Wilson and K&S Freighters Pty Ltd (Compensation)

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2014/5639,2015/6468
  )         2016/2258, 2016/3477
  )         and 2016/3563
General Division  )
Re: Larry Wilson
Applicant

And: K & S Freighters Pty Limited
Respondent
CORRIGENDUM
TRIBUNAL:              Deputy President S Boyle
DATE OF
CORRIGENDUM:     19 March 2018
PLACE:                    Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
· Paragraph 245 be amended from: “Pursuant to s 67(8) of the SRC Act the Tribunal directs that the Respondent pay the costs incurred by the Applicant in these proceedings.” to now read: “Pursuant to s 67(8) of the SRC Act the Tribunal directs that the Respondent pay the costs incurred by the Applicant as set out in paragraphs 246 to 249 below.”
........[sgd].......................................................
Deputy President

Wilson and K&S Freighters Pty Ltd (Compensation) [2018] AATA 429 (8 March 2018)
Division:GENERAL DIVISION

File Numbers:         2014/5639
2015/6468
  2016/2258
  2016/3477
  2016/3563

Re:Larry Wilson
APPLICANT

K&S Freighters Pty LtdAnd
RESPONDENT

Decision
Tribunal:Deputy President S Boyle
Date:8 March 2018
Place:Perth

Application 2014/5639

The Tribunal:

(a)     sets aside the reviewable decision of 23 October 2014 and substitutes a decision that the determination of 9 October 2014 that the Applicant’s rights to compensation be suspended on and from 9 October 2014 be set aside; and

(b)     directs that the Respondent pay the costs of these proceedings incurred by the Applicant.

Application 2015/6468

The Tribunal:

(a) sets aside the reviewable decision of 1 December 2015 and substitutes a decision that the Respondent’s determination of 20 November 2015 to deny liability be set aside and that in substitution for that determination there be a determination that the Respondent is liable to pay compensation to the Applicant in accordance with s 14 of the SRC Act in respect of further injuries sustained to the right hip, left knee, left shoulder and neck sustained on 12 June 2012; and

(b)     directs that the Respondent pay the costs of these proceedings incurred by the Applicant.

Application 2016/2258

The Tribunal:

(a) sets aside the reviewable decision of 28 April 2016 and substitutes a decision that the determination of 21 April 2016 be set aside and that in substitution for that determination there be a determination that the Respondent is liable to pay compensation to the Applicant in accordance with s 14 of the SRC Act in respect of psychological injury, namely depression; and

(b)     directs that the Respondent pay the costs of these proceedings incurred by the Applicant.

Application 2016/3477

The Tribunal:

(a) sets aside the reviewable decision of 28 June 2016 and substitutes a decision that the Respondent’s decision of 7 June 2016 be set aside and in substitution for that decision there be a decision that anterior cervical fusion is a valid treatment for the Applicant’s neck condition and that the Respondent is liable for the cost of such procedure pursuant to s 16 of the SRC Act; and

(b)     directs that the Respondent pay the costs of these proceedings incurred by the Applicant.

Application 2016/3563

The Tribunal affirms the reviewable decision of 4 July 2016.

.....[sgd]...............................................................
Deputy President S Boyle
CATCHWORDS
Compensation – applicant suffered workplace injuries – applicant consequently suffered psychiatric injuries – degenerative changes – reasonable excuse not to undertake a rehabilitation program – applicant unable to return to pre-injury work duties – whether cost of medical treatment is reasonable
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – s 4 – s 5A – s 5B – s 14 – s 16 – s 19 – s 36 – ss 36(2) – s 37 – ss 37(1) – ss 37(7) – ss 37(7A) – s 41A – s 62
CASES
Australian Postal Corporation v Nunez [2014] FCA 1095
Australian Postal Corporation v Pascoe [2004] FCAFC 4
Comcare v Holt [2007] FCA 405
Comcare v Rope (2004) 135 FCR 443
Comcare v Singh [2012] FCA 136
Jorgensen and Commonwealth (1990) 23 ALD 321
Re Roberts and Military Rehabilitation and Compensation Commission (2011) 124 ALD 78
Re Rope and Comcare (Compensation) [2018] AATA 42
Sambastian and Australian Postal Corporation (Compensation) [2017] AATA 448
Telstra Corp Ltd v Administrative Appeals Tribunal (2003) 37 AAR 40
Tiranti-Valenti v Comcare (1996) 45 ALD 478
REASONS FOR DECISION
Deputy President S Boyle
8 March 2018
The Application

