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austlii:cth/ARTA/2025/641
General information, not legal advice.
ARTA
2025-05-22
Original judgment source is linked above.
(a) Whether Mrs Warden suffered from an 'ailment' or an 'aggravation of an ailment' as defined in ss 4(1), s 5A and 5B of the SRC Act.
(b) If so, whether the ailment (or aggravation of an ailment) was 'contributed to, to a significant degree' by her employment with K&S Freighters and therefore a 'disease' within the meaning of the SRC Act.
(c) If so, whether as of 30 January 2023 and presently, Mrs Warden continues to suffer the effects of her injury, and if so, whether that injury remains contributed to a significant degree by her employment with K&S Freighters.
(d) If so, whether Mrs Warden is excluded for compensation pursuant to ss 7(7) or 14(3) of the SRC Act.
(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.
(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.
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.
This subsection does not limit the matters that may be taken into account.
significant degree means a degree that is substantially more than material.
(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.
(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
(a) Prior to working for K&S Freighters, she had been employed variously, full-time and part-time whilst raising her children, from 1986 as a service cashier; in a self-employed lawn mowing business; as a 'shopper' at Coles including deliveries to customers; warehouse 'allrounder' including picking, packing and delivering; and from April 2020, making deliveries in a company truck 'handling up to 3t of stock a day'. > > (b) She commenced employment with K&S Freighters in June 2022. > > (c) 'Most jobs were delivering steel which involved climbing up to undo chains or straps'. > > (d) 'Although I was a driver it is a very physical job'. > > (e) On 26 October 2022, she was injured when a 'gate' fell from the container of her truck, striking her on her thigh and jarring her back. She did not have any visible signs of injury and kept working. Later that day she had gradual increase in cramp like pains in her back. > > (f) Waking the next day, she had a 'massive' bruise on her thigh and her muscles were sore 'like after exercising'. She reported the incident and was given a rest day. > > (g) On 30 January 2023, she drove a truck to Pacific National's rail yard to pick up a 40-foot container. That required the placement of stanchions at the rear of the trailer before it could be loaded. > > (h) She states:
I stopped knowing I had change pins and get the stanchions in place before the 40fter could be loaded, got out and did the righthand side pin then moved onto the righthand side stanchion which was stored under and toward the front trailer and held in a storage cradle while squatting to remove the stanchion from the cradle. I had to pull it towards me and off the cradle, as it dropped from the cradle I caught me off guard, I got a short sharp pain in my lower back and cried out in pain and had to catch my breath, and pause for a bit as I didn't expect it to be that heavy, Unable to stand up while holding the stanchion supported against my thighs I struggled to carry it to the rear of the trailer then awkwardly lift it enough to get to push with my legs bit by bit on the trailer deck, moved it in position and locked it in. Able walk and not aware of any immediate injury I moved around to the left hand side of the trailer, by this time the loader operator was at the end of 1 road, load suspended and waiting to put it onto the trailer, I was having trouble raising the left side front pin which operator could see, he called out to me 'hang on mate I'll give you a hand' and as he came over I moved towards the stanchion, he must have seen me struggling with it (just like the other side) as he walked towards me again offering to give me a hand, by which time a PN vehicle had pulled up in front of his reach stacker and the driver yelled out "get back in your stacker" I turned and saw that he had left the load suspended, he apologized and walked away, I replied to the effect "you're in it now mate you better go". Now aware for how heavy the stanchions are I set about getting the second one shifted, I tried to avoid as much of the initial drop that I had experienced the first time. I couldn't avoid getting in the same squat because of where it was and just had to do it, get it done again I struggled to waddle along and push it up like I did the other one.
(i) After she got back in the truck, she took 2 Nurofen as her back was 'tender' and then drove to her next task. At this task, she injured her thumb in a crush injury and after completing the task she attended hospital where she had her thumb attended to. She was given oxycodone for the pain and discharged.
(j) She states:
It was when the oxycodone wore off and I cut back on the Nurofen that I experienced a gradual onset of pain, which just got worse and worse over the next few days, as I thought my muscles had just tightened up from spending the better part of 3 days sleeping I tried to get moving as (thumb was still very sore), and push through the pain (Dr's had said to keep muscles moving to stop them tightening up) but it just seemed to make it worse, I feel that the oxycodone coupled with anti-inflammatories had masked the injury to my back and delayed the onset of any swelling, as over the weekend the pain just got worse, Driving to work Monday 6th Feb increased the pain, it was the most I had driven for a week, arriving at work 6am, I asked Peter what was on for today, as there's no jobs in the folder like they usually are. He replied that he didn't really have anything planned and would have to try and scratch up something for me to do, he could see I was hobbling and I put forward to save him the bother (of organising work for me) was it ok if I get to see a Dr for muscle relaxants, I had been prescribed some before for muscle spasms (29/10/2022) Dr then said they would help relax my shoulder to let the swelling reduce? pain and swelling will remain.
(k) The pain increased around 7-8pm, 'getting altered sensations in my little toes on my left foot', she attended hospital, driven by her husband.
(l) She was given an anti-inflammatory injection and discharged.
(m) She has not been back to work since 6 February 2023.
Q. Now, you see there that you've answered, 'no', to the question, 'Do you currently have or have you ever had any of the following'. You answered, 'no', to the question of a disc injury in the back or neck. And you'd agree with me that the answer, 'no', is incorrect?
A. Yes. In hindsight, yes, I can see that's incorrect.
Q. And at the time you answered the question it was also incorrect, wasn't it?
A. At the time I answered it, to the best of my knowledge, I've said no. But apparently, looking at all the history or something, yes. That was not a deliberate.
Q. You knew when you completed this form in 2022 that you did have a disc injury at L5-S1?
A. Not that I knew of at the time, no, I did not. I certainly didn't recall it, otherwise I would have put it on the form. And I certainly wouldn't have gone for a job that put me at risk of getting hurt more.
Q. And when you completed this form, you knew, firstly you knew that you did have a disc injury, and you deliberately answered no to that question, didn't you?
Q. Because you didn't want to disclose that history to K&S Freighters. Is that right?
Q. You see then further down in the questions, there's a question, 'frequent backache or persistent backache'. You've answered, 'no', there as well. Now, that answer was incorrect, wasn't it?
A. Well, in the last time between the last - I don't know how far they want to go back, between one time here and whatever it is, if it's not worrying me now I'm going to say no.
Q. So, Ms Warden, just on that answer, 'no', so that's to the question which says, 'Do you currently have, or have you ever had, any of the following, frequent backache or persistent backache'? Now, my first question about that is, the answer, 'no', is incorrect. Do you agree with that?
A. Yes. I agree with that. I agree with what's written on this piece of paper. I don't know what I did on the day.
Q. Just for the moment, let's just go on what we have in front of us and what I'm, all I'm asking is that the answer which says, 'no', the box that's dotted, 'no'?
A. What it shows on page 331 is not accurate, no.
Q. And when you answered the question you knew that the answer you were giving that said, 'no', was incorrect, didn't you?
A. I don't recall, and it may have just been an error in trying to go through it in a hurry to get it done. I don't know. Clearly on here, the little dot is in the wrong place. We've established that.
Q. It's your evidence that some time between 13 February 2023 and 27 February 2023, you first became aware that you'd sustained a disc prolapse in July of 2020?
A. That's correct. Which is why I emailed Katrina Shield. Which is why I only just put the claim in then for WorkCover, because if WorkCover of PPG was in any way responsible for my condition now, then they should be held responsible. So that's why I put the claim form in.
Q. And also because you were concerned that K&S Freighters weren't going to accept your claim and therefore, you wanted to be covered for the medical treatment you needed to be back?
A. No, if PPG is in any way responsible for any of it, why should K&S have full liability. Why? You shouldn't. If that started something and this was the last straw and this is what broke it - this is the end, or whatever you want to call it; the final part, and it's gone up - no, it's over now. That's - you know. If that's what started it, then they should be (indistinct). It's not - I don't see why K&S should be paying for something if it wasn't K&S's problem. Okay? That's why I put the claim in. They've wiped that and knocked it on the head because I had three and a half days off, continued to my job, physical and strenuous, and this job at K&S up until the 30th. So that had little impact on my life. Not like this. This turns out as well to be more piriformis syndrome - thing. My problem which was misdiagnosed, and I've provided those details and they've been ignored.
Q. When we're looking at that yellow piece of metal, that's what you say - lifting that caused your injury?
A. That's - not so much and this is -I'm trying to stress to everybody. Not so much lifting that - trying and dragging it off of the cradle and having it drop into my lap. I'm trying to hold it with my arms, and it landed in my lap and sort of crunched here. The original snap of that crunch is where I got the immediate pain. It was just a come-and-gone like that. And then struggled to lift it into place. Which I've said a million times. But yes, that is the item.
Q. And in your request for reconsideration, you said that you thought it weighed between 40 and 50 kilograms?
A. I was guessing. I've lifted 30 before, but mind you when I was prepared for knowing what it was - so I don't know. I could never get an answer. Yes, I estimated that. I don't know. That's what I was told from somebody. I've still never got an accurate answer from K&S because I did ask. For the reason of going to my doctor and going, 'Hey, it was this heavy.' The doctor might have gone, 'My God, that was this,' or 'no, you should be right,' or whatever. For care of -maybe wanted to answer me. Maybe wanted to help me with how heavy it actually were.
Q. My question is would you agree with me that you have told doctors that you thought they weighed 70 kilograms?
A. I thought they weighed because that's what I was told by somebody. I've since found out that's not accurate.
Q. But to the best of your knowledge, you think they weigh about 30 kilograms. Is that what your evidence is now?
A. I don't - well, I don't know - I still don't know. I'm not going to touch another one in my life.
Q. And you say, 'My husband asked me to show him the legs. I was on the phone to him when I felt the pain trying to lift the first one from its cradle'?
Q. Can you just explain to me, Ms Warden, what you were doing on the phone when you were working to get your trailer ready to receive the container?
A. I was talking. I wasn't in a - I wasn't in an operational area, to my knowledge. That was in the other parts.
Q. How were you holding the phone? How were you capable of having a phone conversation at the same time as removing the stanchion from the cradle?
Q. You were speaking to your husband on the phone with your AirPods in?
A. With a AirPod in, yes. If you look closely at the footage - if you look closely at your footage, you might be able to see it in my left ear. You see, that's where it was. I'm guessing. Because I'm left-handed. That's usually the one I go for.
Q. You're having a conversation with him and that's when he says to you, 'What's happening?' because you had gasped down the phone?
A. I actually gone - you're not going to like it - I actually gone, 'What the fuck was that for?' because I screamed out. That's what I got, okay? Or something along them lines.
Q. When did you finish the conversation with your husband? Was it just after you took the weight of the stanchion on as you were crouched over or did you continue talking to him whilst you put that one in place?
A. I - so from memory, it was while I put that one in place, as I didn't think this is - how many years ago now. From memory, it was when I put - after I put that one in place and around the other side. Because Old Mate called out to me. So it was easier to hear with not having the other conversation. But that's what I remember.
Q. If we're facing towards the back of the truck, you put the one on the left-hand side in while you were still having a conversation with your husband, is that right?
A. No. The driver's side one on the right-hand side was put up first.
Q. Perhaps if you listen to my question, Ms Warden, you might listen to what I said. I said you're facing towards the back of the truck, which is the left-hand side. That's the first one you put up?
Q. And were you still on the phone to your husband when you completed that task?
A. When the call was - when the call exactly was ended. But from my memory, it was when Old Mate yelled out to come over. And it was to help with the pin because I couldn't get the pin up.
Q. Old Mate, as you describe him, was on the other side. That's right?
A. If I was on that side, yes. I've done that one, and then I've come around the other side and I've had trouble with it which now, if you're looking at it from the front of the truck looking backwards, the right-hand pin.
Q. I'll ask you this question, Ms Warden. When you were - prior to 30 January 2023, were you aware that K&S Freighters have a mobile phone device policy?
A. Not that I recall, and I've been told on several occasions I don't care what you do so long as you're safe.
Q. There was nothing urgent about the phone call you were having with your husband on 30 January? You were just having a chat?
A. I was often on - no. No. I was having a chat. That's what we do.
Q. While you should have been concentrating on a task that you were performing which, according to your statement, you'd never done before and?
Q. And giving you assistance into what you needed to do?
Q. You've seen the video which we showed before. And I just wanted to ask you some questions about your statement of 23 November - sorry, 3 November 2023. You say 'Unable to stand up while holding the extension support against my thighs. I struggle to carry it to the rear of the trailer.' You've seen the video. Would you agree with me, it's got you using - leaning against your legs to walk, but you're not bent over carrying it to get there?
A. Well, it was the best way I could describe what I did.
Q. Would you agree with me now you've seen the video, you were able to stand up and carry it using it - resting it against your legs?
