Wilkinson and Comcare (Compensation) - [2021] AATA 931

Wilkinson and Comcare (Compensation) [2021] AATA 931 (21 April 2021)
Division: GENERAL DIVISION
File Numbers: 2018/3635 and 2018/5204
Re:Anthony Wilkinson
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member C.J. Furnell
Date:21 April 2021
Place:Melbourne

The Tribunal DECIDES;
1.to set aside each of the s 14 decision and the ceased effects decision;
2.in relation to and in substitution for the s 14 decision, the Respondent is liable to pay compensation in accordance with the Act in respect of the injury the subject of Mr Wilkinson’s claim of 20 February 2018;
3.in relation to the ceased effects decision, to remit the matter for reconsideration in accordance with directions that the cost of the 2018 medical treatment be accepted as the cost of medical treatment obtained in relation to the accepted condition and that the 2018 work incapacity be accepted as incapacity for work as a result of the accepted condition; and
4.the costs of the proceedings incurred by Mr Wilkinson shall be paid by the Respondent, such costs to be agreed or, absent agreement, taxed in accordance with the Tribunal’s practice direction on taxation of costs.

........[sgd]................................................................
Senior Member C.J. Furnell
Catchwords
COMPENSATION – firefighter – condition affecting the lumbar region of his back – condition causing incapacity and need for medical treatment – whether that condition encapsulated within accepted condition – approach to construction of compensation claim – incapacity result of continuing effects of accepted condition – causation – operative and effective cause stresses and strains of living – suffer the injury which had been previously determined to have been suffered – question in issue when resile from an acceptance of liability – burden of persuasion – disc prolapse in context of pre-existing spondylosis – disc prolapse a disease or frank injury – distinct from underlying pathology – set aside and substituted decision – set aside and remitted for reconsideration
Legislation
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Abrahams v Comcare [2006] FCA 1829
Australian Postal Corporation v Trevor Arthur Nadge [1994] FCA 1163
Australian Postal Corporation v Oudyn [2003] FCA 318
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163
Comcare v Power [2015] FCA 1502
De Gail and Comcare (Compensation) [2018] AATA 2309
Gordon and Comcare (Compensation) [2020] AATA 352
Health Insurance Commission v Van Reesch [1996] FCA 1118
Hook and Comcare (Compensation) [2020] AATA 1792
Hurley and Australian Capital Territory (Compensation) [2019] AATA 2450
Kavas and Comcare [2011] AATA 935
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Kennedy v Comcare [2014] FCA 82
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Lees v Comcare [1999] FCA 753
Re Liu and Comcare [2004] AATA 617
McDonald v Director-General of Social Security (1984) 1 FCR 354
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Millar and Comcare (Compensation) [2019] AATA 4973
Mununggurr v Comcare [2020] FCA 1786
Neuendorf and Australian Postal Corporation (Compensation) [2019] AATA 2430
Poignand and Comcare (Compensation) [2019] AATA 2706
Prain v Comcare [2017] FCAFC 143
Priestly and Comcare (Compensation) [2019] AATA 545
Re Durham and TNT Australia Pty Ltd [2011] AATA 802
Re Lorraine Joy Shearing and Director-General of Social Security [1983] AATA 116
Rothwell v Caverswall Stone Co Ltd [1944] 2 All ER 350
Sellick v Australian Postal Corporation [2009] FCAFC 146
Small and Comcare [2017] AATA 2383
Szajna v Australian Postal Corporation [2014] FCA 1136
Telstra Corporation v Hannaford [2006] 151 FCR 253
Toomey and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 468
Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156
REASONS FOR DECISION
Senior Member C.J. Furnell
21 April 2021

