" (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment."

1. The term "medical treatment" is defined by s 4(1) of the Act to include, inter alia:

" (a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or

(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or...

(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be....".

1. The term "therapeutic treatment" is defined in s 4(1) as including:

"an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury."

1. With the consent of the parties, the Tribunal admitted into evidence the T documents which were marked as Exhibit 1. These are the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. Included in those documents were medical reports prepared by various medical specialists over an extended period of time.
2. In September 2003 the Applicant was examined by Dr Derrick Billett, Consultant Orthopaedic Surgeon. In his report dated 9 September 2003 Dr Billett made the following observations - Exhibit 1 T5 pp. 23-24:

"Following the incident on 1 May 1984, Mr D'Amico experienced pain in the lumbar region. He has not resumed any gainful employment since that time.

Since 1984 his lumbar pain has remained on a constant daily basis, although variable, accompanied by intermittent pain down his right leg to the foot, occurring during the course of the week, with paraesthesia in a similar manner. His treatment has been conservative.

Quite surprisingly he had massage treatment for 15 years (up to two years ago), but I do not consider that this prolonged treatment would have been of any benefit. He has also been having laser treatment twice per week, since last year. However, I do not consider that this prolonged treatment would be of any benefit.

The clinical examination has not produced any evidence of an intervertebral disc prolapse or nerve root irritation. The MRI studies have documented marked degenerative changes throughout the lumbar spine, in the facet joints, in the ligamentum flavum and in the discs themselves. These changes did not occur during the course of his work and are constitutional, age-related and degenerative in type.

The incident of 1 May 1984 would not have led to these changes, nor would it have led to an increase in the anatomical components.

In summary, the incident of May 1984 resulted in an aggravation of the pre-existing constitutional age-related degenerative changes in his lumbar spine, which are quite marked, the effects of which would have resolved many years. Thus, there is no further relationship to the incident of May 1984.

I would attribute any pain he experiences to underlying pre-existing constitutional age-related degenerative changes in the discs and facet joints of his lumbar spine and any impairment would be due to the underlying degenerative changes..."

1. The Applicant was also assessed by Dr Virginia Pascall, Occupational Physician, on 7 December 2005. In her extensive report, dated 20 January 2006, she made the following observations - Exhibit 1 T7 p. 36:

"It is clear that Mr D'Amico has had symptoms from these degenerative changes since 1978, and that even with the incident at work, whilst there may have been a small injury or aggravation of these degenerative changes, was abating over several months only to have the degenerative changes aggravated on 31st July for reasons unrelated to work. According to the GP notes, there was a definite change for the worse in Mr D'Amico's symptoms on 31st July.

It is possible that there was a slight musculoligamentous injury in May 1984 because of the very sudden onset of symptoms, or there may have been some instability in his lumbar spine causing irritation of an already slightly arthritic facet joint. This aggravation had almost abated, as it required very little and probably no treatment, at the time that he experienced further flare up of the degenerative changes several months later.

There has been no acceleration of the degenerative changes caused by any work-related (or any other) injury. These degenerative changes have continued gradually increasing and worsening as is their nature. Any aggravation that occurred due to the incident at work has long since resolved and had it not been superceded by a further, non-work-related aggravation, Mr D'Amico's back pain caused by the work incident would have ceased by August/September 1984, particularly if he resumed his normal lifestyle sooner than he did.

What Mr D'Amico experiences these days in the way of back pain and any referred pain into his legs is unrelated to the work circumstances apart from the problems caused by the condition being originally associated with a workers compensation claim and being further compounded by the inability to get him back into the workplace at the time. Unfortunately, his original treatment was overly conservative, compounding in Mr D'Amico's thinking that he suffered a severe injury."

1. Later in the same report Dr Pascall opined - Exhibit 1 T7 p. 38:

"All the factors that contribute to his current lumbar condition are non-work related. The degenerative spine is solely a constitutional disorder in Mr D'Amico's case. There has not been any objective evidence of permanent injury to the spine or its related structures, caused either by the work incident or any other incident, that could have contributed to the degenerative changes."

