Webster and Comcare (Compensation) - [2025] ARTA 742

Webster and Comcare (Compensation) [2025] ARTA 742 (6 June 2025)

Applicant/s:  Robert Webster
Respondent:  Comcare
Tribunal Number:                2023/6839
Tribunal:Senior Member G McCarthy
Place:Canberra
Date:6 June 2025

Decision:

The decision under review is affirmed.

……………[SGD]…………………..

Senior Member G McCarthy

Catchwords

COMPENSATION – accepted liability for ligament strain in lower back arising from a fall during a touch football game in September 1976 – claim for cost of medical treatment comprising up to 12 sessions of physiotherapy per year – physiotherapy costs paid between 1983 and 2023 by reference to medical certificates provided – liability to pay for compensation denied in 2023 on the basis physiotherapy no longer in relation to the 1976 injury – conflicting medical evidence as to whether the injury is permanent – conflicting medical evidence as to whether the physiotherapy is being provided in relation to the injury – consideration of resolution between conflicting medical evidence – consideration of persuasion necessary when departing from earlier decisions approving liability to pay compensation – Tribunal satisfied lower back ligament strain has resolved and physiotherapy therefore not in relation to the injury – decision affirmed

Legislation
Safety, Rehabilitation and Compensation Act 1988 – ss 5A, 14, 16

Cases
Comcare v Power [2015] FCA 1502
HNGN and Military Rehabilitation and Compensation Commission [2018] AATA 4096
Lees v Comcare [1999] FCA 753
Perich and Secretary, Department of Social Services [2018] AATA 963
Wills and Comcare [2024] AATA 1480
Woodhouse v Comcare [2021] FCAFC 95

