1. The primary issues the Tribunal must consider in order to determine whether the Applicant is entitled to compensation under section 14 of the SRC Act in this matter include the categorisation of the lower back condition, and specifically:

(a) whether the Applicant sustained a physical injury during the course of undertaking his duties with the Respondent on 5 September 2022 as part of his employment as an injury simpliciter (section 5A(1)(b) of the SRC Act); OR > > (b) whether the Applicant suffered a disease, by way of an ailment or aggravation of either or both the pre-existing osteoarthritis of the hips and/or lumbar disc degeneration, and if so, whether it was contributed to, to a significant degree, by his employment with the Respondent (sections 4(1) and 5B(1) of the SRC Act).

1. There is no dispute between the parties that the Applicant is an employee for the purposes of the SRC Act and was undertaking his work duties on the day of the incident when he pulled the drawer from the caddy to retrieve his toolbox. I find that the Applicant was an employee as defined under the SRC Act.
2. Further, there is no suggestion that the drawer was not in good working order or that it was faulty or malfunctioned in some way on the date of the incident.
3. Similarly, it is not in dispute, and is agreed, that the Applicant suffers from pre-existing lumbar disc degeneration and osteoarthritis of both hips, as confirmed by medical imaging and the expert evidence.[5] I make a finding of fact in this regard accordingly.
4. Again, there is no dispute that surgery will likely be required in the future to alleviate the Applicant's symptoms, though the type of surgery recommended (whether decompression in the lower back or a left hip replacement) is not agreed between the medical experts.

1. The Applicant is a 60-year-old carpenter by trade (date of birth 2 September 1965). He commenced employment with Integrated Technology Systems as a security supervisor having worked in the mines as a lead hand previously, before the Respondent acquired Integrated Technology Services in about 2004.[6]
2. Subsequently, the Applicant started working as an ATM Technician undertaking repairs on banking automatic teller machines (ATM) on a fulltime basis.

1. Relevantly, prior to working with the Respondent, the Applicant suffered an earlier injury in 1994 to his lower back while working with RZ Mines, sustaining a 'L5/S1 disc herniation (right)' associated with right sided sciatica.[7] He was treated by Dr Edmond Graham in October 1994 and required chymopapain injections in the L4/5 and L5/S1 levels.[8]
2. The Applicant was involved in a work motor vehicle accident in about 2000 sustaining neck and left shoulder injuries but with no reported injury or aggravation to the back from the motor vehicle accident.[9] He also suffered an unrelated wrist injury in 2011.
3. As part of the Applicant's duties, he was required to service the upper part of the Hunter Valley, travelling high kilometres each week in a work vehicle provided to him by the Respondent to different sites to repair ATMs in that region. His tasks also included loading stock into the work vehicle for replacement of ATM parts, where necessary.[10]
4. On 5 September 2022, the Applicant travelled to the Singleton branch of the Commonwealth Bank to service an ATM where he claims he injured his lower back in the process of fulfilling that job when he pulled out the drawer from his work vehicle, or 'caddy' to retrieve his toolbox.
5. He submitted an incident report to the Respondent that day, setting out the following:

'Whilst attending CBA Singleton, I opened the drawer in caddy and felt pain in my lower back. I continued on with the job and used a chair to replace the part in the IDM ticket 3815065. After completing the task my back was getting worse so I notified [his managers/supervisors] Sanjay and Tony.'[11]

6. When the Applicant telephoned his supervisor, he was advised to attend his local general practitioner. The Applicant's usual treating general practitioner did not see patients for workers compensation matters so the Applicant consulted Dr Owen Boyd at Broadmeadow Medical Centre the following day on 6 September 2022 on the recommendation of his supervisor. Dr Boyd's clinical record notes:

'see wc cert notes. Lumbar back pain onset yday mechanical... //power sensation reflexes LL intact spasmed lumbar paraspinal muscles.'[12]

7. The medical certificate issued by Dr Boyd diagnoses the Applicant with 'lumbar back injury' arising from the stated cause of pulling the drawer open to retrieve the toolbox and feeling immediate sharp pain. The medical certificate notes 'previous lumbar back injury (disc herniation L5/S1 1994). Similar lumbar back injury 3 weeks'.[13] (emphasis added)
8. The Applicant was prescribed Valium and Mobic and referred for an MRI of the lumbar spine and physiotherapy. He was certified fit for restricted duties on reduced hours.
9. The MRI scan was performed on 9 September 2022 with a clinical history in the referral described as 'Bilateral sciatica with lumbar back pain'. The report concluded:

'There is lower lumbar disc disease with central annular fissures at L3-L4 and L4-L5 There is also L5/S1 disc disease touching the left S1 nerve. There is enlargement of the L5/S1 nerve suggesting compression.' [14]

10. The Applicant first attended Broadmeadows Physiotherapy, as recommended by Dr Boyd, for an initial consultation on 6 September 2022 for lower back pain and sciatica.
11. Physiotherapist, Mr Fergus Allan, reports twice weekly attendance for a graduated lower back and core strengthening program reducing to once per week on 25 October 2022, with slow progressive improvement each two weeks.[15]
12. Mr Allan (the physiotherapist, not to be confused with Dr Allen the orthopaedic surgeon, expert for the Respondent), initially records the Applicant's symptoms as including:

'...minimal lumbar flexion and extension range, tender on palpation for L5-S1 centrally, and positive on the slump and straight leg raise test. [The Applicant] still reports left leg pain down to his foot, and a burning sensation in his right quad.'[16]

1. The neurological symptoms are reported as abating by 27 September 2022 with the Applicant 'tolerating work well' on 11 October 2022. By 25 October 2022, Mr Allan reports 'full lumbar range, tender on palpation for L5/S1 centrally, and still positive on the left for slump and straight leg raise test.'[17]
2. Mr Allan later reports on 22 November 2022 a full range of movement in the lumbar spine and no tenderness but with continuing leg pain and suggests consideration be given to a corticosteroid injection and referral to a spinal specialist on account of the persisting left leg symptoms.
3. The Applicant was referred to neurosurgeon, Dr Peter Spittaler, on 12 October 2022 by Dr Boyd for opinion and management of lumbar back pain with left leg sciatica that had only marginally improved with physiotherapy.[18]
4. The Applicant subsequently lodged a Claim for Compensation on 17 October 2022 for 'lumbar back injury' affecting the lower back and legs_.[19]_
5. The Respondent arranged for the Applicant to be assessed by orthopaedic surgeon, Professor Peter Steadman on 21 November 2022. Prof Steadman referred the Applicant for an x-ray of the pelvic girdle noting 'painful left leg? OA or sciatic nerve problem' due to loss of movement in the left hip and pain on internal and external rotation of the hip on examination. The x-ray was performed on 24 November 2022, reporting:

'At the level of the lumbosacral spine, there is a disc bulge at L4-5 and a small disc protrusion at L5-S1. Evaluation of the lumbar spine is limited on this examination which is done for the pelvis and does not contain all the necessary sequences for the lumbar spine. > > On the left, there are no signs of nerve root compression at L4-5 and L5-S1. There is no spondylolisthesis seen but the possibility of left spondylolysis is raised. This would be better assessed with a CT scan of the lumbar spine. CONCLUSION: > > There is bilateral hip OA with some convexity of the head neck junction and subchondral cyst formation especially on the left which is in keeping with a CAM deformity and would pre-dispose to femoro acetabular impingement. There is no abnormality in the region of the sciatic nerve. > > There is disc bulge at L4-5 and a small disc protrusion at L5-S1 and there may be spondylo lie cyst on the left at L4-5. Correlation with CT and MRI lumbar spine recommended if not yet performed.'[20]

6. Prof Steadman provided a medico-legal report on 29 November 2022 following the assessment and review of the further radiology, finding that:

'[The Applicant] suffers degenerative disease of his low back and osteoarthritis of both hips. In my opinion probably is [sic] that his condition causing the left leg pain is from osteoarthritis of the left hip... > > In my opinion the mild spinal degeneration and that is pre-existing and there is a pre-existing clinical history, but his condition today is not spinal and I am of the opinion that he suffers from painful osteoarthritis of the left hip that is causing left leg pain. This is not a work-related condition primarily and given the mechanism is unlikely to be a consequence of an aggravation. Therefore, I am of the opinion that the category is b) or a pre-existing underlying condition... > > I am not of the opinion he has a low back condition, but he has pain in the left leg as a consequence of left hip arthritis. He has now had two MRIs of spine that do not show any significant lower lumbar pathology that would cause the left leg pain, with the dominant finding being the moderate to severe osteoarthritis... > > ...he is most likely going to recover given the nature of the MRI, which indicates a fairly benign picture in the spine and the gradual and continuous improvement. Hip arthritis is never going to recover...'[21]