The Applicant seeks review of five reviewable decisions made by the Respondent under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). They are:
1. Application 2014/5639
A determination was made on 9 October 2014 (T85), under s 37(7) that on and from 9 October 2014, the Applicant’s rights to compensation under the SRC Act would be suspended until such time as the Applicant begins to undertake the rehabilitation program dated 2 October 2014 (T81). This determination was affirmed by a reviewable decision under s 62 of the SRC Act on 23 October 2014 (T89).
2. Application 2015/6468
A determination was made on 20 November 2015 (T107) denying liability under s 14 of the SRC Act in respect of the Applicant’s claim for the injuries sustained on 12 June 2012 namely: “right hip, left knee, left shoulder & neck”. This determination was affirmed by a reviewable decision under s 62 of the SRC Act on 1 December 2015 (T109).
3. Application 2016/2258
A determination was made on 21 April 2016 (T114) which denied liability for compensation under s 14 of the SRC Act in respect of a claim for compensation for depression. This determination was affirmed by a reviewable decision under s 62 of the SRC Act on 28 April 2016 (T116).
4. Application 2016/3477
A determination was made on 7 June 2016 (T129) denying liability for medical treatment under s 16 of the SRC Act in respect of “anterior cervical fusion” on the basis that on 20 November 2015 liability had been denied in respect of a further injury to the Applicant’s neck. This determination was affirmed by a reviewable decision under s 62 of the SRC Act on 28 June 2016 (T134).
5. Application 2016/3563
A determination was made on 28 June 2016 (T133) denying liability for treatment under s 16 of the SRC Act for a “neuromodulation stimulator” (NMS) in respect of the accepted injury for “pain and paraesthesia left elbow and forearm to ulnar boarder left hand side, left foot, left hip, lower back and lateral chest wall” sustained on 12 June 2012. This was affirmed by a reviewable decision under s 62 of the SRC Act on 4 July 2016 (T136).
background
The Applicant was born in 1951. He commenced employment with Regal Transport as a truck driver in May 2011 (Respondent’s Amended Statement of Facts, Issues and Contentions (Respondent’s SFIC) dated 15 December 2016, paras 2 and 3). At some point Regal Transport became, or was taken over, by the Respondent.
At some time around 8.30 am on 12 June 2012 the Applicant was struck by a forklift at the Respondent’s business premises in South Guildford. The impact knocked the Applicant to the ground and he was momentarily rendered unconscious.
Immediately following the Applicant being struck he was taken by another employee of the Respondent to the rooms of Dr Peter Brockhoff of the Kinetic Health practice in Kewdale for medical treatment and review.
On 12 June 2012 Dr Brockhoff issued a Workers’ Compensation First Medical Certificate (T4) which relevantly noted:
Presenting complaint:
Hit by a forklift and slammed into the forklift mask [sic] when tines swept him off his feet. C/O pain and paraesthesia left elbow and forearm to ulnar border left hand.
Also, C/O pain left foot which was hit by the tines and left hip, trunk and lateral chest wall.
Examination:
Abrasion over medial left elbow pain on flexion/extension.
[N]o visible bruising elsewhere but generally tender.
The “First Medical Certificate”, certified the Applicant as being fit for a restricted return to work commencing 12 June 2012 to 19 June 2012 with the following restrictions:
(a)no lifting anything heavier than 5kg with left arm;
(b)avoid repetitive bending/lifting;
(c)avoid repetitive use of affected body part; and
(d)other restrictions: light office duties and no truck driving.
The Applicant made a claim for workers’ compensation on 13 June 2012 (T7).
In a determination under the SRC Act dated 3 July 2012 (T11) it was determined by the Respondent that it was liable to pay compensation in accordance with s 14 of the SRC Act “in respect of bruising over left elbow, left lateral foot and left hip sustained on 12 June 2012” with medical treatment and incapacity as deemed appropriate by a legally qualified medical practitioner pursuant to ss 16 and 19 of the SRC Act respectively.
In a reconsideration on own motion under s 62(1)(a) of the SRC Act on 25 September 2015 (T102) acceptance of liability was changed to “pain and paraesthesia left elbow and forearm to ulnar border left hand side, left foot, left hip, lower back and lateral chest wall sustained on 12 June 2012”. On 22 December 2016, by a further reconsideration on own motion under s 62(1) of the SRC Act, the Respondent varied the determination dated 3 July 2012 to deny liability for the Applicant's claim. That determination is the subject of a separate application before this Tribunal.
After the injury the Applicant has not returned to normal duties although he did return for a period on restricted suitable duties and restricted hours until October 2014.
On 12 June 2012 Dr Brockhoff issued the first medical certificate (T4) in the terms set out in paragraph 5 above.
Dr Brockhoff provided a progress medical certificate to the Applicant on 20 June 2012 (T9) which noted that the Applicant was “[g]enerally improving but residual bruising and tenderness over the left elbow, left lateral foot and left hip. Tender nodule on left ulnar. ? Periostitis.”
The progress medical certificate dated 20 June 2012 certified the Applicant as fit for restricted return to work from 20 June 2012 to 4 July 2012 with the following restrictions:
(a)no lifting heavier than 10kg with left arm;
(b)able to undertake duties agreed between doctor and employer; and
(c)other restrictions: no truck driving.
On 4 July 2012 Dr Brockhoff issued a further progress medical certificate (T90, pages 388-389) and referred the Applicant for physiotherapy with a suggested schedule of one to two sessions per week over a period of four weeks (T12).
Dr Brockhoff issued further progress medical certificates for periods up to 21 August 2012 (T90, pages 391-394). These certificates noted the Applicant was fit for a restricted return to work. They generally nominated the following restrictions:
(a)no lifting anything heavier than 8kg;
(b)avoid repetitive bending;
(c)avoid repetitive use of affected body part; and
(d)avoid prolonged standing/walking/sitting.
From the end of August 2012 Dr Preetham took over the care of the Applicant and issued progress medical certificates in respect of the Applicant. The progress medical certificate issued by Dr Preetham on 24 August 2012 (T90, page 395) noted that the Applicant was:
… having ongoing low back pain with radiation to left buttock, left shoulder pain with restricted rom, left sided neck pain. some [sic] minor discomfort at left elbow and left foot also but this is improving. having [sic] physiotherapy currently. plan [sic] - x-ray + ultrasound left shoulder, ct lumbosacral spine. review [sic] with results.
Dr Preetham continued to issue progress medical certificates up to August 2014 (T90, page 450). On occasions in this period up to August 2014 progress medical certificates were also issued by other medical practitioners from Dr Preetham’s practice in Beldon.
Specialist medical reports
A report from Dr Martin Marshall of Perth Radiological Clinic dated 28 August 2012 (examination date 27 August 2012) to Dr Preetham (T17) reported in relation to the Applicant’s lumbar spine as follows:
·minor multilevel degenerative disc disease with disc bulges;
·no definite evidence for significant spinal stenosis and no evidence of focal nerve root compression; and
·no fracture evident.
A report from Dr Kit Frazer of Perth Radiological Clinic also dated 28 August 2012 of the results of X-ray and ultrasound of the Applicant’s left shoulder (T18) reported that:
·X-ray – the glenohumeral joint is normal. Mild age related degenerative change in acromioclavicular joint. No evidence of anterior acromial spur and no soft tissue abnormality with no evidence of rotator cuff calcification; and
·Ultrasound – mild bursal thickening but no evidence of high grade rotator cuff tear.
By a report dated 2 October 2012 (T21) neurosurgeon, Dr Soni Narula advised that:
Mr Wilson has been having symptoms in his left ankle, knee, hips and lower back and left shoulder and neck since then [the time of the accident on 12 June 2012]. With time symptoms have improved and he is now left with left shoulder and back pain.
…
I have explained to him that symptoms are arising from an underlying mild degenerative condition having become symptomatic. I have suggested an injection and have asked him to see Homan Zandi for review of his left shoulder. Conservative management is encouraged with hydrotherapy and active physiotherapy but not gym based as the latter is aggravating his symptoms.
Dr Narula’s report also advised that the Applicant “denies any past history of similar problems” (T21, pages 61-62).
The Applicant had injections at the L4/5 level on 9 October 2012 (T22).
By a report dated 30 October 2012 (T24) Dr Narula reported that the Applicant:
He had L4/5 injection which did give him numbness but this did not last. The lower back did not improve. He did require some time off work and is now back in light duties.
The Applicant had an MRI of his left shoulder. A report dated 12 November 2012 of the results of that MRI (T26) was prepared by Dr Rohan Van Driesen for Mr Zandi which advised that the Applicant had “inferior labral tear with inferior marginal septated paralabral cyst”.
Mr Zandi in a report dated 19 November 2012 on the MRI (T27), addressed to Dr Preetham, advised that the Applicant’s MRI “… shows that the rotator cuff is overall intact…” and that “[he] does have some AC joint arthropathy with active changes”. Mr Zandi, also noted that surgery on the labrum in the Applicant’s age group, is fraught with issues which can be hard to manage. Surgery, can elicit a reaction similar to a very active aggressive frozen shoulder. He therefore proposed trying non-operative measures.
A report on an MRI of the lumbar spine dated 27 November 2012 (examination date: 22 November 2011) (T28) by Dr Kit Frazer of Perth Radiological Clinic commented that “Mild multilevel lumbar disc degeneration is demonstrated but there is no focal disc protrusion and no canal stenosis or nerve root impingement.”
A report by Dr Narula of 27 November 2012 on the MRI scan reported that (T29):
(a)the scan showed slight hyperlordosis and mild desiccation at L3/4 and L5/S1 and mild facetal degeneration at L5/S1; but no canal or nerve root compromise; and
(b)symptoms appear to be from the lower segments of the spine and he suggested facet rhizotomies.
Dr Michael Alexeeff, Consultant Orthopaedic Surgeon, examined the Applicant for the Respondent on 16 January 2013 and produced a report on 22 January 2013 (T34).
In that report Dr Alexeeff also noted that the Applicant advised of ongoing symptoms of low back pain with buttock involvement, and a history of left shoulder symptoms, although it was unclear as to whether the left shoulder was indeed injured. He noted that the preamble to the letter from the Respondent seeking his report suggested a history of left elbow injury, left foot injury and possibly left hip injury, but he could find no convincing evidence of the same, and the Applicant advised him that the left elbow and foot symptoms had settled with the left hip symptoms not being a feature. His diagnosis (T34, page 89) was:
Left shoulder pain, possibly secondary to left AC joint arthropothy (unresponsive to injection of local anaesthetic and steroid), with the suggestion of intra-articular labral derangement, without evidence of shoulder instability.
Mechanical low back pain.
Likely left knee intra-articular derangement, with some features suggestive of medial compartment arthropathy.
No convincing evidence of residual left elbow or left foot pathology.
Dr Alexeeff’s report also noted that he had specifically obtained a history of low back pain, left knee pain, and left buttock pain. Following injection of the left shoulder the Applicant advised that the left shoulder was “fine”. Dr Alexeef also states that there were no referred left leg symptoms, that the left elbow symptoms had ostensibly settled and that the Applicant denied any neck symptoms (T34, page 84). The report notes that it was unclear to Dr Alexeeff, when the left shoulder symptoms commenced, and in the absence of a history of injury, it must be assumed that symptoms are constitutional, i.e. related to the visualised left AC joint arthropathy, and/or possibly the left glenoid labral derangement described on MRI scan of the left shoulder dated 12 November 2012 (T26). In any event, the shoulder appeared stable, and did not require surgical treatment.
Dr Alexeeff, noted (T34, page 90) the “interesting history… of persistent mechanical low back pain in the setting of a relatively preserved MRI scan appearance of the lumbar spine” (T28, Report dated 22 November 2012). He noted a history of a lack of response to epidural injection but was unable to review either the CT scan previously performed, or the epidural injection films. He made the comment, that the mechanical low back pain “is endemic in our society” and said there does not appear to be any convincing evidence of other significant lumbar pathology, apart from degenerative disc disease at the L4/5 level. He considered, that whilst it is possible that the incident aggravated the pathology as a result of the work injury: “it certainly is unusual to see symptoms persist with such reassuring imaging.” (T34, page 90).
Dr Alexeeff, considered that any injury effect to the left elbow and left medial scapula muscles, had largely resolved but that there remained symptoms of back pain, indicating that whilst the degenerative disc disease at L4/5 may have been aggravated by the incident, it is unusual for symptoms to remain in such circumstances unless the pathology is progressive. In response to the question as to whether the Applicant’s employment with the Respondent “continues to contribute to his condition” (T34, page 93), Dr Alexeeff responded:
On a balance of probabilities basis, whilst it is possible that the abovenamed aggravated the degenerative pathology imaged at L4/5 disc segment, the absence of major musculo-skeletal (bony) injury as a result of the work accident makes it likely that the abovenamed simply sustained soft tissue injury. As you would be aware, the maintenance of symptoms secondary to soft tissue injury for a prolonged period of time, is unusual. The natural conclusion to make is that the retention of symptoms is secondary to the degenerative pathology imaged.
By definition, degenerative pathology is slowly progressive. In other words, whilst the abovenamed may well have recovered from any injury effects caused by his employment with K&S Freighters, it may well be that his symptoms remain unabated.
Dr Hamid Hamzah, consultant in anaesthesia and pain management, reported to Mr Narula on 6 February 2013 (T37) that:
(a)the history included injury to the back, and the Applicant said that most of his problems had settled, but that his main complaint was now of back pain;
(b)he felt that most of the problems are related to joints which were tender clinically, and he proposed to arrange a diagnostic/therapeutic injection into the facet and sacro-iliac joints;
(c)the Applicant said that he was back at work 4 hours per day, but finds that he has to sit and stand and change positions frequently to relieve his back pain, and by the end of the day he is sore and tired; and
(d)that he needs to take Tramadol 50mg, and reclines his chair so he can have a nap but has trouble sleeping at night.