Statement of Reasons

On 6 September 1976, nearly 50 years ago when he was 21 years old, the applicant injured his lower back while playing touch football at a Royal Navy Supply Centre. A witness report made the following day, 7 September 1976, records the applicant was carrying the football when he slipped and fell to the ground.[1]
[1] T documents, page 8
On 13 September 1976, the applicant lodged a claim for compensation arising from the injury.[2] He described his injury as ‘strained ligaments in lower back’.[3]
[2] T documents, page 9
[3] T documents, page 9
On the same day, the applicant’s medical practitioner (Dr Clifford) provided a medical report diagnosing the applicant with ‘ligament strain - lumbo-sacral’ arising from him ‘playing football for Dept’. Dr Clifford certified the applicant as fit to resume work that day, 13 September 1976.[4]
[4] T documents, page 11
On 17 December 1976, the respondent accepted liability for ‘ligament strain - lumbo-sacral region’ (the Injury) for the period ‘7 September 1976 to 10 September 1976 inclusive’.[5]
[5] T documents, page 13
I was not taken to any evidence of the applicant receiving medical treatment for the Injury until many years later. That evidence arose from a letter dated 21 February 1983 from the Department of Defence to Dr Beckett, a general practitioner in Canberra. In that letter, the Department stated the applicant ‘is now receiving physiotherapy’ for the Injury and asked Dr Beckett for an ‘up-to-date’ report as to whether he considered on the balance of probabilities the applicant’s present condition was due to the incident on 6 September 1976.[6]
[6] T documents, page 15
By letter dated 28 March 1983, Dr Beckett replied he had seen the applicant on only one occasion regarding his back, on 3 November 1982, when he presented with a three day history of low right back pain ‘with no obvious precipitating factor’. Dr Beckett reported that an examination revealed an ‘irritable right sacro-iliac ligament, with some degree of associated muscle spasm’. Dr Beckett stated ‘I feel this injury is definitely related to his previous injury in 1976, and I asked him to seek physiotherapy.’[7]
[7] T documents, page 16
As I understand it, the respondent or its predecessor then paid for the applicant’s physiotherapy for many years.
By letter dated 29 July 1987, in response to the applicant submitting accounts for further physiotherapy, the respondent’s predecessor again wrote to Dr Beckett requesting an up-to-date report on his condition and whether the physiotherapy related to his Injury. This time, by letter dated 13 August 1987, Dr Beckett replied by stating he was unable to answer any of the queries because he had no record of any back injury relating to football on the applicant’s file. Dr Beckett added that the applicant consulted with him on 3 September 1984 ‘following an accident while snow skiing, when he sustained a muscular spasm of his lower spine, but this responded to non-steroid anti-inflammatory drugs and physiotherapy within a couple of weeks.’[8] Dr Beckett concluded:
I have no record of any physiotherapy visits or back pain after that date - as such I cannot help you.[9]
[8] T documents, page 21
[9] T documents, page 21
The evidence about what then occurred is incomplete, save to note the applicant was receiving physiotherapy from TM Physio on a regular basis over many subsequent years. A letter dated 27 January 2016 from the respondent to TM Physio records the applicant received 105 physiotherapy sessions to the date of the letter and the respondent had accepted liability for a further 12 sessions from 16 April 2015 to 16 April 2016.[10] In its letter, the respondent sought details from TM Physio about the treatment provided, the purpose of the treatment and when the treatment goals would be achieved.
[10] T documents, page 22
By letter dated 7 April 2016 Mr Imhoff (physiotherapist), on behalf of TM Physio, replied to the respondent stating the applicant receives periodic physiotherapy for his ‘chronic lower back pain’. Mr Imhoff explained that the goal was to ‘relieve pain and restore mobility of the lumbar spine’ but due to the chronic nature of the lumbar spine injury, he expected the applicant would ‘require on-going periodic physiotherapy treatment for an indefinite period to manage his flare ups.’ Mr Imhoff estimated the applicant would need approximately 10-12 physiotherapy sessions per year with each session being 30 minutes.[11] Mr Imhoff made no comment as to the cause of the chronic back pain.
[11] T documents, page 25
That arrangement continued for many years. By letter dated 26 September 2024, Mr Imhoff wrote to the applicant advising the applicant had received 83 physiotherapy sessions between 2015 and 2024, with regular sessions provided in each year.[12]
[12] Tribunal book, page 180
On 18 May 2023, TM Physio, on behalf of the applicant, lodged another claim for a further course of 12 x 30 minute physiotherapy sessions over 52 weeks at a cost of $120 per session plus preparation of a further treatment plan at a cost $80.[13] Consistent with earlier treatment plans, the treatment plan described the injury as ‘lumbar spine chronic low back pain’. The treatment plan stated physiotherapy treatment was ‘required to manage flare-up in pain’. The plan detailed ‘With current regime Robert manages his episodes without the need for pain medication’. It recorded self-management strategies the applicant could use to manage his condition, namely ‘home stretching and mobility program. Home-based strengthening routine.’[14]
[13] T documents, page 41
[14] T documents, page 43
This time, on 30 May 2023, the respondent declined liability on the basis that the medical evidence did not support a finding that ongoing physiotherapy was reasonably required to treat or improve the lumbar spine injury sustained on 6 September 1976.[15]
[15] T documents, page 44
By email sent on 22 June 2023, the applicant applied for reconsideration of the respondent’s decision.[16] He contended the physiotherapy was to manage his condition and, whilst he had been self-managing for many years, he needed the physiotherapy to manage pain flare ups which occurred from time to time. The applicant relied on the absence of any change in the respondent’s Clinical Framework since June 2012 and queried why the Framework was now being applied differently. In support of the need for ongoing physiotherapy, the applicant relied on a medical report dated 4 May 2016 from his general practitioner Dr Alexandra Viketos and quoted passages from it.[17]
[16] T documents, page 46
[17] T documents, page 46
Dr Viketos’ report dated 4 May 2016 relevantly states:
I examined Robert Webster on 04 May 2016 in relation to the injury stated as occurred in 1976 and I find that he is suffering from muscle and ligament strain affecting the lumbar spine
Based on the information available to me, this was caused by: work.
Pre-existing or contributing factors: nil
I believe Mr Webster is suffering from permanent damage to his lumbar spine as a result of his work related injury in 1976. Mr Webster has been successfully self managing his condition most of the time, however, I recommend that Mr Webster continued to attend physiotherapy to treat exacerbations of pain which occur infrequently, perhaps 2-3 times per year, a total of 12 sessions per year may be needed.[18]
[18] ST documents, page 138
On 13 August 2017, in response to a request from the respondent, Dr Viketos wrote a further report in relation to the applicant’s injury. In it, she relevantly stated:
Mr Webster has been a regular patient at this practice for over twenty years.
Mr Webster has an accepted medical condition of ligament strain affecting the lumbosacral region as a result of his previous employment. I believe that Mr Webster continues to suffer symptoms related to this condition including pain and stiffness affecting the lumbosacral region. These symptoms are variable in intensity and duration and become more severe periodically, perhaps two to three times per year. Over the last twenty years, Mr Webster reports that his symptoms have been fairly stable and are not showing any significant signs of progression. In addition, Mr Webster is not displaying any symptoms which would cause suspicion or concern about an alternative diagnosis. Specifically Mr Webster has not reported a radicular pattern to his pain, waking overnight due to pain, a fever or weight loss. As a result, I believe that medical imaging investigations are not required to be undertaken at this time.