Q. And in terms of when you first pulled it out of the cradle, what caused you to shout out when you were talking to your husband was because you were surprised at how heavy it was rather than it was causing - it was a sudden onset of pain?
A. No. I got a sharp pain in my back because I was, like -folded up. My arms were literally yanked down or forced down into my lap as it landed on my lap because I had it in my hands.
Q. And do you agree with me that after you had put the driver's side extension in place, the tribunal has then seen the footage of you moving around to the other side of the trailer and that you are moving quite freely throughout the time that you're visible on the camera?
Q. And you were able to remove the other extension on the passenger side and again, weren't bent over carrying that down to the back of the trailer?
A. Well, I felt like I was. What it looks like in the picture is obviously different, but that's what I felt like I was because it was down on my thighs. I could not get the weight up against my body where I would normally carry something across my belly and my chest. If it was a heavy item, I would normally carry it up there, holding it. I could not get it up there.
Q. And in terms of your statement - goes on to say that you got back in the truck and you sent a photo of the load to Ronnie. And I think you've got that in the T documents. You didn't think to call her and tell her that you'd hurt yourself?
A. No. I was just trying to get it done. And at the time, I wasn't aware of just how serious it was.
Q. On what date do you say you first recall that the difficulties you were experiencing in your lower back were because of what happened at work on 30 January 2023?
A. Thursday, the 2nd. The evening - so no. Thursday the (indistinct) February. Later in the day or the evening of Thursday the 2nd. I'm pretty sure.
...with regards to the phone being a distraction. It could also be noted then that the CB is a distraction and yet, I've got to be on that all the time and especially during the railyard. And it's a specific of a no - I don't think I've even answered Jeff's phones before when I've been in the railyard. Because you've got to listen to the radio for -move forward, stop, the honking of the horn that you've got to hear over their engine and your engine for whether you can move or you can't, where you've got to stop. This, that and the other. So am I not to use the CB either? But they expect me to take calls. I wasn't trained ever in using a drop deck. So I did not know if there was a better way of doing anything. I did it the best way that I could. The video as well; the video, as far as I can see, I'm on task. I'm not distracted. I've done it to the best of my ability.
I was talking to Coral on the phone when she got hurt at the rail yard, she was straining I could tell by her voice, she said she was trying to slide the leg (stanchion) from it's cradle under the trailer then she cried out, and said 'fuck that hurt' I asked what happened and she said something like 'this fucking leg is really heavy' and that it had dropped onto her and she got intense pain in her back. I replied 'what do you mean dropped on you, and she explained that she was virtually squatted under the trailer to reach it and had to drag it out and when it did come out it fell onto her lab, as she couldn't hold the weight, still with pain in her voice she struggled to lift it onto the trailer. I told her to drop it on the ground and get some help, she told me there was no one to help, Peter was doing paper boxes and Geoff was on leave. Coral then said that someone had called out and was coming over to her so she hung up the phone.
Q. And in your statement you say something like, 'this fucking rig is really heavy, and that it dropped onto her and she got intense pain in her'?
A. That is what she said to me when I was on the phone to her. When she was looking at the legs, because she phoned me because I've had a lot of experience with trucking and using different methods for carrying stuff. And she actually looked at it, is 'well how do I use these', is what the phone call was about. And she was looking at the legs, so I literally said to her, 'I've never used anything like that before'. I can only assume that she's got to get them onto the top of the tabletop. And then when she actually too the weight of it, said, 'this is fucking heavy', and she screamed out in pain.
Q. And how much longer did you continue to talk with her after she said, 'this is really heavy'?
A. It wasn't very long because somebody was approaching her and she didn't want to have two conversations at once so she got off the phone.
Q. Right. So were you on the phone with her when she put the first leg on?
Q. When she took the weight of the first leg was when she cried out in pain?
A. Yes. And then she went and put it on the back of the trailer.
Q. Were you talking to her when she was putting it on the back of the trailer?
A. No. Somebody else had tried to approach her by then. And she'd already -I didn't hear it, no. My wife said to me, 'somebody's coming over', and she hung up the phone.
No significant bony or disc pace abnormality is detected. No plain film changes of a canal stenosis are detected. The surgical clips to the right of the thoracolumbar junction are consistent with being related to cholecystectomy.
Normal alignment of the lumbar spine with preserved vertebral body heights.
Lumbar spine degenerative changes are noted with decreased L4/5 and L5/S1 disc spaces as well as marginal osteophytosis. No evidence of fractures. Mild bilateral facet joint arthropathy is noted more evident at L4/5.
T12/L1 and L1/2: No significant disc bulge, spinal canal stenosis or nerve root compromise.
L2/3 and L3/4: Mild posterior disc bulge with no spinal canal stenosis or nerve root compromise.
L4/5: Circumferential posterior disc bulge associated with ligamentum flavum hypertrophy. No spinal canal stenosis or nerve root compromise. The traversing L5 nerve roots are intact.
L5/S1: Posterior disc bulge with left paracentral and foraminal wide-base protrusion indenting the thecal sac anteriorly. The exiting L5 nerve roots are intact. The traversing S1 nerve root is touched by the disc more on the left side with no significant displacement.
No significant arthritic changes could be demonstrated within the sacroiliac joints.
L5/S1 disc bulge with left paracentral and foraminal protrusion. The existing L5 are intact. The disc is touching the traversing S1 nerve roots (Lt>Rt) with no evidence of displacement.
Findings: There are some disc space degenerative changes most pronounced at L4/5 and L5/S1. There is moderate facet joint arthropathy at L3/4 and L4/5. The S1 joints appear unremarkable.
There is very minor posterior bulging of the L3/4 and L4/5 disc not causing significant canal stenosis. There is a focal left posterior paracentral L5/S1 disc protrusion compromising the descending left S1 nerve root within the subarticular recess.
All lumbar nerve roots exit satisfactorily. No foraminal or far lateral disc protrusion.
No pars defect, crush fracture or skeletal infiltrate. No prevertebral soft tissue mass.
Conclusion: The clinical setting is most likely related to the posterior left paracentral L5/S1 disc protrusion compromising the descending left S1 nerve root.
No suspicious bony lesion. There are congenitally short pedicles. The spinal cord is of normal volume and signal. Moderate spondylosis at L4-L5 and L5-S1 with minimal subchondral bone marrow oedema. At L3-L4 is a mild annular bulge. At L4-L5 is a mild annular bulge causing a mild canal stenosis. There is mild right foraminal stenosis. At L5-S1 is a mild annular bulge causing a mild canal stenosis. There is mild-to-moderate bilateral foraminal stenosis at the level. The remaining levels are unremarkable.
Possible piriformis syndrome on the left with the possible hypertrophy of the left piriformis muscle compared with the right. For clinical correlation. Otherwise unremarkable lumbosacral plexus with no compressive lesion detected within the lumbosacral spine.
Informed consent gained. Aseptic technique used. Under CT guidance, 1 ml of Celestone and 3ml of Marcaine was injected into the left piriformis muscle. No complication identified.
Coral describes left S1 dysesthesia radiating down to the ball of the foot. She has some mild weakness of plantar flexion.
The work related injury occurred on 30/01/2023 when she was lifting some drop deck stancheons which weigh about 70kg's.
There is facet joint disease at left L5/S1. On prior imaging at North QLD X-ray, there was a small disc bulge which was asymmetric to the left at L5/S1. However, this has since reabsorbed on current imaging.
I think Coral's left leg pain may possibly be related to a piriformis syndrome.
This diagnosis is "flouted" (especially by paramedical specialists) so often that it beggars belief. But every no (about once every 5yrs) it is a possibility.
It warrants at least a CT guided injection into the piriformis muscle, which I have arranged.
I am pleased to report that Coral does look better than she ever has done. She has now successfully had a second piriformis injection, and 'so far so good' again.
Coral's previous employer is apparently reluctant to take her back because she is taking Gabapentin (without side effects). Obviously, that is an unsatisfactory reason. This would be analogous to preventing work on Aspirin because of the possible risk of gastrointestinal haemorrhage!
Q. What - is your - is it your - is it or is it not your opinion going on you being a specialist neurosurgeon, that what's happened to me with regards to either the disk or now we've found piriformis, is related to or affect - whatever - a consequence of my actions that day in lifting the stanchion and, therefore, a work related injury?
A. Well, I think that the best way to answer that is that it's possible. I mean, I wouldn't be able to tell you - my way of looking at this is that assuming everything that's been said is as it happened. If somebody didn't have pain before that episode and then suddenly developed it after that episode, then there's quite likely to be a correlation there, and that's how I always view all of these cases. The actual - if you're asking me if the extent of the injury caused that, so in other words, you know, is there a straight line correlation between, you know, the force, if you like, of an impact, then I don't usually get into those things because they're so variable and really unscientific, the whole thing. So my logic is if you didn't have problems before, and that could be proven, and you have problems with what I saw, which is the left leg pain radiating down in S1 and possibly S2 distributions, well, then if you developed that after the incident, well, it's compatible. Well, it was potentially compatible with a disk bulge at the time, but I think that given that that went away and that you still have problems, I think it's more likely to do with a piriformis problem. So that's where I am.
Q. Is there any possibility, in your opinion, that the problem with my piriformis is related to that event in the knee being the weight dropping on my lap?
A. Yes, it's definitely possible but, as I say, the key thing is if you didn't have any symptoms before that and you suddenly get them after it, well, then, you have to conclude that there's some relationship there. And if it's, you know, reasonable that the injury or the manoeuvring that you were doing at the time could have ripped the piriformis muscle from its insertion or, shall we say, irritated it in some way, then the sciatic nerve and the nerve roots are right next to that. The S1 and S2 nerve roots run right on the piriformis. So if there's, you know, inflammation or blood or something that's coming from the muscle and it's irritating the nerve, then that can set up a situation that carries on and on and on. I'm sure that most people have had something like a tennis elbow before. That can go on for years, way after the trigger, and you wouldn't see anything necessarily on the scan. The key thing would be the response to the injection. If the injections work, and you repeat it and it does it again, well, then, it's coming from that structure.
Q. So given that prior to the accident on January 30, I was consistently working an average of 44 hours per week, doing every part of my job satisfactorily, and then not being able to do it, leads one to think that it was a significant event?
A. Well, as I say, if it can be well‑established that you never had anything remotely like a left S1, S2 distribution pain before, and you suddenly have it after an episode at work, that's reasonably traumatic, in other words, you know, you didn't exactly just get up off a chair and suddenly get it, you did have some episode at work, well, I think that that's a reasonable - you'd have to conclude that it's possible, yes.
Q. As well, in your experience, have you - do you have any thoughts or opinions in regards to late onset of symptoms, especially considering I was hurt on the 30th that night, and from then on I was on three and a half days, or whatever, of oxycodone, and pretty highly sedated. So then it wasn't until towards the end of that week that I became aware of that pain. Is that something that is a common thing or you've not heard of that?
A. No, no, it's definitely possible.
Q. The late onset of pain?
A. Most symptoms to do with sciatica, nowadays, even if there is a disk bulge, you know, that you're attributing to be the cause, it's usually not the bulge pressing on the nerve. It's more chemicals being released by it that are irritating the nerve. And those chemicals can come out after a few days so, yes, there can definitely be a delay between the onset of the traumatic episode and the symptoms. But I think that another explanation would be that if you were on all those drugs, how would you know? You know, the - there would be blacking out for a lot of the picture. So for two reasons, I could see a reason why you might not be aware of it, yes.
Q. Dr Journeaux within his report he's claiming that I have - which due to my age there's got to be something - one would think there's something going on, but he's adamant that I suffer from degenerative disk disease and with or without work my health or my back would - everything would decline at the same rate, with or without work. What is your thoughts on that, considering the disk bulge has recovered, repaired, reabsorbed, whatever you want to call it, and I actually am now fit to go - well, not 100 per cent because I still have ongoing nerve issues but I am fit for duty to go back to work. What are your thoughts in regards to Dr Journeaux's opinion?