Dr Andrew Miles, neurosurgeon, reported to Dr Preetham on 8 February 2013 (T38) that:
(a)the Applicant reported ongoing, “more or less constant central lower back pain with intermittent stabbing radiation into both buttocks and a vague ache on the anterior aspect of both thighs… Constant pain is aggravated by any increased activity, sitting or bending/twisting”(T38, page 126);
(b)an MRI scan (the date of scan not cited), revealed very minor disc bulges at L4/5 and L5/S1, which he did not believe are relevant to symptoms. However, there was severe degenerative facet joint disease at both L4/5 and L5/S1, which is consistent with the localised tenderness in the region and exacerbation of pain on extension;
(c)the MRI scan changes are consistent with degenerative joint disease and are longstanding, however, the history provided of “absolutely no lower back pain prior to the work injury on the 12^th of June indicates that the degenerative joint disease was previously completely asymptomatic.” He stated that he explained to the Applicant that degenerative joint disease on imaging is normal in a man of his age, and almost always is completely asymptomatic. It is accordingly his view that the sudden and severe twisting injury to the lower back sustained in the collision with a moving forklift had resulted in injury to the facet joints rendering previously asymptomatic degenerative disease significantly symptomatic. Were it not for the work injury, the radiological degenerative joint disease would have remained completely asymptomatic for the foreseeable future, and he considered that the current symptoms are directly attributable to the work injury; and
(d)he considered, that the most appropriate course of treatment was a trial of facet joint injections at L4/5 and L5/S1 and, if necessary, proceeding onto formal facet joint cryo- or radiofrequency rhyzotomy.
In a report to Mr Narula by Dr Hamzah dated 3 April 2013 (T41), Dr Hamzah stated that he had reviewed the Applicant following facet and sacro-iliac joint injections. He reported, that this had not made any difference and that the Applicant continued to have back pain, which, according to Dr Hamzah, tended to aggravate the Applicant’s knees, particularly his right knee, whenever he walks any distance. He noted that the Applicant still tried to work four days per week for four hours per day on light duties, but finds that at the end of the day his back still worries him considerably and he has a lot of difficulty sleeping. Dr Hamzah noted: “I am a little concerned that the injections did not do much for him as I was convinced that most of his pain was related to his facet and sacro-iliac joints.” (T41, page 141).
Dr Hamzah’s report also says that the Applicant had arranged:
… a second opinion with Mr Andrew Miles who felt that perhaps the pain was due to some of his bulging discs which were dehydrated or desiccated and did have some fissures in them.
Dr Durda (Georgia) Bacvic, specialist in occupational medicine, examined the Applicant for the Respondent and reported on 10 April 2013 (T42) relevantly noting that:
(a)the Applicant, had been performing restricted duties and hours and he said he could hardly stay at work for four hours due to his symptoms;
(b)the Applicant, reported pain in the lower back and on certain activities in the left shoulder, and the left knee after prolonged walking;
(c)based on the history and objective findings, Dr Bacvic felt the Applicant had suffered an exacerbation of symptoms related to degeneration of the joints, as a result of the incident and diagnosed:
(i)mild multi-level lumbar disc degeneration; and
(ii)degenerative changes in the left shoulder.
Dr Bacvic, considered that the Applicant was fit for suitable duties on a full-time basis and that he should be able to gradually return to full working hours, as described in the initial rehabilitation planning report (T42, page 150). Moreover, that the Applicant should be able to return to truck driving. In the long-term, Dr Bacvic suggested the following restrictions:
(a)avoidance of heavy lifting and repetitive back bending;
(b)prolonged and repetitive activities at or above shoulder level; and
(c)prolonged climbing, due to pre-existing degenerative condition.
By report dated 27 April 2013 (T45) Dr Hamzah, reported to Mr Narula, after reviewing the Applicant with the result of a bone scan that confirmed that the Applicant has some inflammatory processes going on in his facet and sacro-iliac joints. He considered that it may be worthwhile proceeding with radio frequency rhizotomies to his lumbar, facet and sacro-iliac joints.
Dr Bacvic, provided a supplementary report to the Respondent on 6 May 2013 (T48). She was asked to review further medical material. She did, and it did not cause her to alter her initial views. Dr Bacvic was asked whether “bilateral L1/2, L2/3, L3/4, L4/5, L5/S1, S1, S2, S3 R/F rhizolysis – D/medrol” would benefit the Applicant. She said that typically this procedure was recommended to those who failed to respond to other conservative treatments. The Applicant received an injection to the lower back a month ago, but had derived no benefit. Based on the history of no improvement after the injection to the lower back, and objective findings of no tenderness in the sacrum, Dr Bacvic did not consider the Applicant would benefit from the procedure based on a reasonable degree of medical certainty (T48, page 176).
Dr Hamzah reported on 1 July 2013 (T52) that the Applicant did not undergo the rhizotomies on the back as permission was withdrawn by the insurer. He also reported that the Applicant still complained of low back pain, hip, and knee pain on the right side, and he considered that this was because of his inability to walk with a level posture. Dr Hamzah stated that he believed the reason the procedure was cancelled was that as the Applicant did not respond very well to the facet joint injections he probably would not respond to rhizotomies either. He recommended that a trial of Lyrica: 75mg every night initially and then twice daily if there were no side effects.
In a report dated 18 July 2013 (T54), Dr Hamzah responded to specific questions posed by the Respondent. Relevantly, Dr Hamzah considered the need for rhizolysis to be a direct result of the incident of 12 June 2012 and that x-rays showed some evidence of degenerative change, although he did not consider that the degenerative process was the cause of the existing pain. After undergoing the above procedure he expected there would be improvement in mobility and the ability to work. He stated that: “Hopefully, if the pain levels subside, he should be able to return to pre-injury employment following this procedure.” (T54, page 191).
Dr John Low, occupational physician, examined the Applicant at the Respondent’s request and in a report dated 24 February 2014 (T64) relevantly stated that:
(a)the Applicant, said that he had worked for Regal Transport for more than three years, and was employed full-time, averaging 12 hour shifts, five times per week and occasionally worked Saturdays but was usually based in the yard on Saturdays. He carted freight by semi-trailer. The freight, included boats, skip loaders, pallets, and crates of product. He had to secure his load with chains, binders, straps, and ratchets. He was also required to install gates and handle gluts. There was no manual loading and unloading of freight;
(b)he used a home gymnasium, three to four times per week for an hour each time, and enjoyed swimming three to four times per week in his home pool;
(c)the Applicant, claimed to be asymptomatic prior to 12 June 2012 but in “other past medical history” he said that in 2010 he strained his back when lifting a gate, but had no time off work and that the condition fully resolved within two to three weeks and that no treatment was required; and
(d)the Applicant had been a “hard drive memory plate engineer” for 17 to 18 years, and then managed a building construction company for five years in the USA. He came to Australia and commenced working as a truck driver in 2008.
Dr Low’s diagnosis was:
(a)mechanical low back pain;
(b)left shoulder labral tear with secondary impingement;
(c)left knee medial compartment pathology of mild extent, with evidence of ongoing good function; and
(d)cervical spine restricted range of movement most likely degenerative in origin.
Dr Low recommended a range of treatment but said the success or failure of any treatment especially an exercise program (and even a return to work program) was highly dependent upon the Applicant’s motivation and agenda (T64, page 235). Dr Low, said he could see no reason why the Applicant could not increase his work hours to full time pre-injury hours, undertaking suitable alternative duties which do not impose significant biomechanical load to the lower back, left shoulder, neck and left knee (T64, page 236).
Dr Low noted that the Applicant worked doing general office and administrative tasks and gatehouse duties including checking consignment notes verifying data. Dr Low stated that the injury is compatible with the pathology diagnosed and that the Applicant should not return to pre-injury duties. He could, however, commence truck driving on reduced hours on an intermittent basis so long as it fell within the other restrictions.
Dr Low considered he would have expected better improvement in the low back symptoms by the time of his examination and felt it possible that degenerative changes associated with age might be contributing to the slow recovery. Other than subjective complaints of pain and work tolerance, he could see no objective reason why the Applicant could not be working eight hours per day undertaking suitable alternative duties, work which the Applicant was already currently doing.
Dr Low suggested that perhaps issues of motivation and agenda were at play, probably inadvertently supported by the Applicant’s general practitioner (T64, page 237).
Dr Hamzah reported on 13 January 2014 (the report is misdated as 13 January 2013) (T33) that having reviewed the Applicant on 8 January 2014 he was informed by the Applicant that he had been having problems of over sedation with the use of Lyrica but continued to use Tramadol to help with pain. The Applicant informed him that the use of 75mg of Lyrica in the morning makes him very drowsy and unable to drive or return to work. Dr Hamzah suggested he take the Lyrica in the evening and a smaller dose in the morning.
Dr Hamzah reported again on 10 April 2014 (T65) and expressed the view that it would be worthwhile proceeding with radiofrequency rhizotomies because a bone scan showed some areas of inflammation in the Applicant’s facet joints.
Dr Low, reviewed the Applicant and reported to the Respondent on 10 August 2014 (T72). He noted that 25 months post-accident the Applicant’s condition had not improved since last seen, and work function had deteriorated to the point where he was now completely off work after the rhizotomy undertaken in approximately June 2014. He was taking more pain medication than when last seen by Dr Low (T72, page 255).
Dr Low, noted (T72, pages 256-257) that the Applicant demonstrated classic “yellow flags (psychosocial factors likely to be adversely affecting full recovery and rehabilitation),” and that:
Overall, my impression is that these yellow flags are the predominant cause of his disability rather than significant objective pathology. As such, return to work effectively within the claim without significant levers to change his motivation and agenda (in other words returning to work voluntarily) is going to be very difficult.
Dr Low considered that the then proposed suitable duties plan was appropriate and said there was no physical reason why the Applicant could not be able to undertake a return to work program for four hours a day, five days a week. He said restrictions outlined in his earlier report (dated 24 February 2014) are within the capacity of someone who has sustained a moderate extent low back injury especially injuries which have objective pathology (i.e. more serious than this case). Dr Low did not envisage the Applicant returning to pre-injury duties as a truck driver.
In terms of drowsiness, Dr Low felt that if the Applicant was still drowsy and still taking medication, then he was taking too much and said “… Without significant levers to change his motivation and agenda, it is unlikely he will do so within the claim given the progress to date and his overall presentation.” (T72, page 258).
Dr Hamzah, reviewed the Applicant on 27 June 2014 and reported to Dr Preetham on 3 July 2014 (T72, page 265). He noted that there had been “rather extensive radiofrequency rhizotomies to his low back and sacro-iliac joints”. There were side effects of hyperparaesthesia and skin sensitivity to the back which seemed to be settling. There were two areas very close to the midline in the L5/S1 area which were quite tender and most likely related to ligaments. All other areas of the facet and sacroiliac joints appeared to be quiescent. Dr Hamzah suggested that the Applicant continue with his exercise program and it was noted that he was taking Tramadol, Lyrica and Palexia.
Dr Low, provided a further report dated 31 August 2014 (T75) after reviewing surveillance vision of the Applicant. The vision covered several days from 19 July 2014 to 1 August 2014. Dr Low, in assessing the surveillance vision, stated (T75, page 320) that it demonstrated the Applicant was:
(a)going out and about;
(b)driving on a recurrent basis, including manoeuvring in and out of carparks in shopping centres (which would require head turning);
(c)walking normally for sustained periods without restriction;
(d)changing positions from sitting to standing, and vice versa; including getting in and out of a small vehicle recurrently without restriction or hesitation;
(e)bending suddenly without adverse consequence; and
(f)generally moving freely without restriction.
Dr Low felt this was inconsistent with:
(a)the Applicant’s statement that he was spending his days sleeping, watching television and sitting around including a claim that “I attempted to walk once, twice and that didn’t work… I am in my house all the time… I don’t drive all the time because it is unsafe…”;
(b)the Applicant’s personal description of his pain and functional limitations; and
(c)the findings on formal and informal observation on clinical examination.
Dr Low’s opinion was that the Applicant:
…presented with pain and disability far in excess of what is expected at this point in time. Pain is subjective (self-reported) but the objective information obtained [sic] in the DVD surveillance footage confirms my belief that he does not really suffer as much disability as he presented during the medical examination. (T75 at page 321).
Dr Low considered the Applicant’s disability was due to “… motivation and agenda rather than objective pathology”. Moreover, Dr Low concluded that he believed that there was a voluntary decision by the Applicant to prolong his claim and present himself as being more disabled than he actually was.
Dr Low concluded that he could “…see no physical reason as to why [the Applicant] would not be able to return to his full duties of a truck driver…” at that time (T75, page 322).
Dr Tony Robinson, orthopaedic and knee surgeon, examined the Applicant for his solicitors and reported on 12 September 2014. Dr Robinson’s diagnosis (T83, page 368) was:
1.    Soft tissue inflammation of the cervical spine in the region of the disc spaces from C3 to C7:
2.    Impingement of the left shoulder;
3.    Soft tissue inflammation of the lumbar spine probably in the region of the facet joints at L5/S1;
4.    Tendinopathy and bursitis of the greater trochanter of the right hip;
5.    Retropatellar chondritis of the left knee.
Dr Robinson’s belief (T83, page 369) was that all of these conditions had been caused, to a significant degree, by the incident of 12 June 2012. He said the Applicant sustained an incapacity for full duties from the time of the incident and noted that the Applicant completely stopped work in May 2014 because of the increase in pain following rhizotomy in the lumbar spine. He noted that the Applicant was due to return to light duties in the near future but said the Applicant was totally incapacitated to return to work as a truck driver due to all of his conditions, especially due to the neck and back problems (T83, pages 369 - 370).
Dr Robinson felt all of the conditions had led to permanent impairments which he assessed (T83 at page 370) as follows:
(a)left knee WPI is 5% (Table 9.3);
(b)right hip WPI is 2% (Table 9.4);
(c)lumbar spine WPI is 8% (Table 9.17); and
(d)cervical spine WPI is 8% (Table 9.15).
He said the main problems appeared to be in the neck and back and that the left knee, right hip and left shoulders were not significant problems.
Dr Hamzah provided a report to the Applicant’s solicitors on 8 April 2015 (Exhibit 9). He advises that he was only able to view part of the surveillance vision being the Applicant driving his Toyota car “for a few minutes” but was unable to download the other surveillance vision. He advised that he was able to observe the Applicant getting into his car and driving off down the road. He noted that in that vision the Applicant “…did not seem to have any limitations of movement and certainly had no problems getting out of the car with his dog…”
Dr Hamzah, said he first saw the Applicant on 5 February 2013 on referral from Dr Soni Narula. His diagnosis at that time was the possibility of degenerative facet joints and inflamed sacro-iliac joints. The Applicant underwent facet and sacro-iliac joint injections which did not make a huge difference and he continued to have back pain.
Dr Hamzah observed that extensive radiofrequency rhizotomies of the lumbar facet and sacro-iliac joints were not helpful. He felt that the Applicant should continue with exercise programs, stretching exercises, heat and massage, analgesics and anti-inflammatories.
Dr Hamzah advised that the “… prognosis of [the Applicant’s] condition remains guarded…” (Exhibit 9, page 3). At point 7 on page 3 of Exhibit 9 he expressed the view “that [the Applicant’s] accident at work contributed significantly to all of his symptoms”. He says that the Applicant may have had degenerative change but that was asymptomatic prior to the accident.
Dr Hamzah, stated that the restrictions placed by Dr Chudasam, (the Tribunal assumes that this is meant to be a reference to Dr Chudasama) on 31 October 2014, (the Tribunal assumes that this is a reference to the progress medical certificate issued by Dr Chudasama on 31 October 2014 which was included in the bundle of documents sent to the Tribunal by the Applicant’s lawyers on 2 March 2017) were suitable and that the Applicant could continue with restricted work hours for four hours per day. The work was to start in the morning with restrictions which require him not to lift anything weighing heavier than 3kg, to avoid repetitive bending and lifting, avoid repetitive use of the spine and avoid prolonged standing, walking and sitting (Exhibit 9, page 3).
Dr Hamzah did not believe that the Applicant would be ready to start work in compliance with the proposed work program prior to taking medication at 8.00am as when he gets up first thing in the morning he is very stiff and sore and needs to do the stretching exercises and use heat and massage to enable him to move better. The addition of his medications with the analgesics and anti-inflammatories tended to enable him to move much better and hence start work. Dr Hamzah said that after the Applicant takes the medications he is much more mobile and able to partake in the work ready program.