There are no biopsychosocial factors impacting on Mr Webster’s current condition. I am not aware of any external factors since Mr Webster left his employment that could be perpetuating his symptoms. In my opinion, the work-related injury is likely to have accelerated the degenerative changes that occur naturally with age.
I believe Mr Webster’s condition is now permanent and Mr Webster is unlikely to recover from the effects of his injury. Mr Webster is following medical advice by remaining active and this helps maintain his condition to a stable level. Furthermore, intermittent physiotherapy sessions, perhaps 12 per year also assist to treat exacerbations of pain and help supervise Mr Webster’s home-based exercise.[19]
[19] T documents, page 31
For the purpose of considering the applicant’s application for reconsideration of the decision to decline liability, the respondent sought a further report from Dr Viketos. By report dated 6 July 2023, Dr Viketos relevantly stated:
Mr Webster has an accepted condition of ligament strain affecting the lumbosacral region dating from 6 September 1976 as a result of a sporting injury. Mr Webster describes recurring episodes of lower back pain and stiffness which occurs perhaps 4-6 times per year. Symptoms are relieved after Mr Webster attends physiotherapy and can last from a few days to a few weeks.
..
Mr Webster has been suffering chronic relapsing episodes of lower back pain following the incident on 6 September 1976 and I believe that this is likely to continue in the foreseeable future.
..
Mr Webster is recommended to have approximately 12 sessions of physiotherapy annually in order to manage flares of pain and stiffness in his lower back. On this regime, Mr Webster has been able to participate in his normal activities of daily living as well as sporting and other recreational activities. The goals and objectives of treatment is to reduce lower back pain, improve function and enhance quality of life.[20]
[20] T documents, page 54
Notwithstanding Dr Viketos’ report, on 25 July 2023 the respondent confirmed its decision to decline liability.[21] The respondent noted the absence of any mention in the clinical records of the applicant consulting with Dr Viketos between July 2021 and July 2023 in relation to a lumbar spine condition, notwithstanding him seeing Dr Viketos in relation to other injuries to his toes, knees, hands, fingers and right shoulder. The respondent noted the physiotherapy treatment plan dated 18 May 2023 stated the treatment was for chronic pain in the applicant’s lumbar spine, but did not link that condition to the injury suffered in September 1976.
[21] T documents, page 59
The respondent also noted the applicant did not commence regular and ongoing treatment to his lumbar spine until 1982, six years after the Injury occurred; that no imaging had been done on his lumbar spine; and that treatment was never more than physiotherapy.
By application dated 18 September 2023, the applicant applied for review of the respondent’s reconsidered decision.
In support, the applicant relied on another medical certificate from Dr Viketos dated 14 November 2023, which is identical to her certificate dated 4 May 2016 save for the date.[22]
[22] Exhibit A1
To address the applicant’s claim, the respondent arranged for the applicant to be examined by Dr Jan Tomlinson, a consultant orthopaedic surgeon. The respondent provided Dr Tomlinson with a copy of all relevant medical records for the purpose of her assessment.
On 2 April 2024, Dr Tomlinson examined the applicant. In her report dated 9 April 2024,[23] Dr Tomlinson noted the following factors, among others, that she thought relevant:
(a)The applicant could not recall treatment provided when he suffered the Injury due to passage of time but thinks it was just rest.[24]
(b)The applicant’s advice that after suffering the Injury on 6 September 1976 he next attended a medical practitioner in the early 1980s.[25]
(c)Dr Beckett’s report dated 13 August 1987 advising that the applicant consulted with Dr Beckett on 3 September 1984 ‘following an accident whilst snow skiing when he sustained a muscular spasm of his lower spine, but this responded to non-steroid anti-inflammatory drugs and physiotherapy within a couple of weeks’; and that he had ‘no record of any physiotherapy visits or back pain after that date’.
(d)The applicant’s advice of episodes where his back ‘tightens up’ but he cannot relate it to any specific precipitating event, and that when this occurs, he sees his physiotherapist who ‘does his usual treatment and his symptoms then resolve’.
(e)The applicant’s advice that when his back is stiff he does not have a lot of pain and simply a ‘tight sensation’.
(f)The applicant’s advice that he has not sought further medical reviews, is not being referred to a specialist and has not undergone imaging.
(g)The applicant’s advice that he enjoys cycling, golf and snow skiing, and frequently travels overseas to ‘chase the snow skiing season’ and that he has never had onset of symptoms whilst undertaking any of these physical activities.[26]
[23] Tribunal book, page 182
[24] Tribunal book, page 183
[25] Tribunal book, page 184
[26] Tribunal book, pages 185 - 186
After conducting an examination, Dr Tomlinson reported her current diagnosis, namely ‘likely facet joint arthropathy’. At hearing, in the context of a person’s back, Dr Tomlinson explained this to be a general term concerning the joints between the spinal vertebrae and the discs between the vertebrae. She explained with ageing the discs dry out and shrink which causes the vertebrae joints to become closer. She explained the process is a kind arthritic condition consequent on ageing from which everyone suffers although in many cases it is asymptomatic. In her view, the likely cause of the applicant’s facet joint arthropathy is his age.
As to whether the Injury remains symptomatic and, if not, when the symptoms of the Injury ceased, Dr Tomlinson wrote:
Mr Webster reported ongoing tightness in the lower back. I cannot relate ongoing tightness to a diagnosis of lumbosacral ligamentous sprain. A ligamentous sprain is an injury to a tendon which generally resolves within six weeks. Mr Webster’s symptoms are not consistent with his diagnosis.[27]
[27] Tribunal book, page 186
As to whether the Injury on 6 September 1976 continued to contribute to his present condition to a material degree, Dr Tomlinson wrote:
I cannot relate Mr Webster’s ongoing symptoms to a musculoligamentous strain 48 years ago.[28]
[28] Tribunal book, page 187
As to whether the applicant requires ongoing physiotherapy to treat the Injury, Dr Tomlinson wrote:
I do not consider that Mr Webster[‘s] requires ongoing physiotherapy. If Mr Webster elects to continue with hands on physiotherapy on a monthly to bimonthly basis, this is not required as a consequence of [a] minor ligamentous strain in 1976.[29]
[29] Tribunal book, page 187
In her supplementary report dated 16 September 2024,[30] Dr Tomlinson confirmed her opinion, by reference to his signs and symptoms, that the applicant has facet joint arthropathy, the cause of which is “essentially his age and constitution”. Dr Tomlinson explained that facet joint arthropathy is very common in the general population with incidence and prevalence increasing with increasing age. She stated that unspecified back pain is the most common presentation. She remained of the opinion that the workplace incident on 6 September 1976 no longer contributes to a material degree to the applicant’s ongoing symptoms.
[30] Tribunal book, page 190
At hearing, Dr Tomlinson explained that a lumbosacral ligament strain involves damage to the fibres that make up the ligament and that, over 6 to 12 weeks, the damage to the fibres heals. She explained that ligamentous injuries are usually quite comfortable within 2-3 weeks and completely healed in the following 6 – 12 weeks depending on the severity of the damage.
In cross examination, Dr Tomlinson disagreed with the proposition that the Injury had some impact on his facet joint arthropathy or arthritis. She said she could not envision a scenario in which that could occur.