1. Dr Pascall also made some observations on the efficacy of massage treatment - Exhibit 1 T7 p. 42:

"Mr D'Amico's treatment with Dr Cassar's group, apart from the medications prescriptions for which could be supplied by this general practitioner, appears to be 'laser and massage' repeated endlessly.

The Cochraine Collaboration has deemed that massage was more likely to work when combined with exercise (usually stretching) and education. On the other hand, massage alone was inferior to manipulation and TENS machine, and equal compared with corsets and exercises but better than acupuncture and self-care education. Therefore, in dealing with Mr D'Amico's chronic low back pain, massage without activity such as stretching, was not going to provide benefits."

1. As noted above, Dr Pascall was critical of the treatment being prescribed at that time by Dr Edwin Cassar, the Applicant's treating physician. She opined (at p. 42):

"Mr D'Amico has not obtained any long term benefits from Dr Cassar's treatment...He...is less active than he was in the 1990s or before Dr Cassar's treatment began."

1. Dr Cassar began treating the Applicant in 2002 after the Applicant was referred to him by Dr George Guirguis, his GP. Dr Cassar is a Consultant Physician, Cardiology, Rheumatology. He prepared a report dated 29 March 2006.
2. Dr Cassar determined that the Applicant should continue massage therapy and prescribed needle acupuncture as a pain management tool. In addition, the Applicant was also prescribed analgesic (Panadeine Forte) and neuralgic (Epilim in high dosage) medication. Dr Cassar made the following observations - Exhibit 1 T8 p. 48:

"In summary, I have been treating your client for the past four years and have history and documentation of your client having had continuous chronic low back and lower extremity pains since the alleged incident at work in lifting a table and injuring his lower back in the process. In that 22 year period since onset of low back and right leg pain there has been no significant period without back pain complaint which might suggest that total resolution of injury had taken place. Furthermore, there has not occasioned any separate aggravating injury, nor has there been a change of symptom complaint or alleged type of disability. There have been periods of loss of pain management control such as occasioned in 2001 but this has been dealt with and relapses avoided by continuous combination needle acupuncture and massage therapy. These allied health therapies have the support of evidence-based scientific studies and I have no reason to believe that your client would be undertaking and requesting these treatments if they were not essential to his better pain control and better functional capacity."

1. In an earlier report dated 8 August 2003, Dr Cassar was emphatic that the 1984 work incident was the cause of the Applicant's ongoing low back and spasms. He opined as follows - Exhibit 1 T4 pp. 18-19:

"The claimant's current specific diagnosis is Mechanical Back Disorder with Mechanical Nerve Root Impingement right side L5 nerve root on a background of progressive degenerative spondylosis including discs and this is not deemed to be related to the initiating work injury of 1984...

I consider that the condition was contributed to by the employee's Commonwealth Employment because it has not ceased nor has it been superceded by another episode.

Although it is possible in my opinion it is not probable that Mr D'Amico's current condition is related to a pre-existing or congenital or constitutional underlying condition nor a natural progression of an underlying condition. It is probable that there has been worsening of the condition by way of Mechanical Back Disorder and accompanying Mechanical Radiculopathy (nerve and root irritation L5), and that it is probable that there is some contribution to this by progressive degeneration as part of a natural aging process. It is my consideration that there are no other health issues or factors unrelated to his Commonwealth Employment contributing to the Lumbago and right L5 nerve root condition...

I do not consider that the effects of Mr D'Amico's condition in so far as it was worked (sic) related was of a temporary nature."

1. Senior Member Constance in his decision referred to reports by a Dr Cairns, Orthopaedic Surgeon dated 23 September 1988. That report was not included in the T documents in this matter, but is of interest. Dr Cairns opined ([2007] AATA 77 at [30]):

"The evidence suggests that he suffered an aggravation of symptoms related to pre-existent degenerative changes in the lumbo-sacral spine, such aggravation being reasonably expected to have resolved within 8-12 weeks...There are overt signs in his clinical examination to confirm psychogenic magnification of his symptoms, and I believe this to be his major ongoing disabling factor."