Dr Hamzah expressed the view that the Applicant was not able to operate a one tonne truck while on all his medications because they tended to make him drowsy. According to Dr Hamzah the Applicant also tended not to be able to concentrate very well and therefore would be a danger to himself and others if he were in control of a one tonne truck (Exhibit 9, page 4).
In terms of the driving ability of a small car for a short period, Dr Hamzah felt that the Applicant would probably be able to concentrate enough to reach a destination within 20 minutes or so from home.
Dr Hamzah was specifically asked to look at the surveillance vision. As noted above, apparently he was only able to download one aspect of driving, but in that vision he observed that the Applicant was able to get in and out quite easily of his motor vehicle and drive from point A to point B without any great difficulty. On that basis Dr Hamzah felt the Applicant should be able to drive a small vehicle but doubted whether he would be able to drive a one tonne truck over any prolonged period of time. He considered that it would be reasonably safe for the Applicant to drive a private vehicle four hours after he has taken his medication and the distance should be within 20 minutes of home (Exhibit 9, page 4).
Dr Hamzah did not believe the Applicant was ready to return to full time pre-injury duties at all and his prognosis for this was very poor (Exhibit 9, page 5).
Dr Low re-examined the Applicant on 23 September 2015 (and 8 October 2015 to complete an examination of his shoulder) at the request of the Respondent’s solicitors. Dr Low provided a report dated 18 October 2015 (Exhibit 18) which contained a lengthy revision of his earlier reports since the last occasion on which he had examined the Applicant on 28 July 2014 (T72). Relevantly, he noted that according to the Applicant his symptoms in respect of his lower back, left shoulder, hips, neck and left knee had worsened despite his not working.
Dr Low noted that it had been some 39 months since the incident of 12 June 2012 without improvement and that the Applicant was still complaining of significant pain and dysfunction. He considered, that the Applicant’s complaints of pain and disability were largely subjective, however, they would preclude him from driving a truck, especially in the Perth metropolitan area (Exhibit 18, page 9).
He considered that, given the duration of the Applicant’s medication use, he would have developed a tolerance and should be fit to drive. He referred to the Ausroads/NTC Australia guide “Assessing Fitness To Drive For Commercial And Private Vehicle Drivers, March 2012” which says (Exhibit 18, page 9):
There is little direct evidence that opioid analgesics… have direct adverse effects on driving behaviour. Cognitive performance is reduced early in treatment, largely due to the sedative effects, but neural adaption is rapidly established. This means that patients on a stable dose of an opioid may not have a high risk of a crash… providing the dose has been stabilised over some weeks and they are not abusing other impairing drugs. Driving at night might be a problem due to persistent miotic effects of these drugs reducing the peripheral vision …”
Dr Low considered that the Applicant was entrenched in a subjective phenomenon of chronic pain syndrome. He considered that there was no physical reason why the Applicant could not engage in paid employment other than for his subjective complaints of pain and disability. His conclusion (Exhibit 18, page 12) was:
There is no physical reason why he cannot get to his place of employment.
…
There is no medical reason why he would not be able to safely drive a truck given the duration of time he has been on these medications. I again reiterate this does not take into consideration improper use of medication, and psychological issues such as motivation and agenda which can be more of a safety hazard.
Dr Low provided a supplementary report dated 24 April 2016 (Exhibit 19). His views had not changed since his previous report which is Exhibit 18. In relation to the injuries Dr Low’s views were (Exhibit 19, page 8):
·mechanical low back pain – no serious pathology other than pre-existing multilevel lumbar disc degeneration;
·left shoulder pain – impingement identified on clinical examination in both shoulders but this had not been consistent over the last 4 assessments and that labral tears are commonly present in asymptomatic individuals;
·bilateral hip pain – the right side most likely referred from the lower back and pain on the left side came on quite some time after the injury and even after Dr Low’s 2014 assessment;
·left knee pain – no significant pathology identified. The quadriceps muscle bulk and tone were excellent and bilaterally equal and this would not preclude the Applicant from climbing up and down the truck. The surveillance footage also confirmed no active pathology involving the left knee in October 2013 (more than 12 months post injury); and
·cervical spine degeneration – degenerative change was significant, and that symptoms had deteriorated since last seen and was now associated with neurological-like symptoms involving the left upper limb consistent with the expected natural progress of the degenerative change.
Dr Low considered that the return duties and rehabilitation plan of 2 October 2014 remained appropriate (Exhibit 19, page 11), and the Applicant was not precluded from returning to pre-injury duties by the left shoulder condition (although he may be restricted by the cervical and right shoulder conditions which he regards as not being work related) (Exhibit 19, page 10, answer to question 7).
In relation to the reconsideration on own motion dated 25 September 2015 which added the back injury to the accepted compensable conditions, Dr Low considered that the work contribution had resolved (Exhibit 19, answers to questions 5 and 11).
Dr Low believed that the medication use related to the Applicant’s musculoskeletal complaints is excessive and the Applicant should be weaned off this over the next six months. However, given degenerative change and recent significant deterioration the analgesics are required for the non-work-related neck symptoms (Exhibit 19, answer to question 12).
Dr Philip Hardcastle, orthopaedic surgeon, reported to the Respondent’s solicitors on 8 October 2015 having examined the Applicant on 6 October 2015 (Exhibit 10). Dr Hardcastle took a comprehensive history of the circumstances of the incident of 12 June 2012 when the forklift struck the Applicant, a past medical and claims history, treatment received to the date of his examination, the Applicant’s present status in relation to symptomology complained of and undertook an extensive clinical assessment.
Dr Hardcastle noted the following:
(a)the Applicant denied any previous motor vehicle accidents or workers compensation injuries (Exhibit 10, page 2);
(b)the Applicant’s hobbies used to be going to the movies weekly, sightseeing and family orientated social activities which he would do every few months (Exhibit 10, page 2);
(c)the Applicant had not undergone any surgical treatment or any specific physiotherapy, however, he undertook nearly three months of hydrotherapy. He had attempted a gym program after the hydrotherapy had ceased but was unable to attend more than three times because of increased pain (Exhibit 10, page 3);
(d)the Applicant had been treated by Dr Hamzah for pain management;
(e)that the Applicant’s then medications included; Lyrica 75mg taken in the morning and evening, Palexia 100mg daily, Tramal slow release 100mg daily, Tramal 50mg tablets which are used occasionally and up to a maximum of eight tablets a day and Paracetamol/Codeine which he takes one or two tablets at a time and up to a maximum of eight per day (Exhibit 10, page 4).
In relation to the Applicant’s symptoms, Dr Hardcastle recorded symptoms to the Applicant’s neck, shoulders, left arm, lower back, legs, hips and left knee.
Following a clinical assessment of the Applicant in consideration of the radiological reports commencing in January 2009 with the last being a plain X-ray of the Applicant’s cervical spine dated 15 April 2014, Dr Hardcastle expressed the view that;
I would not be of the opinion that there is likely to have been a significant injury to his left knee with the radiological findings being consistent more with longstanding degeneration.
He reports that his right shoulder and right hip symptoms are of more recent origin because he has had to limp causing the hip and shoulder problem because he has been using it more. But overall I could not identify any specific activities that he has been involved in from his report that is going to put any extra stress on the right shoulder or right hip region to cause any significant issues and this is confirmed by his clinical findings.
Therefore in relation to his injury the evidence would support that the cervical and lumbar spine (particularly the lumbar region) were aggravated by the accident as was his left shoulder, left hip, left foot.
(Exhibit 10, page 9)
Dr Hardcastle provided a “current diagnosis” (Exhibit 10, page 10) of:
[M]echanical neck pain and probably some of bursitis of the left shoulder, mechanical low back and referred pain to the hips with early degeneration of the left knee with some synovitis.
Dr Hardcastle, considered that the rehabilitation program dated 2 October 2014 was appropriate as he could not see any medical reason why the Applicant would not have the capacity to undertake reduced hours on modified duties as proposed. He also considered that the Applicant had the potential to get back to pre-injury duties but that at this stage, taking into account his age and the very long period of time that would be involved in rehabilitating him, it would be more important to look for alternative work options such as supervisory work. He noted that the Applicant had been in receipt of a disability pension for some two months (Exhibit 10, page 10, answer to question 5.1.3).
On the question of the appropriateness of the medication being prescribed for and taken by the Applicant (answer to question 5.3.1), Dr Hardcastle noted that:
His current medications for his pain include Lyrica which is for neurogenic or nerve problems, but I could not identify any specific nerve problems. Palexia and Tramal are for pain and these would be considered reasonable at this stage.
In answer to the question 5.2 on pages 10 and 11 of Exhibit 10 as to whether he considered that the lumbar spine and neck injuries should be accepted as arising from the accident of 12 June 2012, Dr Hardcastle responded:
It is difficult to be specific in relation to this as there is no specific history of what happened after the initial impact on his foot, apart from the fact that he hit the mesh of the forklift and had dizziness and his medical team at the time only considered an x-ray of the left elbow appropriate. But taking into account the first recorded symptoms were initially of the left sided neck and low back pain, one would, on the current evidence, have to accept that these would be accepted injuries.
Dr Hardcastle did not see any specific medical reason why the Applicant could not drive his own personal vehicle or a truck with the medications, unless there were side-effects. He noted that he was not sure of the legal situation in respect of this. He further noted, in respect of the Applicant’s capacity to undertake truck driving, that it would depend on how he reacted to such medication.
In relation to the surveillance vision, Dr Hardcastle noted that it seemed to establish the Applicant could drive a car reasonably well and did not seem to have any specific problems noting that the driving that he observed was done at different times with the earliest being around 10:30 am (Exhibit 10, page13).
When asked whether the viewing of the surveillance vision caused him to alter his clinical observations, Dr Hardcastle responded (answer to question 5.6 on page 13):
…There was certainly nothing I reviewed on the video that demonstrated any external signs of any specific disability appreciating the subjective nature of the symptoms, but he certainly moved and seemed to function as one would expect in a normal fashion.
I appreciate the video does not show him doing any physical manual work or truck driving, but I just saw general activities that were shown on the video sequences with him walking his dog, washing it, getting into and out of the car (and including backing the vehicle), squatting beside the car, walking around shopping centres, buying certain items, pushing trolleys.
On none of the sequences did I see any evidence of any specific restriction of an activity or movement that would be considered related to pain inhibition.
Dr Miles, provided a report to the Applicant’s general practitioner, Dr Chudasama, dated 7 April 2016 (T126, pages 597-599). Dr Miles stated that he had seen the Applicant only once before in February 2013.
Dr Miles noted that the Applicant now presents with ongoing back and buttock pain radiating into the groin and thigh bilaterally, but without any true lumbar radicular pain. The symptoms are aggravated by increased activity, prolonged sitting and static standing (T126, page 597). The Applicant complained of ongoing more left-sided neck pain radiating into the left scapular region as well as bilateral hand numbness and intermittent pain down the lateral aspects of his left arm (T126, page 598).
Dr Miles observed that recent imaging with MRI scans of the Applicant’s cervical and lumbar spines showed relative normal appearance of lumbar disc but with mild – moderate degenerative facet joint arthropathy at L4/5 and L5/S1. There was no evidence of nerve root impingement. The cervical MRI scan documents showed more severe degenerative disc and facet joint disease at multiple levels with a moderate degree of cervical stenosis at C4/5 and a focal area of myelomalacia (T126, page 598).
Relevantly, Dr Miles observes that he did not formally assess the cervical symptoms at the previous consultation in 2013, however, the history provided by the Applicant is well documented in Dr Hamzah’s correspondence of 2014 and indicated that the Applicant has had neck symptoms ever since his work injury. He observed that
These have to some extent been “ignored” as his predominant disabling symptoms have been related to his lower back and buttocks. He certainly has significant degenerative change in the cervical spine that in fact is radiologically far more severe than in his lumbar spine and he does complain today of significant neck pain and referred arm symptoms.
Dr Miles also noted that:
Although Larry’s lower back and buttock symptoms may represent an exacerbation of chronic facet joint pain, it is interesting that he is now quite tender over the sacroiliac joints, which was noted also by Dr Hamzah. It may well be that at least some if not all of his symptoms may have been arising from an exacerbation of degenerative sacroiliac joint disease since the work injury.
Dr Miles indicated that he had organised a cervical bone scan and cervical flexion/extension x-rays and intended to review those in the context of the Applicant’s cervical MRI and repeat clinical examination when he sees him next. There was also appended to the report quotation for the costs of surgery to the Applicant’s cervical spine using an anterior cervical fusion procedure (T126, page 599).
Dr Miles provided a further report dated 28 April 2016 (T126, pages 595-596). The report notes the low back symptoms remained unchanged. A CT scan of the lumbar spine/sacroiliac joints confirmed moderately severe degenerative change in the sacroiliac joints as well as significant degenerative facet joint disease at L4/5 and L5/S1. The bone scan confirmed more extensive active degenerative disease in not only the L4/5 and L5 S1 joints but also upper lumbar facet joints from L1/2 to L3/4.
Dr Miles noted:
Larry clearly has widespread symptomatic degenerative disease affecting his lumbar facet joints and sacroiliac joint. Given the extent of symptomatic pathology, I don’t feel that surgical intervention is a realistic option for his lower back pain. I have organised for Larry to see my neurosurgical pain specialist colleague, Dr David Holthouse, for an opinion in regard to neuromodulation with a stimulator as I think that that is now the only option for him.
…
The relationship of Larry’s cervical symptoms to his original work injury is currently being disputed and Larry is seeking legal advice. I have previously stated in regard to Larry’s lumbar degenerative disease that the changes were pre-existing but previously asymptomatic and rendered symptomatic by his injury. The same would apply to his cervical degenerative disease based on the history he provided to the other treating clinicians of slowly worsening neck and arm pain after the injury that was not present prior to the injury.
In contrast to the Applicant’s lumbar spine degenerative disease affecting the facet joints and sacroiliac joints, Dr Miles states that there is a role for surgical decompression of the Applicant’s cervical spine with symptoms and associated pathology at C3/4, C4/5 and C5/6 anterior compression and fusion/fixation (T126, page 596).
Dr Frederick Ng, psychiatrist, provided a report to the Applicant’s solicitors dated 8 June 2016 (Exhibit 14) stating that the Applicant provided a “… plausible history of being both physically and emotionally traumatised by a work accident on 12 June 2012, and he reported ongoing physical sequelae arising from that accident.” (page 11). Dr Ng also recorded that “he [the Applicant] reported becoming increasingly worried about his situation, increasingly depressed and anxious…” Dr Ng also reported the Applicant as having advised him of having “transient suicidal ideation”.
Dr Ng diagnosed the Applicant has “… at least an adjustment disorder with mixed anxiety and depressed mood (DSM 5) at its worst to a moderate to moderately severe extent and which is currently partially treated” (original emphasis) (page 13). Dr Ng further stated that “… with the passage of time it is now bordering on that of a major depressive disorder”.
In answer to the question of whether the work incident had caused or contributed to the Applicant’s psychiatric disorder, Dr Ng responded (page 14):
The answer is yes.
In particular, the reported physical pain and discomfort with associated physical functional restrictions and the psychosocial and occupational context as a consequence of the work accident have all significantly contributed to and materially precipitated the adjustment disorder.
Dr Ng also considered that the Applicant would benefit from further psychotherapy of at least 12 further sessions, once every three to four weeks. If provided by a consultant psychiatrist this would cost approximately $350 per session. He also recommended a trial of antidepressant medication for one to three years at a cost of $50 to $100 per month.
Dr Ng believed the Applicant would have difficulties returning to his pre-accident work role due to the physical difficulties which are outside his area of expertise, however, from a psychiatric perspective, there was a retained work capacity of eight to twelve hours per week “(only if he were physically able to do so)” (original emphasis) in any role where he had prior training, experience, and qualifications. He was currently, however, unable to work full time due to his psychiatric symptoms.
Dr Ng considered it was premature to quantify permanent impairment given that a trial of antidepressant medication in conjunction with further psychotherapy may lead to some psychiatric improvement (Exhibit 14, page 16).
Dr Hardcastle provided a supplementary report dated 20 June 2016 (T131) which responded to specific questions relating to options for treatment. In relation to the lower back symptoms, Dr Hardcastle was asked whether he saw anterior cervical fusion as an option. He responded that :
There are radiological indications for anterior cervical fusion.
..
I would consider this reasonable for his denied neck condition.