For a part of late December 2017 and for much of 2018, Mr Wilkinson was incapacitated for work as a result of a condition affecting the lumbar region of his back (the 2018 work incapacity). In 2018 he obtained a significant amount of medical treatment in relation to that condition (the 2018 medical treatment).[1]
[1] Which included a bilateral L3/4 decompression procedure, a number of osteopathy sessions in 2018 and weekly (and ongoing) pilates sessions: see ExA1 [30, 31].
Mr Wilkinson is seeking compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act) with respect to that incapacity, and for the costs of obtaining that treatment. In that connection, he has applied to the Tribunal for review of two decisions of the Respondent.
On 31 May 2018, the Respondent decided to affirm a determination made on 26 April 2018 to deny liability to pay to Mr Wilkinson compensation under the Act in respect of spinal stenosis other than cervical (unspecified) (the s 14 decision).
The s 14 decision was in response to a claim made by Mr Wilkinson on 20 February 2018 for an injury suffered on 11 May 2010, which he described as a “back injury” affecting “Lower back discs L3 & L4”. [2]
[2] ExR2, T11.
On 28 August 2018, the Respondent decided to affirm a determination made on 8 August 2018 to the effect that it then had, as from 1 April 2011, no liability to pay to Mr Wilkinson medical treatment cost compensation under s 16 of the Act, or incapacity for work compensation under s 19 of the Act, in respect of a condition which the Respondent had determined on 19 November 2010 was an injury (the ceased effects decision).[3]
[3] I note that no issue arose in this proceeding as to the effectiveness of the ceased effects determination in so far as it might have been taken to deny any future liability to pay any relevant compensation for the accepted condition.
The condition which the Respondent had determined in November 2010 to be an injury (the accepted condition) was described in the determination as a “lumbar sprain”.[4] That determination was made in response to a claim by Mr Wilkinson dated 4 June 2010 (but apparently not received by the Respondent until early October 2010), for an injury suffered on 11 May 2010, which he described as “muscular strain/stress to lower back” affecting his “lower back”.[5]
[4] ExR1; T13.
[5] ExR1, T4.
The claim of 20 February 2018 with respect to a “back injury…Lower back discs L3 and L4” (the claim which resulted in the s 14 decision) might have been made by Mr Wilkinson as something of a fall-back position. It re-characterised the nature of the injury said to have been suffered as a result of a workplace incident on 11 May 2010 (the incident which resulted in the accepted condition).[6] That re-characterisation might be thought to have been made in an endeavour to address the risk that the accepted condition did not encompass the condition in relation to which Mr Wilkinson obtained the 2018 medical treatment and as a result of which he suffered the 2018 work incapacity. Alternatively, it may be that the 20 February 2018 claim was made simply because Mr Wilkinson had forgotten his successful claim in 2010[7] (albeit that a memory lapse does not explain why review was sought of both the initial determination rejecting the claim and of the decision affirming that determination). Whatever the case, it is clear that the 20 February 2018 claim was for the injury of 11 May 2010,[8] an injury in respect of which there had already been a s 14 determination.
[6] As Heerey J said in Telstra Corporation v Hannaford [2006] 151 FCR 253, 11, “If an employee obtained a s. 14 determination for, say, disease X but later claimed increased medical expenses for disease Y, it would be a strange construction of beneficial legislation to conclude that the employee was “estopped” by the original determination from alleging that he really suffered from Y all along”.
[7] As he suggested in an email of 16 March 2018 to the Respondent (ExR2, T19).
[8] ExA1, [33] – I note that at the hearing of this proceeding counsel for Mr Wilkinson reiterated that he claimed to have suffered one compensable injury.
Mr Wilkinson’s primary submission falls within the scope of the review of the ceased effects decision. It is that the 2018 work incapacity was a result of, and the 2018 medical treatment was obtained in relation to, the accepted condition.[9]
[9] The Respondent did not contend that it was not reasonable for Mr Wilkinson to have obtained the medical treatment he obtained in 2018.
The Respondent disagrees with that submission. The Respondent submits that such work incapacity resulted from, and such medical treatment was obtained in relation to, a condition from which Mr Wilkinson was suffering before any workplace injury.[10] While the Respondent accepted that Mr Wilkinson suffered an injury compensable under the Act in 2010,[11] the Respondent seemed to be suggesting[12] that such injury was merely an aggravation of a pre-existing condition, an aggravation which was resolved relatively shortly after he suffered the injury.
[10] Said by the Respondent to reflect a “history of pre-existing and longstanding lumbar spondylosis which included disc and facet joint degenerative disease”: Respondent’s statement of facts, issues and contentions of 12 August 2019 (R’s SFIC), [42].
[11] Said by the Respondent to comprise a lumbar facet joint injury (R’s SFIC at [42]), not a disc injury (R’s SFIC at [43]).
[12] The R’s SFIC did not characterise the accepted condition as an aggravation, albeit that it adduced evidence from Dr Burke to that effect and that characterisation of the accepted condition was accepted in the determination affirmed by the ceased effects decision.
I have decided to accept Mr Wilkinson’s primary submission and reject the Respondent’s submission, for the reasons which follow. Before proceeding to those reasons however, I should first outline the material I had before me and some elements of the factual and legal context.
MATERIAL BEFORE THE TRIBUNAL
Apart from the parties’ various submissions, in terms of documentary material, I had before me:
·Documents lodged under s 37 or s 38AA of the Tribunal’s constituent legislation in relation to the ceased effects decision (Exhibit R1);
·Documents lodged under s 37 or s 38AA of the Tribunal’s constituent legislation in relation to the s 14 decision (Exhibit R2);
·Supplementary documents lodged under s 37 or s 38AA of the Tribunal’s constituent legislation in relation to the ceased effects decision (Exhibit R3);
·Material provided under summons from three general medical practices (Exhibit R4);
·Material provided under summons by Gateway Osteopathy (Exhibit R5);
·Letter from Mr Prav Puvimanasingam, physiotherapist, to Dr G Tan of 4 April 2011 (Exhibit R6);
·Letter of 23 February 2018 from Dr Wade to Dr Ales Aliashkevich (Exhibit R7);
·Letter of 22 February 2019 from the solicitors for the Respondent to Dr C Tan, neurosurgeon, and her report of 11 March 2019 in response (Exhibit R8);
·Statement of Mr Wilkinson of 8 July 2019 (Exhibit A1);
·Three applications for leave (Exhibit A2);
·Letter of 6 November 2018 from Mr Wilkinson’s solicitors to Dr D’Urso, neurosurgeon, and his report of 21 November 2018 in response (Exhibit A3); and
·Letter of 15 July 2019 from Mr Wilkinson’s solicitors to Dr Aliashkevich, neurosurgeon, and his report of 6 August 2019 in response (Exhibit A4).
In addition to this documentary material, I had the benefit of hearing from Mr Wilkinson, Dr Burke (an occupational physician) and Drs D’Urso, Tan and Aliashkevich (three neurosurgeons).
ELEMENTS OF FACTUAL CONTEXT
Mr Wilkinson is 54 years old.
At all relevant times after February 2010 he was an employee of Air Services Australia, engaged as a firefighter (including as a trainee firefighter), based at Melbourne’s Tullamarine airport.
On 22 October 2008, Mr Wilkinson consulted with his general practitioner Dr G Tan (who I shall refer to as “the GP” in order to avoid confusing evidence relating to him with that of evidence relating to Dr C Tan, neurosurgeon) in relation to a strained lower back.[13]
[13] ExR4 (Dr G Tan).
On 18 August 2009, in a consultation with the GP, Mr Wilkinson is said to have stated that he had back problems “on and off” having apparently “pulled” his back muscle while mowing the lawn. He was given a three day medical certificate.[14]
[14] Ibid.
On 11 May 2010, while at work, Mr Wilkinson was involved in an incident which he described as “twisting under load”. He was participating in a drill which had him pulling and lifting a charged fire hose (the 2010 incident). His uncontroverted evidence[15] is that:
·A charged fire hose weighs in the vicinity of 80 kilograms.
·He jarred his back when his grip on the hose slipped and he was sent off-balance to his right.
·He then felt a sharp pain in his lower back (predominantly on the right-hand side), followed by aching.
[15] ExA1.
On 13 May 2010, Mr Wilkinson received the first of a number of treatments from Mr Furniss, a remedial masseur.[16] By July 2010, Mr Wilkinson’s condition was, according to Mr Furniss, much improved.
[16] According to Mr Wilkinson, he had five treatments in May 2010, two in June 2010 and one in July 2010.
As I stated earlier, by claim dated 4 June 2010, (but apparently not received by the Respondent until early October 2010) Mr Wilkinson sought compensation under the Act for an injury said to have been suffered as a result of the 2010 incident. He described the injury as “muscular strain/stress to lower back” affecting his “lower back”.[17] In the claim form Mr Wilkinson answered “no” to two questions, one asking whether he had ever had a similar symptom, injury or illness and the other asking whether he had ever received medical treatment for a similar injury or illness.[18]
[17] ExR1, T4.
[18] Ibid.
In response to the Respondent’s request that he do so,[19] Mr Furniss provided a report dated 3 September 2010.[20] Mr Furniss did not expressly provide a diagnosis but did suggest that Mr Wilkinson’s back problem was muscular.[21] Mr Furniss did expressly state, however, that he was not a medical practitioner and that he did not have access to diagnostic imaging.
[19] ExR1, T6.
[20] ExR1, T10, 11, 12.
[21] ExR1, T10.
In his report, Mr Furniss referred to a “re-occurrence” of Mr Wilkinson’s lower back pain, noting that on 13 August 2010 Mr Wilkinson had sought further treatment from him, complaining of jabbing, sciatic pain on taking a step. Mr Furniss’ case notes suggested that Mr Wilkinson’s 13 August 2010 presentation was similar “….to previous with addition of extra gluteal tightness…”.[22] In response to a question from the Respondent as to what had occurred on 13 August 2010,[23] Mr Wilkinson stated that while walking down stairs he had felt a sharp stabbing pain in his lower back/buttock area and straight down his leg.[24] A copy of Mr Furniss’ report and clinical notes in relation to his treatment of Mr Wilkinson was provided to the Respondent on 25 October 2010, that is, prior to the Respondent’s determination accepting liability to pay compensation for the accepted condition.[25]
[22] ExR1, T9, 33.
[23] ExR1, T7.
[24] ExR1, T8.
[25] ExR1, T12.
The “re-occurrence” of Mr Wilkinson’s lower back pain led to further remedial massage treatment.[26] By mid-September his occasional sciatic pain had reduced but not ceased.[27]
[26] According to Mr Wilkinson, he had five treatments in August 2010 and four in September 2010.
[27] ExA1, [15].
On 8 October 2010, the Respondent received Mr Wilkinson’s June workers compensation claim.[28]
[28] ExR1, T5.
By November 2010, Mr Wilkinson’s back pain had again worsened[29] prompting a visit on 15 November 2010 to the GP. The GP’s notes suggest that Mr Wilkinson had problems with his lower back for 10 years “on and off”.[30] The GP arranged for a CT scan to be conducted on 16 November 2010.
[29] ExA1, [16].
[30] ExR4 (Dr A Wade).
The report of the CT scan suggested, amongst other things, a moderate disc herniation at L3/4, an encroachment of the right neural foraminal canal, partly related to facet joint arthropathy, with possible impingement of the exiting nerve root (the 2010 condition). In the report, Mr Wilkinson’s clinical history was described as one involving long term lower back pain.[31]
[31] ExR1, T32 and T35; ExR4 (Dr G Tan (GP).
On 19 November 2010, the Respondent determined that, as a result of the 2010 incident, Mr Wilkinson had suffered an injury, described by the Respondent as a lumbar sprain.[32] (As no reference was made in the determination to it, I infer that the Respondent had not considered the CT scan results at the time of the determination.)[33]
[32] ExR1, T13.
[33] Indeed, the Respondent asserts in its ceased effects decision that it had no access to diagnostic imaging at the time of the November 2010 determination: ExR2, T58, 125.
The GP apparently referred Mr Wilkinson to Back in Motion Health Group physiotherapy practice on 24 November 2010. While the referral was not before the Tribunal, it apparently contained a statement reflective of that contained in the referral seeking a CT scan, i.e., that Mr Wilkinson’s history involved long term lower back pain. In a letter to the GP of 26 November 2010 (and in discussions with the GP on 25 November 2010[34]), Mr Wilkinson denied that he had such a history. Instead, he stated that he had:
“…minor problems with my back through the physical demanding works I carried out over many years, but nothing that couldn't be fixed by a couple of visits to a masseur or chiropractor. However earlier this year, I hurt my back at work and have been down the road of remedial masseur which relieved it temporarily and the only back 'Pain' I have had was a shooting pain down my right leg and this only happen a few times.
This shooting pain has never occurred in the past, I am now experiencing constant aching and discomfort and I was concerned something more sinister was happening, that was my reason for the appointment with you on the 16/11/2010.”[35]
[34] ExR4 (Dr A Wade).
[35] ExR4 (GP).
In a report of 24 November 2010, Mr Puvimanasingam (physiotherapist from Back in Motion Health Group) noted that the CT scan identified a “L3/4 moderate disc bulge with possible right nerve root compromise” and stated to the GP that based “…on Anthony’s presentation I believe this discogenic weakness is largely responsible for his symptoms”.[36]
[36] ExR4 (GP).
In certifying on 7 December 2010 that Mr Wilkinson was (subject to certain limitations) fit for modified duties, the GP described Mr Wilkinson’s diagnosis as “lumbar disc prolapse”.[37] This was repeated on 14 December 2010,[38] 12 January 2011[39] and 8 February 2011.[40] At least one of these certificates would seem to have been provided to the Respondent.[41]
[37] ExR1, T15.
[38] ExR1, T18.
[39] ExR1, T22.
[40] ExR1, T23.
[41] ExR1, T21.
In a physiotherapy management plan apparently formulated by Mr Puvimanasingam, consented to by Mr Wilkinson on 8 December 2010 and received by the Respondent on 10 December 2010, the relevant diagnosis was said to be “disc herniation L3/4 and impingement right nerve root. Disc herniation at L4/5 also”.[42]
[42] ExR1, T17.
The Respondent paid compensation in respect of Mr Wilkinson’s physiotherapy treatment.[43]
[43] ExR1, T20.
In a progress report to the Respondent of 11 February 2011, seeking approval for further sessions up to 12 March 2011, Mr Wilkinson’s physiotherapist described the services provided as “… treatment and rehabilitation following a work-related lower back injury sustained in 2010 (Moderate disc herniation at L3/4 with possible right neural impingement, small disc herniation at L4/5)”.[44]
[44] ExR1, T24.