1. After Senior Member Constance made his determination, a further medical report was obtained. This report was prepared by Dr G Griffith, Consultant Surgeon and is dated 31 August 2007. Dr Griffith summarised his findings as follows - Exhibit 1 T10 pp. 61 - 62:

"Your client is suffering from pre-index injury lumbar spondylosis of moderate degree, which almost certainly suffered a temporary aggravation at the time of the index injury on 1st May 1984.

On the basis of the history obtained and the description of the pain at that time, and the description of his pain since, the cause is not discogenic, in spite of the fact that over a period of decades progressive degenerative change has occurred involving the discs and facet joints.

Currently he exhibits multi-level minor disc bulges and facet joint arthrosis, which is not active except at two levels at S1 and T9 on the basis of a bone scan taken in 2004.

The sequelae have included chronic back pain, referred to both lower limbs, which is not true sciatica. I base this statement on the fact that there are no neurological signs distally either motor or sensory, and not evidence of muscle wasting or asymmetric reflex changes. There are some clinical findings suggesting the possibility of peripheral vascular disease, probably associated with his diabetes and/or his hypertension, not related causally to the index injury.

He has gone on to develop a chronic pain state, with a high level of dependence on physical therapies without lasting relief or cure...The principal sequel is his perception of pain, and adoption of a chronic invalid lifestyle with a marked ability to manipulate his medical advisers, workers compensation insurers and other third parties for his benefit. Notwithstanding, though he has undoubtedly succeeded in doing so, particularly in regard to achieving access to massage for decades, he has not improved and lives an essentially vegetative existence..."

1. The focus of the more recent medical reports is on the efficacy of continuing massage therapy as distinct from an assessment of whether the Applicant's underlying condition is connected with his 1984 workplace injury.
2. The Tribunal was presented with two reports from Dr Janaka Seneviratne. Dr Seneviratne was briefed with the medical evidence outlined previously. In his report of 24 February 2017, Dr Seneviratne provided the following assessment - Exhibit 5 p. 5:

"Mr D'Amico is a 78-year-oldright-handed male who suffered a back injury in the Parliament in May 1984 which has been accepted as a work-related injury. His lower back problems are predominantly related to aggravation of pre-existing degenerative changes of the lumbar spine as well as initially a musculoligamentous injury of the lumbar spine. He has been appropriately investigated and treated for his condition. He describes ongoing pain symptoms which have not improved much with multiple treatment measures in the past.

• In my opinion, there is no justification for continuing with massage therapy which is unlikely to improve his medical condition or pain symptoms to a significant degree.
• It is reasonable to continue with his current neuropathic medications (Lyrica)...

Mr D'Amico has suffered a back injury whilst at work in 1984 which was predominantly a musculoskeletal/musculoligamentous injury of the lumbar spine as well as temporary aggravation of pre-existing lumbar spine degenerative disease. It is possible that he has developed a chronic pain condition following this."

1. Dr Seneviratne also gave oral evidence on 13 December 2017. He testified that in his opinion the Applicant's 1984 workplace injury had likely resolved and that the pain and discomfort experienced was, most likely, a combination of age related lumbar spine disease and the effects of Diabetes which he had suffering from since at least 1996.
2. Dr Seneviratne testified that in his opinion the Diabetes had "taken over". While he stated that he could not totally exclude that there could be some ongoing contribution from the 1984 injury, he was of the opinion that it was not a "significant contribution".
3. During his evidence, Dr Seneviratne testified that the Applicant's pain had varied over the years. He was of the view that, having regard to the Applicant's high blood sugar levels, the pain in his legs was due to Diabetes. Further, he testified that it didn't make sense that the Applicant's massage therapy was not focused on his lower back but was distributed to other parts of his body. Insofar as the massage therapy was being applied to areas of the body other than the lower back and right leg, Dr Seneviratne opined that it was not a treatment connected with his workplace injury.
4. The Tribunal also had the benefit of receiving written reports and hearing oral evidence from Dr George Guirguis, who has been the Applicant's GP since circa 1985. Having treated the Applicant for more than 30 years, Dr Guirguis is in a unique position to give a broad historical analysis of his medical state.
5. In a report prepared for Comcare dated 24 April 2016, Dr Guirguis made the following observations - Exhibit 1 T 26 pp. 90 - 91:

"1. Mr D'Amico suffers from lower back pain (lumbago), right sciatica on a background of degenerative lumbosacral spine disease. This was aggravated by the work injury of 1-May-1984.

2. The recommended treatment:

- Remedial massage aiming at relieving pain and promoting mobility. This helps Mr D'Amico to perform activities of daily living. I am aware that Mr D'Amico maintains regular domestic activities and performs home-based exercises.

- Medical therapy in the form of analgesics and pain modulators.

3. The effectiveness of treatment has been gauged by subjective pain relief, mobility and ability to perform activities of daily living. These treatment gains are short lasting and symptomatic and, therefore, treatment is expected to be ongoing.

4. Gentle transition to independent self-management can be implemented by a collaborative approach between Mr D'Amico, a competent physiotherapist, Comcare and myself.

I am unable to forecast a date to achieve treatment goals but would expect this to be an ongoing process as it has started some 31 years ago.

5. Other than advancing age, I am not aware of any co-existing biopsychosocial factors."

1. Dr Guirguis testified; and while conceding that the Applicant may have developed a dependency on massage therapy, was nevertheless of the firm opinion that it had not lost its efficacy. He opined that massage therapy worked well for the Applicant's condition and was an effective treatment for helping him cope with everyday living. Moreover, Dr Guirguis stated that massage therapy was a safe treatment and had no obvious deleterious side-effects.
2. During cross-examination, Dr Guirguis testified that the Applicant suffers from degenerative back disease and Diabetes. He opined that the 1984 workplace accident aggravated his underlying back condition, and believed that the accident had an ongoing impact on the Applicant.
3. Finally, Dr Guirguis was of the view that massage treatment has a therapeutic benefit for the Applicant and, inter alia, improved his functionality.
4. The Tribunal was provided with all of the medical material that Dr Seneviratne was briefed with by Comcare - Exhibit 3. Included in that material was an earlier report of Dr Guirguis dated 11 June 2006. The views expressed in that report are consistent with the oral testimony he gave on 12 December 2017. Outlined below are relevant extracts from that report - Exhibit 3 pp. 111-112:

"3- Examinations over the years have demonstrated tenderness on palpation of the lower back, reduced mobility, restricted leg raising and weakness of the right leg.

4- The diagnosis is acute disc injury as a result of the work injury of 1-May-1984 aggravating pre-existing degenerative lumbo-sacral spinal disease.

5- It is my opinion that it is more probable than not that the disability was caused by the work accident of 1-May-1984...

9- The recommended treatment revolves around multidisciplinary pain management with mainly physical therapeutic modalities and minimal pharmacological agents. Mr D'Amico has significant comorbidity and pain relief and anti-inflammatory medications have potential interactions with other medications and may also have detrimental effects on various body organs.

10- I believe that Mr D'Amico had pre-existing degenerative lumbo-sacral disease prior to the work accident of 1-May-1984. This was aggravated by the injury resulting in his long suffering...

Although the condition from which Mr D'Amico has suffered has been pre-existing, it was largely asymptomatic. It was the work injury of 1-May-1984 that led to the cascade of symptoms (pain and reduced mobility) through the pathological changes mentioned earlier.

Because of the permanent nature of the pathological process of tissue remodeling following the injury and the fact that fibrous tissue formation is irreversible, I believe that the mentioned aggravation extends indefinitely."