In response to the question of whether the Applicant required lower back neuromodulation stimulator implants, Dr Hardcastle responded:
I do not see any clinical or radiological indications for lower back neurostimulation
…
I do not consider neurostimulation is particularly indicated in this situation, on the basis of clinical and radiological findings. I enclose a copy of his latest MRI report of 5 February 2016. These have only shown aged related changes, as per the report from Dr Fallon, with no evidence of any neural compression issues. From my review of the clinical situation, he has mechanical type back pain and no specific evidence of radicular or neural compression pain. Therefore, I do not see any indications for this type of treatment.
Dr Low provided a supplementary report dated 26 June 2016 (T132). It was his view that the Applicant required cervical spine surgery as recommended by the treating neurosurgeon. He had also previously expressed the view that the neck condition is not a compensable injury. He said:
There was no serious pathology identified in the lumbosacral spine and the degenerative changes were not severe enough to contribute to any significant self-reported pain and disability. In addition to the psychosocial barriers identified likely to be affecting his presentation of pain and disability, there is the lack of good clinical evidence as to the efficacy of neuromodulation stimulator implants in the management of non-specific low back pain. I believe that insertion of such an implant to the lower back is absolutely contraindicated.
Dr Gemma Edwards-Smith, consultant psychiatrist, provided a report dated 26 July 2016 (Exhibit 15) having reviewed the Applicant on 13 July 2016 at the request of the Respondent. Dr Edwards-Smith noted a history provided to her by the Applicant concerning the incident of 12 June 2012, including the symptoms that the Applicant indicated that he suffered bleeding from his left elbow but also that he had “hurt everywhere” (page 2).
Dr Edwards-Smith relevantly noted the Applicant’s physical injuries, including an injury to his neck and back, and stated that she had been advised by the Applicant that his neurosurgeon had recently conducted some investigations and discovered that the injury “… was only a few millimetres of [sic] hitting his spinal cord…” and his neurosurgeon had recommended fusing his neck. She recorded that he had advised her that he had initially returned to work on light duties on a part-time basis but that this had been a struggle as he was in so much pain. He had stopped working in May 2014 because he was in so much pain (Exhibit 15, page 3).
Dr Edwards-Smith took a history of past injuries and medical treatment from the Applicant. Her report indicates that the Applicant advised only having been involved in a car accident when a car backed into his front fender, damaging his vehicle, but that he had not sustained any physical injuries.
The report indicates that the Applicant stated that before the incident of June 2012, he was “doing great” and that he did not think he had sustained in the past any serious injuries or accidents. He stated that in 2009, when he began work in Australia, that he had twisted his back and had some symptoms, but that he had seen his general practitioner and had recovered.
Dr Edwards-Smith set out the Applicant’s current medications, substance use, past psychiatric history, family psychiatric history, and developmental history. Relevantly, she noted a close familial history which included two divorces. She noted, that the Applicant had become progressively quite isolated socially and did not have any friends in Australia, claiming that he had become depressed and irritable and that he believed that the medications he was taking caused him to be often sedated, sometimes dizzy, forgetful, and he thought that he was only well enough to drive in his local area (Exhibit 15, page 6).
Dr Edwards-Smith noted that the Applicant had informed her that he was under considerable financial pressures, particularly as his workers’ compensation payments had ceased in 2014 and he had exhausted his savings and that Centrelink payments were inadequate to meet his financial commitments. The report further noted that the Applicant said that since the end of 2012 he had been irritable, unhappy, and depressed with intermittent suicidal thoughts.
Dr Edwards-Smith set out the current psychological symptoms complained of by the Applicant of feeling “… unhappy, down, and depressed in his mood”. She noted that the Applicant had no active planning in relation to suicide. With regard to physical symptoms the report notes that the Applicant complained of his psychological issues and indicated that he had difficulty driving due to his pain and, for example, could not get into the cab of the truck due to his pain and that shifting gears and the bouncing of the truck would aggravate his back and neck pain (Exhibit 15, page 6).
Dr Edwards-Smith noted that the Applicant said that due to sedation from medications he was concerned about the ability to drive his car and only drove in his local area when he needed to, for example, to go to medical appointments and buy food from the shops. It was noted that the Applicant did not have any particular interest in food at the time of her examination and that he had lost 10 kg in weight since his physical injury.
On undertaking a “Mental State Examination”, Dr Edwards-Smith noted some complaints of the Applicant as to his capacity to concentrate effectively although she noted it was not evident throughout the one hour interview. The report records the Applicant as describing himself as being depressed and down. Dr Edwards-Smith said that;
… He presented with a strong pain focus and was of the opinion that his physical injuries arose from the work accident. He indicated themes of frustration and irritability.
(page 7)
Dr Edwards-Smith, having reviewed the information upon which she had been briefed by the Respondent’s solicitors, concluded that the Applicant met the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth for “Major Depressive Episode” (page 11).
Dr Edwards-Smith noted that coming to this conclusion was done entirely upon the veracity and reliability of the Applicant’s history as provided to her by him. However, she further noted that the history of symptoms complained of by the Applicant had been called into question by the surveillance vision and information in the past, however, she considered if one accepts his self-report of his history in activities that he does meet the criteria for that diagnosis.
Dr Edwards-Smith noted that the Applicant had a prominent focus in his presentation upon physical, rather than psychological, symptoms. This gave rise to a comorbid diagnosis for “Somatic Symptom Disorder (SSD)” (page 12) which is applicable in individuals with somatic (i.e. physical) symptoms which are distressing and result in significant disruption of daily life, coupled with excessive thoughts, feelings or behaviours, related to the physical symptoms and associated with health concerns being features consistent with the diagnosis of SSD.
Dr Edwards-Smith further considered that in coming to the diagnosis of SSD it would be necessary that the cause of the physical symptoms may need to have an underlying medical pathology. In the Applicant’s case, such a diagnosis would be contingent “… on the authenticity of Mr Wilson’s suffering and experiences” (page 12).
Dr Edwards-Smith also noted the “incongruence” between the opinions of Dr Miles and Dr Hamzah that there was a physical basis for the ongoing physical symptoms complained of by the Applicant and the medical opinions such as those provided by Dr Low and Dr Hardcastle to the opposite effect. In this regard Dr Edwards-Smith noted the challenges that arise from the incongruence in terms of specialist medical opinion concerning the Applicant noting that it was relevant to consider the issues of potential exaggeration and secondary gain and the prescribed pain medication and its effects.
Dr Edwards-Smith, on the question of causation, considered that it was outside her area of expertise in relation to whether the depressive illness was work-related given the discrepancies in medical opinion. She noted that there certainly did seem to be a preponderance of medical records which on balance did suggest that there have been issues with delayed recovery and presentation with symptoms which seem to be in excess of the underlying physical pathology (with any recent opinion from Dr Miles excluded), which would be, in her opinion, supportive of the presence of SSD but could not rest on a single incident. Dr Edwards-Smith, in that respect, noted that the Applicant experienced multiple and complex stresses in recent years including the breakdown (more recently) of his third marriage, in a country where he has, as best can be determined, no social supports (Exhibit 15, page 13, answer 6.2.2).
Dr Edwards-Smith considered that if the Applicant’s presentation were accepted as factually correct, then she considered that the Applicant’s psychiatric disorders could be considered to have arisen in the course of his employment (page 13).
However, Dr Edwards-Smith indicated that if the Applicant’s physical conditions are accepted as arising from the work accident, based upon his current presentation, she said that “I do not think I can be conclusive about this” (page 14).
Dr Edwards-Smith provided a further report dated 10 March 2017 (Exhibit 16) indicating that a report provided by Dr June Sim, occupational physician, of 20 February 2017 (Exhibit 20) concerning medication testing did not alter her opinion as expressed in her report of 26 July 2016.
Dr David Holthouse, neurosurgeon, examined the Applicant at the request of the Applicant’s solicitors and provided a report dated 5 December 2016 (Exhibit 13). Dr Holthouse considered that the Applicant was a likely candidate for the insertion of a NMS citing the view of Dr Miles that further surgery to the Applicant’s lower back is not an option. Dr Holthouse indicated that as part of a selection process he would typically get the patient concerned to do an education session and be seen by a pain psychologist just to make sure there is no contraindication.
Dr Wasim Shaikh, consultant psychiatrist and transcranial magnetic stimulation (TMS) specialist, examined the Applicant on 9 March 2017 at the request of the Respondent’s solicitors. TMS is a repetitive treatment option for depression. Dr Shaikh, provided a report dated 13 March 2017 (Exhibit 17).
Dr Shaikh noted, among other things, that the Applicant complained of a sense of frustration, lack of sleep/interrupted sleep due to pain, feeling trapped in his own home, at times having thoughts of suicide and flashbacks of the incident of 12 June 2012. It was noted that he is easily angered and aggressive resulting in arguments with his wife and, eventually, separation.
The report notes the Applicant indicated that he continued to experience pain in his neck, right shoulder, right hip, left knee and left shoulder. The Applicant told Dr Shaikh that prior to the incident and sustaining his injuries:
… he would go out to watch movies, visit restaurants, and go to meet friends - this now does not happen … his self-care is poor … His motivation toward showering is less [he had no reason for this] … He has not been eating well, and can miss meals… [he has] impaired concentration, such as forgetting dates, forgetting names and forgetting tasks… [his] attention levels are poor… He denies major concerns in relation to travel. He is able to use public transport, but notes anxiety in relation to driving. (Exhibit 17, page 8).
Dr Shaikh noted that the Applicant was under the care of Mr John Perera, psychologist, attending on him on a monthly basis since April 2015. The Applicant advised Dr Shaikh that whilst antidepressant medications have been considered, he had been told by his general practitioner that he is on “too many medications and does not need antidepressants.”
Dr Shaikh, undertook a “Mental State Examination” noting the interview had taken place via Skype and that the Applicant appeared to:
… have decent self-care, and was well-kempt … speech was appropriate… Despite his reports of impaired concentration/memory, he had decent recall of specific dates, going back a few years. He focused well during the assessment and did not appear to be distracted … [his] mood was subjectively low, and he expressed frustration. His affect reflected a level of agitation. There was no obvious anxiety otherwise. There were no psychotic symptoms or excessive phenomena. He noted occasional ideation of self-harm, but without intent or planning. His insight and judgement appeared fair. In summary, there were minimal inconsistencies in mental state examination. (Exhibit 17, pages 8-9).
Dr Shaikh concluded that the Applicant appears to suffer from symptoms reflective of an “Adjustment Disorder with Mixed Anxiety and Depressed Mood” with the symptoms in response to identifiable stressors. He noted that there were inconsistencies during his assessment of the Applicant that related to his cognitive disturbances, his description of circumstances/dates of marital separation and rather poor insight into the effects of prescribed high-dose analgesic medication. A proportion of the Applicant’s psychological complaints relate to his dissatisfaction with his employer and complaints against the compensation process. He also noted that, despite reports of psychological complaints going back a few years, psychiatric treatment had been quite minimal and he has not yet been prescribed psychotropic medication
Dr Shaikh, on the question of causation, noted that the psychological complaints made by the Applicant in response to the following factors:
(a)the effect of his perceived physical disabilities which are understood to be related to injuries deemed as compensable and those not deemed as compensable; and
(b)perceived dissatisfaction with the compensation process and with his employer.
Dr Shaikh found that the Applicant’s complaints were, to a significant degree, related to injuries which he perceived, as all injuries, being the effect of the event of 12 June 2012.
Dr Shaikh considering the question as to whether psychiatric condition suffered by the Applicant was due in whole or in part to the “accepted injuries”, “denied injuries”, or any other “matters or events” found that:
(a)the “accepted injuries” only partly contributed to the Applicant’s psychiatric condition because: “A lot of his psychological complaints relate to pain which I understand are not in response to accepted injuries”;
(b)the “denied injuries” also played a part in the Applicant’s psychological complaints; and
(c)the psychiatric condition had been also caused by the Applicant’s response to the “workers’ compensation process”.
Dr Shaikh, on the question of whether the Applicant’s psychological condition interfered with the Applicant’s work capacity said that he did not believe that psychological complaints being made by the Applicant would significantly interfere with his work capability.
Dr Shaikh, in accepting the Applicant’s alleged response to prescribed analgesic medication affecting his capacity to drive, found that the analgesic medications were very likely to prevent him from engaging in driving duties. The high doses of prescribed analgesic medication may affect his cognitive abilities as would his purported degree of pain and that from a psychiatric perspective, the only recommendation would be a gradual return to work, considering his extended period off work. He should otherwise be capable of undertaking duties as allowed by his physical condition.
Dr Shaikh, whilst he would accept that the Applicant’s medication being taken at 8 am would provide a reasonable excuse for not being able to drive, he did not see how the Applicant was unable to use public transport or other modes of transport to get to work.
Dr June Sim, occupational physician, examined the Applicant on 19 January and 25 January 2017 at the request of the Respondent’s solicitors. Dr Sim provided a report dated 20 February 2017 (Exhibit 20). Having taken an extensive history concerning the Applicant’s work history, medical history, social history, vocational rehabilitation and symptoms evident on examination on 19 January and 25 January 2017, she relevantly concluded that (see pages 13-14):
(a)the Applicant suffered from chronic mechanical low back pain, degenerative cervical spine, non-specific left shoulder symptoms with no evidence of impingement clinically, left knee medial compartment pathology;
(b)the Applicant does not require any treatment for the accepted conditions of pain and paraesthesia of the left elbow and forearm to the ulnar border of the left hand. He does not require treatment for his left foot, left hip and lateral chest wall;
(c)the Applicant is currently taking a number of painkilling medications for his lower back. It was recommended there be a gradual reduction of his pain medication as there is no clear evidence that this is assisting his symptoms. He displayed abnormal pain behaviour with fixation on his disability and this is likely to further impact on this;
(d)there was doubt as to whether the provision of NMS would be effective because there was no pathology evident on multiple scans of the Applicant’s lower back. There was some mild degeneration of the Applicant’s lumbar spine, however, his level of symptoms is disproportionate to the imaging reports and clinical findings. There are also inconsistencies in his clinical examination that would suggest that there are other factors contributing to his symptoms. Dr Sim would discourage further interventions in the nature of an NMS as it was likely to worsen his condition.
On the question of treatment for “denied conditions”, Dr Sim considered that the Applicant’s right hip pathology did not require further treatment. She noted that the Applicant did have left knee osteoarthritis and that it would be reasonable for him to undergo a cortisone injection. His condition was not of a severity which would require surgical intervention (page 14).
Dr Sim noted that the complaints of symptoms by the Applicant in his left shoulder were “non-specific” in nature. There was no evidence of impingement and no clear clinical evidence of adhesive capsulitis. Dr Sim further noted that she considered the Applicant’s neck symptoms were due to degeneration. She considered that he will require further intervention as he has developed right upper limb symptoms. Further surgery would need to be considered in view of his level of symptoms and that his current analgesic medication would partly be for the treatment of those symptoms (page 14).
Dr Sim indicated that she would also recommend that the Applicant completed a physical rehabilitation program to assist his mechanical lower back pain. His inability to tolerate physiotherapy and exercise programs indicates a reluctance to improve his conditioning (page 14).
Dr Sim did not expect that the Applicant would require restrictions in terms of his activities, (hours, days and timing) in relation to the undertaking of suitable duties, but noted that due to his neck symptoms he would struggle with sustained extension of forward flexion of his cervical spine. Dr Sim did not expect that the Applicant would be restricted from any issues in relation to his lumbar spine.
Dr Sim noted that the Applicant attributes alleged poor concentration and alertness to his medication. However, this was inconsistent with his presentation on both days when she examined him. She could see no medical reason why he is unable tolerate a full day of activities or the timing of the activities. He was alert and had a good memory, concentration and attentiveness in both consultations despite describing difficulties (page 15).
the hearing