The applicant’s submissions

The applicant’s submissions are, to a large degree, set out in his letter to the Tribunal dated 21 May 2024.[31] Responding to the respondent’s position that compensation is not payable for maintenance treatment, the applicant contended the physiotherapy was not only for maintenance. He contended that the physiotherapy he needs is remedial, in the sense of remedying tightness in his back so he can continue to enjoy his normal life activities.
[31] Tribunal book, page 174
The applicant challenged the statement in the reconsideration decision that there is no medical evidence outlining how the need for physiotherapy is related to his Injury sustained on 6 September 1976, and referred to the reports from Dr Beckett and Dr Viketos both of whom stated otherwise.
The applicant also challenged the respondent’s opinion that the recommended physiotherapy did not meet the respondent’s Clinical Framework, noting payment for his physiotherapy was approved for many years up to 2023 and the respondent’s Clinical Framework has not changed since June 2012. The applicant relied on a stated purpose of the Framework, namely to “optimise participation at work, home and in the community and to achieve the best possible health outcomes for injured people”.
The applicant took issue with many statements in Dr Tomlinson’s report. He disputed her statement mentioned above about him not needing treatment when away from home because he did not have pain at these times. The applicant stated his recollection of the conversation, namely him saying that if there was a flare up in his back when he was away from home, he curtailed his activities and increased his self-management regime until he returned home and had physiotherapy.