1. The Applicant also called Mr Chris Radnedge to give evidence. He is a soft tissue therapist who has been treating the Applicant for up to two years mostly by remedial massage therapy.
2. Mr Radnedge testified that massage therapy had not ceased to lose its efficacy as a treatment for the Applicant. He was of the opinion that it provided temporary pain relief and increased functionality. Mr Radnedge conceded that as the Applicant aged and his spinal condition worsened by the effluxion of time, there was a need to supplement the massage therapy with an exercise program to strengthen the lower back. In the case of the Applicant, Mr Radnedge observed that he was suffering from a degeneration of the spine together with osteo-arthritis of the facet joints.
3. Mr Radnedge also opined that the 1984 workplace accident had ongoing deleterious impacts on the Applicant's condition.

Is the massage treatment obtained in relation to the injury?

1. The threshold question to be determined is whether the medical treatment obtained by the Applicant (in this matter, massage therapy), is in relation to the workplace injury he sustained in 1984.
2. The phrase "in relation to" has been given a broad and expansive interpretation by the Courts. In Kennon v Spry (2008) 238 CLR 366 Kiefel J (as she then was) opined (at [217]) that "in relation to" "is of wide and general import and should not be read down in the absence of some compelling reason to do so."
3. The expression is also to be understood contextually. In Workers Compensation Board v Technical Products Pty Ltd [1988] HCA 49; (1998) 165 CLR 642 at 653-654 Deane, Dawson and Toohey JJ observed:

"The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends."

1. A helpful Tribunal determination on the proper interpretation of "in relation to" in the s 16 context is Pratt and Comcare [2004] AATA 1281. In that matter Comcare refused compensation for the cost of a stenting operation carried out five months after Mr Pratt suffered a myocardial infarct at work. Comcare accepted that the myocardial infarct was a compensable injury but determined that the stenting was not "medical treatment obtained in relation to the injury".
2. The Tribunal set aside the reviewable decision and gave the following reasons:

"25. The phrase 'in relation to' in section 16 needs to be looked at in the context of being part of beneficial legislation and within a section which provides generally for the payment of medical expenses under the compensation scheme set up by the legislation...we should interpret the phrase widely unless the context requires it to be read down. Comcare contends that it should be interpreted as meaning that the medical treatment for which compensation is payable should be restricted to treatment 'of' the injury. On this argument the stenting procedure was treatment of the underlying condition and not treatment of the injury. We do not accept this argument. Had Parliament intended to restrict compensation for treatment in this way it could simply have said so by using the far more restrictive preposition 'of' rather than 'obtained in relation to'.

26. We find the cost of the whole of the stenting procedure is compensable. Dr Coles and Professor O'Rourke agreed that stenting would now be used to treat a myocardial infarct provided that the procedure could be undertaken within a short period of the injury occurring. In those circumstances clearly the procedure in part would be treatment of the infarct itself and part treatment of the underlying condition to reduce the risk of recurrences of an infarct. For the reasons stated above, the section should be interpreted broadly so as to include Mr Pratt's treatment in this case. Dr Coles stated that the stenting was to prevent a recurrence of the injury and that it became necessary because of the injury Mr Pratt had already suffered. This is sufficient connection for the purposes of section 16 of the Act."

1. A more recent Tribunal determination of relevance is Manns and Comcare [2012] AATA 462. The Tribunal made the follow pertinent observations (at [22]) on the relevant connection required by s 16(1):

"The phrase 'in relation to' has a broad meaning that is not confined to a direct or proximate relationship of cause and effect; it simply signifies that there is some relational connection between the two matters. Presently, the relational connection is between the medical treatment Ms Mann obtained and the right knee injuries for which Comcare accepted liability. The closeness of the relational connection must be ascertained 'by reference to the nature and purpose of the provision in question and the context in which it appears'. These are matters of degree, to be determined on the evidence applying the reasonable satisfaction civil standard without resort to indefinite evidence or indirect inference." (footnotes omitted)

1. Ms Katavic drew the Tribunal's attention to the recent Federal Court decision of Howes v Comcare [2016] FCA 1521.
2. The Court considered three questions of law. The first two questions were as follows (at [23]):

"1. Whether the Tribunal misconstrued section 16 of the Safety Rehabilitation and Compensation Act 1988 ("SRCA") in holding that surgery undertaken on the advice of treating medical practitioners for the express purpose of ameliorating pain associated with an accepted injury, is not surgery undertaken in 'relation to the injury' as those words appear in section 16 of the SRCA.