It is clear from the above that since the time of the accident on 12 June 2012 the Applicant complained of symptoms affecting his left shoulder and left knee consistently and latterly his neck and hips. Further, as can be seen from the summaries of the various specialist medical reports set out in paragraphs 18 to 148, regular reference is made to the left shoulder, left knee, hips and neck as being symptomatic.
The Respondent also seeks to argue that insofar as there may be issues with these identified body parts, they are the result of degenerative change rather than related to the accident of 12 June 2012. Dr Hardcastle’s view on that issue is that even if there was some degenerative change present, the symptoms had been aggravated by the accident (see paragraphs 83 to 93 above).
Dr Miles is also of the view that the sudden and severe twisting injury to the lower back sustained in the accident on 12 June 2012 caused his previously asymptomatic degenerative disease to become “significantly symptomatic” and that if it were not for this injury the Applicant would have remained asymptomatic for the foreseeable future (see paragraph 34 above).
Dr Hamzah (see paragraph 42 above) also expressed the view that he considered the Applicant’s need for rhisolysis to be a direct result of the accident and that although there is evidence of degenerative change, the degenerative process was not the cause of the existing pain.
Dr Robinson also considered that the Applicant’s conditions had been caused to a significant degree by the 12 June 2012 incident (see paragraph 62 above).
Dr Bacvic further agreed the Applicant had suffered an exacerbation of symptoms related to the degeneration of the joints as a result of the incident (see paragraph 37 above).
In opposition to these views are the opinions of Dr Low (paragraphs 43 – 48 and 56 – 60) and Dr Alexeeff (see paragraphs 28 – 32) which are to the effect that they were not of the view that the degenerative changes were aggravated by the accident.
Based on the specialist medical reports and the contemporaneous progress medical certificates, the Tribunal is of the view that the claimed conditions relating to the right shoulder, right knee, right hip and neck are related to the work accident of 12 June 2012.
Accordingly, the Tribunal sets aside the reviewable decision of 1 December 2015 (T109) to affirm the Respondent’s determination of 20 November 2015 (T107) to deny liability and substitutes the decision that denial of liability by the Respondent’s determination of 20 November 2015 be set aside and that the Respondent determines that the Respondent is liable to pay compensation to the Applicant in accordance with s 14 of the SRC Act in respect of further injuries sustained to the right hip, left knee, left shoulder and neck sustained on 12 June 2012.
Liability for psychiatric injury 2016/2258
A determination was made on 21 April 2016 (T114) which denied liability for compensation under s 14 of the SRC Act in respect of a claim for compensation for depression. This determination was affirmed by a reviewable decision under s 62 of the SRC Act on 28 April 2016 (T116).
The issue for determination by the Tribunal is whether the Applicant suffers from the psychiatric conditions for which he claims and if he does, whether those conditions are caused by or were contributed to, to a significant degree, by the Applicant’s employment.
The Applicant’s supplementary witness statement of 7 December 2016 (included in Exhibit 6) sets out the circumstances of the onset of his psychological condition. His evidence was that;
…
4.    On 9 April 2015, my general practitioner referred me for psychological counselling.
5.    I started feeling depressed and low shortly after the accident I had in 2012, but the feeling had got worse over time.
6.    I did not have psychological problems before the accident in 2012.
7.    I had tried to cope with the feelings I was having, but I got to the point where I knew I needed to seek help.
8.    The level of pain that I experienced on a day to day basis has not really changed since the beginning of 2014 and that has really affected my mood.
The Claim for Workers’ Compensation form dated 22 March 2016 (T113) attached the progress medical certificate issued by Dr Chudasama on 9 April 2015 (T113, page 543). That certificate contained the following comment:
Pt has same level of pain, and feels same as previously has had the same level of pain for 1 year or so [sic].
Discussed Psychological part of insurance form (see scanned copy).
Pt has been low in mood since accident has been much worse as pain progress/remained uncontrolled.
Pt is currently isolated, unable to socialise.
Pt has had a low mood for a long time, but has been trying to hide it.
The Applicant was not cross-examined in relation to his psychiatric state. It appears that the Applicant was initially referred by Dr Chudasama to clinical psychologist John Perera (T113, page 537). In his report dated 8 June 2016, Dr Ng refers to report of Dr Perera dated 9 January 2016 (see Exhibit 14 at page 2). Unfortunately a copy of Dr Perera’s report was not provided, however, Dr Ng in his report of 8 June 2016 does not identify any reliance being place on Dr Perera’s report and reaches his own conclusions based on his examination of the Applicant.
In addition to the above, the Tribunal had before it the reports of the following doctors relating to the Applicant’s claim for depression:
·Dr Frederick Ng – report dated 8 June 2016 (Exhibit 14);
·Dr Edwards-Smith – report dated 26 July 2016 (Exhibit 15);
·Dr Edwards-Smith – report dated 10 March 2017 (Exhibit 16); and
·Dr Wasim Shaikh – report dated 13 March 2017 (Exhibit 17).
The difference between the parties is summarised in the respective closing submissions. Dr Ng’s evidence was that the Applicant suffered from “at least an adjustment disorder with mixed anxiety and depressed mood (DSM 5) at its worst to a moderate to moderately severe extent and which is currently being partially treated” (Exhibit 14, page 13). Dr Ng further stated that “with the passage of time it is now bordering on that of a major depressive disorder” (Exhibit 14, page 13).
In answer to the question of whether the work incident had caused or contributed to the Applicant’s psychiatric disorder, Dr Ng responded (Exhibit 14, page 14):
The answer is yes.
In particular, the reported physical pain and discomfort with associated physical function restrictions and the psychosocial and occupational context as a consequence of the work accident have all significantly contributed to and materially precipitated the adjustment disorder.
In its closing submissions the Respondent summarised the contrary evidence, that of Dr Edwards-Smith (report of 26 July 2016 – Exhibit 15) as follows:
8.2 … Dr Edwards-Smith, correctly noted the incongruent findings in respect of the medical opinion provided, for example, by Dr Low and Dr Hardcastle with that of Dr Miles and Dr Hamzah.
8.3. She also considered the issues of potential exaggeration and secondary gain particularly given the “very challenging” discrepancies in medical opinion regarding the cause, and indeed validity of the Applicant’s expression of pain.
8.4. Notwithstanding, she considered that if the Applicant’s presentation is accepted as factually correct then his psychiatric disorders: Major Depressive Episode and SSD; could be considered to have arisen in the course of his employment. The corollary, is that if the Applicant’s presentation has been ‘factually incorrect’ then the psychiatric disorders could not be considered to be related to the incident of 12 June 2012.
The Respondent’s closing submissions summarised Dr Sheikh’s evidence as follows:
8.5 Dr Sheikh, diagnosed the Applicant as suffering from: “Adjustment Disorder with Mixed Anxiety and Depressed Mood”; and correctly indicated that there were factors such as: pain from injuries which are not related to the incident of 20 [sic] June 2012; the workers compensation process; and the Applicant’s perception that all of the injuries he has alleged, was due to the effect of the 12 June 2012 incident.
8.6. Dr Sheikh, correctly identified the factors that were at play in the development of the Applicant’s psychiatric condition. Those factors were not sufficient for Dr Sheikh to positively conclude that the pain associated with the Applicant’s perception satisfied the ’significant’ contribution test.
The Tribunal takes the evidence of Drs Edwards-Smith and Sheikh to, in effect, agree that the Applicant suffers from the identified psychological conditions and that those psychological conditions are related to the Applicants physical injuries, or at least the Applicant’s subjective view of those injuries. The matter in contention that the two doctors raise seems to be whether the Applicant’s view that those physical ailments are, as a matter of fact, based on the evidence of the other doctors, correct. In other words, if the injuries that have caused the Applicant’s psychiatric condition were, as a matter of fact (rather than just in the Applicant’s mind) caused by the accident of 12 June 2012, then so is the Applicant’s psychiatric condition.
The Respondent puts it in its closing submissions that, “…if the Applicant’s presentation is accepted as factually correct then his psychiatric disorders…could be considered to have arisen in the course of his employment” (see paragraph 8.4). The meaning of the phrase “presentation accepted as factually correct” is not altogether clear. Similarly “the corollary, is that if the Applicant’s presentation has been ‘factually incorrect’ then the psychiatric disorders could not be considered to be related to the incident of 12 June 2012” is equally unclear. What the Tribunal considers Dr Edwards-Smith to be saying is that the Applicant’s depression is caused by his injuries, or his subjective perception of those injuries, and that if his linking of those disputed injuries to the accident of 12 June 2012 is “factually correct”, then it could be said that this psychiatric condition is linked to the accident of 12 June 2012. The Tribunal has found that the disputed injuries are linked to the 12 June 2012 accident. In that sense the Applicant’s connection is “factually correct”.