A. Well, my thoughts - well, firstly, regardless of his comments first, I would say that your continued symptoms now, following the workplace injury, can't possibly be compatible with the disk bulge because it's been and gone. And that's what tends to happen with them; most disk bulges do come and go. That's why nowadays most of us - and I say 'most of us' because it's not everyone, but most of us won't go steaming into an operation because we know the thing is likely to go away, and we can manage the pain in other ways, you know, with spinal injections and with medication and drugs and so on. We can get around most of the problems while we're waiting for the disk bulge to go away. So the fact that you've still got a problem after that length of time without anything on the scans that I performed with you, there's nothing that showed any reason why you should have left‑sided sciatica. That's why I then pursued other angles. That's why we did more intensive scans and then also including the piriformis muscle and looking at the sciatic nerve as it issues through there, and that's how we stumbled across that one. As you can probably see from my writing, I mean, it's not a common thing. It's not something that I jump at and it is a diagnosis that's often flouted by allied health professionals, but as a specialist, myself, I've rarely been convinced that I've seen it but I would say that you are one. We did an injection, it gave you some benefit. There was some doubt as to whether the injection actually got completely around the nerve, so we did it again, and that second one you did a lot better with. And so, to me, that's one of the main reasons why spinal injections evolved, for us to try and work out is that structure causing your pain. First and foremost it's a diagnostic thing. The second thing is, we put steroids in at the same time and the steroids can actually manage the pain and the inflammation as well. So that brings me back to Dr Journeaux's statement. Two things to say about that. Everybody of your age has degenerative spine disease and, in fact, you don't have that much. You would expect, given your physical job, that you might have more than you do. So everybody will get degenerative spine disease at some stage in their lives, and beyond the age of 45, it's already over about 80 per cent probability. So it would be very surprising if you had a normal spine, number 1. Number 2, if everybody gets degenerative disease of their spine, does that mean that everybody in the population gets a left‑sided sciatica like you? The answer to that is obviously no. Most people, if they develop an episode of back pain, recover and they don't end up with a chronic pain syndrome. And that should be pretty obvious to everybody. So if you take a really advanced age, like 80 years of age, which I think Paul McCartney is, the Rolling Stones, two American presidents are, none of those have got sciatica. So this concept that because you have degenerative spine disease you're inevitably going to get back pain or sciatica, is really - beggars belief.
Q. Also just another thing, with regards to the fact that the clinical - the CT scans show that the scan from - the disk bulge from February 10 had reabsorbed, whatever it is the word, in a bit of - or, sorry, not even nine months from when it was done again in 17 November, is it fair to say that any disk bulge that was evident in July 2020 would have repaired in 26 months or something, I think it is, between the two events?
A. They can repair even within a month. I mean, it's a very variable thing. Some don't ever but the vast majority do, as in 80 per cent roughly, that kind of level will reabsorb within 12 to 24 months.
Q. Even now in terms of your view on the relationship between whatever happened on 30 January and the presentation that you saw in May 2024, is really based on - I think you used - your first answer was, 'There's a possible relationship'?
Q. It doesn't really go much higher than that, does it, because it's just a possible relationship, because by the time you see her there is a period of some 14 months?
A. Yes, it's a long time, yes. Yes, I think that all you can - as I kind of made clear earlier on, my view is if somebody didn't - and it's obvious that they didn't have a problem before something and they do have it immediately after, well, then you have to just assume that there's a connection. It's kind of - I don't believe that people go around making things up. As to the degree of the injury, I don't go by that either, you know. To me that's - I tore my meniscus in my knee getting out of the shower. I mean, it doesn't have to be - I think the degree of trauma doesn't have to be that you fell 50 metres. You know, I don't see any correlation in that way. Some people - I've had a parachutist, you know, in freefall land on the ground and he just broke a couple of bones in his back; that was all.
Q. Yes, and similarly, I think, as you said, in terms of the severity, it could be simply, you know, lying - getting out of a couch in a strained way or?
A. I think, no, I a bit more than that but I think in this - from what she's describing, I could easily see how you could get a partial tear of a tendon or a ligament, and in this case a muscle, the piriformis. And it wouldn't have to be something that was that dramatic. It could be something - all it has to do - and I think I mentioned earlier on, say, a tennis elbow, which is exquisitely tender, and you can scan - do an MRI scan and you can hardly see anything, if anything at all. And yet it's obviously a problem and it's called tennis elbow for a reason. And, you know, a lot of sportsmen are out for a season or so waiting for it to recover because it can be extremely disabling. So the nature of the injury, itself, I can't - I never get into any of that. I've been in lots of court situations where they try to ask you to correlate like that but I don't agree with that. I think what happens is it sets off some people. So most cases, you tear a muscle, you tear a ligament, it will settle down. You know, if you're reasonably lucky, it'll just settle down on its own. You might need something - a few things done but otherwise it will settle down. But in some cases it doesn't, it just grumbles on and you end up with this cascade of chemicals being released locally, which you can't see on a scan. These are all, you know, at molecular level, and this stuff just keeps on grumbling away for reasons that we don't really understand but - and also they seem to just burn themselves out after a while as well. It could be years but they will eventually sort themselves out.
Q. So in terms of the onset of symptomatology to the incident that may or may not have caused this, what you're saying is the importance is the correlation between symptoms not being present before, and then being present after?
A. Yes, and for there to be - you know, so, say, for example, if you only twisted your knee, you can't claim that a brain haemorrhage is to do with that. You know, it has to be a reasonable correlation in terms of the quality or the - you know, a reasonable correlation in that regard. But, you know, a big jolt and taking a weight can do multiple muscles in disparate areas. So I don't have a problem in attributing a piriformis condition to that, and once - as I say, once these things get started in an unfortunate minority of people, it will just keep grumbling away and it just never seems to settle down properly. And the sciatic nerve or, in particular, the S1, S2 nerve roots run right over the top of the piriformis where it's attached. And so if there's inflammation coming from that, it's easy to see how that would be irritating the nerves and causing pain and paraesthesia going down the leg to the foot. It's the only thing that would explain it going on for a couple of years; let's put it that way. On the MRI scan the piriformis muscle was markedly bigger on that side, on the left side compared to the other one. We did compare them. And, you know, it could be the fact that it was more swollen at the time. We wouldn't know because nobody scanned that region; it's not a commonly scanned area. And who knows? It could have been a different picture back then, you might have seen more on it, but all we can see at the moment is it's bigger on one side - on the left side, than it is on the right. And that's unlikely to be - we have asymmetries throughout the body all the time, and I suppose if you were being cynical you would say that it's just one of those asymmetries, but, you know, I've seen a lot of these things over the years, and you don't see that many asymmetries with these muscles. So that, in itself, was enough to - for the radiologist to pick up on it, and for me to pick up on it as well and say, 'Well, look, this must be worth looking at. Let's do an injection here and see whether we can find anything.'
Q. Have you seen, doctor, the report from - and maybe I'm pronouncing his surname incorrectly but Dr Guazzo?
Q. He takes a history in July of 2024 that Ms Warden had seen you - this is on the second page of his report. She'd seen you in May and referred to a CT injection which had caused some marginal benefits?
A. Well, that's not what was reported to me, however, we can go back and just double check. So I saw her in February 25 and my report says that she looks better than she ever has done with me, and she's now successfully had her second piriformis injection, and so far so good were her words. I think the problem - you know, the - you know, without blowing trumpets here, I mean, the person who sees patients in close proximity to the procedure has got the best view.
Q. Yes. You can blow your trumpet as much as you like, doctor, but what I'm more exploring is in terms of the consistency of the reporting that's been given as to the treatment you've provided. Dr Guazzo took a different view to what you understood, as to the benefit?
A. Well, I wasn't meaning blowing a trumpet. What I was meaning was that I had seen the patient, I ordered the injection, I was already thinking of the diagnosis and I saw the patient afterwards. And it was a reasonable response to the first injection but the second one was - well, reading between the lines from what I'm saying here, she says she looks the best I've ever seen her. So she was clearly markedly improved. So not just one improvement but the second one - another improvement, but even better. As good as an improvement as you could possibly see was how I read this. And I have to emphasize going back to the beginning, when I first saw Coral, I never, ever would have thought of that diagnosis. I would have - because to me that's such a rare thing. But because there was nothing obvious on the MRI scan of the lumbar spine, and the disk that had been there previously was gone, that's what made me have to go and look somewhere else to potentially explain this. So I didn't exactly - this wasn't a self fulfilling prophecy. This was me saying, well, I'll have a look and see, and that's what happened. With - Dr Guazzo was not the person that ordered the injection, was not following Coral through all of that sequence. So and also, I don't know, maybe Coral - I suppose - maybe that could have been what Coral reported to him when she saw him. I don't know why otherwise he would have said that but it doesn't follow with anything that I've written.
Thank you for referring Mrs. Warden whom I saw with her husband, Ray today. Mrs. Warden is a 53-year-old truck driver whose past medical history includes a Caesarean section, no other significant past medical history.
She recalls that she did have some back pain in 2010 which resolved with symptomatic treatment.
In 2020 with her previous employer, she was re-pelleting paint tins. This involved lifting over 300 tins. She developed back pain. At that time, a CT scan was performed at North Queensland X-Ray which I have reviewed, and it shows a small left L4-L5 disc protrusion. Over a period of days, her symptoms improved, and she returned to work. She was treated with anti-inflammatories and Panadol. Occasionally, she would have some back pain, and she told me she would maybe use Panadol or Nurofen on a monthly basis.
In October 2022 now with a different employer, she was lifting gates from the back of a truck, and apparently, the gate was defective with the chain not suspending it correctly, and it dropped. This heavy gate fell, she carried the weight, it bruised her thigh, and she had acute back strain. She sought medical advice and was advised on symptomatic treatment, no imaging was performed. Over a few days, her symptoms improved, and she returned to work. At that time, she recalls the pain was primarily in her back.
On around the 30th of January 2023, she was lifting what I described stanchions which weight up to 30 kilograms. They apparently are devices that support smaller containers on a truck. She lifted on of the stanchions, she developed acute back pain. She took some Nurofen. An hour later, she was dropping the container off, and as she was un-strapping it, her thumb got caught in the top hole, and she had a degloving injury and was taken to the hospital where it was debrided and sutured. She was given OxyContin, and during this time, she was resting at home, and her back pain gradually worsened, and she developed this pain radiating to her left leg. She found it difficult to stand, and she had paraesthesia in the left leg.
A CT scan at Queensland X-Ray on the 10/02/2023 showed a large left L4-L5 disc protrusion consistent as a cause for acute sciatica. She was treated symptomatically with a number of injections, and subsequently, a repeat scan in November of 2023 showed the disc protrusion had largely resolved. This has been confirmed on an MRI at Queensland X-Ray in February 2024.
Based on the clinical history, Mrs. Warden had some pre-existing back symptoms. Nevertheless, the history suggests she has developed acute extruded disc related to work activity in January 2023. Thereafter, she has persisting left L5 nerve root radiculopathy which relates to nerve root injury, and there is ongoing nerve root compression. Therefore, there is no role for surgical management.
My understanding from Mrs. Warden is that she saw an Orthopaedic Surgeon for an independent medical evaluation for Comcare, and this person opined that her symptoms relate to pre-existing degenerative changes. Unless the history that this person obtained was dissimilar to mine, this would seem unlikely to be the circumstance.
Mrs. Warden provided a medical report from Dr. Simon Journeaux, consultant orthopaedist, the date being 29th of January 2024. This report was in particularly the summary and assessment where Dr. Journeaux came to the conclusion that it was possible Mrs. Warden could have injured her lower back in a significant way on the 30th of January 2023 while handling stanchions; however there was no objective evidence there was a significant incident that occurred. He thought more likely than not the symptoms related to a progression of her pre-existing L5-S1 disc degeneration and disc complaint.
I note the surgery consultation with Dr. Chef Ajaero dated the 29/01/2023 where it is recorded that Mrs. Warden presented for pain management where she said she had aggravated her sciatica after a prolonged period of sitting at work.
I note the Townsville University Hospital Emergency Centre records, and the neurosurgery reports/orthopaedic physio screening clinic, various dates. There is a consistent history that the sciatic symptoms in Mrs. Warden's left leg came on more or less around the 30th of January 2023. There is a record in the physio screening clinic notes of aggravation of her back complaint while lifting the stanchions.
Question #1: Please consider the medical history of Mrs. Warden, test results and examination of Mrs. Warden clinically set out my findings upon examination is relevant in detail. Please comment upon whether Mrs. Warden's presentation is consistent with clinical findings and whether or not they are consistent with being result of the events that she claimed were the cause.
It is my opinion that on or around the 30th of January 2023, Mrs. Warden injured her back causing an aggravation of her sciatica. The history suggests that she may have had some aggravation of her symptoms caused by work in the preceding days. In my opinion more likely than not that the activity she was engaged in particular, lifting the stanchions at work on the 30th of January 2023 is likely to have caused a significant aggravation of her pre-existing complain and aggravated her sciatica.
Question #2: Please indicate your diagnosis, prognosis or whether any relevant symptoms or limitation of functioning or a diagnosis implies (whether work activity or otherwise).
My diagnosis is acute left L5 sciatica secondary to a large left L5-S1 disc protrusion causing left L5 radiculopathy.
Question #3: Please indicate whether the condition if any you diagnose constitutes:
As previously stated, it is my opinion that the condition is equivalent to "c", that is an aggravation of a pre-existing disease to which the aggravation of employment made a significant contributing factor.
Question #4: If you find any employment to be a contribution to a disease or to an aggravation of the same, please consider the effects of that aggravation itself viewed alone (as distinct from the pre-existing or underlying condition) and specify the consequences of such aggravation in terms of relevant identifiable pathology, symptoms, limitations and functioning, etc., (including whether or not you consider these to be temporary or likely to continue indefinitely), provide any details.