On 17 February 2011, the Respondent approved weekly physiotherapy sessions up to 31 March 2011.[45]
[45] ExR1, T25.
On 4 April 2011, Mr Wilkinson’s physiotherapist advised the GP that “Tony has been discharged to an independent (self) management program as of 31/03/11”.[46]
[46] ExR4 (Dr A Wade), [160].
In a letter to Mr Wilkinson’s employer of 30 June 2011, the Respondent noted its then understanding of the current position was that Mr Wilkinson had ceased physiotherapy and was now self-managing.[47]
[47] ExR1, T28.
According to Mr Wilkinson, in the period 2011 to 2017, he continued to suffer from lower back pain which he managed principally by way of exercise and Pilates.[48] He sought treatment for his back only intermittently.
[48] ExA1, [3, 21, 22, 24].
On 22 July 2013, Mr Wilkinson sought two days’ leave (17 and 18 July 2013) due to lower back pain.[49] On 16 January 2014, Mr Wilkinson sought one days’ leave (15 January 2014) due to lower back pain.
[49] In oral evidence, Mr Wilkinson suggested that he might have had days off due to back pain in addition to those specified in the bullet points but that he was unable to establish this (noting that, according to Mr Wilkinson, he was entitled to take five sick days off per year without the need for certification).
On 4 August 2014, Mr Wilkinson completed a patient registration form for Gateway Osteopathy (Dr Robbins) revealing a history of back and neck pain.[50] That was followed by four osteopathic sessions in August 2014 (dealing with, amongst other things, “acute on chronic Lx disc flare up”),[51] one in July 2015 (albeit that the presenting complaint seemed to entail a cervical, not lumbar, injury)[52] and two in December 2017, with a large number of sessions in 2018.[53] In the first of the two December 2017 sessions, the presenting complaint would appear to have been soreness in the lumbar spine for the last 10 weeks in a context of a history of chronic disc issues which were usually well managed with Pilates, with difficulty in the last week in straightening up after rolling concrete sealant.[54] Dr Robbins described that context as one involving a significant flare up of Mr Wilkinson’s lower back condition that had not resolved with conservative treatment and Pilates.[55]
[50] ExR4 (Dr S Robbins), 2: the presenting complaint was identified as neck and back pain which Mr Wilkinson had had “for years, fell off a motor bike years ago… About 4 years ago had a Lx disc flare up but over the last 1/52 has been feeling a little off again… originally hurt low back at work about 4 years ago.” See ExR4 (Robbins) 16.
[51] ExR4 (Dr S Robbins), [15].
[52] ExR4 (Dr S Robbins), [14].
[53] Ibid, [7].
[54] ExR4 (Robbins), 14: Dr S Robbins notes employ shorthand such that I understood Lx to be a reference to the lumbar region of the spine and hx to be a reference to Mr Wilkinson’s history in relation to the spine.
[55] ExR1, T40.
On 8 August 2014, Mr Wilkinson attended Dr L Tan who recorded “Lower back pain. Dull ache. No weakness, no sciatica. Requesting medical certificate for work. Seeing osteopath and pain is improving with paracetamol and NSAIDs. Pt not eager for assessment today”.[56]
[56] ExR4 (Wade).
In November 2014, Mr Wilkinson commenced Pilates, apparently on the recommendation of Dr Robbins “to assist in his long term management of his lower back condition”.[57] In the questionnaire he then completed, the main reason for commencing Pilates was said to be a back problem.[58] Mr Wilkinson’s presenting complaint was said to include “mild Lx disc”. There followed five Pilates sessions in 2014, 30 in 2015, 28 in 2016 and 28 in 2017 (with many more in 2018 and 2019).[59]
[57] ExR1, T40.
[58] ExR4 (Dr S Robbins), [17].
[59] ExR4 (Dr S Robbins), [20-22].
On 24 December 2014, Mr Wilkinson sought two days’ leave (19 and 20 December 2014) due to lower back pain.
On 15 December 2017, Mr Wilkinson attended his general practitioner’s clinic (who was then Dr Wade) apparently because his lower back “was playing up”. The doctor’s notes state “sore after Pilates earlier in the week, usually goes away, also mowing the lawn and laying concrete. At least 1 year since last flare up. R lower back mainly…”[60] (As for those notes, Mr Wilkinson’s evidence is that he did not suggest that the cause of his back pain was him having mowed the lawn or laying concrete; rather, he had informed the doctor of those activities simply in response to a question concerning his activities in the lead up to his attendance at the clinic). [61]
[60] ExR4 (Dr A Wade).
[61] ExA1, [26].
A large number of visits to his general practitioner’s clinic followed on from Mr Wilkinson’s 15 December 2017 attendance, reflecting generally worsening lower back pain, radiating down his legs.[62]
[62] ExR4 (Dr A Wade) - 4 January 2018; 1, 6, 15, 20 and 23 February 2018; 1 and 26 March 2018; and 6 April 2018.
Mr Wilkinson was certified as being unfit for work from 15 to 20 December 2017,[63] 1 February 2018 to 14 March 2018[64] and 15 April to 15 May 2018.[65] Indeed, Mr Wilkinson had a number of days off work in the period 19 December 2017 to 4 September 2018, purportedly due to his back injury.[66]
[63] ExR4 (Dr A Wade), 134, 135, 140.
[64] Ibid.
[65] Ibid, 204. See also ExA1, [26, 28, 34].
[66] ExR3, ST60.
On 1 February 2018, Dr Wade arranged for Mr Wilkinson to undergo an MRI lumbar/sacral scan in response to him experiencing bilateral sciatica. The conclusion from the scan was that Mr Wilkinson suffered from a “right paracentral disc protrusion/extrusion at L3/4 compressing the right L4 nerve. Moderate canal stenosis”.[67] The canal stenosis was said, in the report of the scan, to be the result of prominent posterior epidural fat caused by a combination of moderately large L3/4 disc protrusion/extrusion and moderately severe bilateral facet joint arthropathy.
[67] ExR1, T33; ExR4 (Wade), [79].
In a referral of 22 February 2018 to Dr Aliashkevich (neurosurgeon), Dr Wade described Mr Wilkinson’s lower back pain as “probably slowly escalating over weeks with bilateral great toe numbness, calf cramps/pain and shooting pains mostly on the left (but also some on the right side) in an L4/5 distribution”.[68]
[68] ExR4 (Dr A Wade), [145].
On 7 March 2018, Mr Wilkinson underwent a further MRI scan. It was said by Dr Aliashkevich to have confirmed a large right paracentral disc protrusion at L3/4, compressing the traversing right L4 nerve root with some possible contact of the traversing left L4 nerve root. A central annular tear in L4/5 was also said to have been confirmed.[69]
[69] ExR4 (Dr A Wade) [194-198] – operation record of 20 April 2018. See also ExR4 (Aliashkevich), [29].
On 12 April 2018, Dr Robbins (osteopath) diagnosed Mr Wilkinson as suffering from “Acute on chronic right paracentral disc protrusion compressing the right L4 nerve root”.[70]
[70] ExR4 (Dr S Robbins), [9].
Dr Aliashkevich was of the view that Mr Wilkinson’s clinical presentation and radiological findings in 2018 were consistent with severe bilateral pathology at L3/4 which would be best managed by surgical decompression.[71]
[71] Ibid.
Accordingly, on 20 April 2018, Mr Wilkinson underwent a procedure described by Dr Aliashkevich as a “bilateral hemilaminectomy: L3/4, decompression of the central and subarticular spinal stenosis, microdiscectomy, rhizolysis” involving the removal of a sizeable disc herniation on the right and wide posterior decompression on the left.[72] In oral evidence, it was said by Dr Aliashkevich, that the procedure involved decompression of the nerves and removal of extruded disc fragments at the L3/4 level.
[72] ExR4 (Dr A Wade), [199].
Dr Aliashkevich considered that there had been post-operative resolution of Mr Wilkinson’s lower back symptoms. In June 2018, Mr Wilkinson re-commenced work, returning to his full-time, normal duties on 4 September 2018.[73] When attending Dr D’Urso in November 2018, Mr Wilkinson is said to have stated that he had returned to his normal physical activities without any particular restriction.[74]
[73] ExA1, [35].
[74] ExA3.
ISSUES
Essentially, Mr Wilkinson is seeking compensation under the Act for loss of earnings in late 2017 and 2018 when he was incapacitated for work and for the costs of medical treatment he obtained in 2018.
Given the Respondent’s November 2010 determination, subject to one potential qualification, Mr Wilkinson will be entitled to the compensation he seeks if the 2018 work incapacity was a result of,[75] and the 2018 medical treatment was obtained in relation to,[76] the accepted condition.
[75] The Act, s 19.
[76] The Act, s 16 – note that compensation for the costs of medical treatment is also contingent on the treatment being reasonable to obtain in the circumstances. In this proceeding, however, the reasonableness of the treatment obtained by Mr Wilkinson in 2018 is not in issue.
Hence, it is necessary to determine:
·The medical condition that resulted in the 2018 work incapacity and in relation to which the 2018 medical treatment was obtained (the 2018 condition). In essence, Mr Wilkinson contends that it essentially involved an intervertebral disc prolapse at the L3/4 level of his spine.
·Whether the 2018 condition was of a type encapsulated within the accepted condition. The parties’ submissions in this regard were largely directed to a related issue, concerning the question of the nature of the injury in fact suffered by Mr Wilkinson as a result of the 2010 incident.
·If it was, whether the 2018 condition and the symptoms thereof reflected the continuing effects of the accepted condition. Mr Wilkinson contends that they were, while the Respondent contends that the effects of the accepted condition ceased by no later than April 2011 (and probably by mid-2010).
The Respondent’s submissions raise two additional issues.
