 July 2017 to 4 April 2018.
2017/3262 – requirement to provide medical certificates – incapacity period 6 April 2017 to 4 April 2018
The Applicant seeks review of a decision of the Respondent dated 2 June 2017 (2017/3262, T24) affirming a determination dated 12 April 2017 (2017/3262, T13) which found that the Respondent was liable to pay incapacity compensation to the Applicant pursuant to s 20 of SRC Act from 6 April 2017 until 4 April 2018 (at which point the Applicant would have to submit a fresh medical certificate).
The Applicant disputes the determination on the basis that he contends that he should not be required to provide yearly medical certificates and the incapacity determination should have been open-ended.
The reviewable decision of 2 June 2017, in the Tribunal’s view, correctly sets out the relevant facts and the standard practice which reflects the legislation. In particular the Tribunal refers to the following passages of the reviewable decision:
You contend that the determination under review contradicts the medical certificates from Dr Lee and the evidence of Dr Proud regarding invalidity retirement.
The determination under review accepted liability to pay compensation to you for incapacity for the period 6 April 2017 to 4 April 2018. The evidence underpinning this determination was the medical evidence of Dr Lees that certified you totally unfit to work for this period. I note that Dr Proud also considered you were unfit for work. Therefore, the determination is completely in line with the medical evidence rather than contrary to it as you have suggested.
You further contended that the determination “set limits to my permanent invalidity”. This contention is erroneous. Your invalidity retirement is a separate matter to your workers' compensation claim and is managed under different legislation (Superannuation Act 1990 and Public Sector Superannuation Scheme Trust Deed) by a different body, namely the Commonwealth Superannuation Corporation (CSC). Any determination made in relation to your compensation claim under the SRC Act has no bearing on your entitlements to receive invalidity benefits under the Public Sector Superannuation Scheme Trust Deed and vice versa.
The determination dated 12 April 2017 did not decline liability to continue to pay compensation for incapacity beyond the dates specified. Nor did the determination seek to place a limit on your entitlements to incapacity. It merely accepted liability for incapacity for a specified period of time, which was supported by the medical evidence available to the delegate at the time Placing a date up to which liability is accepted does not operate as a bar to future entitlements.
…
I note that liability for incapacity beyond the 4 April 2018 is to be determined by the delegate in subsequent determinations and will be subject to medical evidence available at that time.
You stated that there was nowhere in the SRC Act which supports the view that ongoing medical evidence is required in the case of permanent invalidity retirement. Whilst this is technically correct, I note that section 54(2)(b) of the SRC Act states that a claim for compensation (except for section 16 or 17) shall be made by giving the relevant authority a certificate by a legally qualified medical practitioner and section 54(b)(3) states that where a claim Is riot accompanied by a certificate of the kind referred to in paragraph 2(b), the claim shall be taken not to have been made until such a certificate is given to that authority. Such claims for compensation include those made pursuant to section 20 of the SRC Act.
It is important to note that one of Comcare’s core functions is to make determinations accurately in relation to claims under the SRC Act and it is reasonable for Comcare to request or require medical evidence from time to time in order to assist them carry out their function of making accurate determinations under the SRC Act
As stated above though, any requirement or request for you to provide ongoing medical evidence is not a determination under the SRC Act and is therefore not reviewable.
What the Applicant seeks is dispensation from providing medical certificates for further periods. As the Respondent stated in the reviewable decision, no ‘determination’ can be made to require the Applicant to provide medical certificates. Rather, it is the method by which liability for incapacity payments is established by the Applicant. Further, it is in many cases, including the present case, the method by which a claim for compensation for the purposes of the Respondent having any liability under s 54(1) of the SRC Act is made (see Lees v Comcare (1999) 56 ALD 84 at [30]). Often, where liability has been accepted under s 14 of the SRC Act, the ‘claim for compensation’ under ss 16, 19 or 20 of the SRC Act, for the purposes of liability arising under s 54(1) of the SRC Act, is the provision of a medical certificate confirming incapacity for a specified period. That, quite sensibly and correctly, is taken as a ‘claim for compensation’ under the relevant section of the SRC Act for the specified period. Where that procedure has been followed, once that specified period comes to an end there is no relevant ‘claim for compensation’ for the purposes of s 54(1) so in order for liability to arise, a fresh claim, potentially in the form of a medical certificate certifying incapacity for a further period, is submitted (See Weston and Cleanaway [2018] AATA 3740). That is all that the Respondent is requiring in this case.