It is my opinion that was a significant contributing factor to the aggravation of Mrs. Warden's pre-existing disc degenerative as described. The consequences of this aggravation are that she has persistent left sciatic symptoms with left L5 neurological symptoms and signs.
More likely than not, there will be a degree of contribution to continuing disability caused by this pathology, and it is likely to be permanent.
Question #6: Please consider the effects of any significant work contribution in and of itself and indicate whether you consider if Coral Warden as a result was, or is incapacitated for her usual employment. Please indicate whether or not withstanding any such incapacity as you consider relevant.
It is my opinion that Mrs. Warden has a capacity to return to work as a truck driver full time. She has a limitation in moderate-to-heavy lifting which is permanent.
Q. And at the time of preparing your report in February of this year, based on what we have seen, you had only seen two pages of Dr Journeaux's report?
Q. And so you haven't seen the quite extensive history and review of the contemporaneous records that Dr Journeaux has gone through in reaching his opinion?
Q. And to be clear, is it correct to say, Doctor, that what you have seen in terms of records, is what is in that bundle of 19 pages that the tribunal has, and some photographs?
A. Yes, that plus what Ms Warden told me, of course.
Q. Doctor, is my understanding correct that in your view there has been an underlying degenerative disc disease at L4-5 which has been aggravated by a lifting incident on 30 January?
Q. And that is based on the history that you have been given?
Q. And the pathology that has shown up in the CT scan that was done in February of 2023?
Q. Would you agree with the general proposition that is the history you're given is not accurate in terms of seeing such as weight of something that has been lifted or the onset of symptomatology or the mechanism of movement, that that would give rise to the reliability of your conclusion as to the relationship of that incident with what has been presented with. Does that question make sense?
Q. So if there is a period of seven days between the incident in question and the reporting of symptoms that that can give rise to questioning the relationship between the incident and what is then being presented with in terms of the symptoms and the condition?
Q. The description of, for instance, the onset of pain or where that pain is experienced in the body, that is important to be accurate as to for you to be satisfied as to the relationship of an incident and the presenting condition?
A. The history of the incident is taken into consideration as related from the patient, yes.
Q. And if that evidence was, for instance, unreliable as to the development of acute back pain on 30 January, that would cause - call into question - I think I have asked this question before, I just want to be more accurate in terms of my question this time. That would call into question the relationship between whatever happened on 30 January 2023 and the presenting condition that you're assessing?
A. Yes, if that history was not correct then that would be important because of the diagnosed based on the early on history.
Q. And if someone experiences acute back pain after a lifting incident, if you've said as she has developed it, somewhat instantaneously, would you think that you would be able to observe that if you were seeing that person moving around, say walking, lifting, leaning, scratching, that that would be present if you were observing them?
A. Yes. ---I think there are a number of facts that would need to be considered, their level of pain, the level of observation, the level of physical activity the person is performing, how that person's pain thresholds and how they manage pain. All those factors impact on how a person responds to an acute pain episode and how they are observed to respond. But generally speaking, if a person is in significant and severe pain then there would be some physical consequences of that and that would be (indistinct). But it's not always the case.
Q. Now, Doctor, I am not sure whether you're aware that there is video footage of the time around this incident occurring on 30 January. Have you seen that?
Q. In your view would it be helpful to see that in terms of some of the question I've asked you about movement and stretching and ambulating?
A. Well, I could make an observation that two other people have made, but whether there is any physical - any visual signs of a person being in pain, yes, I can.
Q. Doctor, you've seen that footage. Can I suggest to you that that shows and demonstrates Ms Warden moving freely, moving and bending easily from side to side and backwards and forwards and doesn't show any restriction of movement?
Q. The footage you've just seen there, Doctor, and we can take it back a bit if you need to, but that shows very free movement in terms of bending forward down and squatting?
A. There's no sign on the video of physical restriction, no.
Q. And no apparent indication of the acute back pain?
A. There's no indication of acute back pain on the video, yes.
Q. Doctor, just that final footage was of, again, having lifted an object of (indistinct) the stanchion that goes on the other side, which is a similar way - shows Mrs Warden was able to lift it and carry it to the end of the truck, put it in position and then move freely and comfortably back to the front of the truck on that footage?
Q. And would you agree with the proposition that all of that suggests that there is some doubt as to the reported history of the development of acute back pain at about six minutes before - on that time on that video?
A. Well, there's no evidence on the video of Mrs Warden demonstrating physical restriction consistent with the premise of back pain at the time. It is true to say that some patients - some people who develop an acute back pain, the pain may be temporary. So that might have been a temporary acute episode of back pain. But at the time of the video - the time of the video that I've seen, there's no physical - there are no physical change in Mrs Warden's movements that suggest that she has significant back pain at that time.
Q. Doctor, but I'm putting to you an alternate history, which is if that is (indistinct)?‑‑‑If you
A. If I accept your history, that there was no pain, that there was an incident - a reported incident, then a video some hours - some moments later showing Mrs Warden moving freely and then no pain at all for seven days. And then the report of pain, then I'd accept that that lifting incident in that scenario is unlikely to be related to the onset of pain seven days later if there was no pain in the intervening seven days. And that's, I guess, the point I'm making in - I just wanted to make sure that I've understood your question correctly because I didn't want to - because the history that I have that's recorded in my letter was that the pain progressively worsened after that incident over the seven days.
Q. Do you agree with the diagnosis of piriformis syndrome?
A. No. So Mrs Warden's symptoms were entirely in keeping with a left L5 radiculopathy. That is a pathology process of the left L5 nerve root. And clinical symptoms and signs were entirely consistent with that. Her imaging supported that diagnosis with a large left L4-5-disc protrusion which characteristically compresses the L5 nerve root to cause a left L5 radiculopathy. It's a condition I see in my clinical practice extremely regularly, and the presentation of the left leg pain and left leg symptoms is entirely consistent with being attributed to by an acute left L4-5-disc protrusion. Piriformis syndrome affects - it's a rare condition, and when it does occur, it affects the sciatic nerve generally and rarely causes - extremely rarely causes a discreet L5 nerve root syndrome. That's the basis of my diagnosis and why I think piriformis syndrome is highly unlikely.
A. So what I think Mrs Warden is asking me is that she's suggesting that the history she gave me, which is recorded and that obviously medicine in that clinical context when I saw Mrs Warden, it was a - and we take a history to listen to what the patient has, we have. And we, of course, rely on that history. And the history was that she'd had an acute back injury at work, lifting and dragging a stanchion - well, lifting a stanchion. And then over the subsequent days, there was sciatic pain. So in my clinical practice, so I've seen many patients with back injuries over many years. It's not inconsistent with what we can see, that is, a patient may have an acute injury. The pain begins to settle. They go on about their duties for a while but over subsequent days, the pain progressively worsens and they develop more severe pain radiating down her leg. The sciatic pain, and that's due to the disc protrusion that's occurred from the workload - from the injury. And I can, as you know, Senior Member, it's not my place to doubt the history. My place is to accept the history that's given to me by the patient then and make a diagnosis. So it's possible that that could have occurred. That is, an acute pain, but then it settles, and the patient goes about their physical activity relatively unrestricted, but over time, develops progressively worsening pain down their legs from the disc protrusion that's occurred as a result of that injury. That is not an uncommon clinical scenario. I think that's the question I was asked.
Q. My next question, it follows on from that that the pain, my onset of symptoms increased. They weren't there instantly and came on after a few days - I think it was three days or four days before I first really started to feel it. In your thing, you've related to my thumb incident where I've had my thumb injured. I was put on oxycodone and non-steroidal - what is it? - Nurofen? I can't remember the name of it. A stronger than Nurofen anti-inflammatory for three and a half days following that. Is it feasible then that the fact that afternoon, I've been hurt at midday. By 6 o'clock in the afternoon, I've been given probably a local anaesthetic and more painkillers for my thumb. And then gone home to being doped up for three and a half days, that's delayed the onset of my symptoms or camouflaged it, so explaining the delay in my 'it's now hurting and it's now getting worse'?
A. It's possible that the medications you were prescribed for the treatment of your finger may have suppressed pain and control - suppressed your perception of pain from your back injury and the sciatica you subsequently had. It's unlikely that the medication would have completely suppressed the pain. I'm not sure about the dosage you were given, but it's unlikely to a complete - in my clinical practice, it's unlikely to completely suppress the pain. It improves the pain. It does not completely suppress it. It's a perception of pain.
Q. But regardless, it's not unheard of for you to have a sharp jab and not really suffer, or the consequences of it. Or not be aware of the extent of the injury until pain and inflammation set in maybe days down the track?
A. No, that's not exactly what I said. What I said was that it's not unusual for patients to have a - to relate a history of a work injury that's quite severe at the time, then it subsides quite quickly. You have some mild residual symptoms that progressively worsen over time. It's very unusual for patients to give a history where they have an acute back injury, the pain is significant, it improves quickly and then have no pain for a while, and then progressively get pain thereafter. There normally is some residual perception and appreciation of pain, but it may be mild and may not prevent them from going about their normal physical or requirements of life. But that is - they may perceive it.
Q. A question that Mr Dube asked you in respect to it being an aggravation of the L4, L5 because of an underlying degenerative disease. Are you able to give a view to the Tribunal about if you accept - and this is a hypothetical for the purposes of the question - that the incident did cause an aggravation of that underlying degenerative disease, how long? I've heard it described by other experts that if you consider an underlying degenerative disease as a graph, a line going down as it gets worse. And then an incident might create a spike along that path of degeneration. And then it comes back down to the baseline of the degenerative disease, that's just how it's been described by other experts to me in tribunal proceedings. Do you have a view about how long that might take, given what has been asked of you today?
A. Yes, so Mrs - so prior to the events about late January 2023, Mrs Warden had episodes of back pain. And on imaging, had a school disc protrusion on the left L4-5, they've pre-dated that time. And as I've mentioned in my report, at around that time she has developed an aggravation of that small disc protrusion on the left at L4-5 to become a large disc protrusion to cause the pain in her back radiating down her leg, and the neurological symptoms and signs and disability in her leg. The acute disc protrusion that occurred at that time, the causation of which is the subject of this Tribunal, improved and that's consistent with the natural history. The disc protrusion atrophies, that is, thins out, shrinks and resolves and the pressure comes off the nerve. But during the time the nerve was under pressure, it's been damaged, and Mrs Warden has persistent symptoms and signs in her leg from that nerve damage. So while the aggravation has resolved over a period normally of six months or so, and her back has improved, she has remaining disability in her left leg from the disc protrusion and the damage that occurred to the nerve. And at this stage, it's unlikely that will change. I think that disability and that's (indistinct) by the nerve injury is stable and stationary. I think that's the term that is generally accepted in this type of world. So yes, she has had an aggravation of her pre-existing condition that caused the worsening of the disc protrusion that has improved radiologically and clinically, and she - her back symptoms are now back to baseline, but that her left leg has not fully recovered. And it's unlikely to fully recover when the nerve has been damaged.
Q. And then the secondary effect of that disc protrusion which you described as damaging the nerve, what is the diagnosis of that in Mrs Warden's case?
A. Yes, the medical term is left L5 radiculopathy, meaning damage to the left L5 nerve root or one of the parts of the nerve - one of the nerves that goes to make the sciatic nerve. So she has clinical symptoms and signs of left L5 radiculopathy that are persistent. And when I saw her, I explained to Mrs Warden that at the time I saw her, an operation would not improve that because the disc protrusion had resolved. And therefore, there's no place to decompress the nerve because it had naturally decompressed itself, but the nerve unfortunately hasn't fully recovered. And when I saw Mrs Warden on 3 February for the provision of a report for the Tribunal, her clinical symptoms and signs in her left leg were essentially unchanged, meaning that they were stable and stationary.
MR DUBE: Just, Doctor, in terms of the way in which you answered, you're leaning to one side, am I right, the question of causation of the aggravation than just simply what's happened? There's been an aggravation for some reason, and what the ongoing effect of that has been, is that your answer?
A. That's correct, Mr Dube. You know when, obviously it's for the tribunal to make that decision, when I take a history from patients I accept the history that they give me and I don't forensically examine it because that's not my place. So putting that aside, and causation is a matter for the tribunal, what is clear in my mind is that Ms Warden suffered an aggravation of a preexisting small L4-5 disc protrusion. It became much larger at/or around the time of 30 January or soon thereafter, and she developed severe left L5 radicular symptoms from that disc protrusion. Consistent with the natural history the disc protrusion has improved. There's no ongoing compression of the nerve but she has residual symptoms in her leg. As to the causation of that disc protrusion, the Tribunal will decide that based on the evidence they have, of course, and I can only come to a decision based on the history that's given to me.