7. In terms of future treatment options, Prof Steadman considered it best for the Applicant to consult an orthopaedic surgeon for consideration of a left hip replacement, noting that the osteoarthritis will progressively worsen with the passage of time (though not work related).
8. Since the date of the incident, Dr Boyd certified the Applicant as fit to return to work with some restrictions on lifting/carrying, sitting/standing tolerance and driving that improved on each visit, and with reduced hours that gradually increased from the first presentation to being fit to work 8 hours, 5 times per day from 23 November 2022.[22]
9. Restrictions on 23 November 2022 were stated to be a limit of 5kg lifting, carrying, pushing and pulling, and a limit of 2 hour standing, sitting and driving tolerance before a rest.
10. Further improvement in symptoms is noted from 5 April 2023 allowing 7.5kg lifting, carrying, pushing, pulling and a sitting, standing and driving tolerance increase to 2.5 hours before a break to be reviewed again on 3 May 2023. No further medical records from Broadmeadow Medical are available thereafter nor any more recent medical certificates.[23]
11. The Respondent issued its determination on 1 December 2022 denying liability pursuant to section 14 of the SRC Act based on Prof Steadman's report, which was then affirmed by the reviewable decision, for the reasons as set out above.
12. The Applicant ceased working on 2 December 2022.
13. The Applicant filed his Application for Review on 10 January 2023 claiming the decision was incorrect because the Respondent had failed to give adequate consideration to the Applicant's medical evidence provided during the course of the claim investigation and assessment.
14. The substantive application was initially listed for Hearing before Senior Member Morris in the Administrative Appeals Tribunal on 9 September 2024, but it was adjourned following opening submissions and the tendering of documents.
15. The Respondent objected to the admissibility of the Applicant's evidence filed within the 28 day period before the Hearing without leave of the Tribunal, as required under section 66 of the SRC Act.
16. This included any new oral evidence expected to be advanced by the Applicant based on the updated Statement of Facts, Issue and Contentions filed on 29 August 2024 by the Applicant, a statement of Melissa Lyons and documents 15-19 of the Applicant's tender bundle, which had not previously been served upon the Respondent nor provided to the Tribunal.[24]

1. Section 66 of the SRC Act prohibits a claimant who has instituted proceedings from adducing any matter into evidence not previously disclosed at least 28 days prior to the Hearing without leave of the Tribunal where special circumstances exist to justify the leave being granted.
2. The Respondent also sought clarification on the ambiguity of whether the Applicant had withdrawn its contention that, in the alternative to an injury simpliciter, the claimed condition was a disease or aggravation under section 5B of the SRC Act based on the opening submissions addressing only the contention the condition arose from a frank injury. It also ventilated its position that the orders sought by the Applicant for the Tribunal to partially remit the decision back to the decision-maker with respect to calculating any entitlements under section 16 and 19 of the SRC Act was not allowable on the grounds there was no power for the Tribunal to partially remit a decision.[25]
3. The Applicant raised its own objection to the use of the Respondent's Amended Opening Submissions provided to it and the Tribunal on the morning of the Hearing.
4. Senior Member Morris was of the view procedural fairness dictated that the Hearing be adjourned and it was agreed that the matter would be reconstituted to a new member following the imminent commencement of the Administrative Review Tribunal.
5. Subsequently, in October 2024, the Administrative Review Tribunal was established, superseding the Administrative Appeals Tribunal. Any active applications before the former Tribunal, including these proceedings, were deemed to be applications before this Tribunal on 14 October 2024 with the transitional provisions prescribing the appropriate authority to continue and finalise any aspect of review not already completed.[26]
6. Accordingly, these proceedings now fall within the jurisdiction of this Tribunal, and the Administrative Review Tribunal Act 2024 (ART Act) applies.

1. On constitution of the matter at the first directions hearing before me on 12 March 2025, I disclosed previous employment with the law firm representing the Respondent in another office and area of law to this jurisdiction with no familiarity with the solicitors with carriage of the matter.
2. Neither party objected to me continuing to be constituted, and both expressed their consent for me to proceed to hear the matter notwithstanding the disclosure.[27]
3. At the pre-hearing mention, the parties confirmed the only issue in dispute to be determined by the Tribunal was whether the Respondent has liability under section 14 of the SRC Act with agreement between the parties that any claims made for medical expenses or incapacity payments under sections 16 and 19 of the SRC Act would be referred to the Respondent for determination in the usual course should the Applicant be successful in his claim for compensation under section 14.
4. The resumed Hearing continued before me over three days with the Applicant represented by new Counsel, Mr Gregory Drew, with LHD Legal instructing, and Ms Sarah Wright of Counsel appearing for the Respondent, instructed by HWL Ebsworth Lawyers.
5. The admissibility issue under section 66 of the SRC Act pertaining to the statement of Melissa Lyons naturally fell away with the lapse of time between it being served and the resumed Hearing, and similarly the undisclosed documents filed as part of the Applicant's tender bundle prior to the commencement of the Hearing before Senior Member Morris.

1. Pursuant to section 54 of the ART Act, the Tribunal may exercise all the powers and discretions conferred on the original decision-maker and essentially consider and decide the matter afresh on all of the evidence before it, otherwise known as de novo. Section 105 of the ART Act requires the Tribunal to make a determination as follows:

(a) affirming the reviewable decision; or > > (b) varying the reviewable decision; or > > (c) setting aside the reviewable decision and: > > > (i) making a decision in substitution for the reviewable decision; or > > > > (ii) remitting the matter to the decision-maker for reconsideration in accordance with any orders or recommendations of the Tribunal.

2. The substantive application must be determined in accordance with the above, taking into account the applicable legislative provisions of the SRC Act in the workers compensation jurisdiction, being the SRC Act in the subject proceedings.
3. Where an Applicant employee suffers injury that results in death, incapacity for work or impairment, a Respondent is liable to pay compensation pursuant to section 14(1) of the SRC Act:

14 Compensation for injuries > > (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

4. Relevantly, section 5A(1) of the SRC Act defines injury as:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

1. For the purposes of applying 5A(1)(a), disease is defined in section 5B of the SRC Act:

that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:

(b) the nature of, and particular tasks involved in, the employment;

(c) any predisposition of the employee to the ailment or aggravation;

(d) any activities of the employee not related to the employment;

(e) any other matters affecting the employee's health.

"significant degree" means a degree that is substantially more than material.

1. Further definitions to assist in the interpretation of the SRC Act are provided for under section 4(1) as follows:

(1) In this Act, unless the contrary intention appears:

aggravation includes acceleration or recurrence.

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

1. Where an Applicant employee satisfies these definitions, the Respondent is liable to pay compensation to the Applicant for the injury, including payment of any reasonable medical treatment, weekly incapacity payments and/or a lump sum for permanent impairment and non-economic loss where applicable.

1. Evidence was presented in this matter both viva voce before me and documentary evidence tendered at the commencement of the Hearing before Senior Member Morris including:

(a) T-Documents (Exhibit R1), > > (b) Applicant Tender Bundle (ATB) (Exhibit A1); > > (c) Briefing letter to Dr Charles Allen dated 29 August 2023 (Exhibit R2); > > (d) Report of Dr Charles Allen dated 27 September 2023 (Exhibit R3); and > > (e) MRI Report dated 4 April 2024 (Exhibit R4).