The Applicant contends that the reports of Dr Lee dated 24 November 2016, the report of Dr Proud dated 21 November 2016 and the ‘medical examination report for invalidity retirement dated 1 July 2016’ have the effect of certifying him as totally incapacitated for work from 17 February 2017 to 8 July 2034 (when the Applicant would have retired) and, therefore, he is not required to provide further medical certificates to demonstrate his incapacity for work during this period. That is not the case.
The Tribunal also notes Deputy President Hotop’s finding in Vittiglia and John Holland Group [2013] AATA 492 at [29] to the effect that a medical certificate can only attest to the Applicant’s capacity for work as at the date it was produced. The justification for that is plain; ailments change over time.
The position adopted by the Respondent as outlined in the reviewable decision is correct.
The Tribunal affirms the decision of the Respondent dated 2 June 2017 (2017/3262, T24) affirming a determination dated 12 April 2017 (2017/3262, T13) which found that the Respondent was liable to pay incapacity compensation to the Applicant pursuant to s 20 of SRC Act from 6 April 2017 until 4 April 2018 (at which point the Applicant would have to submit a fresh medical certificate).
2017/7137 – gym membership
The Applicant seeks review of a decision of the Respondent dated 21 November 2017 (2017/7134 et al., T57) which affirmed a decision dated 4 October 2017 (2017/7134 et al., T27) which found that the Applicant was not entitled to compensation pursuant to s 16 of the SRC Act for the cost of a three month gym membership as it was not considered to be reasonable treatment obtained in relation to the Injuries.
‘Medical treatment’, as it is defined in s 4 of the SRC Act, includes ‘therapeutic treatment obtained at the direction of a legally qualified medical practitioner’ or ‘therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be’.
The Respondent does not dispute that a gym membership can constitute therapeutic treatment that results in pain reduction for his back condition, if that gym membership facilitates a structured, supervised, targeted program (Respondent’s outline of submissions, para 135).
However, as identified by the Respondent, the Applicant has not made it clear in respect of which condition (physical or psychological) the gym membership is sought. Irrespective, the Respondent contends that the gym membership cannot be considered to be ‘medical treatment in relation to’ either the physical or psychological condition. The Applicant’s claim is for a three month gym membership rather than a specific, professionally structured gym program.
A significant issue that the Applicant faces in this claim is the lack of any medical evidence to support the therapeutic value of the gym membership vis a vis either of the injuries and therefore whether the claim for gym membership is ‘treatment that is reasonable in the circumstances’ for the purposes of s 16 of the SRC Act. The Applicant described the exercises that he undertakes or would undertake as being for the purposes of strengthening his core and the muscles ‘around that area’ in reply to the Tribunal’s question of ‘is that tailored regime specifically aimed at avoiding – your injury was an L4/5, wasn’t it? (Transcript at 30)
With respect to what constitutes ‘reasonable’, Gray J in Re Jorgensen and Commonwealth (1990) 23 ALD 321, 325 opined that:
…The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation.
Stone J confirmed in Comcare Australia v Rope (2004) 135 FCR 443, 448 (Rope) that ‘the reference in s 16(1) to treatment being “reasonable to obtain in the circumstances” is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis…’ In Comcare v Holt (2007) 94 ALD 576, 581 [25], Mansfield J followed the decision of Stone J in Rope and agreed that the costs/benefit analysis is appropriate.
Deputy President Humphries and Member Hughson observed in Topping and Comcare (Compensation) [2015] AATA 525 at [38]:
Naturally, this equation of fact vs benefit entails consideration of how much good is actually delivered to an applicant, and it is obvious that there must be an element of objectivity in this to weigh against the cost of that good. This will be a particularly critical analysis where, as is conceded in this case, the treatment obtained and being obtained by Ms Topping has not, and probably will not, ameliorate the course of her underlying psychological condition.
Deputy President Constance provided guidance on how to undertake this task in the matter of Alamos and Comcare [2014] AATA 629 where he stated at [23]: ‘[i]n considering this requirement, it is necessary to consider all of the circumstances, and not only the beneficial effects experienced by Mrs Alamos.’ Then, at [24] DP Constance provided the following non-exhaustive list of factors which may be relevant considerations in the circumstances:
·the benefit of the treatment to the injured worker;
·the long-term effect of the treatment;
·whether the treatment is likely to cure the injury or significantly reduce its effects;
·whether the treatment maintains the status quo;
·the cost of ongoing treatment.
Relevant to the Applicant’s particular circumstances, given that he has previously been compensated for a gym membership, Senior Member Tavoularis in Blackwell and Comcare [2017] AATA 1357 highlighted the ‘notion of shifting reasonableness’:
What was initially reasonable treatment may become unreasonable long-term treatment. This long-term perspective is particularly important when one considers the potential long-term dependency of applicants upon treatments that were only ever meant to be temporary…
As was noted by the Tribunal in Stitt and Comcare [2018] AATA 3092 at [87]:
As the authorities cited above establish, what was once accepted as reasonable treatment may, over time and as circumstances change and new treatments become available, no longer be reasonable.
In cross-examination the Applicant explained that while he had been given the exercise program that he follows by exercise physiologists (none of whose names he could remember), it had been over four years since those programs were given to him (Transcript at 52-53). Further, he performs the exercises alone, without instruction or supervision and using the spa and the sauna were not recommendations made by the exercise physiologist. The majority of the exercises that the Applicant performs at the gym may have been recommended by an exercise physiologist at an early point in time but do not need to be performed in a gym (particularly the cardiovascular activities and the floor exercises). Further, as the Applicant’s program has not been reviewed in over four years, the Tribunal cannot be satisfied that the exercises the Applicant is performing as described by the Applicant at the hearing are still appropriate.
With respect to the psychological condition, Dr Terace stated in his supplementary report that:
8.In my personal opinion, a regular exercise program aimed at maintaining both physical and mental fitness should be recommended by medical practitioners including psychiatrists, but I accept that I do not have sufficient scientific evidence to support that it is of evidence-based value to the treatment of Major Depressive Disorders to the standard of scientific proof.
9.I am aware that there is a relative paucity of randomised controlled studies to support the treatment value of the gym membership/exercise program in the treatment of a Major Depressive Disorder, even if I personally believe that exercise benefits most individuals, both physically and psychologically.
10.I thus do not have sufficient scientific evidence to argue that exercise is an evidence-based or empirically based treatment for Major Depressive Disorder or any other psychiatric disorder on that basis.
11.Not only is there a relative poverty of randomised-controlled research to empirically support its specific treatment value in the treatment of Major Depressive Disorders, but I am also not aware of good methodologically sound meta-analysis reviewing randomised-controlled studies to confirm its scientifically established value, despite my personal position.
In his report of 15 September 2017 (2017/7134 et al., T24/179), Dr Terace expressed the view that the Applicant is “probably entrenched in a sick role and chronic illness behaviour”. In his supplementary report, Dr Terace stated that, his reference to ‘entrenchment in the sick role’ he was referring to ‘my impression that Mr Thompson is trapped in a vicious cycle of complex illness behaviour, but that the natural process of pursuing permanent invalidity appears to be very distressing given his complaints about the conduct of the process, regardless of whether his perceptions are real or imagined.’
The Respondent submits (paragraph 139 of closing submissions) that:
The Applicant has not obtained any evidence that casts doubt on Dr Terace’s opinion in this regard. Accordingly, while exercise may be an appropriate recommendation in a general sense, there is no basis in medicine for it being “reasonable treatment in relation to” the Applicant’s psychological condition. Therefore, liability does not arise in respect of the claimed gym membership.
Dr Hardcastle’s evidence in relation to the benefit of a gym program so far as the Applicant’s back condition, putting aside the issue of whether the Applicant’s back condition is still work-related, was that while he generally supported physical activity, especially as a person ages, a gym program is:
not therapeutic, it's a matter of maintaining and keeping your degenerate spine mobile and functional without overdoing it. I do see a lot of people in the gym overdoing things and presenting with other injuries and gym-based complications but it is – as I say, that's a matter of 45 person al preference but it is not therapeutic it's more – it's therapeutic in some situations when you first have an injury but then it reaches a point where it becomes maintenance and that maintenance can be done with a home gym program, at the gym or doing your own gardening and general activities, housework and various – you know, various other activities.
(Transcript at 123).
Dr Hardcastle did not consider that the exercises that the Applicant was performing were specifically targeted at the Applicant’s lower back condition. Further, Dr Hardcastle stated in his report dated 22 May 2018 that “[h]e does require some medical treatment of ongoing exercises which are best done on a self-managed basis…” There is no indication that the Applicant needs to perform the physical exercises at a gym and cannot perform them at his home.
The medical certificate dated 31 May 2017 issued by Dr Lee (2017/3262, T25/92-93) stated that the exercise is to ‘improve pain and function to lower back’ and ‘improve depression’. He suggested that the gym membership was necessary because the Applicant does not have a pool or a spa at home. However, the Applicant did not give evidence of swimming and no reference is made to why spa use is an appropriate means of treating either condition. Similar comments were made in Dr Lee’s reports of