MR DUBE: And the progression of an underlying degenerative disc disease is, am I correct, is that it's such that sometimes it can just happen and there does not need to be any trauma associated?
A. It can sometimes happen with the most trivial of incidents, but it can sometimes happen with an incident that the patients may not recall an incident that occurred. In the majority of circumstances there is a definable incident that aggravates it. And that's based on (indistinct) clinical practice and the practice of others as well.
MRS WARDEN. Dr Guazzo, you've just said that it's accepted that discs repair in roughly six months. That one on scans last year, the 2023, had resolved in the scan of November. So that matches. So therefore, would not the disc bulge in 2020 have resolved in 26 months?
A. It may. There's a difference in the diagnosis, Ms Warden, in that the small bulge that you had on the preexisting scan was, in fact, a small bulge of the annulus. It wasn't a large disc protrusion. So in the second circumstance at around about the end of January, early February, when you developed the acute sciatica, there was an extrusion of the disc, a really big bulge. So part of the inside of the disc has come out. And that's the part that shrinks and atrophies. It's very likely that if had had another scan 12 months after the scan that showed the small bulge, there would have been a continuing small bulge there. That's an indicator of your preexisting condition of the spine.
Ms Warden on the medical evidence has longstanding degenerative change of the lumbosacral spine. I referenced the CT scan of 16 July 2020. It is likely that degenerative change was present prior to this date for some years.
Ms Warden does seem to have a chronic relapsing and remitting course of low back pain which by and large she has been able to self-manage.
I note the work-related injury in July 2020 in which more likely than not she sustained an aggravation and acceleration of lumbar spondylosis presenting at that time with low back pain and right leg pain (sciatica).
Subsequently, I note Ms Warden did have the injury (30 January 2023) of low back pain and I referenced the general practitioner records of 29 October 2022 and that of 29 January 2023. It would seem on 29 January 2023, there was an "aggravation of sciatica" after prolonged sitting.
It is clear therefore that prior to 30 January 2023 Ms Warden was having problems with her lumbar spine more likely than not as a consequence of progression of the natural history of her degenerative condition.
Although the nature of her employment i.e., that of truck driving with the necessary prolonged sitting would aggravate this condition, it is my view there is although a relationship to her employment, not a significant relationship to her employment in light of the fact of the longstanding constitutional pathology.
Although it is possible Ms Warden could have injured her low back in a significant way on 30 January whilst handling stanchions, there is no objective evidence that there was a significant incident that occurred.
More likely than not the onset and progression of symptoms from 30 January 2023 almost represents a natural history of constitutional pathology and although there would be in my view a material relationship to employment, there is no significant relationship in my view. She currently presents with low back pain as a consequence of L5/S1 lumbar spondylosis and neural impingement affecting the left S1 nerve root.
1. Please take a careful and detailed history from the Applicant and compare it with the history of onset disclosed by the records in the briefing materials. Please identify if the history volunteered to you is consistent or not with that disclosed by the briefing materials and comment as necessary.
I refer you to my comments above in my "Summary and Assessment". By and large Ms Warden's history is consistent with that which is known.
2. Please examine the Applicant clinically and set out your findings upon examination as relevant, in detail. Please also comment upon whether the Applicant's presentation is consistent with your clinical findings and/or the briefing materials, noting and commenting upon any discrepancies as may be relevant.
I refer you to my report above in the section entitled "Clinical Examination". Her current presentation is consistent with symptomatic lumbar spondylosis and left S1 neural impingement.
5. If you find any employment contribution to a disease or to the aggravation of same, please consider the effects of that aggravation itself viewed alone (as distinct from any pre-existing or underlying condition) and specify the consequences of such aggravation in terms of any relevant identifiable pathology, symptoms, limitations on functioning etc. (including whether or not you consider those to be temporary or likely to continue indefinitely), providing details as relevant.
It is my view, based on the medical evidence, that there is no significant relationship to her work with K & S Freighters. Her current presentation predominantly relates to that of the natural history of constitutional pathology.
7. Please consider the effects of any significant work contribution in and of itself and indicate whether you consider the Applicant as a result was, or is, incapacitated for her usual employment? Please indicate whether notwithstanding any such incapacity as you may consider relevant, she has a residual capacity for suitable duties, indicating any relevant accommodations that might be necessary in terms of hours, days or weeks of work or in regard to the duties capable of being performed.
In my view, based on the information, I am not of the opinion there was a significant work contribution in and of itself given due consideration to the prior history. Ms Warden, in my view, has partial incapacity for employment as a truck driver and any return to work would necessarily be sedentary and on a reduced hours per day and days per week basis. If she were to return to work, I would recommend that she returns to work on alternate days on four hours a day basis with appropriate breaks every 30 minutes and avoiding prolonged standing, sitting and lifting.
Q. Can I start, Doctor, just in terms of the video? In respect of the video, having had an opportunity to review that, were there any observations that you wanted to make about that video?
A. Only insofar as I didn't see evidence of a significant injury occurring other than, I believe, to the thumb of Ms Warden.
Q. Were you able to make any observations or draw any conclusions in respect of Ms Warden's movement and bending, stretching, turning in those two videos?
A. Well, I didn't see any obvious incapacity that I could relate to the lumbar spine. The only observation I would have, and I understand those stanchions weigh something in the region of 30 kilograms or thereabouts, they're obviously quite heavy, and I can see there's obviously some difficulty with manoeuvring those, but that's about all I could see.
Q. Dr Marshman makes a diagnosis of piriformis syndrome. You'll see in his reaction in both reports?
Q. And he gave evidence yesterday that that was his diagnosis for the ongoing difficulties which Ms Warden experiences. And I was just firstly wanting to ask you, are you familiar with that diagnosis or that syndrome?
A. Yes. That's a well-known musculoskeletal condition.
Q. In respect of the material you've reviewed and the examination you did of Ms Warden, do you concur with that diagnosis?
A. No. At the time I saw Ms Warden, I wouldn't concur with that diagnosis.
Q. Dr Guazzo gave evidence this morning about that. He was asked some questions about whether he thought there was piriformis syndrome, and he said he didn't agree with it, and he felt that the symptoms and restrictions that Ms Warden experienced and experiences, were attributable to the degenerative disc at L4-L5. Do you have any view in respect of that?
A. I would, generally speaking, agree with his comments. Although you cannot necessarily say pain arising from a degenerate spine is related to one particular degenerate area. That's a general statement. But in general terms, degenerate disc would encompass a diagnosis of lumbar spondylosis which, I believe, is essentially the diagnosis Ms Warden suffers from.
Q. So just in terms of the radiology which you've, or at least the reports you've seen, Dr Journeaux, my understanding is you've seen reports, so the CT of the lumbar spine of 16 July 2020 and then maybe it's easiest if we then go to your report where you've set them out, which is at page 9. Are you in a position to explain to the Tribunal just in terms of the bulging at L5-S1, which is first reported in July 2020, and those further reports you've addressed and then 13 May 2024 MRI scan, what significance, if any, that has with respect to reporting of symptoms such as those reported by Ms Warden?
A. Well, to make a clinical diagnosis a doctor has to talk to a patient, find out what the symptoms are, perform a clinical examination and then utilise the radiology whether it's plain x-rays, CT scanning, MRI scanning, to come up with a definitive diagnosis. So typically the radiological findings refine the diagnosis and the diagnosis, one can see on the serial imaging on Ms Warden, is that of multilevel lumbar spine degenerative disc disease. So you refer to a disc bulge, but that is only part of the story because actually if you continue reading the sentence, the radiologist refers to a disc prolapse. So that means the pathology at that level is somewhat more advanced than degenerative and a simple disc bulge which typically would be considered physiological rather than pathological.
Q. And then in terms of how that then presents in February 2023, so the 10 February, the CT scan that's then done, as you've reported at page 10, in terms of the relationship between what's reported on that report and the apparent injury on, apparent incident or injury on 30 January 2023, can any conclusion be drawn from that CT scan and what's said to have occurred on 30 January?
A. Well, if you look at the initial CT scan from 2020, well, the report at least, and then the further report on 10 February 2023, you'd reasonably draw the conclusion there's not much change in the observed pathology on the radiology. But clearly around the time the CT scan was done, Ms Warden was presenting with low back pain and symptoms consistent with neural impingement which would fit with the radiological findings found on that imaging.
Q. Dr Guazzo gave some evidence that he felt that as a result of, he attributes it to the incident on 30 January, and we'll leave that to one side, but he says 'something has happened in late January to Ms Warden which has led to a prolapse at L4-5, which has then resulted in scarring or damage to the descending nerve root'. He says that the prolapse, the disc matter has been absorbed, but that the scarring or the damage is ongoing. Can you express any views in terms of, from what you've seen, as to that opinion?
A. I would actually probably need to delve back into the actual findings on the report of the CT scan because I've only cherry-picked the conclusion. So as I understand it, as one would expect, there's multilevel degenerative change in the lumbosacral spine. Based on effectively the medical evidence, you know, the video evidence, and considering and undertaken a causal analysis of the alleged history of mechanism of injury and the medical brief, I do not believe that there's anything that would have caused an L4-5 disc protrusion in all of that. And bear in mind that the underlying condition is degenerative in any case.
Q. Just on this question of causation, Dr Journeaux, in Dr Marshman's evidence yesterday he gave evidence to the effect that if someone is asymptomatic and then there is a reported incident and then there is reporting of symptoms, that that is sufficient to be satisfied, more than possibly, that it is the incident in question which has given rise to the onset of symptoms. And I was just wondering if you are in a position to comment on issues such as criteria to be considered in causation of various ailments and injuries, particularly in the context of Ms Warden's claim?
A. Well, typically most doctors, particularly treating doctors, are not trained in causation analysis. And there are well-known criteria called the Bradford Hill criteria, that evaluate epidemiological evidence to determine if causation is real. And there are nine criteria for that. But the four areas of causality that are important is, is it biologically plausible that an injury gave rise to a condition, whether in general terms, that a mechanism of injury does give rise to that condition, and there has to be a temporal relationship to an incident and the onset of symptoms. And also one has to consider the nature of the injurious event, in other words, was it significant. Particularly in a Workers' Compensation setting, you know, was it a material relationship to the event or a significant relationship to the event? So all of these factors have to be taken into consideration to attribute an incident in terms of causation.
Q. Dr Guazzo was asked some questions both in cross-examination and also in - I think in cross-examination but definitely in re-examination but definitely in re-examination, around the, there's a period of time between the reported incident and then the onset or reporting of symptoms. And the evidence which Ms Warden has given as to why she didn't notice the back pain and the sciatic pain and difficulties was that she was, she had been provided with a number of medications for pain relief as a result of her thumb injury. Dr Guazzo, in response to that question, said that while the medication may have been of assistance to improve the experience of the symptoms or to reduce the pain, he did not think that they would be of the, they would not prevent someone being aware of the pain. Do you have an opinion with respect to that?
A. I would agree with that in general terms. If there was significant back pain, I do not believe a short-acting opioid analgesia such as Endone would have (indistinct) what's considered a distracting or masking drug. If there's a significant amount of back pain it is well-known if you have neural impingement that's pretty significant pain, which is what's called neuropathic.
Q. So page 405, you're saying that one scan in 2020 shows something and the next one shows the same thing so - well, I don't know what happened then. Okay. So as far as you're concerned it was still there, it was the whole time. How do you explain the 17 November 2023 CT report where it says, 'The disc protrusion seen on the previous CT of February has improved'?
A. Well, that is fairly easy to explain. You have to remember CT scans are not the gold standard imaging for a lumbar spine. And if I can put it in laymen's terms, it's sometimes a bit like looking through some foggy glass at the (indistinct) structure. So the best way to look at disc pathology is actually what's called an MRI scan. And you have to remember that the appearances on a scan can actually change depending on position of a patient in the scanner and also the interpretation of the radiologist. And you can see that a different radiologist, Dr Slaney, reported on the scan on 17 November 23. Dr Boles reported on the scan on 10 February 2023, and Dr Abdelatti reported on the one on 16 July 2022. So what I'm alluding to is there is what's called inter-observer variation potentially, on the interpretation of imaging findings.
Q. If it's generally accepted that bulges, protrusions, whatever you choose to call them on your interpretation, reabsorb, recover to some degree, whatever it is, then between 2020-2023 there has also been some degree of repairing, recovery, reabsorption?
A. No. I respectfully disagree with that statement. So a degenerative disc disease does not repair or recover. The disease process generally progresses so it's actually not very common for a disc to resorb in general terms. Normally the disease process progresses.
Q. Can I take you to the report of Dr Guazzo and his diagnosis? It's at page 432. He makes a diagnosis of - and he clarified in his evidence 'my diagnosis is acute left L5 sciatica secondary to a large L5 sciatica. He made the point that that should be L4, L5, not L5-S1, causing left L5 radiculopathy. Do you agree that this?