Dr Sheikh opined that “[a] lot of his psychological complaints relate to pain which I understand are not in response to accepted injuries” (see paragraph 139 above). Two things are worth noting in relation to that statement. The first is that for the reasons set out above the Tribunal has accepted that those conditions were caused by the work accident. Secondly, Dr Sheikh does not say that the Applicant’s psychiatric condition, which Dr Sheikh appears to accept does exist, would not have existed if only the accepted conditions existed.
For the reasons set out above, the Tribunal finds that, on balance, the evidence establishes that the Applicant’s psychiatric condition is linked to the accident of 12 June 2012 and that the accident contributed to that condition to a significant degree. The Tribunal accordingly sets aside the reviewable decision of 28 April 2016 and substitutes a decision that the determination of 21 April 2016 be set aside and that there be substituted in its place a determination that the Respondent is liable to pay compensation to the Applicant in accordance with s 14 of the SRC Act in respect of psychological injury; namely depression.
Application 2016/3477
A determination was made on 7 June 2016 (T129) denying liability for medical treatment under s 16 of the SRC Act in respect of “anterior cervical fusion” on the basis that on 20 November 2015 liability had been denied in respect of a further injury to the Applicant’s neck. This determination was affirmed by a reviewable decision under s 62 of the SRC Act on 28 June 2016 (T134).
The Respondent’s position, set out in paragraph 9.1 of the Respondent’s closing submissions, is:
The Respondent would concede that on a finding that the Applicant’s pre-existing degenerate cervical spine was sufficiently aggravated in the incident of 12 June 2012, such as to result in the need for the spinal fusion, that such treatment would be reasonable.
The medical evidence supports the view that spinal fusion is warranted. Dr Miles, who had been seeing the Applicant since February 2013 (see T126, page 597, the Report dated 7 April 2016), advised in his report dated 28 April 2016 (T126, at page 596) that:
…there is a very definite role for surgical decompression in the cervical spine and I think the symptoms and associated pathology warrant a C3/4, C4/5 and C5/6 anterior decompression and fusion/fixation.
At the hearing Dr Miles, in response to the question of whether fusion of the neck was an appropriate approach, responded:
…he has compression of the spinal cord. It’s the only treatment for it.
…
[physiotherapy is] certainly not going to help his cervical spine stenosis; it might make it worse.
(Transcript of 23 March 2017, pages 72 and 76)
Dr Low’s evidence was that he considered that the Applicant “does require a surgical procedure to manage the severe foraminal stenosis…” but that the “type of surgical procedure should be determined by a neurosurgeon.” (T132, page 635).
Dr Hardcastle’s view, expressed in his report dated 20 June 2016, was that he “…would consider this [anterior cervical fusion] reasonable for his denied neck condition” (T131, page 628).
The Tribunal has found in its decision in relation to application 2015/6468 that the Applicant’s neck condition was contributed to, to a significant degree, by the accident on 12 June 2012. Insofar as the Respondent’s concession in paragraph 9.1 of its closing submissions is qualified by the words “sufficiently aggravated in the incident…such as to result in the need for the spinal fusion”, then the Tribunal finds that that was the case.
For the above reasons the Tribunal finds that cervical fusion is reasonable medical treatment for the Applicant’s neck condition and sets aside the reviewable decision of 28 June 2016 and substitutes a decision that the Respondent’s decision of 7 June 2016 be set aside and that a decision be substituted that anterior cervical fusion is a valid treatment for the Applicant’s neck condition and that the Respondent is liable for the cost of such procedure pursuant to s 16 of the SRC Act.
Application 2016/3563
A determination was made on 28 June 2016 (T133) denying liability for treatment under s 16 of the SRC Act for a NMS in respect of the accepted injury for “pain and paraesthesia left elbow and forearm to ulnar border left hand side, left foot, left hip, lower back and lateral chest wall” sustained on 12 June 2012. This was affirmed by a reviewable decision under s 62 of the SRC Act on 4 July 2016 (T136).
The Applicant primarily relies on the opinion of Dr Holthouse. In his report dated 5 December 2016 (Exhibit 13) Dr Holthouse said:
In specific answers to your questions, I believe that neurostimulation probably does have something to offer this gentleman. He has neuropathic lower back pain which is improved with Lyrica, suggesting that he does have neuropathic symptoms. He does have some pain in his buttock but not radiating down his legs. I believe that there is a good chance that he may be improved with neurostimulation.
…
In conclusion, I believe that Mr Larry Wilson would in all likelihood be a good candidate for a neurostimulator. As part of the selection process we typically get them to do an education session and be seen by a pain psychologist of our choosing…
The evidence of Dr Miles, who referred the Applicant to Dr Holthouse, supports that view (T126).
The Respondent points to the evidence of Dr Hardcastle, Dr Low and Dr Sim. The effect of their opinions is that neurostimulation is not warranted in the Applicant’s case. Dr Hardcastle in his report dated 20 June 2016 (T131, page 628), in response to the question “Does the Applicant require lower back neuromodulation stimulator implants” and “If so, do you consider such treatment reasonable for accepted lower back condition?” stated:
I do not consider neurostimulation is particularly indicated in this situation, on the basis of clinical and radiological findings.
Dr Hardcastle, in response to the question of whether he saw any alternative procedures which might be utilised, answered (T131, pages 628-629):
I would utilise external TENS stimulation for his back pain and this could be used on an intermittent but regular basis if necessary.
I would encourage exercise and he is on some medication which he could continue at the current time, although I would try to reduce oral medication and consider the use of Indocid suppositories for periods of more significant pain, which would include the neck region as well as regular hydrotherapy and walking program.
Overall, I would not specifically recommend invasive treatment measures to the lumbar spine, but more non-invasive treatment methods which I have outlined above.
Dr Holthouse was cross-examined on Dr Hardcastle’s views. In relation to an alternative treatment to the implanting of a neurostimulator, the following exchange took place (Transcript dated 23 March 2017, page 88)
…as Mr Hardcastle points out, that notwithstanding the superiority in a sense, as you’re putting it for the neurostimulator, Mr Wilson might get adequate relief from using a TENS machine? - I’m more than happy to give him a trial of TENS if he would like that first, but having said that, I would suspect in this case it would fail.
You don’t know till you try, isn’t that the case, Doctor? - My clinical experience is that it would be ineffective.
Wouldn’t you prefer to at least give Mr Wilson the opportunity of no invasive - no invasive treatment, as opposed to invasive treatment, if it might work? - I - I believe that the TENS machine - I talked about tonic stimulation and tonic stimulation and how it’s relatively less efficacious for this sort of pain, and that is what is delivered by a TENS machine. Tonic stimulation has a characteristic whereby people become - they become rapidly accustomed to it. So the TENS machines tend to work for a few months and then what happens is they become accustomed to it. The earlier stimulators were inserted for nerve pain, and a lot of them would fail after six months because of the presence of this old atonic stimulation. And that’s why the newer types of stimulation are vastly superior to the old type which are similar but not the same to a TENS machine.
…
It’s not an unreasonable - for Mr Hardcastle to consider that a non-invasive treatment might be tried. It’s not unreasonable, is it? I’m happy - I would be happy to offer a trial of TENS, absolutely, I don’t have a problem with that.
Dr Holthouse’s opinion of the suitability of the implanting of neurostimulators was also subject to the caveat that prior to such procedure the patient would normally undergo some psychiatric assessment to ensure their suitability for the procedure. In that regard the following exchange with the Respondent’s counsel took place (Transcript dated 23 March 2017, page 89):
…I think the most important thing is, before a patient gets a permanent stimulator they have to have a trial. We talked about a trial for a TENS machine. Now, I mean, is that what I’d like to see in this case? I would like to see the patient given the opportunity to, I mean, to have a psychology opinion to see whether or not they are suitable for this, to have a trial of TENS to see whether it works, and to have a trial. And if a patient…
Could I just interrupt there? Yes.
What do you mean by a trial? Is that using the stimulator without going through its actual insertion into the body using it externally with wires going in? - Yes, you insert the lead and externalise it, so it runs into a device of clips on the patient’s belt.
And how long does that take? That’s just a day procedure, is it? - It’s usually a day or an overnight procedure.
And how much would that cost, the trial? - A trial I believe is actually - a trial generally costs about a thousand, because they’re substantially cheaper because obviously they don’t have the insurance that’s required for a longer term lead. A trial lead - I mean I think all up a trial would probably cost in the order of - I mean I’d have to say about maybe six or 7,000. You would want to trial them for a couple of weeks. Sometimes - especially the workers compensation cases, I would often get them assessed by a physiotherapist beforehand, and pain schools, then come back for one, two, or three weeks, and make sure that - that we’re sure that they obtain benefit from it.