2. Exhibits R2-R4 tendered at the commencement of the Hearing before Senior Member Morris, collectively were included in the Supplementary Joint Hearing Book (SJHB) filed by the parties on 18 March 2025 prior to the resumed Hearing.
3. The following witnesses gave oral evidence, supplementing their statements or medical reports tendered as part of ATB and SJHB:

(a) The Applicant > > (b) Melissa Lyons > > (c) Dr James Bodel, orthopaedic surgeon > > (d) Dr Peter Spittaler, treating neurosurgeon > > (e) Dr Charles Allen, orthopaedic surgeon > > (f) Prof Peter Steadman, orthopaedic surgeon

4. The Tribunal was also helpfully aided by the parties' detailed Statements of Facts, Issues & Contentions and opening written submissions from the listing before Senior Member Morris as an aide memoire, together with closing submissions.[28]

1. The Applicant's evidence consisted of oral evidence and two statements dated 28 March 2024[29] and 7 February 2025[30] respectively.
2. The Applicant's testimony, consistent with his first statement, was that in the morning of 5 September 2022 he attended the Singleton branch of the Commonwealth bank to service its ATM as part of his job.
3. When he went to obtain his toolbox from the drawers holding equipment located at the back of the caddy, he was prevented from accessing the back of the caddy directly in the usual way due to a car parked closely behind the caddy. He states instead he was required to twist from an awkward angle at the side to reach into the back of the caddy to pull open a drawer to retrieve his toolbox. Photographs were provided of the back of set up of the back of a caddy, which he confirmed to be identical to the set up of his caddy.[31]
4. He stated on performing this action he 'immediately felt pain in my lower back, and a sensation which ran down my left buttock and left leg,'[32] requiring him to need a 30-40 minute break and then use a chair for physical support.
5. The Applicant's second statement expanded further to explain that because the other driver had pulled up closely behind him, he was required to stand on the right side of the caddy and use his left arm to pull from left to right in order to open the drawer at an awkward and narrow angle, resulting in 'instant pain to my lower back which radiated down to my left buttock and left leg'.[33]
6. The Applicant estimated the drawer to weigh approximately 40kgs due to it holding his toolbox and other equipment including power supply boxes and hard drives. He stated during evidence that it usually required some force to pull open the drawer, which operated on rollers that were in good repair without issue.
7. After completing the job, the Applicant's evidence is that he contacted his manager due to worsening pain and completed an incident report. He attended Dr Boyd the following day, noting his local general practitioner, Dr Aptar, did not accept workers compensation matters and so he had requested a recommendation from his manager.
8. The Applicant confirmed that he last worked on 2 December 2022 after doing predominantly desk work following the incident and that he agreed he advised Prof Steadman that his condition was improving at the time of the assessment in the month prior, but irrespective of this, he had not actively tried to seek employment or alternate duties since ceasing work.
9. This was despite Dr Boyd continuing to certify him as fit to work 8 hours per day, 5 days per week, with restricted duties.
10. The Applicant explained this was due to him not being able to return to unrestricted duties as required by the Respondent. He advised that he did not see any advertisements for other roles within his restrictions but then stated he had seen some advertisements, but these were for jobs based in Sydney rather than Newcastle and would require 2 hours of driving, which he found difficult, so he did not apply.

1. The Applicant was questioned extensively about his medical history immediately before the incident, and the lack of clinical records for the number of years prior to his first attendance with Dr Boyd on 6 September 2022, specifically whether he had continued to suffer flareups of back pain after the earlier injury in 1994 and in relation to the reference in Dr Boyd's medical certificate to 'similar lumbar back injury 3 weeks'.
2. In response, the Applicant stated he did not recall either whether he continued to have back pain or flare ups after 1994 or recall any injury that may have occurred 3 weeks prior to the incident. He explained that he had enquired with Dr Boyd about the reference but was advised it could not be changed and was offered no further information as to its origin.
3. The Applicant confirmed that he believed all the other information contained in the medical certificates issued by Dr Boyd to be correct, but he did not recall any back or leg symptoms prior to the incident and could not explain it, although he 'had a lot of other things.'
4. With respect to the absence of medical records from his primary treating general practitioner prior to the incident, the Applicant gave evidence that he did not attend Dr Aptar again after consulting with Dr Boyd the day after the incident and advised that Dr Aptar's practice had subsequently closed. He stated he had believed the clinical records from Dr Aptar's practice had been transferred to Dr Boyd at Broadmeadows Medical Centre, but that he never confirmed if that had happened or not. It was not raised with the Applicant the basis on which he assumed the clinical notes had been transferred including whether he had made any transfer requests but that they had not been actioned.
5. The Respondent informed the Tribunal that it had attempted to summons the medical records from Dr Aptar's practice for the six years prior to the incident (noting that the medical records of Raymond Terrace Medical Centre end on 3 June 2016 and the Broadmeadows Medical Practice records commence on 6 September 2022) without success. It did not seek an adverse inference be drawn from the absence of the clinical records or from the Applicant not obtaining these himself, though the Tribunal notes that these records would have been of assistance in determining the issues in dispute, particularly with respect to lower back or sciatica symptoms prior to the incident and the reference in Dr Boyd's medical certificates to a similar injury 3 weeks prior to 6 September 2022.
6. Throughout cross-examination, it was evident the Applicant had great difficulty with recall and memory, answering numerous questions with "I don't recall", or "I don't remember" though when taken to specific contemporaneous documents of what he reported at the time, where inconsistent with his current evidence the Applicant made appropriate concessions that his contemporaneous reporting must be correct.
7. The Applicant stated that he could not recall telling Dr Bodel in July 2023 that he continued to have intermittent back pain or that he stopped work in the mines because it was too heavy on his earlier back injury, but conceded if it was in the report, he must have advised Dr Bodel that, though he did not remember saying it. I find that he did continue to have back pain after the 1994 injury and that he ceased working in the mines due to the heavy nature of the work and his lower back pain.
8. Similarly, the Applicant said he "really could not recall" advising Prof Steadman at the assessment in November 2022 that it was only his leg symptoms that remained but conceded that if that is what the Professor states in his report as being what the Applicant told him, then it would be correct.
9. The Applicant acknowledged that when he completed his first statement approximately 18 months after the incident, it was based on his memory and without reference to any notes or other documents. He also reported under cross-examination that he didn't check the first statement for accuracy, he "just signed it" and had not read either statement again in the weeks prior to the Hearing.
10. In the Applicant's evidentiary statements, he refers to taking a break due to pain immediately after opening the drawer for 30-40 minutes, which is inconsistent with the contemporaneous records at the time, or shortly thereafter. The information recorded by Prof Steadman in November 2022 was that he continued working after retrieving his toolbox, consistent with the incident report.
11. The Respondent submitted that while it was of the view the Applicant was genuine in what he considered to be accurate recollections, his recounting of events changed with the passage of time and that combined with his difficulty in recall, the contemporaneous records should be accepted as the most reliable evidence, rather than the Applicant's evidentiary statements taken some 18 months after the fact or his testimony.
12. As indicated, it was clear the Applicant had significant trouble recalling much of the specifics of what had happened or of his symptoms both before and after the incident. The Tribunal accepts the Applicant as being a genuine witness and I do not consider that his answers of 'I don't recall' to the various questions put to him was deliberate or obstructionist, but rather was the simple truth of him not being able to recall or having no memory of what he was being questioned about.
13. Having said that, the Tribunal finds it difficult to accept the Applicant's evidence where it is inconsistent with, or contradicts, the documented contemporaneous reporting. I prefer the reports contained in the contemporaneous documents as being a more reliable reflection of what the description of what occurred on 5 September 2022 and the progression of the Applicant's symptoms and his prior history where accounts differ.
14. Accordingly, I make findings of fact that:

(a) the Applicant did suffer from intermittent flare ups of lower back pain and sciatica after the 1994 injury and was symptomatic throughout the years before the incident. > > (b) the Applicant ceased working in the mines due to the heavy nature of the work on his lower back injury. > > (c) the Applicant did not take a break after retrieving his toolbox but rather continued the job with the use of a chair before telephoning his supervisor.

1. Mrs Lyons, the Applicant's wife, and provided oral evidence and a written statement dated 27 August 2024,[34] which she adopted as her primary evidence.
2. Ms Lyons' statement sets out that she recalled the Applicant telephoning her on 5 September 2022 and telling her that he had hurt his lower back pulling out a drawer of the caddy at work and since then the Applicant has been in "constant and chronic pain every day and suffers from discomfort and stiffness to his lower back".[35]
3. She observed the changes in the Applicant's lifestyle, psychological state, and the impact upon his sleep as a result of his lower back pain and numbness in the left leg since the incident, where previously they led a relatively active life together. Mrs Lyons also described the ongoing financial strain on them due to the Applicant not working resulting in him not being able to afford treatment as a result.
4. Mrs Lyons was questioned whether the Applicant's condition was improving by November 2022 when he was performing office work but then deteriorated following the denial of liability in December. Mrs Lyons could not recall the Applicant's condition improving and denied that he ever did any office work noting that he was offered office work in Sydney but was unable to accept it due to the drive.
5. She conceded that her "memory is pretty shocking"[36] and she could not specifically remember the course of the Applicant's symptoms either immediately before the incident or afterwards (including any pain or injury 3 weeks prior).
6. Mrs Lyons was a frank and open witness and made appropriate concessions about her poor memory and lack of recollection since the date of injury (and prior). She also properly acknowledged that she prepared her statement two years after the incident based on her memory of what had occurred without reference to any documents.
7. While the Tribunal appreciated Mrs Lyons' support of the Applicant, her evidence was opinion based and of minimal value in determining the issues in dispute.
8. The Tribunal also notes that her evidence relating to the Applicant not performing office work directly contradicted the Applicant's own evidence, and the information set out in the description of work activities in Prof Steadman's report, being obtained much closer in proximity to the relevant timeframe.
9. The evidence of the Applicant, corroborated by his account to Prof Steadman at the time, is preferred and the Tribunal gives little weight to the evidence of Mrs Lyons, accepting the difficulty for any witness in recalling what has happened before and after a date of injury occurring approximately 2 years prior.
10. I find that the Applicant was certified as able to return to work the day after the incident and indeed, did work in alternative duties performing office work for the Respondent continuously with graduating capacity until 2 December 2022.
11. This should not be taken as any criticism or negative reflection on Mrs Lyons, but simply an observation on the serious limitations of her evidence where her recollection of a distant event is understandably imprecise and her memory poor, by her own admission.