A. Yes. I think that's - that would be perfectly reasonable. Ms Warden has multilevel degenerative disc disease. It's not just isolated to one level, which is pretty common. So I think what he's saying is perfectly reasonable in terms of diagnosis.
Q. And Dr Journeaux, if there was an aggravation of that underlying degenerative disease, Dr Guazzo gave evidence that he would expect that to resolve, that aggravation, within six months. And he said that would resolve and I think he used the figure of 95 per cent, but the diagnosis of the L5 radiculopathy was a permanent impairment. What do you say to that?
A. Well, it depends if you - by 'aggravation', you're talking about a symptomatic aggravation and/or a pathological aggravation of the pathology that's important to differentiate. So in general terms, a patient who presents with sciatica by and large will respond not (indistinct) well. Generally, within two years potentially become asymptomatic. So that is kind of my answer to that. Sorry, I missed one other bit of that question, I think.
Q. I think you were making the distinction between pathology and symptomology; so the first part of your answer was the symptomology. You said should resolve within two years, if I'm paraphrasing correctly, and then? And then the pathology bit is, I suppose, one of things that Mrs Warden keeps asking about is the evidence about reabsorption, as you say, a degenerative disc is a degenerate disc, but is there a change in pathology as well that occurs over time?
A. Yes, well, generally speaking, what they change in pathology is one of progression and worsening of the pathology, not only at the disc level but also in respect of what are called facet joints at the same level. Because they inevitably are a degenerate as well because they're considered as one spinal level. So you can't just isolate a disc pathology vis-à-vis a facet joint arthropathy and so on.
In my final submission I will try to focus on the FACTS of this case, the first and foremost I really enjoyed my job at K & S Freighters and all I have ever wanted was to get treatment and get back to work, having my claim denied meant I had to rely on the public health system and when that let me down I got a referral for a private specialist, and thankfully for me Dr Marshman looked outside the box at my first visit, in an effort to get me mobile and back to work, which was my goal from the beginning, but due to the fact that this took over 14mths from the date I was injured I am now faced with the very real chance of living with these debilitating symptoms for the rest of my life, I suffer everyday. The respondent would like to distract you from the matter before the tribunal, citing alleged policy breaches. This doesn't change the FACT that I was Injured whilst performing the job I was tasked to do by my supervisor, Peter Birt.
I request that the statements of Peter Birt and Geoffrey Robertson be set aside/excluded due to them being more about opinion and hearsay than fact.
1. The evidence does not support the respondents claim that I suffer from long standing symptomatic degenerative spine condition.
2. I did in fact sustain a complex injury on Jan 30 2023, whilst completing a task set by my supervisor, both to the disc at L5 and to my left Piriformis muscle, this is supported by the Clinical evidence, Radiology, GP, Dr's Marshman and Dr Guazzo. And the evidence that prior to that event (taking the weight of stanchion) I was not incapacitated in any way.
3. The definable event was when I wasn't prepared for the weight of the first stanchion and bore its weight on my body unexpectedly, that task was set to me by my supervisor Peter Birt, who knowingly set me a job I had no instruction or training on how to do safely.
4. The respondent seeks to have my claim for compensation precluded by Section 7 (7) At the time I filled out my claim form I filled it to the best of my knowledge at that time, with the information available to me at that time. I am not a medical professional, at no time were any responses questioned by the examining physician. I was not aware that in 2020 I had sustained a 'disc injury', what I did know was that it on was my right side, in my mind completely different to Jan 2023, this is supported by not only my GP Dr Pathania but also Dr Marshman.
I was told in 2020 that I had sciatica from pressure on the nerve, nothing more, which is why when I found out (after lodging my claim with K & S freighters on Feb 14 2023 I lodged a claim with PPG as I felt if my employment there was in any way responsible for the current injury they should be held liable. In October 2022 after having a gate fall on me (at work) Dr said said it was just muscle strain, nothing more and to not let pain control me. So I did not rush to a Dr on Feb 2 when my pain became obvious.
Mr Snell has raised issue within my pre-employment medical's, to clarify I had better flexion before joining K & S Freighters than what I had in 2020 prior to joining PPG. My reflexes were intact and NORMAL at both pre employment medicals, I had no sign of muscle wasting, both those, my loss of reflex in my left ankle and loss of muscle from my left calf have only come about after being injured on Jan 30 2023, whilst working for K & S freighters after the impact of having approx 30kg unexpectedly drop onto my arms and lap, causing a intense brief sharp pain, which as it initially went as fast as it came I dismissed it, until late in the day, 3 days later when my pain began to increase to a acknowledgeable level and kept increasing until I was unable to attend work, (I was trying to not let pain be my guide, to work through it) not realising I had actually sustained a major injury. My thumb injury overshadowed the stanchion incident, and it slipped my mind, until seeing the trailer jogged my memory.
Prior to the respondent claiming I had a 'disease' I had never heard the word used in relation to myself. The respondent's actions of withholding key evidence including CCTV footage which supports my claim, has cost me a lot more than 2 years wages, their denying my claim meant I went without prompt diagnosis and treatment leaving me with possible irreparable nerve damage and I have always maintained that I was not aware of the severity of any injury at that time. Producing the video at this point in the proceedings to me shows the respondent level of contempt for the process and the Tribunal. My employer is legally bound to investigate & report to the governing body, securing any evidence, this along with their claimed weight of the stanchions is evidence of my employers respect for policy & procedure.
Evident in the fact that on more than 1 occasion and 1 of them being directly to the tribunal (CR Gamble) the Respondent has denied the existence of CCTV footage of my injury, claiming it was non recoverable due to excess in time to retrieve it.
K & S Freighters have denied me due process whereby my application for reconsideration was handled by John Reppin who had influence on the original decision, in direct contravention of section 62(4) of the SRCA.
The video proves I was there, proves I did what I was tasked by my employer to do even after experiencing intense sharp pain in the first instance of taking the weight of the stanchion, I was diligently doing my job as required.
The respondent seeks to have my claim denied under s14(3) of the SRC Act on the grounds of Serious and wilful misconduct on my part, yet they have NO evidence to support this.
Mr Dube has broken down the CCTV footage (R16), which shows I was methodical in my actions to complete the task of preparing the trailer and not distracted by a handsfree phone conversation. Mr Dube's breakdown of the CCTV footage (R19) claims I took 'selfies' couldn't be further from the truth, these photo's were taken as proof of the conditions I was working under, I had mentioned to Geoffrey Robertson on several occasions that I often struggled to reach containers, this was even higher than others. It wasn't a selfie it was to compare its height to mine. This was a WHS issue I was going to raise but never had the opportunity. In Oct 2022 I was hurt when a gate fell on me from a similar container as I could not see the gate wasn't attached.
The CCTV footage is indisputable evidence that I did in Fact struggle to carry the stanchion after unknowingly bearing the weight of the stanchion when it came free from its cradle, which I claimed to have caused my injury. By their own admission K & S Freighters I was sent to do a job without proper instruction a clear violation of the WHS Act. Yet they deny liability siting alleged breach of company policy. My employer knowingly put me at risk.
K & S Freighters is relying on a specialist medical report by Dr Simon Journeaux an Orthopaedic Surgeon which is littered with inaccuracies and proven false diagnosis, unsupported by clinical results. By Dr Journeaux's , considering the speed at which my health declined following my injury proves it was a direct consequence of being injured whilst taking the weight of the stanchion on Jan 30 2023. When examined by Dr Journeaux 1 year after being injured in the course of my employment my symptoms had improved since being at their worst in early Feb 23 and he states I claimed to experience pain frequently which is true that pain was in my left buttock I told him any back pain had resolved almost completely. He overlooked piriformas syndrome even then, despite being told the frequency at which I experienced pain in my left buttock.
Dr's Marshman and Dr Guazzo are both Neurosurgeons, considering my complaint relates to nerve pain/ impingement, their opinions should hold more weight with the tribunal. Dr Journeaux is an Orthopaedic surgeon - Neuropathic pain and muscular skeletal pain are distinct and caused by different mechanisms.
Dr Marshman is my treating Dr he was not paid for a commissioned report, everything before the tribunal are his clinical notes or at most letters to my GP, merely outlining his findings, treatment and progress.
Mr Dube questioned Dr Journeaux about Dr Guazzo's opinion. That being that Dr Guazzo was of the opinion my symptoms were attributable to acute left L4-L5 disc protrusion claims, clinical symptoms and signs were entirely consistent with that. Dr Journeaux's states 'I would, generally speaking, agree with his comments. Although you cannot necessarily say pain arising from a degenerative spine is related to one particular area. But in general terms degenerative disc would encompass a diagnosis of lumbar spondylosis which, I believe, is essentially the diagnosis Ms Warden suffers from.
To say a person 'suffers' from a diagnosis is incorrect, a diagnosis is used for treatment or management of a condition, not what defines a person. This in my mind clearly shows that Dr Journeaux has got it wrong, my pain and symptoms did not match his diagnosis...my pain was in one area, it did not encompass my entire lumbar spine.
Dr Journeaux by his own admission completes over 1000 commissioned medicolegal legal reports a year for the last 5 yrs - the report he wrote as commissioned by the respondent for this hearing is 18 pages long.
1000 /365 = 2.7 reports every day, this on top of reviewing medical files, taking history and performing clinical examinations to gather information for said reports. By his own admission he states 'so I have been very busy' going on to say when asked how do you do that? 'How do I do that? Because I'm very efficient in what I do".
Not knowing the date on Xray - which if it were March 2023 would blow his diagnosis right out of the water
Is clear proof that Dr Journeaux has mixed up his notes/files or both, hardly efficient or fair to those whose lives are impacted by his errors put before the courts.
When questioned my Mr Dube, Dr Journeaux says 'Well to make a clinical diagnosis a doctor has to talk to a patient, find out what the symptoms are, perform a clinical examination and then utilise the radiology whether it's plain x-rays, CT scanning, MRI scanning, to come up with a definitive diagnosis'.
Yet when I asked for his opinion on the findings of CT dated 17 Nov 2023 stating that the disc protrusion seen on the previous CT of 14 Feb has improved? Answer: Well, that is fairly easy to explain. You have to remember CT scans are not the gold standard imaging for a lumbar spine. And if I can put it in laymen's terms , it's sometimes a bit like looking through some foggy glass at the structure'. Dr Journeaux told Mr Dube he utilises X-rays, CT's and MRI's if only MRI's are to be relied upon, why rely so heavily on two CT's and not a third? It appears Dr Journeaux relies upon CT's for his alleged definitive diagnosis, but only if it suits his clients agenda.
Dr Journeaux claimed the possibility of inter-observer variation, one radiologist interpretation being different to another??? His expects his diagnosis to be taken as gospel yet implies radiologists' reports aren't to be relied upon, while consistently relying upon the same as a diagnostic tool.
Both Dr Marshman and Dr Guazzo are of the opinion that a disc bulge can improve (thin out, shrink and resolve) that is around 80-95% resolve within 6 mths, yet Dr Journeax insists that my condition would inevitably deteriorate, with or without work and in particular taking the weight of the stanchion and lifting it into place, despite the fact that I went from consistently working a highly physical job to being severely incapacitated within days after 30 Jan 2023 to then after treatment fit enough to return to full time duties, this defies his diagnosis.
When question by myself Dr Marshman stated 'if you didn't have problems before, and that can be proven, and you have problems with what I saw, which is the left leg pain radiating down in S1 and possibly S2 distribution, well then if you developed that after the incident, well it's compatible, Well it was potentially compatible with a disk bulge at the time, but given that that went away and that you still have problems , I think it's more likely to do with a piriformis problem. Dr Marshman goes on to say 'the key thing is if you didn't have any symptoms before that and you suddenly get them after it, well, then you have to conclude that there's some relationship there'. And if it's, you know reasonable that the injury or the manoeuvring that you were doing at that time could have ripped the piriformis muscle from its insertion or, shall we say irritated it in some way, then the sciatic nerve and the nerve roots are right next to that. The S1 and S2 nerve roots run right on the piriformis. So if there's you know, inflammation or blood or something that's coming from the muscle and it's irritating the nerve, then that can set up a situation that carries on and on and on.
When questioned Dr Marshman as to the level of significance of my injury. That prior to the accident on January 30 I was consistently working on average 44 hours per week, doing every part of my job satisfactorily, and then not being able to do it, leads one to think that it a significant event? ---Answer- Well as I say if it can be well-established that you never had anything remotely like S1 S2 distribution pain before, and you suddenly have it after an episode at work, that's reasonably traumatic, in other words you know, you didn't exactly just get up off a chair and suddenly get it, you did have some episode at work, well I think that that's reasonable- you'd have to conclude that it's possible, yes.