First, there is no dispute that Mr Wilkinson suffered an “injury” compensable under the Act as a result of the 2010 incident.[77] The Respondent accepted liability to pay Mr Wilkinson compensation in accordance with the Act in respect of the accepted condition. The Respondent submits, however, that the injury in fact suffered by Mr Wilkinson as a result of the 2010 incident did not entail a disc prolapse at the L3/4 level. As I will discuss in greater detail later, by making this submission, the Respondent challenges facts underlying the Respondent’s November 2010 determination, assuming such a disc prolapse was encapsulated within the accepted condition. On that assumption, the submission reflects a denial by the Respondent that the accepted condition (or at least an element of it) is an injury. Hence, the issue to which this submission gives rise is whether I am satisfied, on the material before me, that the “injury” suffered by Mr Wilkinson in 2010 did not comprise or include such a disc prolapse.
[77] In the R’s SFIC, despite suggesting that the question of whether Mr Wilkinson suffered an injury as a result of the 2010 incident is in issue in this proceeding (see [26-29]), in fact, the Respondent accepted that the 2010 incident resulted in Mr Wilkinson suffering an “injury” (see [39, 42]).
The second additional issue concerns the nature of the “injury” constituted by the accepted condition. It gives rise to the potential qualification to which I referred earlier. If the “injury” is a “disease”, as opposed to an injury other than a disease,[78] any liability that the Respondent might have had to compensate Mr Wilkinson will be excluded if he had “….for purposes connected with his employment…, made a wilful and false representation that he…did not suffer, or had not previously suffered, from…” the accepted condition.[79]
[78] See definition of “injury” in the Act, s 5A.
[79] The Act, s 7(7).
The Respondent contends that it is entitled to rely on this exclusion. Hence, it is necessary to determine whether the accepted condition is a disease (as opposed to an injury other than a disease) and, if it is, whether the exclusion applies in the circumstances.
As is clear from the outline of material before me, a large amount of medical evidence was adduced in relation to the various issues in this proceeding. In this regard, Mr Wilkinson placed particular reliance on the opinions expressed by two neurosurgeons, Drs Aliashkevich and D’Urso. The Respondent, on the other hand, sought to rely, in particular, on the evidence of one neurosurgeon, Dr C Tan, and one occupational physician, Dr Burke.
2018 condition
Mr Wilkinson submits that the 2018 condition essentially related to an intervertebral disc prolapse at the L3/4 level of his spine.
I accept that submission. It is consistent with the opinions expressed by Drs Aliashkevich, D’Urso and Robbins and also, on analysis, by Dr Burke. For reasons which I will soon outline, I prefer their opinions to those of Dr C Tan.
According to Dr Aliashkevich, Mr Wilkinson’s condition in 2018 entailed significant right paracentral L3/4 disc extrusion causing, in combination with moderately severe bilateral facet joint arthropathy, substantial canal stenosis and right L4 nerve root compression, possibly contacting the left L4 nerve root.
In oral evidence, this opinion was refined in that Dr Aliashkevich did not consider the facet joint arthropathy to be significant, especially as it was said, generally, to result only in localised pain (in a context where Mr Wilkinson was experiencing sciatic pain in both legs). This left the L3/4 disc extrusion as being the principal cause of nerve root compression and resultant sciatic pain.
That a significant (if not primary) component of the 2018 condition involved extrusion of an intervertebral disc at the L3/4 level is borne out by the success achieved in resolving the symptoms of the condition by the operation performed by Dr Aliashkevich on Mr Wilkinson’s back in April 2018. As stated earlier, that operation was described by Dr Aliashkevich as involving a microdiscectomy, with removal of extruded disc fragments at the L3/4 level.
Dr D’Urso effectively endorsed Dr Aliashkevich’s opinion as to the nature of the 2018 condition. According to Dr D’Urso, the MRI scans in 2018 demonstrated a substantial right paracentral L3/4 disc prolapse causing severe canal stenosis and subarticular nerve root compression. In oral evidence, Dr D’Urso characterised the 2018 condition as “quite severe significant nerve root compression related to” a L3/4 disc prolapse.
Dr Robbins too, characterised the 2018 condition in terms of Mr Wilkinson’s spinal disc. On 12 April 2018, he diagnosed Mr Wilkinson as suffering from “Acute on chronic right paracentral disc protrusion compressing the right L4 nerve root”.[80]
[80] ExR4 (Dr S Robbins), [9].
As for Dr Burke, his starting position was that the 2018 condition was spinal stenosis at the L3/4 level associated with disc extrusion and underlying degenerative change.[81] It represented an aggravation of a pre-existing, underlying condition. Dr Burke, however, accepted that the source of the symptoms experienced by Mr Wilkinson in 2018 would be the L3/4 vertebral disc if that disc was the subject of the April 2018 procedure and if, subsequent to that procedure, there was resolution of those symptoms. As the L3/4 disc was the subject of the April 2018 procedure and as Mr Wilkinson’s symptoms would appear to have resolved subsequent to it, Dr Burke may be taken to accept that the L3/4 disc was the source of Mr Wilkinson’s problems with his back in 2018 as opposed, say, to degenerating facet joints or an annular tear at the L4/5 level.
[81] ExR1, T38.
I mention those latter two diagnoses as it was Dr C Tan’s opinion that the 2018 condition was either a facet joint issue or such an annular tear.
Dr Tan’s overall diagnosis of Mr Wilkinson’s condition in 2018 is that he had long-standing lumbar spondylosis “also known as lumbar spine degeneration”. As for a more specific diagnosis, Dr Tan indicated in oral evidence that it was difficult to be certain, given (amongst other things) that lower back pain encompasses a variety of diagnostic entities with the possibility of a number of different pain generators and noting a high incidence of asymptomatic abnormalities in the spine in the general community. Hence, according to Dr Tan, discerning the appropriate pain generator relies heavily on clinical judgement. This suggests, as Dr Tan acknowledged, that Dr Aliashkevich was in the best position to determine the appropriate diagnosis, at least in 2018.
Nevertheless, despite this acknowledgement, Dr Tan doubted Dr Aliashkevich’s diagnosis with respect to Mr Wilkinson’s condition, suggesting that it was questionable whether the principal cause of his symptoms in 2018 was L3/4 disc herniation. Instead, Dr Tan suggested that those symptoms were more likely to be a result of the L4/5 annular tear or facetogenic pain, with “some minor contribution” from L3/4 canal stenosis. Indeed, despite the uncertainties to which she had referred, Dr Tan felt able to opine in her report that it was “indisputable that Mr Wilkinson had pre-existent and probably very long-standing lumbar spondylosis which included disc and facet joint degenerative disease, and this wholly accounts for all the symptoms he has complained of in relation to his lower back”.
Dr Tan identified what was, to her, a discordance between the results achieved from the MRI imaging in 2018 and the clinical examination undertaken by Dr Aliashkevich. Mr Wilkinson presented with left side predominant pain while the imaging suggested that the potential for nerve compression resulting from the L3/4 disc herniation was to the right side. This, however, appears to ignore the weight-bearing MRI which Dr Aliashkevich arranged to be conducted on 7 March 2018 and which, according to Dr Aliashkevich, identified some possible contact with the left L4 nerve root. In any event, I note that Dr D’Urso suggested that there was no inconsistency in Mr Wilkinson suffering predominantly left-sided pain and imaging results suggestive of more pronounced protrusions on the right side of the lumbar spine. In his view, the severe canal stenosis suffered by Mr Wilkinson was likely to affect left and right sided nerves.
More significantly, the results of the procedure undertaken in April 2018 with respect to Mr Wilkinson’s L3/4 intervertebral disc would seem to have resolved any uncertainty as to the source of the symptoms experienced by Mr Wilkinson in 2018, given that Mr Wilkinson ceased to suffer those symptoms as a result of that procedure.
Disc prolapse part of accepted condition?
Having found that the 2018 condition essentially related to an intervertebral disc prolapse at the L3/4 level of Mr Wilkinson’s spine, the next issue to be determined is whether such a disc prolapse was encapsulated within the accepted condition. I find that it is.
This is an issue because the Tribunal has no jurisdiction to consider whether the Respondent has a liability to pay compensation for a condition not reasonably encapsulated within Mr Wilkinson’s compensation claim.[82] It is “…not open to an applicant to submit a claim on one basis and subsequently to attempt to recast the claim on a different (and advantageous) basis… and the tribunal’s jurisdiction on review is accordingly limited to the claim as presented and pursued”.[83]
[82] Hurley and Australian Capital Territory (Compensation) [2019] AATA 2450, 96.
[83] Priestly and Comcare (Compensation) [2019] AATA 5456, 100.
What is encapsulated within Mr Wilkinson’s claim, as he presented and pursued it, is not determined by the Respondent’s characterisation of the claim. [84] Hence, the description in the Respondent’s November 2010 determination of the injury suffered by Mr Wilkinson as a result of the 2010 incident as a lumbar sprain is not determinative.[85]
[84] ReDurham and TNT Australia Pty Ltd [2011] AATA 802, 51 (Durham). See also Kennedy v Comcare [2014] FCA 82, 45 where it is said that “…the tribunal’s jurisdiction does not depend on how Comcare characterises the claim. To the contrary, the tribunal must assess for itself the true scope of the claim and conduct the review on that basis”.
[85] Ibid at [59].