1. Dr Bodel, orthopaedic surgeon, provided expert evidence on behalf of the Applicant by way of oral evidence and a medico-legal report dated 17 July 2023[37] and supplementary report dated 18 June 2024.[38]
2. In oral evidence, Dr Bodel provided the Tribunal with his qualifications of being an orthopaedic surgeon since completing training in 1982 until he retired from operative practice about 15-20 years ago. He stated he continues to maintain his CPD training and undertakes independent medical examinations but reported no longer teaching students in orthopaedic surgery. While operating, he performed both hip and lumbar spine surgeries before retirement.
3. Dr Bodel advised that when he assessed the Applicant on 12 May 2023, a copy of the treating neurosurgeon's report and the report of Prof Steadman together with the MRI reports were made available to him, though not the images themselves. He advised he has not viewed those images or films subsequently and agreed that before deciding on the type of surgery to pursue, the treating surgeon should properly have regard to the radiology films and not only the reports.
4. The assessment was conducted face to face. The Applicant confirmed in his oral evidence that during the initial face to face assessment, Dr Bodel asked him to lay down, walk towards him, bend over, lift legs one at a time and then hit his knee to test reflexes during the examination.
5. In his first report, Dr Bodel records the Applicant complaining of pain, stiffness and a constant dull ache across the lower part of the back with referred pain into the left leg down to the knee and intermittent numbness and tingling in the left foot second and third toes. He further records the Applicant reported his back pain was initially located in the central and left sided area of his back, extending into the buttock and thigh with associated back muscle spasms and that, as a result, the Applicant was certified unfit for work after the incident. This is inconsistent with the medical certificates issued by Dr Boyd since the incident and the evidence of both the Applicant and Prof Steadman that he continued to work until 2 December 2022.
6. Dr Bodel sets out a clinical history obtained from the Applicant that after the earlier 1994 back injury, he was treated with chymopapaine injections and required one month off work before returning without any difficulty until the incident on 5 September 2022. He later states in his report, however, that the Applicant continued to have flareups while working in the mines and he ultimately had to cease this work due to its heavy nature and the impact on his back following the 1994 injury. He also cites from the history taken by Dr Spittaler that the Applicant has had longstanding back pain and intermittent problems with his back since that injury.
7. Dr Bodel confirmed his diagnosis and opinion as set out in his reports wherein he opined that the Applicant suffers from an internal disc disruption arising from the incident, stating:

"... The diagnosis here in my view is an internal disc disruption of already degenerate disc at L4/5 and L5/S1 level caused by the injury that occurred at work on 05 September 2022... the injury occurred with a specific event when he was opening the drawer in the back of his service van and developed sudden onset of pain at that time. I suspect that at that time, there was an internal disc disruption in the degenerate discs at L4/5 and L5/S1."[39] (emphasis added)

8. He bases this on the Applicant's stated mechanism of injury, the MRI reports, Dr Spittaler's report, and there being a reported absence of pre-existing symptoms to the lower back in the period prior to the incident, together with his own examination eliciting 'subtle signs of L5 root involvement, in my opinion'.[40]
9. Dr Bodel concurred with Dr Spittaler that the left leg symptoms, as the primary symptom of concern, is caused by the lower back pathology and requires decompressive surgery in two places, noting that:

'The injuries in my view are the internal disc disruption in the degenerative discs in the lower part of the back for which decompressive surgery is a reasonable and necessary consideration... [the Applicant's] treating neurosurgeon, Dr Spittaler, has recommended the decompressive surgery and I believe that the pathology caused by the event of 05 September 2022 is the pathology in the back and not the hips, and therefore, surgery is warranted."[41]

10. In response to specific questions, Dr Bodel provided further opinion in his supplementary report of 18 June 2024 that:

'... there has been a material change to pathology in the degenerative discs in the lower part of the back and associated facet joint arthritis and that occurred at the time of the specific event on 5 September 202.2 > > ... there has been a sudden physiological change in the structures of the lower part of the back relating to the degenerative disc disease. > > ... [the Applicant] has hip pathology as well as his back pathology and both are contributing but, in my view, clinically the main and more substantial contribution clinically is from the lower part of the back, more so than the hips.'[42]

11. With respect to the osteoarthritis of the hips, Dr Bodel denies the hip pathology is caused by, or related to, employment but rather is constitutional in nature and likely to progressively worsen and 'become severely symptomatic and require treatment'.
12. He further expanded in oral evidence that he agrees in part with Prof Steadman that the leg pain is arising from the hip, but says it is also arising from the L5/S1 region of the lower back, though in his view, the main pain generator was the lower back rather than the hip pathology and therefore related to employment.
13. Dr Bodel described the difference in pain distribution between sciatica arising from nerve root compression and hip pathology, describing the difference as being a sharp electric shock as opposed to a dull ache with very specific distribution of symptoms.
14. He provided testimony that in the usual course, osteoarthritis in the hips results in increased pain in the groin, an increasing limp and an inability to fully extend resulting in the hips flexing forwards, which in turn causes pressure on the back joints and pain then becoming unmanageable, requiring a hip replacement. He conceded that it is a very common medical decision to have a hip replacement first to see if that resolves the sciatica symptoms before proceeding to spinal surgery. Dr Bodel accepted that Dr Spittaler examined the Applicant many months after the incident whereas Prof Steadman examined him only three months later and there would certainly have been a worsening of the symptoms arising from the unrelated osteoarthritis of the hip by the time of Dr Spittaler's assessment accounting for the difference in the Applicant's presentation.
15. Dr Bodel further conceded that Dr Spittaler does not mention symptoms or record the clinical findings from his examination of the Applicant in his report to support his conclusion that decompressive surgery is warranted. Notwithstanding this, however, Dr Bodel confirmed he maintained his opinion that decompressive surgery is recommended and related to the incident on 5 September 2022 and did not make any concession regarding Dr Spittaler's own qualification to his opinion that he is not an expert in osteoarthritis of the hips and that should more appropriately be considered by an orthopaedic surgeon.
16. As a witness, Dr Bodel presented passionately in favour of the Applicant's symptoms being related to his employment. An issue was raised by the Respondent regarding Dr Bodel's familial relationship with one of the directors of the law firm representing the Applicant.
17. The Administrative Review Tribunal Expert Evidence Practice Direction requires experts to disclose any interest they may have in a particular matter that may impact upon their impartiality as an independent witness assisting the Tribunal. At no time did Dr Bodel declare that his son is a director of LHD Lawyers. The line of questioning relating to his potential pecuniary or vested interest in the outcome of the proceeding clearly was of great offense to Dr Bodel and significant umbrage was taken, such that the Respondent reproached him as being an advocate for the Applicant.

1. I did not form the view that Dr Bodel deliberately failed to declare this interest in an attempt to gain benefit or manipulate the proceedings, or that this caused his evidence to be unduly influenced in favour of the Applicant but certainly this interest must be disclosed in any future matters now that it is on the record to avoid negative inferences being drawn or, at worst, Dr Bodel's credibility and conduct as an independent expert being called into question and found to be lacking by a Court or Tribunal.
2. The Tribunal notes Dr Bodel's evidence seems inconsistent within itself and with objective evidence (for example work capacity and the presence of pre-existing symptoms) and appears to rely on the opinion of the treating neurosurgeon which is not based on clinical evidence to justify the conclusion. The assessment was conducted approximately eight months after the incident. Limited weight can be placed on Dr Bodel's evidence.