When asked his opinion as to the delayed onset of symptoms, that it wasn't until towards the end of that week, Dr Marshman said 'it's definitely possible'. The late on set of pain? Dr Marshman answered 'Most symptoms to do with sciatica, nowadays, even if there is a disk bulge, you know that you're attributing to be the cause, it's usually not the bulge pressing on the nerve. Its more chemicals being released by it that are irritating the nerve. And those chemicals can come out after a few days so, yes there can definitely be a delay between the onset of the traumatic episode and the symptoms. But I think that another explanation would be that if you were on all those drugs, how would you know? So for two reasons, I could see a reason why--- Yes. Yes? you might not be aware of it yes.
In relation to delayed onset of symptoms' Dr Guazzo says 'So in my clinical practice, so I 've seen many patients with back injuries over many years. It's not inconsistent with what we can see, that is, a patient may have an acute injury. The pain begins to settle. They go on about their duties for a while but over subsequent days, the pain progressively worsens and they develop more severe pain radiating down her leg. The sciatic pain, and that's due to the disc protrusion that's occurred from the workload- from the injury. My place is to accept the history that's given to me by the patient then and make a diagnosis. So it's possible that that could have occurred. That is, an acute pain, but then it settles, and the patient goes about their physical activity relatively unrestricted, but over time, develops progressively worsening pain down their legs from the disc protrusion that's occurred as a result of that injury. That is not an uncommon clinical scenario.
When asked his opinion of Dr Journeaux's remarks that I would be in the exact same situation with or without work due to natural degeneration, Dr Marshman first made comments about my current symptoms 'I would say that your continued symptoms now, following the workplace injury, can't possibly be compatible with the disc bulge because it's been and gone. And that's what tends happen with them; most disc bulges do come and go. That's why nowadays most of us and I say most of us because its not everyone, but most of us won't go steaming into an operation because we know the thing is likely to go away, and we can manage the pain in other ways, you know, with spinal injections and with medication and drugs and so on. We can get around most of the problems while we're waiting for the disc bulge to go away'.
'So the fact you've still got a problem after that length of time without anything on the scans that I performed with you, there's nothing that showed any reason why you should have left-sided sciatica. That's why I then pursued other angles. That's why we did more extensive scans and then also including the piriformis muscle and looking at the sciatic nerve as it issues through there, and that's how we stumbled across that one. As you can see from my writing, I mean, it's not a common thing. It's not something that I jump at and it's a diagnosis that's often flouted by allied health professionals, but as a specialist myself, I've rarely been convinced that I've seen it but I would say that you are one.
He later says 'So that brings me back to Dr Journeaux's statement. Two things to say about that. Everybody of your age has degenerative spine disease and in fact, you don't have that much. You would expect, given your physical job, that you might have more than you do. So everybody will get degenerative spine disease at some stage in their lives, and beyond the age of 45, its already over about 80 % probability. So it would be very surprising if you had a normal spine, number 1. Number 2, if everybody gets degenerative disease of their spine, does that mean that everybody in the population gets a left-sided sciatica like you? The answer to that is obviously no. Most people, if they develop an episode of back pain, recover and they don't end up with a chronic pain syndrome. And that should be pretty obvious to everybody. So if you take a really advanced age, like 80 years of age, which I think Paul McCartney is, the Rolling Stones, two American presidents are, none of these have got sciatica. So this concept that because you have degenerative spine disease you're inevitably going to get back pain or sciatica, is really- beggars belief.
When Mr Dube asked Dr Guazzo to explain why he didn't agree with the diagnosis of piriformis syndrome Dr Guazzo said (around 20) it's a rare condition, and when it does occur, it affects the sciatic nerve generally and rarely causes - extremely rarely causes a discreet L5 nerve root syndrome. That's the basis of my diagnosis and why I think piriformis syndrome is highly unlikely.
Given that I have received successful treatment by way of steroid shots and physiotherapy solely targeting the left piriformis muscle. The diagnosis must be accurate.
Dr Journeaux was questioned by Mr Dube about his familiarity with the Piriformas Syndrome "are you familiar with that diagnosis or that syndrome?----Answer -'YES. That's a well known musculoskeletal condition.'
Dr Journeaux was then asked 'in respect of the material you've reviewed and the examination you did of Ms warden, do you concur with that diagnosis?---Answer - No. At the time I saw Ms Warden, I wouldn't concur with that diagnosis'. Dr Journeaux ignored being told by me on Jan 29 2024 that I was experiencing frequent episodes of debilitating pain in my left buttock, He ignored my symptoms and chose a more common diagnosis, setting aside a correct diagnosis just because it was less common, that being Piriformis syndrome. He also did not have access to the MRI of my pelvis, which is clear evidence to support the diagnosis. He appears to have ignored medical evidence and just written a report to suited agenda.
I have supplied clinical evidence from 2 Specialist Neurosurgeons which both refute Dr Journeaux's (Orthopaedic surgeon) diagnosis/opinion. The fact that I have received successful treatment for Piriformas syndrome which has allowed me to return to work, despite the ongoing neuropathy, I also experience associated pain daily (bladder/bowel) increased pain levels in my left calf and foot to the degree that intimacy is avoided almost entirely. This has had a huge impact on my quality of life and my marriage.
It is frequently published that symptoms of back injury are not always evident initially and can take days or weeks to develop, due to the body's natural response of releasing adrenaline and endorphins at the time of injury, delaying symptoms. Dr Peloza Orthopaedic Spine Surgeon.
My employment at K & S Freighters was clearly a significant contributing factor to my injury, obvious in the fact that up to lifting those stanchions I was completing all tasks required of my job and daily living and now every minute of every day I suffer the consequences of the act of taking the weight of the stanchion.
Under the SRCA section 5 (1)(b) I am classed as an employee. Section 5A (b) I sustained an injury. Section 6 (c) (i) (ii) I was temporarily absent from my place of employment (677 Ingham Rd) undertaking an activity at the direction of a licensee K & S Freighters, all of which meets the criteria to have my claim accepted. I was an employee doing what my employer tasked me to do.
That the Decision under review be set aside and substitute a new decision, that being that K & S Freighters accept my claim for workers compensation.
(a) Norsgaard v Aldi Stores (A Limited Partnership) [2022] QDC 260. This was a case about an employee being injured whilst unloading and stacking stock from a pallet.
The plaintiff in that case alleged that her employer failed in its duty to adequately train her in manual handling techniques. The decision of Judge Jarro was in respect to a breach of duty under the Workers' Compensation and Rehabilitation Act 2003, the Queensland act applying to employees that fall within its jurisdiction.
(b) 'Lumley v Sainsbury file SC142 of 2016'. The citation provided by Mrs Warden seems to be the decision of Murrell CJ in Lumley v Sainsbury [2017] ACTSC 40. The facts of that case were in respect to a claim for damages arising from a motor vehicle accident and the interaction with claimant's pre-existing degenerative disease as to quantum of damages.
(c) Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. This is a decision of the High Court again on the burden of proof on a claimant for personal injuries damages in respect of pre-existing conditions. Barwick CJ, Kitto and Taylor JJ stated:
We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial.
(d) Watts v Rake [1960] HCA 58; (1960) 108 CLR 158. This is a decision of the High Court again on the burden of proof on a claimant for personal injuries damages in respect of pre-existing conditions. Menzies J stated:
It was for the appellant as plaintiff to prove his damages, and merely to prove his present condition and his incapacity to work would not prove that these things resulted from the accident. It was not, however, for the plaintiff to disprove that his pre-accident ill health would eventually cripple and incapacitate him. Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, eg, that the plaintiff has aggravated his condition by some unreasonable act or omission.
25. The Applicant suffers from a degenerative lumbar spinal condition, being "an ailment" as defined, which has been symptomatic for approximately 15 years at least.
26. In the course of prior employment with PPG in July 2020, she sustained a significant aggravation of that condition (namely a disc bulge or prolapse resulting in sciatica) whilst lifting cans of paint.
27. By reason of the ordinary course of that condition and/or its aggravation, the Applicant was thereafter subject to episodes of symptomatic exacerbation.
28. On 30 January 2023 in the course of her employment with the Respondent she sustained a laceration injury to her thumb.
29. Whilst convalescing from the effects of such injury, on or about 3 February 2023, the Applicant sustained an exacerbation of the symptoms of her lumbar spinal ailment, or an aggravation of that ailment.
30. Such exacerbation or aggravation neither occurred in the course of her employment nor arose out of it.
31. The Applicant's account of the onset of her lumbar spinal symptoms on 30 January 2023 is unreliable or confected and cannot be relied upon by the Tribunal.
32. In the alternative, to the extent that the Applicant's condition constitutes "a disease" or "the aggravation of a disease", the Applicant in her claim for compensation [T14] made a wilful and false representation for the purposes of her employment that she had not "had a previous symptom, injury or illness, whether work-related or otherwise", nor had medical treatment for a "similar injury or illness" such that the provisions of s 7 (7) of the Act apply and her condition therefore "shall not be taken to be an injury to [her] for the purposes of [the SRC] Act".
5. The respondent also addresses two general points raised in the AS:
6. Finally, the applicant refers (AS p.8) to a Dr Peloza, orthopaedic surgeon's opinion. The respondent is unaware of this evidence being before the Tribunal. A word search of the exhibits before the Tribunal in this application does not disclose any reference or report by this doctor. The Tribunal should not have regard to that submission.
7. Exhibits R6 and R7 respectively consist of the entry medical questionnaires completed by the applicant before commencing employment with PPG Industries (her employer prior to employment with the respondent) and with the respondent.
8. The AS p.2 state 'I was not aware that in 2020 I had sustained a disc injury, what I did know was that it was on my right side, in my mind completely different to Jan 2023, this is supported by not only my GP Dr Pathania but also Dr Marshman'.
9. To the extent that this is a submission, the respondent relies on its submissions with respect to these issues as set out at RS [5]-[12] and [51]-[58]. Dr Pathania's report of 2 November 2023 (R28) does not express any opinion relevant to the issues to be determined in respect of the application of s 7(7). Similarly, neither of Dr Marshman's reports deal with issues relevant to the application of s 7(7) (Ex A7 & A9). The respondent has dealt with Dr Marshman's diagnosis of piriformis syndrome in the RS. This diagnosis has been rejected by both Dr Guazzo and Dr Journeaux and should not be accepted by the Tribunal.
Mr Dube's breakdown of the CCTV footage claims I took 'selfies' couldn't be further from the truth, these photos were taken as proof of the conditions I was working under, I had mentioned to Geoffrey Robertson on several occasions that I often struggled to reach containers, this was even higher than others. It wasn't a selfie, it was to compare its height to mine.
12. The most contemporaneous evidence of the reasons given by the applicant for photos being taken was her email of 1 March 2023 where she states 'I take a lot of pics because I like to show my husband what I do, I often lack confidence in my abilities and am proud (for the most part) of what I have been able to do at K&S5. The applicant also states in respect of the 'selfies' - 'I mostly took these to show my husband just how high the trailer was, even on my step I only just had the strength to undo curtains as they were so high'6.
13. The applicant's 'new' explanation for taking the photos should not be accepted. Irrespective of the reason for taking the photos, they were clearly in breach of the relevant policies and the respondent relies on its submissions with respect to the basis upon which the Tribunal can make findings of serious and wilful misconduct (RS [29]-[33], [59]-[62]).
14. The respondent's reasons for terminating the applicant's employment is consistent with the position taken with respect to the application of s 14(3) of the SRC Act. Beyond that, the issues giving rise to the termination of the applicant's employment are irrelevant to the questions for determination by the Tribunal.
17. The AS (p.7) contend that the correct diagnosis is piriformis syndrome (which both Dr Guazzo and Dr Journeaux emphatically reject). The applicant contends that this is incorrect due to the 'successful treatment' she has received. The respondent refers to the inconsistency in the evidence, see Dr Guazzo (A11 - 'CT injection which has had marginal benefit' (May 2024) and A12 - 'she described she had some mild improvement in her pain because of some further injections arranged by Dr Marshman' (January 2025)) and contends that little weight should be attributed to the contention that the diagnosis made by Dr Marshman is supported by the objective evidence.
18. As noted in the RS [49] - Dr Guazzo's oral evidence made appropriate concessions as to the reliability of his written conclusions on causation and 'on balance ... complements the conclusions reached by Dr Journeaux as to the lack of causation'.
19. The applicant has a long-standing degenerative spinal condition which was not contributed to any relevant requisite degree by her employment with the respondent to be rendered a compensable condition.