Instead, an assessment needs to be made as to what is reasonably encapsulated within Mr Wilkinson’s claim,[86] an assessment to be made by the Tribunal.[87]
[86] Hurley and Australian Capital Territory (Compensation) [2019] AATA 2450, 96.
[87] Ibid, 99; see also Kennedy v Comcare [2014] FCA 82, 45.
As I stated earlier, in 2010 Mr Wilkinson claimed compensation under the Act for an injury being “muscular strain/stress to lower back” affecting his “lower back”.
My assessment is that Mr Wilkinson’s compensation claim encompassed within it a claim in respect of a prolapsed disc in the lumbar region of Mr Wilkinson’s spine at the L3/4 level.[88]
[88] Also known as a herniated disc. Both a prolapse and herniation is understood by the Tribunal to involve a protrusion.
In making that assessment, I have sought to adopt a construction consistent with the principle requiring that “…a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice”.[89]
[89] Abrahams V Comcare [2006] FCA 1829 per Madgwick J (Abrahams) at [18]. See also Poignand and Comcare (Compensation) [2019] AATA 2706 at [104] and Durham at [54, 60]
Moreover, Mr Wilkinson’s compensation claim was broadly expressed and, hence, is not inconsistent with the adoption of a generous approach to its ambit.
As was the case considered in Durham,[90] by referring to stress to his lower back, Mr Wilkinson’s claim was not one expressed in terms of a medical diagnosis unadorned by a reference to any functional component.
[90] Durham at [54]: “In construing Mr Durham’s claim, I adopt the propositions set out by Madgwick J in Abrahams as an appropriate reflection of the approach to be taken by the Tribunal. I also note that, unlike Re Cavanagh , the present case does not concern “a bare claim for a nominated condition entailing a specific diagnosis where there is no reference to any functional component”. Mr Durham’s claim, as set out below, was broadly expressed. Specific diagnoses were only offered in the context of later reports from medical practitioners.”
Notice of Mr Wilkinson’s issues with his L3/4 disc was given to the Respondent. In this regard, in assessing what was encapsulated within Mr Wilkinson’s compensation claim, it is permissible to look beyond the terms of his actual claim form. The Tribunal may regard “… informal notice as having been given in amplification of a notice formally given”.[91] As was recently said in Mununggurr,[92] where the claim form is potentially imprecise, “…the manner in which the claim was agitated before Comcare, and the material relied on by the claimant in the course of the claims process…” may be of importance in determining the nature of the injury suffered.[93]
[91] Abrahams at [18]. In Durham, 60, it was considered relevant that the Respondent had been “effectively notified of the claim so construed”, i.e. construed adopting the broad, generous approach referred to in Abrahams.
[92] Mununggurr v Comcare [2020] FCA 1786, 81.
[93] See also Sellick v Australian Postal Corporation [2009] FCAFC 146 where identification of the nature of a condition the subject of a claim can be elicited from material extraneous to the claim where there is a broad statement of the condition suffered (stress to lower back, in Mr Wilkinson’s case) and of the area of his body affected (Mr Wilkinson’s lower back).
As is apparent from elements of the factual context I outlined earlier, the Respondent was not only notified of Mr Wilkinson’s L3/4 disc issue but also apparently accepted that the injury for which it had determined to accept a compensation liability encompassed that issue.
In October 2010 (prior to its determination accepting liability for Mr Wilkinson’s injury), the Respondent was advised that Mr Wilkinson had experienced sciatic pain; pain which Mr Wilkinson told the Respondent he had never before experienced and pain which he understood to be connected to the 11 May 2010 injury.[94] Indeed, in its November 2010 determination accepting liability to pay compensation in respect of the accepted condition, reference is made expressly to the fact that Mr Wilkinson had experienced stabbing, sciatic pain.[95] In this regard, I note that in oral evidence Dr Burke accepted that back pain associated with sciatic pain in a leg is generally reflective of a more serious condition than one where back pain alone is involved.
[94] ExR1, T8.
[95] ExR1, T13-39.
In late 2010 and early 2011, Mr Wilkinson’s condition was one diagnosed as involving a lumbar disc prolapse. That diagnosis was expressed in certificates as to Mr Wilkinson’s fitness for modified duties, one at least of which was apparently provided to the Respondent.
The physiotherapy plan outlining the treatment proposed to be undertaken in relation to Mr Wilkinson and received by the Respondent in early December 2010 described the condition to be treated in terms of “disc herniation L3/4 and impingement right nerve root. Disc herniation at L4/5 also”.[96]
[96] ExR1, T17.
In February 2011, the Respondent approved the funding of additional physiotherapy sessions, sessions which the Respondent was advised were to be directed to “… treatment and rehabilitation following a work-related lower back injury sustained in 2010 (Moderate disc herniation at L3/4 with possible right neural impingement, small disc herniation at L4/5)”.[97]
[97] ExR1, T24.
It is true that in his September 2010 report Mr Furniss did suggest that Mr Wilkinson’s back problem was muscular.[98] This is in a context, however, in which Mr Furniss:
·Expressly stated that he was not a medical practitioner and that he did not have access to diagnostic imaging; and
·Referred to a “re-occurrence” of Mr Wilkinson’s lower back pain, noting that on 13 August 2010 Mr Wilkinson had sought further treatment from him, complaining of jabbing, sciatic pain on taking a step (with sciatic pain being suggestive of a non-muscular issue involving impingement on a nerve root).
[98] ExR1, T10.
Continued effects of disc prolapse from 2011 to 2018?
Having found that the 2018 condition essentially related to an intervertebral disc prolapse at the L3/4 level of Mr Wilkinson’s spine and that such a condition was encapsulated within the accepted condition, the next issue to be determined is whether the 2018 condition and the symptoms thereof reflected the continuing effects of the accepted condition.
I have broken this issue down into two sub-issues: did the effects of the accepted condition continue beyond March 2011 up to 2018 and, if so, did those effects result in the 2018 work incapacity and was the 2018 medical treatment obtained in relation to them?
Did the effects of the accepted condition continue beyond March 2011 up to 2018?
The issue of whether the effects of the accepted condition is of importance as the entitlement to compensation for an injury at a particular time is generally, contingent on the effects of the injury then continuing. Hence, for a person who has suffered an injury (such as the accepted condition) to be entitled to, say, incapacity for work compensation, the effects of the injury must have been continuing at the time of the incapacity.[99]
[99] Hurley and Australian Capital Territory [2019] AATA 2450, 80 where it is said, in essence, that for there to be a continuing entitlement to compensation under the Act with respect to an injury, there must be continuing incapacity or impairment as a result of the injury; see also Neuendorf and Australian Postal Corporation (Compensation) [2019] AATA 2430, 131 .
In the ceased effects determination of August 2018, the Respondent determined that it had, as from 1 April 2011, no liability to pay to Mr Wilkinson medical treatment cost compensation under s 16 of the Act or incapacity for work compensation under s 19 of the Act in respect of the accepted condition.
Insofar as there is implicit in the ceased effects determination a contention that Mr Wilkinson ceased to suffer the effects of the accepted condition after March 2011, I reject it.
Instead, I find that Mr Wilkinson continued to suffer from effects of the accepted condition after March 2011 up until (and including) 2018.
While in that period Mr Wilkinson was largely asymptomatic in the sense that he was not then experiencing sciatic pain, this is not to say that the accepted condition was not having an ongoing effect.
First, while Dr C Tan asserts that Mr Wilkinson’s back pain was fully resolved by mid-2011 and only re-emerged on the Australia Day weekend of 2018, Mr Wilkinson’s uncontroverted evidence is that, in the period 2011 to 2017, he continued to suffer from lower back pain which he managed principally by way of exercise and clinical Pilates.[100]
[100] ExA1, [3,21,22, 24].
Second, the damage to Mr Wilkinson’s L3/4 level disc reflected in the CT scan of November 2010 never fully healed. According to Dr Aliashkevich, a disc herniation never heals. Drs Burke and D’Urso expressed similar opinions (the former stating that, once injured, an intervertebral disc never heals completely while the latter’s view was that, once injured, vertebral discs are never quite the same).
In the period 2011 to 2018, Mr Wilkinson endeavoured to mitigate the consequences of the damage to his disc through self-management of his condition. That he did so is not reflective of subsequent rationalisation of what transpired in the period. It reflects what was, to the knowledge of the Respondent, intended at the time to occur, and what did, in fact occur. In this regard, as I noted earlier:
·On 4 April 2011, Mr Wilkinson’s physiotherapist advised the GP that “Tony has been discharged to an independent (self) management program as of 31/03/11”.[101]
·In a letter to Mr Wilkinson’s employer of 30 June 2011, the Respondent noted its then understanding of the current position was that Mr Wilkinson had ceased physiotherapy and was now self-managing.[102]
[101] ExR4 (Dr A Wade), [160].
[102] ExR1, T28.
As for details of this self-management and what transpired between 2011 and 2018 in relation to Mr Wilkinson’s back condition, I refer to the outline earlier of the leave days taken in 2013 and 2014 due to lower back pain, of Mr Wilkinson’s osteopathy sessions in 2014, 2015, 2017 and 2018 undertaken to address neck and lower back pain and of the large number of Pilates sessions he attended in 2014 to 2018, sessions commencing on the recommendation of his osteopath “to assist in his long term management of his lower back condition”.
That Mr Wilkinson was largely self-managing his condition is reinforced by evidence from his general practitioner at the time, Dr Wade. According to Dr Wade, in the period 2010 to 2017, Mr Wilkinson’s back condition was intermittently symptomatic but he had generally self-managed the condition through Pilates and massage by an osteopath. This view was reinforced in a letter to the Respondent of 30 July 2018. In that letter, in responding to a proposition that Mr Wilkinson’s injury in 2010 had resolved, Dr Wade stated that Mr Wilkinson had, in fact, “…engaged the care of several allied health providers over the years and has been diligent with self managing his lower back tightness/stiffness before it became more incapacitating”.[103]
[103] ExR4 (Dr A Wade), [147].
Where damage to an intervertebral disc subsists but its effects are being ameliorated through self-management, it is not, in my view, correct to characterise the situation as one in which the effects of the damage have ceased.
In any event however, a person’s entitlement to compensation with respect to an injury is not forever lost if the injury is asymptomatic for a period. Hence, even if the effects of the accepted condition had generally ceased in the 2011 to 2018 period, that cessation may well have been temporary and reflective of the condition running its fluctuating course.[104] According to Dr Aliashkevich, it is not unusual for there to be prolonged remission over a number of years of symptoms of a disc herniation. Dr C Tan accepted that symptoms from back injuries frequently waxed and waned and hence, did not appear to attribute significance to Mr Wilkinson having been relatively asymptomatic in the March 2011 to 2018 period.
[104] An alternative would be to contend that, despite ceasing to feel the effects of it, an effect of an injury is continuing if the injury causes an enhanced susceptibility to a particular condition. At the hearing of this proceeding, however, any reliance on susceptibility was disclaimed on behalf of Mr Wilkinson. What was contended on his behalf was that he had suffered only one injury on and from 2010, an injury the symptoms of which may have been exacerbated by the stresses and strains of everyday life.
The Respondent, however, contends that:
·The work-related injury suffered by Mr Wilkinson in 2010 had “settled” by September 2010 when he ceased remedial massage treatment by Mr Furniss. This contention depends in large part on characterising the injury so suffered by Mr Wilkinson as a lumbar facet joint injury. I address this characterisation later but simply note for present purposes, that I do not accept it.
·It is apparent that Mr Wilkinson had ceased to suffer the effects of his 2010 injury from the asserted fact that there was, after 2010, “two lengthy periods of over 3 years each when the applicant did not require any medical treatment whether from a GP, physiotherapist, masseur or osteopath”.[105] Quite apart from evidence to the effect that symptoms of a disc herniation can go into remission for a number of years, ignored in this assertion are the many sessions of Pilates undertaken by Mr Wilkinson in 2015, 2016 and 2017, Pilates being a form of treatment for his back condition undertaken by Mr Wilkinson on the recommendation of his osteopath.
·The clinical notes taken by Dr Robbins in his first session with Mr Wilkinson in August 2014 suggest that Mr Wilkinson had then indicated he had hurt his back “years ago” as a result of a fall from a motor bike.[106] The Respondent ignores, however, an aspect of those notes in which it is stated that “[n]ot currently on workcover but originally hurt low back at work about 4 years ago”.[107]
·The fact that Mr Wilkinson did not have medically certified time off work from February 2011 to December 2017 for his back is evidence that the accepted condition had resolved by February 2011.[108] This contention fails to address Mr Wilkinson’s evidence to the effect that he was entitled to take five sick days off per year without the need for certification.
Did the effects of the accepted condition result in the 2018 work incapacity and was the 2018 medical treatment obtained in relation to them?
[105] R’s SFIC, [47].
[106] R’s SFIC, [50].
[107] ExR4 (Dr S Robbins), [16].
[108] R’s SFIC, [54].
I have rejected the Respondent’s submission concerning the nature of the 2018 condition and, instead, found that it essentially related to an intervertebral disc prolapse at the L3/4 level of Mr Wilkinson’s spine.
Quite apart from its submission as to the nature of that condition, however, the Respondent went on to submit that, rather than reflecting the ongoing effects of the accepted condition, the symptoms experienced by Mr Wilkinson in late 2017 and 2018 (and the resultant incapacity for work and need for medical treatment) were the result of an aggravation of a pre-existing condition, an aggravation caused by non-employment related activities.
In support of this submission the Respondent referred to:[109]
·Dr Robbins’ (the osteopath’s) clinical notes of an attendance on him by Mr Wilkinson in December 2017[110] in which it is suggested that Mr Wilkinson had been experiencing a sore lower back for ten weeks; that he had a “chronic disc” which was usually well managed with Pilates; that in the last week he had been rolling concrete sealant and had, in that week, difficulty in straightening up. Dr Robbins described the context in which he took those notes as one involving a significant flare up of Mr Wilkinson’s lower back condition that had not resolved with conservative treatment and Pilates.[111]
·A general practitioner’s clinical notes of mid-December 2017 in which it is suggested that Mr Wilkinson was known to have a bulging disc; that his lower back was “playing up” and that it was sore “after Pilates earlier in the week, usually goes away, also mowing the lawn and laying concrete. At least 1 year since last flare up”.
[109] R’s SFIC, [52, 53].
[110] ExR4 (Dr S Robbins), 14 – Dr S Robbins notes employ shorthand such that I understood Lx to be a reference to the lumbar region of the spine and hx to be a reference to Mr Wilkinson’s history in relation to the spine.
[111] ExR1; T40
As an aside, I note that these references do not support other submissions of the Respondent. They reinforce my earlier findings that:
·The 2018 condition was essentially a condition concerning a lower back spinal disc (as opposed, say, to a facet joint or annular tear issue).
·The effects of the accepted condition had been continuing since 2011. Rather than being eliminated, those effects were being “usually well managed”, albeit that there was the occasional “flare up”.
As for the Respondent’s submission that the 2018 condition was caused by non-employment related activities, however, it seems to be based on a proposition that I can infer from the referenced material that there is a causal nexus between that condition and the undertaking by Mr Wilkinson in late 2017 of certain activities; rolling concrete sealant and mowing a lawn.
Even if I were to draw such an inference however, it would not preclude a conclusion that the 2018 work incapacity was a result of, and that the 2018 medical treatment was obtained in relation to, the accepted condition.
As was said in Kavas[112] (with my emphasis):
·At [13], “…the causal relationship ‘as a result of’ is not exclusive or conditioned by adjectival singularity - it permits the conjunctival co-existence of multiple contributory causes”.
·At [41], “If an injury is an “effective and operative” cause of incapacity despite supervening events or subsequent injuries, the resulting incapacity may truly be said to result from the injury. The words of du Parcq LJ in Rothwell v Caverswall Stone Co Ltd are often cited, authoritatively, in cases such as this:
o“an existing incapacity ‘results from’ the original injury if it follows, and is caused by, that injury, and may properly be held so to result even if some supervening cause has aggravated the effects of the original injury and prolonged the period of incapacity. If, however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not from the original injury, even though but for the original injury, there would have been no incapacity”.
[112] Kavas and Comcare [2011] AATA 935 - cited with approval recently in Gordon and Comcare (Compensation) [2020] AATA 352.
The issue raised by the Respondent’s submission is whether Mr Wilkinson’s activities in late 2017 of rolling concrete sealant and mowing a lawn resulted in a fresh injury (or, at least, a fresh aggravation of an underlying condition), separate from the accepted condition, or whether the accepted condition remained an “effective and operative” cause of Mr Wilkinson’s difficulties with his back in late 2017 and 2018 (or, put another way, remained a material contributor[113] to those difficulties).
[113] Small and Comcare [2017] AATA 2383, 139 where it was said to be sufficient that an injury contribute in a material sense to incapacity; see too Gordon and Comcare (Compensation) [2020] AATA 352, 70-73.