The applicant disputed Dr Tomlinson’s view that he presented for the examination in a very abrupt manner and questioned the relevance of the statement. He noted Dr Tomlinson wrongly stated the injury occurred on 17 December 1976, and that it actually occurred on 6 September 1976.
The applicant contended Dr Tomlinson’s examination was “very brief”, and noted her diagnosis differed from that of Dr Clifford, Dr Beckett and Dr Viketos. The applicant stated “I fail to see” how her opinion should be considered more accurate than that of the other three doctors. I took this to be a submission that the opinions of the other three doctors should be preferred.
At hearing, the applicant pressed his claim that the Injury remained the cause of his lower back pain and that the Injury is permanent. He relied on the report from Dr Clifford, the report dated 28 March 1983 from Dr Beckett, the three above-mentioned reports from Dr Viketos and the physiotherapy treatment plans from TM Physio (especially the plan dated 18 May 2023) for why that is so.
He submitted the reports from Dr Viketos should be relied on in preference to the evidence of Dr Tomlinson because Dr Viketos has been his treating practitioner for nearly 20 years and knows his circumstances very well, unlike Dr Tomlinson who has seen him only once and for a short period.
The applicant gave evidence at the hearing. He agreed that whilst the Injury occurred in 1976, he did not start seeking physiotherapy treatment for his back until 1983 when he moved from Sydney to Canberra and went to see Dr Beckett. He maintained the symptoms of lower back pain have been consistent over the previous 40 years, neither worsening nor getting better. He said he does his exercises every morning to avoid further back pain.
In cross-examination, the applicant was taken to the history recorded by Dr Tomlinson in her report and agreed it was accurate. Notwithstanding his answer, I take into account his letter dated 21 May 2024 in which he claimed inaccuracies in Dr Tomlinson’s report.
In cross-examination, the applicant agreed he still plays golf and skies, but stated he no longer kayaks. He agreed that prolonged sitting, for example when sitting in a car, tended to cause back pain more than physical activities. He agreed that, notwithstanding surgery for many other injuries, he had never consulted an orthopaedic surgeon or a rheumatologist about his lumbar spine because his symptoms were largely manageable.
In cross-examination, the applicant agreed that Dr Viketos had no independent knowledge of the Injury in 1976 and that she relied on the applicant’s report to her about what happened. He agreed Dr Viketos relied on his account of the Injury in 1976 and her examination of the applicant when attributing his present condition to the Injury. He agreed no independent examination or investigation has been done, for example scans, to ascertain whether there is a relationship between his ongoing back symptoms and the 1976 Injury.
In cross-examination, the applicant agreed there is a history of arthritis in his family and he has osteoarthritis in his hands, elbow, shoulders and big toe. The applicant noted there is no history of arthritis in his back.

The respondent’s submissions

In addition to the expert opinion evidence of Dr Tomlinson, the respondent relied on the applicant’s very active lifestyle throughout his life, particularly his golf, kayaking and skiing, and his attendance on medical practitioners consequent on injuries suffered in the course of his sporting activities including injuries to his head, knees, feet and shoulders. The respondent relied on reports to health practitioners about his spine experiencing tightness after sitting in cars, after two days of skiing, after moving timber and after pulling a chock from underneath a caravan wheel. The respondent submitted each and all of these activities could have readily led to tightness in the applicant’s lower back.
Having regard to this medical history, the respondent contended the applicant is no longer experiencing the effects of the lumbosacral ligament strain suffered in 1976, and that any stiffening or tightness in his back is attributable to the facet joint atropathy, his sporting activities, the injuries suffered in the course of those activities or a combination of any or all of these factors.
Accordingly, the respondent contended that to the extent the applicant required or requires physiotherapy, it was (and is) not required “in relation to” the injury.

Consideration

Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) relevantly provides:
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

“Injury” is defined in s 5A of the SRC Act to mean:
"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.