(a) Drenth v Comcare [2012] FCAFC 86 (Drenth). This decision of the Full Court of the Federal Court is in respect to the exception contained in s 5A(1) of the SRC Act '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' should be construed as applicable to the facts in that case. > > (b) There is no reference in the submissions of K&S Freighters to any facts or contentions relevant to the reasoning in Drenth. > > (c) Griffiths v Australian Postal Corporation [2018] FCA 520 (Griffiths). K&S Freighter contends the facts support that s 7(7) of the SRC Act applies, which states:
(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
(d) K&S Freighter, citing Griffiths at [40]-[41], contends 'The operation of 7(7) is triggered when an employee makes a wilful and false representation which is one which is not just false but that the representation is made without any belief that it is true' and that 'The claim for compensation is in respect of the aggravation of an underlying degenerative disc disease arising from a disc prolapse at L5-S1 (the disease). The applicant at all times when she completed those two forms was aware that she suffered from the disease and falsely and wilfully represented that she had not. Section 7(7) precludes entitlement to compensation in the event the Tribunal is satisfied that the applicant did sustain the injury on 30 January 2023.'
(e) Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468. This decision of the High Court is an oft cited authority on the application of the SRC Act. K&S Freighters do not refer to any particular part of the decision to support their contentions and the Tribunal deals with this decision on the threshold issue the Tribunal must undertake in making its decision.
(f) Bruce Muhlhan and K&S Freighters Pty Ltd [2016] AATA 42. This decision of the AAT considers the application of s 7(7) of the SRC Act and is cited in support of the contentions in Griffiths above.
(g) National Australia Bank v Georgoulas [2013] FCA 1412; [2013] 217 FCR 382. Again, this decision of the Federal Court is in respect to the application of s 7(7) of the SRC Act, in particular whether the claimant's disclosure in the claim was wilful and false.
(h) Citing Pickering and Linfox [2022] AATA 221, K&S Freighters contends 'the Tribunal expressed the view that 'serious and wilful misconduct' was directed primarily to conduct which increases the likelihood of serious injury and gives rise to an immediate risk'.
(i) Citing Comcare v Calipari [2001] FCA 1534 at [3], K&S Freighters contends the 'word 'serious' in the expression is the nature of the misconduct and not the risk of 'serious injury'.
(j) Citing Elvin and Comcare (1998) 51 ALD 741, K&S Freighters contends 'Caused by' in the context of s 14(3) requires a direct and proximate cause but not the sole cause of the injury'.
Did Mrs Warden suffer an 'ailment or an aggravation of such an ailment'?
(a) Mrs Warden action to pull out the first stanchion on the front left side of the trailer is not visible on the Video. > > (b) Mrs Warden was on her mobile phone speaking to her husband, Mr Warden, using an air pod(s), at the time she pulled the first stanchion from its storage tray on the left side of the trailer. > > (c) The Video shows her carrying the first stanchion from the front left side of the trailer with straight arms with the stanchion resting on her front thigh region, she appears to move with a rocking, shuffling movement as she walks towards the left rear of the trailer under the stanchion's weight. > > (d) Mrs Warden moves it from the front left of the trailer to the back left of the trailer without resting or putting the stanchion on the ground. > > (e) Mrs Warden uses a squatting movement to get the first stanchion from below the edge of the trailer to its deck and into place. > > (f) Mrs Warden did not cry out and suffer a sharp pain in her lower back when pulling the first stanchion from its storage location as she and Mr Warden state, because that is wholly inconsistent with Mrs Warden's movement immediately after pulling out the stanchion as the Video shows when she is carrying the stanchion to the rear of the Trailer. > > (g) After placing the first stanchion, Mrs Warden moves to the right side of the trailer to set the front right 'pin' for the placement of the container. This requires her to twist and manoeuvre the 'pin' into place, including using a hammer to get it into the correct position, moving into awkward positions twisting and bending, without any visible impediment to her range of movement. > > (h) Mrs Warden removes the second stanchion from the right side of the trailer with no apparent difficulty and again carries it using her arms on the front of her legs to the back of the trailer, with a similar squatting motion as previously to lift and place the stanchion on the trailer deck. > > (i) There is no visible difference in Mrs Warden's range of movement and mobility from before and after she moves the first and second stanchion. > > (j) Immediately after the placement of the first stanchion she bends over with a straight back with no apparent discomfort. > > (k) Dr Journeaux and Dr Guazzo gave evidence after viewing the Video that they did not see any indication that Mrs Warden suffered an injury whilst moving the first or second stanchion.
(a) Dr Marshman. His opinion was that Mrs Warden has 'facet joint disease at left L5/S1' and by 2 May 2024 a small disc bulge had since reabsorbed. His primary diagnosis was possibly 'piriformis syndrome'[44]. At the hearing Dr Marshman opined that Mrs Warden's ongoing pain symptoms were the result of 'piriformis syndrome' and any pain resulting from the disc protrusion shown on imaging in February 2023 had resolved. > > (b) As to the delayed onset of Mrs Warden pain in her lower back after the incident, Dr Marshman opined at the hearing that it might be either a delayed release of 'chemicals being released by it that are irritating the nerve' or that the pain medication 'blacking out for a lot of the time'. > > (c) Dr Marshman conceded in cross-examination that the relationship between the Incident and Mrs Warden's presentation in May 2024 at its highest was a 'possible relationship' and his opinion was based on the lack of self-reported symptoms prior to the Incident and the symptoms after. He emphasised Mrs Warden's positive response to the second injection into the piriformis muscle as evidence that his diagnosis was correct. > > (d) Dr Guazzo. His opinion was an acute large left L4/5 extruded disc related to the Incident, based on the history provided by Mrs Warden. He diagnosed acute left L5 sciatica secondary to a large left L4/5 disc protrusion causing left L5 radiculopathy as the primary diagnosis for Mrs Warden's continuing symptoms. This was an aggravation of her pre-existing disc degeneration. > > (e) During cross-examination, Dr Guazzo conceded that if there was a period of 7 days between the Incident and the reporting of symptoms that could give rise to questioning the relationship between the Incident and symptoms. He went on to say that 'generally speaking, if a person is in significant and severe pain then there would be some physical consequences of that'. > > (f) After viewing the Video, Dr Guazzo agreed that it showed Mrs Warden moving freely, bending easily from side to side, backwards and forwards with no restriction of movement, with no indication of acute back pain at the time of the Video. He went on to say that he accepted that the lifting incident was unlikely to be related to the onset of pain seven days later if there was no pain in the intervening period. > > (g) Dr Guazzo did not agree with the diagnosis of 'piriformis syndrome' as it was a rare condition, and his diagnosis fully accounted for Mrs Warden's symptoms. > > (h) Dr Guazzo during re-examination did not agree that the pain medication that Mrs Warden was taking after the treatment of her thumb would have completely supressed the pain in her lower back. > > (i) Dr Journeaux. His opinion was that prior to the Incident, Mrs Warden was having problems with her lumbar spine 'more likely than not as a consequence of progression of the natural history of her degenerative condition' of lumbar spondylosis_._ > > (j) After viewing the Video, Dr Journeaux opined that he did not see evidence of a significant injury and no obvious incapacity in her lumbar spine, but the stanchions were obviously quite heavy, and Mrs Warden had some difficulty with manoeuvring them. > > (k) Dr Journeaux did not agree with the diagnosis of 'piriformis syndrome'. He did agree with the diagnosis of Dr Guazzo as it was consistent with his opinion of Mrs Warden's degenerative disc disease. > > (l) Dr Journeaux did not agree that the pain medication that Mrs Warden was taking after the treatment of her thumb would have masked her pain in her lower back.
(a) The Tribunal finds that Mrs Warden had moderate degenerative lumbar spondylosis prior to 30 January 2023, including previous injuries to her lumbar spine with previous employers. > > (b) The Tribunal accepts the opinion of Dr Journeaux and Dr Guazzo as to the diagnosis of 'L4/L5 disc protrusion causing left L5 radiculopathy'. > > (c) An injury on 30 January 2023 is inconsistent with the Tribunal's findings in respect of the Video above. > > (d) Mrs Warden's evidence was that she did not notice any lower back pain until at least the evening of the fourth day after the Incident and gradually worsening after that. > > (e) The Tribunal accepts the opinion of Dr Journeaux and Dr Guazzo, who each found, after watching the Video, that if Mrs Warden had injured her lower back whilst moving the stanchions: > > > (i) The pain medications she took later that day and following, after injuring her thumb later the same day, would not have, as Mrs Warden contends or Dr Marshman opines, completely masked the pain of a slipped disc at the L4/5; > > > > (ii) They would have expected some visible sign of distress or affected mobility that was not visible on the Video; > > > > (iii) Dr Journeaux and Dr Guazzo gave evidence after viewing the Video that they did not see any indication that Mrs Warden suffered an injury whilst moving the first or second stanchion. > > > > 1. As the Tribunal has made findings that Mrs Warden did not injure herself as claimed, the Tribunal is reasonably satisfied that Mrs Warden's claim for liability under s 14 of the SRC Act must fail. > > 2. In any event, the Tribunal is not reasonably satisfied the Incident contributed to a significant degree to Mrs Warden's condition of ''L4/L5 disc protrusion causing left L5 radiculopathy' because: > > > > (a) The Tribunal is reasonably satisfied that 'L4/L5 disc protrusion causing left L5 radiculopathy' is a disease within the meaning of s 5B of the SRC Act because of the evidence of Dr Guazzo and Dr Journeaux. > > > > (b) The relatively short duration of Mrs Warden's employment with K&S Freighters in the context of her employment history, her lower back injuries with previous employers, her age, and her pre-existing moderate lumbar spondylosis are such that the Tribunal is not reasonably satisfied that the Incident contributed to a significant degree to her condition of 'L4/L5 disc protrusion causing left L5 radiculopathy'.[45]
Workers' Compensation Claim, dated 14 February 2023 (T13)
Initial Decision and Reasons, dated 10 March 2023 (T32)
Request for reconsideration, dated 24 March 2023 (T37)
PPG Employment Medical, dated 10 March 2020 (Tender Book (TB) 2)
K&S Employment Medical, dated 21 June 2022 (TB3)
Clinical Records - Douglas Family Medical Centre (T38)
Report of Benjamin Phillips, dated 11 December 2023 (T14)
Application for Assessment of Permanent Impairment, dated 27 February 2023 (TB27)
Statement of Geoff Robertson, dated 14 February 2023 (T16)
Statement of Peter Birt, dated 27 February 2023 (T20)
K&S Mobile Phone Device Policy, dated 9 September 2023 (ST41)
Pacific National Intermodal QLD Site Induction, dated 14 November 2016 (ST42)
K&S Employee Induction Handbook, dated 5 September 2022 (ST43)
Video footage of incident, dated 30 January 2023 (ST44)
Report of Dr Simon Journeaux, dated 31 January 2025 (T15)
Briefing letter to Dr Journeaux, date unavailable (T15a)
Video footage of Thumb Incident, dated 28 October 2024 (ST45)
Affidavit of Mr Raymond Warden, dated 21 February 2025
Emails between the Applicant and the Respondent, dated 1 March 2025 (T21)
Emails from Respondent to Applicant requesting phone records, dated 11-14 March 2025
Email from Respondent to Applicant containing images of the Stanchion's weight, dated 26 March 2025
Statement of Mrs Warden dated 3 November 2023 (TB5)
Email from Applicant to Respondent, dated 1 March 2023 (T22)
Email from Applicant to Respondent, dated 1 March 2023 (T23)
Email from Applicant to Respondent, dated 1 March 2023 (T24)
Email from Applicant to Respondent, dated 1 March 2023 (T25)
Email from Applicant to Respondent, dated 1 March 2023 (T26)
Letter from Queensland Xray to Dr Marshman 13 May 2024 (TB17)
Report of Dr Marshman, dated 22 May 2024 (TB18)
Letter from Queensland Xray to Dr Marshman 28 May 2024 (TB19)
Report of Dr Guazzo - dated 3 February 2025 (TB21)
Applicant's letter to Dr Guazzo - date unavailable (TB21a)
Show-cause Notice from Respondent to Applicant, dated 17 March 2025
X-Ray Lumbosacral Spine, dated 29 April 2010 (T4)
[2] On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
[35] Applicant's closing submission dated 5 May 2025.
[36] Respondent's Statements of Facts, Issues and Contentions, dated 11 October 2024.
[37] Respondent's Outline of Submission dated 22 April 2025.
[38] Respondent's submissions in reply, dated 13 May 2025.
[45] See Comcare and Power (2015) FCR 187 at [93]-[94].
Comcare
Calipari
Bruce Muhlhan and K&S Freighter Pty Ltd [2016] AATA 42
Comcare v Calipari [2001] FCA 1534
Drenth v Comcare [2012] FCAFC 86
Griffiths v Australian Postal Corporation [2018] FCA 250
Lumley v Sainsbury [2017] ACTSC 40
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
National Australia Bank v Georgoulas [2013] FCA 1412; [2013] 217 FCR 382
Norsgaard v Aldi Stores (A Limited Partnership) [2022] QDC 260
Pickering and Linfox [2022] AATA 221
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Romano v Comcare [2025] FCA 446
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
(2016) 257 CLR 468
(1960) 108 CLR 158
(1965) 114 CLR 164