My conclusion in relation to that issue is that Mr Wilkinson’s activities in late 2017 did not result in a fresh injury (or a fresh aggravation of an underlying condition) separate from the accepted condition but that the accepted condition remained, up to and including 2018, an effective and operative cause of Mr Wilkinson’s back condition (i.e. an effective and operative cause of the 2018 work incapacity and need for the 2018 medical treatment).
First, the nature of the relevant activities is such as to as to suggest that any effect they had on Mr Wilkinson’s health were simply reflective of the ordinary stresses and strains of living (or the give and take of daily activities).[114] As such they bring to mind the following comment in Canale[115] (with my emphasis):
“Considerable confusion often arises as to what is a recurrence of an old injury, and what should be regarded as a new injury. It is not possible to lay down any rule to completely answer the problem in the multitudinous circumstances from which it rises. Generally however, I would say that an injury or condition recurred where it flared up either spontaneously or because of the ordinary stresses and strains of living and working, and that any consequent incapacity would be related to the original accident. On the contrary, even though the first injury left a weakness, even a great weakness and a potential site of trouble, where that trouble is precipitated by a new incident of an accidental nature such as could well originate trouble in its own right, then that trouble should be regarded as a new injury for which the later incident is the direct cause”.
[114] Australian Postal Corporation v Nadge [1994] FCA 1163 at [31] where Lee J distinguished between a fresh injury and an incident that merely reflected the “give and take of daily activities”.
[115]Canale v Commissioner of Main Roads (1982) 1 WCR (WA), 163.
Second, the material referenced by the Respondent in support of its submission (and evidence adduced from Mr Wilkinson in relation to that material) suggests that Mr Wilkinson’s troubles with his back arose independently of the activities he was undertaking in late 2017. Dr Robbins’ notes indicate that Mr Wilkinson had, in late 2017, been experiencing troubles with his back for around 10 weeks. The general practitioner’s notes are suggestive of there being occasional flare ups of those troubles. Moreover, at least in terms of those notes, Mr Wilkinson’s evidence is that he did not suggest to the doctor that him having mowed the lawn or laid concrete sealant was the cause of his back pain; rather, he had informed the doctor of those activities simply in response to a question concerning what he had been doing in the lead up to his attendance at the clinic.[116]
[116] ExA1, [26].
Third, as I have found, a disc prolapse at the L3/4 level was both encapsulated within the accepted condition and was at least an element of the 2018 condition. This is in a context where medical evidence before the Tribunal was to the effect that a disc injury (such as that encapsulated within the accepted condition) never fully heals and that it is not unusual for there to be prolonged remission over a number of years of symptoms of such an injury.
Four, medical evidence before the Tribunal was to the effect that the 2018 condition was a continuation or flare up of the disc injury which I have found to be encapsulated in the accepted condition.
Mr Wilkinson’s general practitioner, Dr Wade, in a letter to the Respondent of 20 February 2018, opined that Mr Wilkinson’s then current issues “are likely related to an exacerbation of his earlier injury”.[117] Dr Wade’s opinion had firmed by the time he came to write a report to the Respondent on 26 March 2018. In that report, Mr Wilkinson was said to have “sustained an exacerbation of his previous work-related injury” and that his then current issue was similar to the one he had experienced in 2010. The MRI scan of February 2018 had, according to Dr Wade, effectively revealed a worsening of the situation apparent from the November 2010 CT scan, particularly at the L4 level.[118]
[117] ExR4 (Dr A Wade), [141].
[118] ExR4 (Dr A Wade), [144-146].
Dr Wade’s views are consistent with those of Dr Aliashkevich. His opinion was, in effect, that the L3/4 disc herniation which comprised part of the accepted condition continued beyond 2011 and culminated in the procedure he performed in relation to Mr Wilkinson in April 2018. Mr Wilkinson’s condition in 2018 was said by Dr Aliashkevich to be very likely a progression of L3/4 disc injury in 2010.[119]
[119] ExR1, T39.
Similarly, Dr Robbins opined that Mr Wilkinson’s condition in late 2017 and 2018 looked like a natural progression of the injury Mr Wilkinson sustained in 2010.[120]
[120] ExR1, T40.
Lastly, what occurred in late 2017 and in 2018 in relation to Mr Wilkinson’s back would appear to be consistent with medical evidence to which I referred earlier to the effect that disc injuries never fully heal. Indeed, according to Dr D’Urso, while there might be recovery to some extent after a disc injury, it is highly likely that further problems will ensue, especially in relation to people who are active (and I interpose here that Mr Wilkinson is such a person, given the nature of his employment and his outline of leisure activities in which he engaged).
As the accepted condition remained an effective and operative cause of the troubles experienced by Mr Wilkinson with his lower back up to and including 2018, I am satisfied that his 2018 work incapacity was a result of, and his 2018 medical treatment was obtained in relation to, the accepted condition (or, at least, that part of the accepted condition as involves an intravertebral disc prolapse at the L3/4 level).
Did the “injury” suffered by Mr Wilkinson in 2010 comprise or include a disc prolapse?
I have cited medical evidence adduced by Mr Wilkinson to the effect that the 2018 condition was a continuation or flare up of the disc injury which I have found to be encapsulated in the accepted condition. The Respondent rejected the continuation or flare up proposition, in part because it rejected the underlying premise. The Respondent submitted (and adduced medical evidence to the effect) that Mr Wilkinson did not suffer a disc injury in 2010. I turn now to address that submission.
I have found that Mr Wilkinson’s 2010 compensation claim encompassed a claim in respect of a prolapsed disc in the lumbar region of Mr Wilkinson’s spine at the L3/4 level.
The Respondent submits, however, that Mr Wilkinson did not, in 2010, suffer an injury encompassing a prolapsed L3/4 level disc.[121] While the Respondent accepts that Mr Wilkinson suffered an injury as a result of the 2010 incident, the injury is said to have comprised “… a lumbar facet joint injury on a history of pre-existing and longstanding lumbar spondylosis which included disc and facet joint degenerative disease”.[122]
[121] This submission reflects the rationale adopted by the Respondent in the ceased effects determination-see ExR1 [T58].
[122] R’s SFIC [42]
I do not accept that submission.
In closing, the Respondent contended that this matter requires that I reach a state of satisfaction, on the balance of probabilities, as to when Mr Wilkinson’s L3/4 disc prolapse occurred. I do not agree.
Instead, as I see it, in order to accept the Respondent’s submission, I need to be satisfied that it is correct. The Respondent’s November 2010 determination gave rise to an entitlement to compensation payable in accordance with the Act (albeit not a present entitlement to any particular form of compensation payable under the Act)[123] in respect of an injury, one which I have found encompassed Mr Wilkinson’s prolapsed L3/4 disc.
[123] Lees v Comcare [1999] FCA 753, 34.
Given that entitlement and my finding concerning the scope of the injury in respect of which compensation is payable, for the purposes of the Act, the accepted position is that Mr Wilkinson suffered a compensable injury which encompassed his prolapsed disc at the L3/4 level. In submitting that Mr Wilkinson did not, in 2010, suffer such an injury the Respondent urges that I make findings of fact that run counter to those underlying Mr Wilkinson’s compensation entitlement and which reflect both a denial that the accepted condition (or at least an element of it) is an injury and a departure from that accepted position.[124]
[124] In considering whether to accept those findings I am not reviewing the determination of 2010. As no reviewable decision has been made as to the 2010 determination I do not have jurisdiction to review it - see Re Liu and Comcare [2004] AATA 617, 3. Hence, “[t]he liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act” - Australian Postal Corporation v Oudyn [2003) FCA 318, 31. Instead, what the Respondent is asking of the Tribunal is to make findings of fact that undercut those made in the context of the 2010 determination while nevertheless leaving that determination in place – Telstra Corporation v Hannaford [2006] 151 FCR 253, [59].
Where, as here, a party seeks to prosecute a case that reflects such a departure, the party will only succeed if I can be satisfied that the departure is appropriate[125] (so that, in that sense, the party bears a burden of persuasion[126]).
[125] Toomey and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 468 at [58-59].
[126] Millar and Comcare (Compensation) [2019] AATA 4973,152 – a burden that will not satisfied by mere suspicion as to the appropriateness of a departure from an accepted position - Re Lorraine Joy Shearing and Director-General of Social Security [1983] AATA 116, 30. This is not to suggest that a party bears an onus of proof - see BOY19 v Minister for Immigration and Border Protection [2019] FCA 574, 54 where it was stated that “…the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite….”. Indeed, in Tribunal proceedings, any suggestion that a party bears such an onus, whether legal or evidential, is apt to mislead – Comcare v Power [2015] FCA 1502, 57; McDonald v Director-General of Social Security (1984) 1 FCR 354, 358.