The applicant did not say whether the ligament strain suffered in 1976 was a disease, an injury other than a disease or an aggravation of a physical or mental injury, per ss 5A (1)(a), (b) or (c), but it is implicit from the applicant’s submissions that the Injury was an injury other than a disease per s 5A (1)(b). The applicant’s claim, at its core, was that he strained a ligament in his lower back in 1976 when he was 21 for which he needs up to 12 treatments of physiotherapy per annum by way of medical treatment for the injury.
The respondent’s acceptance of liability for the Injury under s 14 does not, by itself, entitle him to compensation. In Wills and Comcare,[32] citing Lees v Comcare[33] in support, the Administrative Appeals Tribunal (AAT) noted:
There is a long line of authority is dating back over 25 years which have emphasised that section 14 is a threshold provision which only deals with the question of whether Comcare has a liability to make payments in relation to an injury. The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act.[34]
[32] [2024] AATA 1480
[33] (1999) 29 AAR 350 at [34]
[34] [2024] AATA 1480 at [22]
Relevant to this case, liability to pay for medical treatment is governed by s 16 of the SRC Act which relevantly provides:
Compensation in respect of medical expenses etc
(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.
For compensation to be payable under s 16, the injury must be an existing condition for which medical treatment is needed. In Woodhouse v Comcare (Woodhouse),[35] a Full Court of the Federal Court said:
For the reasons referred to previously, the existence of an entitlement to compensation pursuant to s 14 in respect of a relevant period of time depends on there being an “injury” from which the employee suffers during that period of time. Compensation is only payable for the period during which the injury retains the relevant causal nexus with employment. In other words, that the contribution requirement remains unbroken.[36]
[35] [2021] FCAFC 95
[36] [2021] FCAFC 95 at [109]
The respondent’s position was that the applicant no longer suffers from the Injury, such that physiotherapy is not medical treatment “in relation to the injury” and the respondent is therefore not liable to pay for the physiotherapy pursuant to s 16.
As explained in Woodhouse, the central questions therefore are whether the applicant continues to suffer from the Injury and, if so, whether the physiotherapy was or is medical treatment provided in relation to the Injury.
On the evidence, I am not satisfied the applicant continues to suffer from the Injury, namely the ligament strain that occurred in 1976.
In my view, having regard to the whole of the evidence, the ligament strain resolved sometime before the end of 1976. I am also satisfied that to the extent the applicant benefits from physiotherapy, it is to address tightness and twinging in his back attributable to facet joint atropathy that is occurring as a natural consequence of his ageing and is not medical treatment provided in relation to the injury suffered in 1976.
Many aspects of the evidence draw me to those conclusions.
First, the contemporaneous medical records report that the applicant suffered from the ligament strain for 7 days and was fit for work on 13 September 1976. There is no evidence of the applicant expressing any ongoing concern about his back or obtaining treatment in relation to his back or the strain until 1982, six years later, which is consistent with Dr Tomlinson’s opinion that the strain resolved relatively quickly.
The applicant’s answers to Dr Tomlinson about the initial treatment he received further corroborates that conclusion. She reports he cannot recall any treatment provided, but thinks it was “just rest”.[37] She reports he cannot recall how much time he had off work but it was “likely more than a few days, but less than a few weeks.”[38]
[37] Tomlinson report dated 9 April 2024, page 2
[38] Tomlinson report dated 9 April 2024, page 2
Second, for several reasons I prefer the evidence of Dr Tomlinson to the opinions stated in the reports of Drs Beckett and Viketos.
I begin by responding to the applicant’s submission that I should prefer the opinion of Dr Viketos, who has been his treating practitioner for more than 20 years and well understands his circumstances, to that of Dr Tomlinson who has seen him only once and only for 30 minutes.
There are advantages and disadvantages of opinion evidence from a treating practitioner, on the one hand, and from an independent medical examiner, on the other. In HNGN and Military Rehabilitation and Compensation Commission (HNGN),[39] referring to Perich and Secretary, Department of Social Services (Perich),[40] the AAT said:
90. In summary, the treating practitioner has the benefit of a longitudinal perspective, and will often have built up a relationship of trust with a patient over a period of many months or even years. This is advantageous because the patient may be more honest and forthright due to this relationship of trust, however as indicated by Freckelton and Selby, there is a risk of therapeutic bias and the acceptance by the treating practitioner of the self-reported symptoms of the patient.
91. An independent medical examiner, on the other hand, will reach a diagnosis based on a review of a patient’s medical records, and may only see the patient for an examination on one or two occasions before compiling a report detailing their diagnosis. They will consequently not have the benefit of a longitudinal perspective which will mean that their diagnosis cannot be revised over time.[41]
[39] [2018] AATA 4096
[40] [2018] AATA 963
[41] [2018] AATA 4096 at [91] – [92]
However, whatever be the circumstances of the practitioner giving the opinion evidence, for the opinion to be of value it must be founded on proved or agreed facts and the reasoning for the opinion needs to be explained.
In Perich, the AAT said:
48. The question remains as to which doctor’s evidence should be preferred. Although ... the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate, the Tribunal is of the opinion that it is appropriate to apply the following principle regarding expert opinion evidence, as summarised by Anderson J in Pollock v Wellington (1996) 15 WAR 1 as follows:
Unless the process of inference by which an opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight: see Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370, esp at 390.[42]
[42] [2018] AATA 963 at [48]
In HNGN, the AAT said:
93. This Tribunal notes that there is another illustrative passage from the decision of Anderson J in Pollock v Wellington (1996) 15 WAR 1, at 3, which provides guidance that is relevant to evaluating expert evidence:
Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts: see Ramsey v Watson [1961] HCA 65; (1961) 108 CLR 642; Trade Practices Commission v Arnotts Ltd (1990) 21 FCR 324; Parric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 845-846.