1. Dr Peter Spittaler is the Applicant's treating neurosurgeon and provided evidence on behalf of the Applicant by way of oral evidence together with his reports of 5 July 2024[43] and 27 February 2025,[44] and treating letter to Dr Boyd dated 14 April 2023.[45]
2. Dr Spittaler provided his qualifications as a treating neurosurgeon noting his speciality in cranial and spinal neurosurgery with significant experience in treating sciatica. The Tribunal notes Dr Spittaler's proper and appropriate reference in his first report that hip pathology is outside of his expertise.
3. The Applicant attended Dr Spittaler on referral from Dr Boyd, with first presentation on 14 April 2023, over six months after the incident. The Applicant recounted that during the first consultation, Dr Spittaler did not ask him to lie down, and the physical examination was limited to having him stand up, squat, twist and bend and that Dr Spittaler 'was focused primarily on the MRI radiology'.
4. In his medical letter to Dr Boyd of the same date as the initial consult with the Applicant, Dr Spittaler reports:

'[The Applicant] has developed lower back pain and left leg pain... the patient has persisting left leg pain. It radiates from the buttock into the posterior thigh and lateral calf and there is some numbness, particularly on the outside of the foot. The symptoms in the leg are worse with sitting and straining and relieved with bedrest. The patient has not been able to return to work because of his ongoing sciatica... > > The MRI of the lumbar spine demonstrates disc degeneration at several levels. I think there may be some mild left L5 root compression from an L4/5 bulge as well as some facet hypertrophy and ligamentous hypertrophy. There is also possibly some left S1 root compression at the L5/S1 level, although it is not quite as impressive. > > I think it is unlikely that [the Applicant] will improve without surgery. Unfortunately, because of the MRI appearances, one would have to treat both levels to be confident his leg symptoms will improve... I also think the symptoms and problem are work related...'[46]

5. The letter does not describe Dr Spittaler's clinical findings on examination nor the basis of his opinion that the symptoms are work related. Appreciably though, the purpose of the treating specialist letter is to inform a general practitioner of diagnosis and treatment options and rather than the consideration of causation and contributing factors as is the primary purpose of a medico-legal report.
6. In Dr Spittaler's first report of 5 July 2024, he comments on causation considering the incident to have caused a physiological change, being a broad-based disc bulge compressing on the nerve as an acceleration or aggravation of a pre-existing injury, explaining that:

'... he had prior lumbar disc degeneration (which makes an intervertebral disc more prone to prolapse as it is less spongy or elastic), and the activity that he performed in September 2022 led to a broad-based disc bulge. ... In essence the worker was leaning forward or flexing his lumbar spine which is the sort of activity which can lead to disc prolapses.'

7. He further indicated that the most recent MRI scan on 4 April 2024 had shown the pathology at L5/S1 to have resolved spontaneously since the earlier scans taken after the incident and in November 2022 ordered by Prof Steadman, reducing the initial recommendation of decompression surgery at two levels to now only one level.[47]
8. In response to Prof Steadman's opinion that the issues were arising from osteoarthritis of the hips, Dr Spittaler appropriately noted that the area was outside of his speciality to comment upon, though stated the symptoms as described by the Applicant to him '... fit the picture of sciatica from L5 root compression particularly given their distribution from the buttock into the high posterior thigh and lateral calf".[48]
9. In his report of 27 February 2025, Dr Spittaler again confirms his diagnosis of lumbar disc degeneration with the mild broad based disc bulge as being the cause of the persistent leg sciatica, requiring decompressive surgery.
10. In his oral evidence, Dr Spittaler presented as forthright and honest and acknowledged the symptoms recorded by Prof Steadman shortly after the incident were different to those reported to him some seven months after the incident with a different distribution of symptoms reported by the Applicant. He stated that it was possible there had been a change in the Applicant's status in that intervening period. He further accepted that both osteoarthritis of the hip and the lower back pathology can co-exist and be present within a patient concurrently.
11. When questioned on how he arrived at his diagnosis, noting the Applicant's evidence that he did not physically examine the Applicant at the initial consultation or have him lie down, Dr Spittaler stated that he based his diagnosis on his review of the MRI scans, the Applicant's report of there being no significant leg pain prior to the incident and the distribution of pain in the leg at the time of presentation. He agreed with the Applicant's testimony that it was unlikely he would have required him to lie down for the initial examination.
12. Dr Spittaler also accepted that with the resolution of the pathology at L5/S1, on the recent imaging, he would now only perform surgery at one disc level, rather than two as he had recommended initially in April 2023, considering there has been no worsening of pathology in the MRI scans of the lower back and indeed an improvement was evident.
13. When put to him that Dr Boyd has referred to similar symptoms 3 weeks prior in his medical certificates that day after the incident and subsequently and asked whether that would be a relevant factor to be taken into consideration, Dr Spittaler replied that as a treating specialist it was not, but to the question of causation 'yes very relevant'.
14. Dr Spittaler's evidence must be viewed with the lens of a treating specialist. While his reports were succinct and helpful, he admitted to reliance on the Applicant's self-reporting in reaching his conclusion and seemed surprised with the reference in Dr Boyd's medical certificate to 'similar lumbar injury 3 weeks'.
15. Further Dr Spittaler does not provide any real basis, by way of any reporting of his clinical examination as to how he concludes that decompression surgery is warranted in his first letter and report. He appropriately admits his evidence is confined to assessment of the spine and the hip pathology is not within his specialty. Taking this into account and that his first consultation with the Applicant was about seven months after the incident, there is limited weight that can be placed on his evidence.

1. Dr Charles Allen, orthopaedic surgeon, provided evidence on behalf of the Respondent by way of sworn testimony and an independent medical report of 27 September 2024 following his assessment of the Applicant on 13 September 2024.[49]
2. The Applicant advised of his recollection of the assessment on 13 September 2023 as being conducted by video conference with a physiotherapist present in the room with him positioning and manoeuvring him on instructions from Dr Allen, in a similar way as the assessment with Prof Steadman.
3. Dr Allen confirmed this, stating that ideally all examinations should be conducted physically in person in the room, but on this occasion, that could not be arranged so he engaged a physiotherapist to be physically present with the Applicant to undertake the physical examination on his instructions by video. He indicated his surprise to learn that Dr Spittaler did not have the Applicant lie down to conduct a neurological assessment and he was unaware as to how the examination could be fully undertaken without testing the patient's movements in that position.
4. Dr Allen records a clinical history reported by the Applicant of having 'a longstanding history of lower back pain dating back to 1994 when "[he] had a problem with my back at the L5/S1 on the right side. [He] had a pinched nerve, and they gave me an injection'. He reported there was benefit from this and his back settled up until 1 [sic] September 2022 when his symptoms recurred again."[50] The Tribunal notes this self-report by the Applicant to Dr Allen seems to minimise the injury of 1994 as being a 'pinched nerve', which is inconsistent with the information obtained by other doctors of a disc herniation with right sided sciatica.
5. In his report, Dr Allen records his examination findings of the Applicant as able to toe heel walk with no gait abnormality and having symmetrical and full range of motion of the lumbar spine with no paraspinal muscle tenderness or spasm and normal neurological assessment.
6. The examination of the left hip with the benefit of the physiotherapist taking measurements revealed restriction in the Applicant's range of movement in that hip and it was noted that flexion of the hip reproduced the left leg symptoms.
7. According to Dr Allen's report, the Applicant informed him that after some initial improvement in the first six weeks following the incident, his condition has been stable and stationary since that time with ongoing activity related to the lower back and with the prescription of Lyrica.

1. On that basis and with reference to the MRI scans and the Broadmeadow Medical Centre records from the day after the incident, Dr Allen diagnosed the Applicant as having evidence of longstanding degenerative lumbar spondylosis as well as degenerative osteoarthritis in both his hips, neither of which he considered to be related to work.[51] Notably, and similar to Dr Bodel, Dr Allen had only had access to the MRI reports and not the radiological films themselves.
2. He formed the view the current symptoms were a consequence of the osteoarthritis in the hip, recording in his report that the Applicant had informed him the leg symptoms had settled by the time of his assessment, consistent with an improvement of what he considered to be an 'exacerbation' of the Applicant's pre-existing degeneration, stating:

'... There is no clear work-related injury in this case, and his condition is simply that of an expression of symptoms from his underlying degenerative diseases. > > ... there was no particular accident or injury of a sufficient magnitude to have resulted in any significant pathological work-related condition. Notwithstanding this however, there has the utmost been an exacerbation [temporary increase in the symptoms of a pre-existing condition that returns to its prior level of his pre-existing condition which, based on account, had improved by six weeks and the exacerbation is therefore deemed to have passed.'[52]

3. Dr Allen was requested by the Respondent to comment on the medical opinions expressed by Prof Steadman, and Drs Bodel and Spittaler, in their reports, commenting that:

'I concur with my learned colleague Dr Steadman, that [the Applicant] suffers from osteoarthritis of his hips as well as that he has a past history of lower back pain and pathology in his lumbar spine. I agree with his finding that the degenerative disease in the lumbar spine is pre-existing. > > With respect to my learned colleague Dr Bodel, I do not support Dr Bodel's assessment of a significant work-related injury to the lower back nor do I support his assessment that decompression surgery is reasonable and necessary on the basis of a work injury. > > At my assessment today there was no evidence of objective radicular pathology which would justify such surgery and I note that at the time of my learned colleague Dr Steadman's assessment there was also no such evidence. > > I do not share Dr Bodel's assessment of severe disability. As based on my assessment today, I believe he does have capacity for gainful employment and can certainly undertake administrative or light physical work. I agree that having the arthritis in his hips and back (which is constitutional in nature and not work-related), would preclude him from heavy or moderately heavy physical work and this would best be avoided. The level of disability asserted by Dr Bodel's report was not evident to me today.'