I am not so satisfied in this case. In particular, I am not satisfied that that the “injury” suffered by Mr Wilkinson as a result of the 2010 incident did not comprise or include a disc prolapse at the L3/4 level. Even more particularly, I am not satisfied that the L3/4 disc prolapse apparent from the November 2010 CT scan was a result of a “pre-existing and longstanding” degenerative disease.
The Respondent submits that the injury suffered by Mr Wilkinson as a result of the 2010 incident did not include an injury to his spinal discs as:
·Such an injury is typically sustained in a position of lumbar spine flexion, not extension (as was said to be the case in relation to the 2010 incident).
·Such an injury would not have responded to massage (noting that Mr Wilkinson did experience temporary relief from back pain after the 2010 incident such that, according to his masseur (Mr Furniss), by July 2010 Mr Wilkinson’s condition was much improved).
·While a CT scan is an “inferior investigative tool” for demonstrating injury to soft tissues such as intervertebral discs the scan in November 2010 nevertheless revealed spinal abnormalities consistent with Mr Wilkinson suffering from well-established spondylosis at the time of the 2010 incident.
·The November 2010 CT scan is suggestive of Mr Wilkinson’s L3/4 disc not being “completely intact” at the time of the 2010 incident because disc degeneration causes facet joint arthropathy, and the scan evidenced such arthropathy at the L3/4 level. [127]
[127] R’s SFIC, [41, 43, 44].
As for Mr Wilkinson’s injury being sustained in a position of lumbar spine extension rather than flexion, this reflected a proposition of Dr C Tan. She reconstructed the events of 11 May 2010 and stated that Mr Wilkinson losing his grip on a charged fire hose “… would likely have led him to lurch backwards and perhaps also sideways, due to the inertial force, thus extending his back which would be a typical mechanism for facet joint injury”.
This reconstruction is not based on evidence[128] or on Dr Tan’s medical expertise. Yet, largely in reliance on it, Dr Tan dismisses a discogenic basis for Mr Wilkinson’s pain and, instead, opined that any injury suffered by Mr Wilkinson as a result of the 2010 incident was likely to be facetogenic, with the pain he experienced in 2010 reflecting recurrent facetogenic pain. This is because, according to Dr Tan, “a disc injury is typically sustained in a position of lumbar spine flexion, not extension...”. Hence, Dr Tan concluded that it is not likely that the moderate broad-based L3/4 disc herniation revealed in the 2010 CT scan resulted from the 2010 incident.
[128] Noting that Mr Wilkinson did describe the 2010 incident as involving him leaning to the right, but he did not refer to any lurch backwards: see ExA1, [10].
There are a number of difficulties with Dr Tan’s approach.
First, there is no evidence of any disc herniation prior to the 2010 incident. While it is clear that Mr Wilkinson had sought medical treatment in relation to his lower back from his general practitioner on at least two occasions prior to 2010,[129] as Dr Tan opined in her report, the fact that the complaints were on the milder end of the spectrum and also short-lived made it unlikely that there had been disc herniation on either of those occasions. While Dr Tan said it was unlikely that Mr Wilkinson’s L3/4 disc was “completely intact” prior to the 2010 incident, adoption of her analysis would nevertheless beg the question of when Mr Wilkinson’s disc herniation occurred (albeit acknowledging the possibility which she raised of Mr Wilkinson simply having asymptomatic herniation prior to the 2010 incident, in which case, according to Dr Tan, it could have been present for years).
[129] In October 2008 and August 2009.
Second, the pain experienced by Mr Wilkinson on and from August 2010 included sciatic pain extending to his legs. This makes it unlikely that the pain was simply facetogenic, noting evidence from Dr Aliashkevich (which I outlined earlier) to the effect that facet pain is generally localised.
Third, it is difficult to understand how Dr Tan effectively ruled out disc herniation causing nerve compression as a source of Mr Wilkinson’s pain in 2010 given that, according to her, it was not possible to see on the November 2010 CT scan whether the right L4 nerve was compressed. This was said to be the case despite the report of the scan expressly stating that, while the left lumbar nerve root “exits freely,” there was “encroachment of the right neural foraminal canals” at the L3/4 level of Mr Wilkinson’s spine with “possible impingement of the exiting nerve root”.[130]
[130] ExR2, T7.
The Respondent also contended that, had the 2010 incident resulted in disc herniation, Mr Wilkinson’s symptoms would not have responded to the massage treatment provided by Mr Furniss. This contention reflects an opinion expressed by Dr Burke to the effect that Mr Wilkinson’s initial, favourable response to such treatment was not suggestive of an injury to his discs. As noted by Dr Tan, however, while discogenic pain would not have responded to the massage treatment provided by Mr Furniss, the fact that Mr Wilkinson initially achieved pain relief by way of massage is not strong evidence that Mr Wilkinson did not suffer a disc herniation in May 2010.
Dr Tan preferred Dr Burke’s diagnosis to that of Dr Aliashkevich. According to Dr Burke, the injury suffered by Mr Wilkinson in 2010 was probably a soft tissue injury of the lumbar spine with exacerbation of a pre-existing degenerative condition (and, in this context, Dr Burke, in oral evidence, stated that he did not intend that his reference to a soft tissue injury encompass an injury to vertebral discs). According to Dr Burke, there was no significant causal connection between the “claimed condition” and Mr Wilkinson’s employment. His explanation for that opinion is, however, unsatisfactory in two respects.
First, Dr Burke would appear to have attributed no significance to the 2010 incident for no identified reason. [131] Indeed, he stated that there was no report of any significant inciting event within Mr Wilkinson’s workplace. This statement was made despite him having apparently been provided with Mr Wilkinson’s claim documents and “their medical reports” and despite having noted in his report that Mr Wilkinson had reported pain associated with an exercise at work in May 2010 which involved pulling and lifting a charged firefighting hose.
[131] ExR2, T36.
Second, the opinion expressed by Dr Burke would appear to have been based on his view that there was no “chronological link between the physical demands” of Mr Wilkinson’s work and the development of his condition. It is unclear why Dr Burke considered a chronological linkage with the physical demands of Mr Wilkinson’s work was of any particular relevance in responding to the question posed of him (which was whether he considered there to be a significant causal connection between the claimed condition and Mr Wilkinson’s employment).
The suggested need for there to be close temporal proximity between the development of a condition and activities at a workplace implicit in Dr Burke’s opinion runs counter to a number of decisions such as Kavas[132] where, at [13], it is said “[t]he phrase “as a result of” is well understood in workers compensation law. It refers to a relationship of cause and effect in which emphasis is placed on effect, rather than the proximity of cause and effect”. Hence, Kirby P’s statement in the context of a case concerning the application of NSW workers compensation legislation that, in considering whether a condition is the result of an injury, “[w]hat is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation”.[133]
[132] Kavas and Comcare [2011] AATA 935.
[133] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 463.
Dr Burke expressly acknowledged that the CT scan conducted in November 2010 revealed moderate disc herniation at the L3/4 level. He nevertheless diagnosed the 2010 condition as involving a non-disc soft tissue injury. The explanation for what might appear to be an inconsistency would appear to lie in the second aspect of his diagnosis, the “exacerbation” of a pre-existing degenerative condition. The issue with Mr Wilkinson’s disc at the L3/4 level revealed in the November 2010 CT scan was clearly thought by Dr Burke to reflect such a pre-existing condition. The basis for this view was unidentified in the report. In oral evidence however, Dr Burke stated that he did not believe that there had been an acute injury to any of Mr Wilkinson’s vertebral discs as a result of the 2010 incident because the incident was not severe, Mr Wilkinson had not then required a great deal of treatment, and his condition had responded to massage.
As for:
·The 2010 incident not being sufficiently severe to cause a disc prolapse, this reflects a bald assertion made by Dr Burke. Mr Wilkinson’s uncontroverted evidence is that the 2010 incident involved him carrying a charged fire hose weighing in the vicinity of 80kgs, jarring his back when his grip on the hose slipped, being sent off-balance to his right and then feeling a sharp pain in his lower back (predominantly on the right-hand side). Dr Burke does not explain why an incident such as this would be unlikely to result in a disc prolapse. In any event, there is no material before me suggestive of a disc prolapse only occurring in circumstances capable of being characterised as severe.
·It being significant that Mr Wilkinson had not, at the time of the 2010 incident, required a great deal of treatment, this again brings to mind Dr Burke’s apparent view as to the need for there to be temporal proximity between the development of a condition and workplace activities, a view which I reject.
·Mr Wilkinson having responded, at least initially, to massage therapy, I refer to my comments before on this issue.