5 September 2017 (2017/7134 et al., T23) and 4 October 2017 (2017/7134 et al., T26). It appears as though Dr Lee sought a further opinion from Dr Memon in relation to whether an ongoing gym program would be beneficial to the Applicant’s mental health (R2/884) although no reply report appears to have been received.
The Applicant has not put forward any evidence that counters Dr Terace’s or Dr Hardcastle’s opinions. While exercise may be an appropriate recommendation in a general sense, in Dr Terace’s view, there is not sufficient scientific evidence for it being ‘reasonable treatment in relation to’ the Applicant’s diagnosed psychological condition.
Dr Lee, in July 2013, recommended that the Applicant continue ‘exercise in gym for further 3 months, after which at home’ suggesting that it was always intended to be a transient measure and that appropriate exercises could be undertaken at home (2017/7134 et al., T14). In that regard Dr Lee’s view is consistent with that expressed by Dr Hardcastle in his report of 22 May 2018 (see [222] above).
Accordingly, the Tribunal finds that, based on the evidence as presented by the parties, there is insufficient evidence for the Tribunal to find that the claimed gym membership was or is, in the circumstances, reasonable for the purposes of s 16 of the SRC Act. Accordingly, liability does not arise in respect of the claimed gym membership.
For the reasons set out above, the Tribunal affirms the decision of the Respondent dated 21 November 2017 (2017/7134 et al., T57) which affirmed a decision dated