4. In oral evidence, Dr Allen was taken to specific entries in the clinical records of Broadmeadow Medical Centre referring to lumbar back pain and bilateral sciatica initially that then reduced to left leg sciatica only, together with Dr Bodel's assessment wherein the Applicant reported referred left leg pain down to the knee.
5. Dr Allen accepted that pain radiating down the leg is one of the symptoms of sciatica and that a classic symptom is radiating pain down to the foot.
6. He agreed that sciatica is a symptom rather than a cause and explained to the effect that sciatica is referred neurological pain caused by irritation of the sciatic nerve that originates in the lower spine. Dr Allen accepted that if sciatic symptoms extending down to the foot (rather than to the knee which would be more indicative of hip osteoarthritis) did not resolve within 3-6 months he would consider a diagnosis that there may be an issue present in the lower back.
7. Dr Allen said he did not believe it was in dispute that the clinical notes show sciatica symptoms, but noted that there was no objective neurological abnormality documented in the findings of Prof Steadman who first assessed the Applicant within three months of the incident, nor did the Applicant report any symptoms in the left leg or show any objective evidence of neurological radiculopathy (such as an absence of sensory function) at the assessment conducted by him, and accordingly, he can only assume any issues now have arisen from "some other type of event".
8. The Applicant contends Dr Allen's explanation does not account for the initial and ongoing reports of left leg symptoms or the mechanism of injury of pulling a heavy drawer at an awkward side angle.
9. The mechanism of the injury provided by the Applicant to Dr Allen, however, is recorded as simply, 'he opened up the rear of his work van and he noted a pain in his lower back which radiated into his buttock on the left side and down to the back of his knee.'[53]
10. Dr Allen presented in a forthright manner and sets out his clinical findings clearly, informing his diagnosis and opinion on causation without reliance on other opinions. He provides a sound basis for his conclusion that the Applicant's symptoms arise from pre-existing osteoarthritis in the hip and lumbar spine degeneration, unrelated to employment. Dr Allen made appropriate concessions in oral evidence, while still maintaining his opinion that if anything, the Applicant suffered from an exacerbation of the underlying conditions that would have resolved within six weeks before returning to their usual state.
11. I do note that the limitation to Dr Allen's report is that his assessment of the Applicant was a considerable time after the incident (more so than Drs Spittaler and Bodel's), however he has detailed his analysis of the contemporaneous documents before forming a conclusion.

1. Professor Steadman, orthopaedic surgeon, was called by the Respondent to give oral evidence, in addition to his independent medical report of 29 November 2022 previously referred to in this decision.[54]
2. Prof Steadman confirmed his qualifications adding that he has undertaken about 25-30,000 orthopaedic surgeries by his estimate and as a professor, he is required to train and supervise university medical students and doctors in a hospital setting. He stated that he is qualified to do neurological assessments given that spinal issues arise from both neurosurgical and orthopaedic conditions and he did a combined post-fellowship training in these specialities.
3. He further expressed his view that neurosurgery as a speciality doesn't generally consider the overall picture that orthopaedic surgeons are required to do in forming their diagnosis of a patient.
4. On 21 November 2022, the Applicant was examined by Prof Steadman at the request of the Respondent to determine whether the Applicant's claim should be accepted. The Applicant recalled the assessment being conducted by video conference with a physiotherapist present with him, helping guide and position each movement as directed by the Professor.
5. Prof Steadman records the following from his clinical examination:

'On examination of his low back, he forward flexes to his mid-tibiae with 40 degrees of extension. Lateral flexion is full but he reports some pulling on the left, false rotation is negative. On the left side he complains of pain in the lower portion of the back around the L5/S1 area. Examination of the left leg reveals that he can do a single heel raise without weakness. His functional assessment today is satisfactory. He can heel and toe walk and hop and squat and he was cooperative throughout the examination. > > In the supine position, the left hip has some loss of movement and is painful with internal and external rotation and an X-ray was subsequently provided confirms the causes osteoarthritis. Power, reflexes and sensation of the lower limbs remain symmetrical without any clear evidence of radiculopathy. Some discomfort is present around the left fibular head and in particular around the piriformis in the buttock. Straight leg raise is symmetrical at 60 degrees but on the left is slightly more positive with toe dorsiflexion."[55] > > ...he now has some variable clinical signs, but no clear evidence of radiculopathy"

6. Based on this and a question on where the sensory loss was reported to be, Prof Steadman formed the view that further radiology was warranted to assist in diagnosis. As requested by Prof Steadman, the applicant underwent a pelvis MRI on 24 November 2022 before Prof Steadman finalised his report, which revealed:

'There is bilateral hip OA with some convexity of the head neck junction and subchondral cyst formation especially on the left side which is in keeping with a CAM deformity and would pre-dispose to femora acetabular impingement. There is no abnormality in the region of the sciatic nerve. > > There is a disc bulge at L4-5 and a small disc protrusion at L5-S1 and there may be spondylolitic cyst on the left at L4-5. Correlation with CT and MRI lumbar spine recommended if not yet performed.'[56]

7. In his medical report of 29 November 2022, Prof Steadman observed:

'.. At the moment he is only working 30 hours per week, but he said that overall he feels that his condition is improving. > > ...He reports that his injury occurred on 05.09.2022. He reports that he was at the back of the car and pulled out a drawer. He denies that there were any problems with the rollers nor that the drawer jammed. > > He said that there was a car parked close behind and so he could not go directly behind the van but was reaching across on the side to open the drawer. He said that he felt some immediate low back pain. He kept working and went to the next job and drove back when he was sitting on the floor servicing the machine, he started getting some low back spasms. > > He said that he drove back to work and after about an hour, the pain was gradually getting worse. He thinks the leg symptoms started about this time as well. > > He said that he took some Nurofen and went on to see Dr Boyd. He said he had low back pain for a few weeks before it resolved but the left leg symptoms persisted and plateaued.' (emphasis added)

8. Dr Steadman ultimately formed the opinion that the Applicant was suffering from degenerative disease of his lower back and osteoarthritis of both hips with the left leg pain not being of spinal origin but rather being caused by the osteoarthritis of the left hip, which was not a work-related condition or an aggravation.
9. He justifies his opinion with reference to the MRI scans not showing any significant lower lumbar pathology or localised sciatic pathology but revealing moderate to severe osteoarthritis, and that 'this indicates to me that the most likely source of the discomfort that fits with his clinical loss of motion is osteoarthritis' and, 'the condition is not a low back condition but a left osteoarthritic condition masquerading as low back pain which is a common clinical scenario'.[57]
10. In oral evidence, Prof Steadman presented in a knowledgeable, informative manner and had the radiology films available in front of him when discussing the MRI scans to further elaborate on his answers.

1. Prof Steadman agreed that the two pathologies can co-exist concurrently with different symptoms, although one set of symptoms is likely to be more dominant - in his view the osteoarthritis of the hip due to the 'confusing nature of the reported aetiology and the correlation not coming together'.[58]
2. Prof Steadman also agreed that the differing symptoms can fluctuate in intensity and present differently at various times. He agreed that if a person who suffered co-existing symptoms continued to suffer from persistent sciatic pain, over an extended period, then that would warrant further investigation to determine the correct diagnosis. Prof Steadman indicated that in the first instance, he would recommend a more conservative approach than decompression of a spinal and/or hip injections to alleviate symptoms and/or assist in diagnosing the cause of the sciatica - whether the lower back or the hips.
3. It was put to Prof Steadman that over the past two years, the Applicant's treating surgeon, Dr Spittaler has not resiled from his original diagnosis that the cause of the left leg symptoms was arising from the lower back and that he maintained his recommendation for decompression surgery (albeit now only to one level noting the later scans show the L5/S1 pathology has resolved) based on three in person consultations and access to updated MRI scans and accordingly this opinion should be preferred.
4. Prof Steadman responded that MRI scans are only a snapshot in time and he agreed that a treating neurosurgeon was the most appropriate person to make that assessment, conceding he had only examined the Applicant shortly after the incident and not subsequently but that a holistic approach needed to be considered taking into account the clinical findings on examination and the facet joint cyst on the second MRI scans, which he believed may be the cause of ongoing leg pain if not the hip together with the effects of the chymopapain injection in 1994 rendering the disc vulnerable. It was noted that only Prof Steadman refers in any detail to the cyst evident on the earlier scans.
5. At the conclusion of his evidence, Prof Steadman acknowledged that the incident may have caused an aggravation to the lower back but then qualified that by elaborating that to confirm that he would have to be satisfied that the protrusion occurred then and not earlier.