In relation to the cost of the implanting of the neurostimulator sought by the Applicant, Dr Holthouse’s evidence (Exhibit 13, Report of 5 December 2016 - Exhibit 13) was that that procedure would cost:
…approximate[ly] $60,000 - $70,000. This overall cost would reflect the cost of hardware, surgeon’s fees, anaesthetic fees and hospital admissions. Depending on the complexity of the stimulator system, it is possible that the stimulator may cost up to $80,000.
Section 16(1) of the SRC Act provides as follows:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment. (Emphasis Added).
In the decision of Jorgensen and Commonwealth (1990) 23 ALD 321 at [325] Gray J said “[t[he idea of reasonableness involves objectivity”. (See also Tiranti-Valenti v Comcare (1996) 45 ALD 478; Re Roberts and Military Rehabilitation and Compensation Commission (2011) 124 ALD 78 at [9] which agreed with and applied Gray J’s analysis). Relevantly, in Comcare v Holt [2007] FCA 405 the Federal Court found that “reasonableness” involves a cost/benefit analysis weighing the cost of the treatment against the therapeutic value of the proposed treatment (see also Comcare v Rope (2004) 135 FCR 443).
In Rope and Comcare (Compensation) [2018] AATA 42 at [45] and [46] Deputy President Humphries summarises the principles to be considered in determining whether treatment is reasonable. Relevantly, treatment is less likely to be considered reasonable where:
…
·its benefits are insubstantial and its cost is high;
·it is passive and promotes dependence on itself; and
·it is ongoing and indeterminate.
It seems to the Tribunal that on the evidence there are potential alternative treatments to the implanting of the neurostimulators which have not been fully explored. Given the invasive nature of the procedure and its significant cost when compared to alternatives, it is the Tribunal’s view that at this time that the treatment sought by the Applicant is not, in the circumstances, reasonable, as required by s 16(1) of the SRC Act.
Accordingly, the Tribunal affirms the reviewable decision in Application 2016/3563.
COsts
Pursuant to s 67(8) of the SRC Act the Tribunal directs that the Respondent pay the costs incurred by the Applicant in these proceedings.
decision
Application 2014/5639
The Tribunal:
(a)sets aside the reviewable decision of 23 October 2014 and substitutes a decision that the determination of 9 October 2014 that the Applicant’s rights to compensation be suspended on and from 9 October 2014 be set aside; and
(b)directs that the Respondent pay the costs of these proceedings incurred by the Applicant.
Application 2015/6468
The Tribunal:
(a)sets aside the reviewable decision of 1 December 2015 and substitutes a decision that the Respondent’s determination of 20 November 2015 to deny liability be set aside and that in substitution for that determination there be a determination that the Respondent is liable to pay compensation to the Applicant in accordance with s 14 of the SRC Act in respect of further injuries sustained to the right hip, left knee, left shoulder and neck sustained on 12 June 2012; and
(b)directs that the Respondent pay the costs of these proceedings incurred by the Applicant.
Liability for psychiatric injury 2016/2258
The Tribunal:
(a)sets aside the reviewable decision of 28 April 2016 and substitutes a decision that the determination of 21 April 2016 be set aside and that in substitution for that determination there be a determination that the Respondent is liable to pay compensation to the Applicant in accordance with s 14 of the SRC Act in respect of psychological injury, namely depression; and
(b)directs that the Respondent pay the costs of these proceedings incurred by the Applicant.
Application 2016/3477
The Tribunal:
(a)sets aside the reviewable decision of 28 June 2016 and substitutes a decision that the Respondent’s decision of 7 June 2016 be set aside and in substitution for that a decision there be a decision that anterior cervical fusion is a valid treatment for the Applicant’s neck condition and that the Respondent is liable for the cost of such procedure pursuant to s 16 of the SRC Act; and
(b)directs that the Respondent pay the costs of these proceedings incurred by the Applicant.
Application 2016/3563
The Tribunal affirms the reviewable decision.

I certify that the preceding 250 (two hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle

.....[sgd].............................................................
Administrative Assistant - Legal
Dated: 8 March 2018

Dates of hearing: 22, 23 and 24 March 2017 and 31 October 2017

Counsel for the Applicant: Mr Bruns

Solicitors for the Applicant: JDK Legal Services

Counsel for the Respondent: Mr Wallace

Solicitors for the Respondent: Clarke Legal

[2018] AATA 429

8 March 2018

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Damages

Remedies

Costs

Dates of hearing:	22, 23 and 24 March 2017 and 31 October 2017
Counsel for the Applicant:	Mr Bruns
Solicitors for the Applicant:	JDK Legal Services
Counsel for the Respondent:	Mr Wallace
Solicitors for the Respondent:	Clarke Legal