The pre-existing degenerative condition which had, according to Dr Burke, been exacerbated by the 2010 incident was spondylosis. Mr Wilkinson does not deny that he suffered from such a condition in 2010. The suffering of spondylosis however, is not suggestive of the 2010 incident not resulting in a prolapse of Mr Wilkinson’s L3/4 disc. As in Van Reesch,[134] while it may be accepted that Mr Wilkinson suffered from a pre-existing disease, his claim is for an injury comprising (at least in part) a disc prolapse. It was not put to me, and there is no material before me to the effect, that such a prolapse is an inevitable result of spondylosis or that it is indistinct from the pathology which underlies spondylosis.[135] Hence, the fact that Mr Wilkinson may have been suffering from spondylosis in 2010 is not inconsistent with a finding that Mr Wilkinson suffered the claimed injury (or, more accurately in this context, is not inconsistent with a conclusion that I am not satisfied that he did not suffer the claimed injury).
[134] Health Insurance Commission v Van Reesch [1996] FCA 1118.
[135] See Szajna v Australian Postal Corporation [2014] FCA 1136, 76. See also Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156 which involved a claim that an injury had been suffered constituted by the rupture of a cerebral aneurism. The rupture was found to be an injury distinct from the aneurism which enabled it to occur.
Not only am I not satisfied, on the material before me, that Mr Wilkinson did not suffer the claimed injury, on that material, I am satisfied that he did suffer that injury.
According to Dr Aliashkevich, the disc herniation seen in the November 2010 CT scan was unlikely to have been a result of an underlying degenerative condition. In responding to the proposition that Mr Wilkinson had pre-existing and probably very long-standing lumbar spondylosis, which included disc and facet joint degenerative disease, Dr Aliashkevich agreed that Mr Wilkinson suffered a degree of natural lumbar spondylosis. He also agreed that disc herniation can be a consequence of spondylosis. His opinion was, however, that natural degeneration would not have produced the L3/4 disc herniation seen on the scan, based on his experience and given that herniated discs in people of the age of Mr Wilkinson in 2010 were far more likely to occur at the L4/5 and L5/S1 levels, rather than the L3/4 level.
Dr D’Urso’s opinion echoes that of Dr Aliashkevich. In his report,[136] Dr D’Urso stated (with my emphasis) that “[t]here would appear to be an incident causing injury to the lumbar spine which occurred in the workplace on 11th May 2010. A subsequent CT scan performed on 16^th November, 2010 demonstrated an L3-4 disc prolapse. Clearly, this is not just an underlying degenerative change but a prolapse of the L3-4 disc and it would appear that the workplace activity on 11^th May, 2010 precipitated the onset of symptoms and is likely to have contributed to the development of a disc prolapse or at least aggravated the condition precipitating symptoms….”.
[136] ExA3.
Is accepted condition a frank injury or disease?
As mentioned earlier, if Mr Wilkinson’s injury in 2010 is a “disease”, as opposed to an injury other than a disease,[137] any liability that the Respondent might have had to compensate Mr Wilkinson will be excluded if he had “….for purposes connected with his employment…, made a wilful and false representation that he…did not suffer, or had not previously suffered, from…” the accepted condition.[138]
[137] See definition of “injury” in the Act, s 5A.
[138] Act, s 7(7).
The Respondent contends that it is entitled to rely on this exclusion because, in his compensation claim form, Mr Wilkinson denied ever having an injury similar to that the subject of his claim or ever having medical treatment for a similar injury.[139] In considering this contention, a threshold issue needs to be addressed; is Mr Wilkinson’s 2010 injury an injury other than a disease or a disease?
[139] ExR1, T4 – see R’s SFIC at [56].
I reject the Respondent’s contention as the threshold issue is not satisfied in the circumstances. Insofar as Mr Wilkinson’s 2010 injury comprised a L3/4 level disc prolapse, it constituted an injury other than a disease.
The Respondent contends, and Mr Wilkinson does not deny, that he suffered from spondylosis in 2010. There is no dispute that spondylosis is a “disease”. The question in issue is whether Mr Wilkinson’s disc prolapse is a condition separate from that disease and, if it is, is it an injury other than a disease?
Is disc prolapse separate from spondylosis?
In addressing this question, the approach outlined by Rangiah J in in Szajna[140] is apposite. There it was said that what “…the cases establish is that:
(a) In order to decide whether an employee has sustained an “injury” within the ordinary meaning of that word, consideration must be given to the precise evidence on a case by case basis.
(b) If the evidence establishes something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify as such an “injury”.
(c) It is necessary to consider whether the propounded “injury” is distinct from the underlying pathology that constitutes a “disease” that directly or indirectly caused the sudden change to occur.
(d) The question of whether the physiological change or disturbance is the inevitable consequence of the progress of the disease may be relevant in deciding whether there is an “injury,” but is not of itself necessarily determinative.”
[140] Szajna v Australian Postal Corporation [2014] FCA 1136, 76.
As for whether Mr Wilkinson’s disc prolapse is a condition separate from the disease constituted by spondylosis, I find that it is.
It is implicit in the opinions of Drs Aliashkevich and D’Urso that a disc prolapse is distinct from the underlying pathology that constitutes spondylosis (something not denied by Drs C Tan and Burke).
Moreover, a disc prolapse is not an inevitable result of spondylosis. I note that neither Dr C Tan nor Dr Burke suggested that it is. Implicit in Dr Aliashkevich’s opinion that spondylosis can result in a disc prolapse is a view that it will not always do so.
As I see it, my conclusion that Mr Wilkinson’s disc prolapse is a condition separate from that of his spondylosis is not inconsistent with that recently arrived at by DP Hangar in Hook.[141] In that decision the approach outlined in Szajna was applied in coming to a conclusion which had a compensation applicant’s disc prolapse being characterised as, in essence, an aspect of the claimant’s spondylosis (and hence, a disease). That decision serves to emphasise the importance of having regard to the “precise evidence” in each case. There, the applicant was claiming that turning his head at work had caused the prolapse. Expert evidence was led to the effect that the applicant suffered from spondylosis with a prolapsed intervertebral disc which was pre-existing but asymptomatic. The only expert evidence that seems to have been adduced by the applicant was hardly a ringing endorsement of his claim. It appears to have comprised a statement by a general practitioner that he “could not exclude the possibility that the symptoms experienced were due to any acute event occurring at work when he [the applicant] turned his neck”.[142] In this context, the decision of the Tribunal is hardly surprising.
[141] Hook and Comcare (Compensation) [2020] AATA 1792.
[142] Ibid, 9.
Given my conclusion in relation to the question of whether the “injury” suffered by Mr Wilkinson in 2010 comprised or included a disc prolapse, I am not here dealing with a condition that has arisen as a consequence solely of a progressive underlying condition (unlike, say, the situation addressed in de Gail[143]).
[143] De Gail and Comcare (Compensation) [2018] AATA 2309, 5.
What I am dealing with here is a condition either the occurrence of which may have been made more likely as a result of a pre-existing condition or which might ultimately have occurred had the pre-existing condition run its course. In each case, however, characterisation of the condition as a disease or frank injury is not determined by the character of the pre-existing condition.
In Zickar,[144] the rupture of a cerebral aneurism was found to be an “injury” separate from the disease constituted by the aneurism. The aneurism, being a congenital weakness, was a disease. Compensation was awarded on the basis that an injury occurred when the aneurism ruptured and that the rupture was not a disease. By a majority, it was decided in the High Court that, in so awarding compensation, there had been no error. In other words, the majority treated the matter as an injury case, not a disease case. The majority considered it to be “clear that the rupture of the aneurism was not inevitable and further that the rupture may have been minor, allowing the appellant, after treatment to return to his previous occupation. If there was no rupture, there would be no event answering the description of personal injury and the appellant would be driven to rely upon par (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury”.[145] Hence, the rupture was “…something quite distinct from the defect, disorder or morbid condition, which enables it to occur”.[146]
[144] Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156.
[145] Ibid, 173.
[146] Ibid, 174.
In Petkoska,[147] the High Court was dealing with an employee who had suffered a stroke probably brought on by pre-existing heart disease. There it was said that the fact that “…a sudden physiological change has been caused or provoked by disease does not prevent it from constituting a ‘physical injury’”.[148]
[147] Kennedy Cleaning Services Ltd v Petkoska (2000) 200 CLR 286.
[148] Ibid, 68.
While it may be accepted that Mr Wilkinson suffered from a pre-existing disease, his claim is for an injury comprising (at least in part) a disc prolapse.
In Van Reesch,[149] the Full Federal Court addressed a contention similar to that raised by the Respondent in this proceeding, being that there was no liability to pay compensation in the circumstances there under consideration because of the operation of a provision in the Compensation (Commonwealth Government Employees) Act 1971 similar in effect to
[149] Health Insurance Commission v Van Reesch [1996] FCA 1118.
ss 7(7) of the Act. The compensation applicant had sought compensation in respect of a disc prolapse. The Tribunal treated her application as relating to an injury constituted by a disease. The matter was remitted to the Tribunal as there had been a failure to consider the applicant’s submission that she had suffered a frank injury rather than a disease (and, hence, the provision equivalent to that currently found in ss 7(7) was inapplicable).
Northrop J stated (with my emphasis) that it “…may be accepted that there was evidence before the Tribunal to support a finding that she suffered a disc prolapse described by the treating surgeon as a "right S1 nerve root compression due to extended nucleus L5-S1" arising out of or in the course of her employment with the Commission during the week commencing 13 October 1986. To adapt the wording of Toohey, McHugh and Gummow JJ in Zickar, the present case is not one of an autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which Mrs Van Reesch relies. It may be accepted that her back condition was an autogenous disease but her claim to personal injury is based on the disc prolapse which occurred. There is evidence that the disc prolapse was not an inevitable consequence of the disease. The rupture, being the prolapse, has been treated”.
An injury other than a disease?
While the proper characterisation of Mr Wilkinson’s disc prolapse is not a function of the characterisation accorded to his underlying spondylosis, it remains to be determined whether his disc prolapse is a disease or a frank injury (recognising that these concepts are not mutually exclusive[150]).
[150] Prain v Comcare [2017] FCAFC 143.
I find that it is a frank injury (i.e. an injury other than a disease).
It is the “…nature and incidents of the” change in a person’s physiological or psychological state engendered by a condition that determines its characterisation as either a disease or an injury (other than a disease).[151] In this regard, an injury (other than a disease) is generally applicable only to “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”[152] or “…some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not sudden, is at least ‘identifiable”.[153]
[151] Ibid, 74.
[152] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286, 300.
[153] Military Rehabilitation and Compensation Commission v May [2016] HCA 19, 75.
The evidence in this matter is suggestive of Mr Wilkinson having suffered “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”. Mr Wilkinson’s uncontroverted evidence is that on 11 May 2010, while at work, he felt a sharp pain in his lower back (predominantly on the right-hand side) when he jarred his back as a result of him being sent off-balance to his right after his grip on a charged fire hose (weighing in the vicinity of 80 kilograms) slipped.
There is nothing in the material before me that suggests that any occurrence or event other than the 2010 incident might have resulted in the identifiable physiological change in the form of a disc herniation seen in the November 2010 CT scan. Further, as I mentioned earlier, according to both Drs Aliashkevich and D’Urso, that change was unlikely to have been a result of an underlying degenerative condition (and, for the reasons previously outlined, I prefer their opinions to the contrary views expressed by Drs C Tan and Burke).
CONCLUSION
I have found that:
·The medical condition that resulted in the 2018 work incapacity and in relation to which the 2018 medical treatment was obtained, essentially involved an intervertebral disc prolapse at the L3/4 level of Mr Wilkinson’s spine.
·Such a disc prolapse was encapsulated within the accepted condition.
·The disc prolapse that resulted in the 2018 work incapacity and in relation to which the 2018 medical treatment was obtained, and the symptoms thereof, reflected the continuing effects of the accepted condition.
Moreover, I am not satisfied that:
·The “injury” suffered by Mr Wilkinson in 2010 did not comprise or include a disc prolapse at the L3/4 level of Mr Wilkinson’s spine.
·The exclusion from liability found in ss 7(7) of the Act applies in the circumstances (given my conclusion that the disc prolapse suffered by Mr Wilkinson is an injury other than a disease).
Accordingly, I have concluded that the 2018 work incapacity was a result of, and the 2018 medical treatment was obtained in relation to, the accepted condition.
Given these conclusions, costs incurred by Mr Wilkinson in these proceedings should be paid by the Respondent.
DECISION
The Tribunal DECIDES;
1.to set aside each of the s 14 decision and the ceased effects decision;
2.in relation to and in substitution for the s 14 decision, the Respondent is liable to pay compensation in accordance with the Act in respect of the injury the subject of Mr Wilkinson’s claim of 20 February 2018;
3.in relation to the ceased effects decision, to remit the matter for reconsideration in accordance with directions that the cost of the 2018 medical treatment be accepted as the cost of medical treatment obtained in relation to the accepted condition and that the 2018 work incapacity be accepted as incapacity for work as a result of the accepted condition; and
4.the costs of the proceedings incurred by Mr Wilkinson shall be paid by the Respondent, such costs to be agreed or, absent agreement, taxed in accordance with the Tribunal’s practice direction on taxation of costs.

I certify that the preceding 173 (one seventy three) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

....[sgd].......................................................
Associate
Dated: 21 April 2021

Date of hearing: 2 & 3 March 2020

Counsel for the Applicant: N Horner

Solicitors for the Applicant: Slater & Gordon Lawyers

Counsel for the Respondent: C Dowsett

Solicitors for the Respondent: Moray & Agnew Lawyers

Date of hearing:	2 & 3 March 2020
Counsel for the Applicant:	N Horner
Solicitors for the Applicant:	Slater & Gordon Lawyers
Counsel for the Respondent:	C Dowsett
Solicitors for the Respondent:	Moray & Agnew Lawyers