4 October 2017 (2017/7134 et al., T27) which found that the Applicant was not entitled to compensation pursuant to s 16 of the SRC Act for the cost of a three month gym membership.
Summary
2017/7134
The Tribunal affirms the reviewable decision of 21 November 2017 which reconsidered, on own motion, the Respondent’s determination dated 5 July 2017 and determined that the Respondent was not presently liable to pay compensation in relation to the Back Injury.
2017/7135
The Tribunal affirms the decision of the Respondent dated 21 November 2017 which affirmed a determination dated 27 October 2017 which had found that the Applicant had no entitlement to compensation pursuant to s 16 of the SRC Act for medical treatment obtained in relation to the psychological injury ‘adjustment reaction with anxious mood’ dated 3 September 2012.
2017/7136
The Tribunal affirms the decision of the Respondent dated 21 November 2017 which affirmed a determination dated 10 October 2017 that had found that the Applicant had no entitlement to permanent impairment compensation pursuant to s 24 of the SRC Act in relation to the Back Injury and the Psychological Injury.
2018/2754
The Tribunal affirms the decision of the Respondent dated 18 May 2018 which affirmed a decision dated 1 May 2018 to deny liability for the claimed aggravation said to have been sustained on or around 21 July 2014. Insofar as the Applicant has apparently changed his claim to there being an aggravation on 12 November 2014, that claim too must fail.
2017/5404
The Tribunal affirms the decision of the Respondent dated 16 August 2017 which refused to review a determination dated 28 November 2012.
2017/3274
The Tribunal affirms the decision of the Respondent dated 5 June 2017 which affirmed the determination which was set out in the Respondent’s letter dated 24 May 2017 notifying the Applicant that his weekly rate of compensation would be reduced on 23 June 2016 in an amount equal to the increase that he had received in his superannuation pension increase (in accordance with the formula in s 20 of the SRC Act).
2017/3275
The Tribunal affirms the decision of the Respondent dated 5 June 2017 which affirmed the determination dated 24 May 2017 which determined the specific rates of compensation that would be paid from 23 June 2017 to 4 April 2018, reflecting the reduction of $5.02 per week resulting from the increase in superannuation payable.
2017/4819
The Tribunal affirms the decision of the Respondent dated 11 August 2017 which affirmed a determination dated 5 July 2017 to determine the Applicant’s entitlement to compensation under s 20 of the SRC Act for the period 1 July 2017 to 4 April 2018.
2017/3262
The Tribunal affirms the decision of the Respondent dated 2 June 2017 affirming a determination dated 12 April 2017 which found that the Respondent was liable to pay incapacity compensation to the Applicant pursuant to s 20 of SRC Act from 6 April 2017 until 4 April 2018 (at which point the Applicant would have to submit a fresh medical certificate).
2017/7137
The Tribunal affirms the decision of the Respondent dated 21 November 2017 which affirmed a decision dated 4 October 2017 which found that the Applicant was not entitled to compensation pursuant to s 16 of the SRC Act for the cost of a three month gym membership.
Decision
The Tribunal affirms the decisions under review.

I certify that the preceding 238 (two hundred and thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[sgd].....................................................................
Associate
Dated: 16 April 2019

Date(s) of hearing: 8 and 9 October 2018

Applicant: In person

Counsel for the Respondent: Ms K Slack

Solicitors for the Respondent: Sparke Helmore

Date(s) of hearing:	8 and 9 October 2018
Applicant:	In person
Counsel for the Respondent:	Ms K Slack
Solicitors for the Respondent:	Sparke Helmore