As with any other evidence, expert opinion must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it: see Steffen v Ruban (1966) 84 WN (Pt 1) (NSW) 264.[43]
[43] [2018] AATA 963 at [92]-[93]
In the context of Tribunal proceedings, I hesitate to say an expert opinion is of no value where the facts giving rise to it and reasoning underpinning it are not stated, but deficiencies of these kinds significantly diminish the value or weight that should be given to the opinion. For this reason, the reports upon which the applicant relies are, in my view, of limited value.
Dr Beckett’s report dated 28 March 1983 raises as many questions as it answered. He states that on examination on 3 November 1982, he found an ‘irritable right sacro-iliac ligament, with some degree of associated muscle spasm’, but the basis for his “feeling” that it was “definitely related to his previous injury in 1976” is not explained. Also, the “feeling” is not presented as an expert opinion and appears to be drawn from what the applicant told him on examination in 1982 and the absence of any “obvious precipitating factor”. That is consistent with Dr Beckett later stating in 1987 that he has no record of any back injury relating to football on the applicant’s file. Whilst I anticipate Dr Beckett was not available for this hearing 40 years later, the absence of answers to these important queries about his reports diminishes the value that can be placed on his reports.
Dr Viketos’ reports are of limited value for similar reasons. In her identical medical certificates dated 4 May 2016 and 14 November 2023, Dr Viketos states she examined the applicant and found he is suffering from muscle and ligament strain affecting his lumbar spine which she attributed to the injury that occurred in 1976, but there is no explanation as to why. In particular, nothing is stated as to what was done comprising the examinations performed seven years apart. There is no explanation for why the strain found on examination in 2016 and 2023 is attributable to the injury suffered when the applicant fell during the touch football game rather than any number of significant injuries suffered in the course of different sporting activities or in other circumstances in the applicant’s life over nearly 50 years since the touch football game.
Also, Dr Viketos’ knowledge of the injury in 1976 seems to be drawn solely from what was “stated as occurred”, presumably by the applicant, and nothing is recorded in the certificates as to what was stated.
Also, in her certificates Dr Viketos states she “believes” the applicant is suffering from permanent damage to his lumbar spine as a result of the injury suffered in 1976 but no explanation is given as to why she believes the damage, which appears to be a reference to the strain, is permanent or why it has resulted from what the applicant states occurred in 1976. The certificates suggest much of Dr Viketos’ belief is derived from what the applicant stated to her, none of which is recorded.
Dr Viketos’ report dated 13 August 2017 is similarly deficient. She does not explain why his current symptoms are attributable to a ligament strain suffered nearly 50 years ago. Her statement that she is not aware of any external factors since Mr Webster left his employment they could be perpetuating his symptoms is difficult to understand in the face of his many subsequent significant injuries and her role as his treating general practitioner since at least 2016.
Dr Viketos’ letter (or report) dated 6 July 2023 does not remedy any of these deficiencies. Dr Viketos notes the applicant’s ‘accepted condition of ligament strain affecting the lumbosacral region dating from 6 September 1976 as a result of the sporting injury.’ She then records what the applicant reports about recurring episodes of lower back pain and stiffness and what the applicant reports about the benefits of physiotherapy to relieve the symptoms. None of that information involves input from Dr Viketos.
Significantly, Dr Viketos does not address the central issue, namely whether there is any causal link between the 1976 injury and his current symptoms. Her report dated 6 July 2023 was written in response to a letter from the respondent dated 3 July 2023 in which the respondent asked Dr Viketos to address for questions, the fourth of which was:
Please provide your clinical rational[e] as to how the recent flare up requiring physiotherapy treatment is still related to the incident of 6 September 1976.
Dr Viketos did not answer the question. In answer, she wrote:
Question 4:
Mr Webster has been suffering chronic relapsing episodes of lower back pain following the incident on 06 Sep 1976 and I believe that this is likely to continue in the foreseeable future.
A further problem is that Dr Viketos did not provide a witness statement for the purpose of this proceeding, and she was not called as a witness to enable any of these questions and/or deficiencies to be explored. Being the applicant’s treating general practitioner in Canberra, I presume she could have been available to give evidence. The applicant never suggested otherwise.
In these circumstances, and where the question whether the applicant continues to suffer from the strain suffered in 1976 was a central question in dispute, I attributed limited weight to the certificates and correspondence from Dr Beckett and Dr Viketos.
The reports from TM Physio did not assist the applicant’s case on the central issue: causation. Mr Imhoff’s treatment plan dated 18 May 2023 records physiotherapy is required to manage any flare up in pain but says nothing about the cause of the pain or whether it is attributable to the Injury. Earlier reports from Mr Imhoff similarly record ‘manual therapy’ is needed to relieve stiffness and pain but say nothing about its cause.
Dr Clifford’s report, on which the applicant relied, did not assist his case and indeed contradicted it. Dr Clifford’s report was written 10 days after the Injury and reports the applicant was fit to resume work on 13 September 1976 which is consistent with Dr Tomlinson’s opinion.
Third, the evidence of Dr Tomlinson in her capacity as a consultant orthopaedic surgeon, was persuasive. In her report and in her oral evidence, Dr Tomlinson explained her examination of the applicant’s back and spine and the results she obtained. Arising from her examination, Dr Tomlinson diagnosed the applicant’s condition as “likely facet joint arthropathy”. In her supplementary report on 16 September 2024, Dr Tomlinson details the signs and symptoms of facet joint arthropathy and confirms her opinion that the applicant has facet joint arthropathy by reference to his symptoms and her findings. She attributes the facet joint arthropathy to “essentially his age and constitution”.[44]
[44] Tomlinson supplementary report, dated 16 September 2024 page 4