1. At the commencement of the Hearing before Senior Member Morris, Counsel for the Applicant submitted that the Applicant suffered a frank injury, or injury simpliciter, at work that should be categorised as an identifiable injury other than a disease and therefore the employer contribution test did not apply, but rather it was only required that the injury occurred in the course of employment, relying on the decision of Australia Postal Corporation v Burch.[59]
2. The Applicant submits that Dr Spittaler and Dr Bodel both support a finding that a physiological change occurred on 5 September 2022, being the development of the broad-based disc bulge compressing the nerve root to elicit the sciatica symptoms. Both refer to the left leg symptoms being present persistently from the date of injury having regard to the self-reporting by the Applicant and the clinical records of Broadmeadow Medical Centre and the various medical examinations on a background of no, or very minimal, prior symptoms reported by the Applicant following the chymopapain injections to the Applicant's lower back in 1994 for the L5/S1 disc herniation with right sided sciatica.
3. The Applicant also relies on the mechanism of the injury where he was required to awkwardly lean forward on his side to pull open the drawer as a typical activity which can lead to a disc prolapse and that back injuries of this kind have long been recognised as constituting a discreet injury simpliciter, notwithstanding pre-existing back disease.[60]
4. The Respondent contends, in summary, that the mechanism of opening the drawer in the caddy was insufficient to result in some definite or distinct physiological change or disturbance in the lumbar spine for the worse which, if not sudden, is identifiable as required by the principles set out in Military Rehabilitation Compensation Commission v May (May).[61]
5. This is particularly in circumstances where there is reference to a 'similar lumbar spine injury 3 weeks' in the medical certificate of Dr Boyd, issued the day after the incident.
6. In May, the High Court held that a "physiological change...remains central" to the analysis of whether a condition can be categorised as an 'injury (other than a disease)'. Whilst the "suddenness" of any physiological change is not a condition precedent to the classification, the High Court noted that "suddenness" is "often [a] useful" consideration "where there is a need to distinguish a physiological change from the natural progress of an underlying...disease".
7. The case law is well established following the High Court's decision in May that there must be a physiological change, where even if not sudden, is identifiable. The Applicant contends the MRI scans on 9 September 2022 and 24 November 2022 show precisely that by the appearance of the disc bulges touching the nerve irrespective of the clinical findings of Prof Steadman in November 2022 of no neurological pathology.
8. The difficulty with this contention is the inability to compare the scans with earlier scans or even objectively view the medical records in the six years prior to the incident, where the Applicant has limited accuracy in his recall and recounting of events and has given differing versions of the impact of the 1994 injury and its significance.
9. This contention is supported by Dr Spittaler and Dr Bodel, both of whom assessed the Applicant more than seven months after the incident. Dr Bodel and Dr Spittaler each separately gave evidence opining that the incident caused a physiological change upon the sudden pulling open of the drawer in the caddy in the absence of any symptoms in the period before the incident.
10. The Tribunal notes however, that Dr Spittaler acknowledged he did not have any knowledge of the medical certificates of Dr Boyd referring to a similar lumbar spine injury 3 weeks prior, and he confirmed that would be a relevant factor on the issue of causation to be considered.
11. Dr Bodel states that he cannot specifically say what happened, but he 'suspects' there was a physiological change on 5 September 2022.[62]
12. The lack of medical documentation for the six years prior to the incident is problematic, specifically in relation to any records in the months leading up to the incident which may have explained Dr Boyd's reference where the Applicant nor his wife could accurately recall the progression of his symptoms either prior to, or after the incident.
13. In simple terms, the Applicant presents with a documented history of a relatively serious injury in 1994 of disc herniation with right sided sciatica requiring chymopapain injections. History recorded by all medical experts refers, of varying degrees, to intermittent symptoms or flareups of lower back pain since then. As stated earlier, I find the Applicant did experience flare ups of his earlier lumbar spine injury prior to the incident.
14. What is perplexing is whether there was similar lumbar spine injury 3 weeks prior to the incident, the extent of that and whether it was accompanied by sciatica. Without Dr Aptar's records, there is no contemporaneous record to address whether this reference was made in error by Dr Boyd, or whether there was an injury just prior to the incident.
15. The Tribunal in Re O'Callaghan and Comcare stated:

'Firstly, the balance of probabilities test requires reasonable satisfaction in a legal context - it is a departure from scientific assessment. Under the SRC Act it is for a decision maker to apply the legal test of causation and, in so doing, the decision maker must consider and evaluate all of the evidence. Where the language of medical experts does not rise above possibility of causation in medical terms, it is for the decision maker to determine, in consideration of the evidence as a whole, if this possibility amounts to a probable cause in the legal sense. > > Secondly, where expert evidence does not provide clarity, the balance of probabilities reasonable satisfaction civil standard of proof may involve the drawing of inferences. But indefinite evidence or indirect inferences are not sufficient. An appropriate degree of confidence based on reason is required ... > > There is no authority for a decision maker under the SRC Act to simply choose between possibilities - reasonable satisfaction in a legal context requires more than conjecture, based on choosing between possibilities, theories or guesses of equal plausibility or likelihood on the ground that one seems more likely or probable than another. This is so even if a possibility is real rather than fanciful. > > ... Furthermore, reasonable satisfaction is a positive state arrived at on evaluation of evidence and the application of logic or reasoning."[63]

16. If the Tribunal "cannot be satisfied on the balance of probabilities that facts exist which warrant an exercise of the power, then the decision-maker or the tribunal should not exercise that power."[64] In other words, the Tribunal needs to be persuaded as to the facts on the evidence before it, in these proceedings that the incident caused a physiological change in the Applicant's lower back.
17. There is mention of sciatica from the date of the Applicant's presentation to Dr Boyd in the clinical history note for the MRI scan, though it is unclear what this is based upon. The incident report does not mention pain in the leg, however there is reference to sciatica in the physiotherapy records.
18. The various reporting by the Applicant to the medical experts changes slightly on each occasion, presumably on account of his poor memory. I prefer the examination findings of both Dr Boyd and Prof Steadman as being closest in proximity to the incident for the purposes of considering whether there was a physiological change caused by the incident.
19. Dr Boyd's clinical note refers to 'power sensation reflexes, LL intact'.[65] Similarly, Prof Steadman indicate no neural abnormalities on examination to support a finding that the left leg symptoms were due to nerve compression as an injury simpliciter and that 'there is possible evidence of a disc touching the left S1 nerve but this is not consistent with his clinical picture.' It was for this reason Prof Steadman requested a further x-ray. I am further compelled by the report of Dr Allen wherein he notes particular movements of the left hip reproduced the left leg symptoms notwithstanding the Applicant informed Dr Allen that his left leg symptoms had abated.
20. Accordingly, in the circumstances where I find the Applicant suffered from flare-ups of his lumbar spine pain since 1994, and in the absence of any objective information to the contrary (rather than the Applicant's self-reporting) and differing accounts of the mechanism of the incident with the passage of time, I cannot be positively satisfied the incident caused a physiological change in the Applicant's lumbar spine condition and therefore I do not accept the Applicant suffered an injury simpliciter as a result of the incident.