Dr Tomlinson explained that a ligamentous sprain is ‘an injury to a tendon and which generally resolves within six weeks’. She stated the applicant’s symptoms on examination ‘are not consistent’ with his diagnosis of lumbosacral ligamentous sprain.[45] At hearing, Dr Tomlinson added the strain would have resolved within 3 to 4 months “if you really want to push it out”.
[45] Tomlinson report, dated 9 April 2024 page 5
A further factor for why I gave more weight to the evidence of Dr Tomlinson is that she was called as a witness in the proceeding. Dr Tomlinson gave evidence on affirmation that her reports were true and correct to the best of her knowledge and was cross-examined. In cross examination, the applicant drew to Dr Tomlinson’s attention that he was suffering from some arthritis in his back and asked her if it was possible that the injury in 1976 has had some impact on that arthritis. Dr Tomlinson replied that she could not envisage a scenario where that could have occurred. Dr Tomlinson was not challenged on her opinion that the Injury resolved within, at the latest, 3 to 4 months after it occurred in September 1976.
I turn to the applicant’s argument that the respondent has accepted liability to pay for his physiotherapy for the past 40 years, that nothing has changed and payments should therefore continue because his Injury is permanent.
This argument was not persuasive. The respondent’s liability to pay for the costs of medical treatment must be decided by reference to s 16 of the SRC Act. In particular, the treatment needs to have been provided “in relation to the injury”. That requires consideration of the circumstances at the time the treatment is provided and, in turn, consideration of the evidence available at the time of the claim. Whilst evidence about what has occurred over time is relevant, it remains necessary to look at the whole of the available evidence for the purpose of determining whether medical treatment provided at a point in time (in this case, from May 2023) is “in relation to” the Injury.
In this case, referring to the evidence, something has changed. Dr Tomlinson has examined the applicant and provided her opinion that the Injury is not permanent: it resolved decades ago. In her opinion, the applicant’s back stiffness is attributable to facet joint arthropathy which has arisen from the applicant’s age not the Injury. That evidence must be taken into account, notwithstanding the respondent accepting liability to pay compensation at earlier points in time when that evidence was not available.
I accept that in circumstances where liability to pay compensation had been accepted for many years, the Tribunal needed to be persuaded that liability to pay had ceased to exist before it could affirm the respondent’s decision to cease paying for the applicant’s physiotherapy. Uncertainty either way would not be enough and would need to be resolved in the applicant’s favour. Such is made clear by the Federal Court’s decision in Comcare v Power.[46]
[46] [2015] FCA 1502 at [68] – [70]
In this case, I am so persuaded. On the whole of the evidence for the reasons given, I am satisfied on the balance of probabilities that the applicant’s Injury resolved at least 40 years ago even though that did not become apparent until Dr Tomlinson examined the applicant and provided her opinion.
Applying that finding to s 16 of the SRC Act, it follows that physiotherapy the applicant has received, and wishes to continue receiving, was not (or would not be) provided “in relation to” the Injury because the Injury has resolved. It follows the respondent is not liable to pay compensation in respect of the cost of physiotherapy because it was (or would not be) in relation to the Injury.
The decision under review is affirmed.

Dates of hearing:

21 and 22 October 2024

Applicant’s Representative:

Self-represented

Counsel for the Respondent:

Solicitors for the Respondent:

J Dempster

Minter Ellison Lawyers