1. The Applicant filed further contentions prior to the resumed Hearing submitting that in the alternative to sustaining an injury simpliciter, he suffers from a disease, being an aggravation of the ailment of the underlying, pre-existing osteoarthritis that was contributed to, to a significant degree, by his employment under section 5B(1)(b) of the SRC Act and therefore an injury.[66]
2. The Applicant did not advance contentions claiming that he suffered from an ailment, or an aggravation of an ailment, in relation to the pre-existing lower back degeneration, other than to assert in closing submissions that the sudden onset of the lower back pain in circumstances where he had previously been asymptomatic satisfies the definition of ailment or aggravation and therefore, injury.
3. This potentially raises a procedural fairness issue, noting the Applicant's solicitor indicated at the pre-hearing mention that the issues in dispute were confined to the lumbar spine with left leg sciatica as an injury simpliciter and the further contentions filed on 11 March 2025 pertaining to an aggravation of the hip osteoarthritis with no mention of the lumbar spine degeneration.
4. The Applicant submitted that regardless of whether classified as an aggravation of the underlying pre-existing conditions or an ailment, because the onset of symptoms occurred in the actual performance of his duties, the aggravation or ailment was contributed to, to a significant degree, by his employment as the relevant threshold to be considered as a disease and therefore an injury entitling the Applicant to compensation under the SRC Act.
5. With respect, I do not agree with this representation of the relevant test for the reasons set out in detail below having regard to the applicable case law.
6. The Respondent relied on the decisions of Australia Postal Corporation v Bessey;[67] Ogden Industries Pty Ltd v Lucas[68]; Prosegur Australia Pty Ltd v Higgerson[69] in response to the Applicant's alternate claim for an aggravation of the pre-existing conditions that the existence or presence of symptoms alone is not sufficient to constitute an aggravation even if they worsen due to work and that there must still be some discernible physiological change. A temporary exacerbation that does not cause a change to the pre-existing condition is insufficient to be characterised as an aggravation in the legal sense.[70]
7. The Respondent further asserted that the Applicant suffered from an expression of symptoms of the lower back and/or the hip pathology, rather than an aggravation, and even if so, was not significantly contributed to by his employment, relying on the evidence of Prof Steadman and Dr Allen. It lastly contends that there was no evidence adduced in support of an aggravation of the osteoarthritis of the hip in the first place to be able to support the finding of an aggravation.
8. Having regard to the medical evidence, it appears not to be in dispute between the experts that the pre-existing osteoarthritis of the hip is constitutional in nature and not related to employment with Prof Steadman and Drs Bodel and Allen in agreement and Dr Spittaler making no comment on the hip, being outside of his speciality.
9. On careful review of the evidence presented, I must agree with the Respondent that other than commenting on the osteoarthritis not being causally related to employment, there is no apparent reference or consideration by the experts that the incident aggravated the Applicant's hip osteoarthritis other than as an extension to the primary focus of the lumbar spondylosis.
10. The only exception to this is brief observations by Dr Allen commenting that the Applicant presents with an 'expression of symptoms from his underlying conditions'. The balance of the medical evidence focuses primarily on the cause of the symptoms and whether attributable to the lumbar spine or the osteoarthritis of the hip (and therefore not related to the incident or employment generally).
11. In the context of an absence of any evidence going to whether the incident aggravated the pre-existing osteoarthritis, it is not open to the Tribunal to find that it did aggravate the underlying hip osteoarthritis. Accordingly, I find that the Applicant did not suffer from an aggravation of the osteoarthritis of the left hip from the incident.
12. With regard to the lumbar spine degeneration (and putting aside the issue of whether procedural fairness has been afforded to the Respondent), the evidence of Prof Steadman was that the Applicant reported in November 2022 to have had lower back pain for a few weeks before it resolved leaving him with only the left leg symptoms. This is consistent with the letter to Dr Boyd from physiotherapist, Mr Allan, on 22 November 2022 that the Applicant now had full movement in his lumbar spine and no tenderness but continued to have persisting left leg pain, notwithstanding the later reports of lower back pain.[71]
13. The Applicant could not recall whether he was still experiencing lumbar spine pain at that time or reported that it had ceased and ultimately conceded that if it was in the report, then it must be an accurate representation of what he told Prof Steadman.
14. Counsel for the Applicant asserts that if he did have improvement in his lower back pain, it was only transient before the pain returned.
15. Even if the lumbar spondylosis was considered to have been aggravated by the incident, the test required to be categorised as a disease (and therefore an injury), is that any aggravation of an ailment must be contributed by, to a significant degree, by employment.
16. The definition of 'significant degree' under Section 5B of the SRC Act, and what satisfies that threshold has been well ventilated in a number of cases.[72] 'Significant degree' is defined in s 5B(3) of the SRC Act to mean, "a degree that is substantially more than material".
17. It is generally accepted that there needs to be a causal link and that link is 'more than a mere contributing factor'. It stands to reason that to satisfy the definition of disease, and therefore an injury, the ailment or aggravation must also be more than having simply occurred in the performance of the employee's duties as suggested by the Applicant. The fact of being employed is insufficient to meet the test.[73]
18. Comcare v Power[74] [2015] FCA 1502; (2015) 238 FCR 187 at 201-205 Katzmann J relevantly explained:

'In Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15 at [14] Finn J observed that the legislative history of the definition of "disease" makes it plain that the term "material" in the phrase "in a material degree" in the SRC Act was not used to denote a contribution which was only greater than de minimis. Thus, it appears that, despite the common law approach to "material contribution", the intention of the SRC Act was that the contribution of the employment to the disease of an afflicted employee had to be not just greater than trivial. In Sahu-Khan Finn J noted (at [15]) that the Shorter Oxford English Dictionary defined "materially" to include "substantially" and "considerably". > > ... > > There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of "significant" as "substantially more than material" makes this abundantly clear...'

19. I reject the Applicant's contention that simply because an aggravation or ailment occurs while performing duties, that the significant test threshold is met as being misconceived, even if the pre-existing disc degeneration was considered to be an aggravation of an ailment (which I do not for the same reasons as outlined for injury simpliciter, not being satisfied of a physiological change for the worse as opposed to a temporary exacerbation). The case law makes it clear it must be more.
20. The mechanism of pulling open a drawer from the side, even if heavy, does not, in my view qualify as a contribution, to a significant degree, even were I to accept there was a psychological change to the lumbar spine to constitute an aggravation of an ailment (and taking aside the issue of procedural fairness).
21. Lastly, it is concerning that the Applicant has not returned to some form of work despite being certified as fit to return to work with some restrictions, 8 hours per day, 5 days per week from April 2023. The Applicant's evidence is that he is unable to work due to his symptoms, tending to suggest his condition has deteriorated since then (rather than plateaued) when he was last reported as having capacity.
22. Having regard to the agreed medical evidence of Prof Steadman, and Drs Bodel and Allen's that the constitutional osteoarthritis of the hip will progressively worsen over time without treatment, this lends some support to the symptoms being caused by the hip pathology when factoring the Applicant's report to Dr Allen the left leg symptoms had resolved (although were reproduced on specific movements of the hip undertaken in the examination).
23. On that basis and having regard to the medical evidence together with the Applicant's varying degree of recollection, I cannot be satisfied he suffered a disease as defined under section 5B of the SRC Act, and therefore an injury under section 5A to be entitled to compensation.

1. Accordingly, for the reasons set out above, the reviewable decision is affirmed.

Solicitor for the Respondent: HWL Ebsworth Lawyers

[1] T-Documents filed by the Respondent, T2

[5] Applicant and Respondent's Closing Written Submissions

[24] Transcript Hearing 9 September 2024

[25] Respondent's Amended Opening Statement filed 9 September 2024

[26] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024

[27] Notation to the Orders of GM Eylward dated 12 March 2025

[28] Respondent's Amended Opening Submissions dated 9 September 2024; Applicant's Submissions in Reply to the Respondent's Amended Opening Submissions dated 7 February 2025; Applicant's Further Contentions dated 11 March 2025; Respondent's Closing Submissions dated 27 March 2025; Applicant's Closing Submissions dated 27 March 2025

[59] Australian Postal Corporation v Burch [1998] FCA 944

[60] Applicant's Closing Submissions citing Health Insurance Commission v Van Reesch [1996] FCA 118; Comcare v Laidlaw (1999) 89 FCER 141; Winsall v Comcare [2003] AATA 51; (2003) 72 ALD 696; Quinn v Australian Postal Corporation [2024] AATA 3004

[61] Military Rehabilitation Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468

[62] As confirmed in the Applicant's written closing submissions

[63] [2019] AATA 2511, as cited in Simeoni v Comcare [2024]

[64] Re ACT Department of Health and Nikolovski (AAT Decision 19826, 27 March 1996) cited in Dean and Comcare [2003] AATA 606

[66] Applicant's Further Contentions filed 11 March 2025

[67] Australia Postal Corporation v Bessey [2001] FCA 266

[68] Ogden Industries Pty Ltd v Lucas [1968] UKPCHCA 1; (1968) 118 CLR 32

[69] Prosegur Australia Pty Ltd v Higgerson [2024] FCA 203

[72] Zdziarski v Telstra Corporation Limited [2015] FCA 207; Comcare v ZZRP [2019] FCA 95; Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10.

[73] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34

[74] Comcare v Power75 [2015] FCA 1502; (2015) 238 FCR 187 at para [201-205]