2. Whether the Tribunal misconstrued section 16 of the Safety Rehabilitation and Compensation Act 1988 (SRCA) in holding that the words 'in relation to the injury' as they appear in section 16 of the SRCA bear no purposive connotation, whether the purpose be that of the patient or medical practitioners or both."

1. His Honour Justice Griffiths dealt with these questions as follows (at [53-55])::

"It is evident from the AAT's reasons in the proceeding here that, in determining whether or not the breast reduction surgery was 'in relation to' the applicant's compensable injuries, consideration was given inter alia to the evidence of the applicant's various medical advisors, as well as to the evidence of Dr Maxwell... It is not the case that the Senior Member did not consider the applicant's medical evidence or regard it as being irrelevant to the question whether the surgery was in relation to the compensable injuries. He plainly did view it as relevant, but he preferred to accept Dr Maxwell's evidence, which was to the effect that breast reduction surgery could not have affected the symptoms of the applicant's compensable injuries...

The AAT approached the central issue on the basis that the relational connexion between the surgery and the compensable injuries had to be determined objectively and by reference to all relevant evidence. I accept Comcare's submission that, in order to determine whether the relational connexion existed, it was necessary for the AAT to consider the nature of the compensable injuries (see Manns v Comcare [2012] AATA 462 at [22] - [23]). Contrary to the applicant's contention that Dr Maxwell's evidence was only relevant to the issue of 'reasonableness', I consider that it was relevant to the prior question whether the surgery was in relation to those injuries. It was open to the AAT to prefer his evidence on this question. I do not consider that this simply involved a finding of fact, as suggested by Comcare. The AAT's conclusion that the surgery was not in relation to the injuries is more accurately described as 'an evaluative conclusion' based on primary facts (see Comcare v Martinez (No 2) [2013] FCA 439; 212 FCR 272 at [88] per Robertson J). The subjective views of either the applicant or her medical advisors were not determinative...

It was a matter for the AAT to consider and weigh the conflicting medical evidence..."

1. Apart from the fact that a decade has passed since this matter was last the subject of scrutiny, both legal and medical, the Tribunal has before it years, if not decades, of medical and quasi-medical analyses of the Applicant.
2. The Tribunal was presented with a range of medical opinions. Each of those was put in a professional manner. It is always difficult in matters such as these to form a conclusive view when it is clear that conflicting professional opinions are firmly and honestly based. However, that is the mandate of a tribunal of fact.
3. While, as a general rule, the Tribunal gives more weight to the evidence of a treating doctor compared with the evidence of a medico-legal witness, that is not always the case. The Tribunal will give more weight to specialist physicians expert in their field, to the opinions of general practitioners or persons who do not hold a degree in medicine.
4. Further, some caution is required when receiving evidence from a GP who has been treating a person for many years. It is often the case that in such circumstances the bonds of familiarity and friendship subconsciously erode the professional impartiality born of a less familiar and lengthy relationship. It is often the case that a treating doctor falls into error by becoming more of an advocate than a dispassionate professional. This, it should be added, is not a criticism, but simply a reflection of the vicissitudes of human empathy.
5. There is no dispute that the Applicant suffered a workplace injury in 1984 for which there was an appropriate acceptance of liability. This is not a matter where Comcare contends that the Tribunal should make a finding of fact contrary to the original acceptance of liability under s 14 - Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253.
6. The threshold matter in contention is whether the Applicant's current condition is related to the incident, or whether he is suffering, inter alia, from the effects of a degenerative spine (as well as diabetes and hypertension).
7. On the one hand, the Tribunal was presented with reports from Dr Cassar, Dr Guirguis and Mr Radnedge each of whom opined that the Applicant's current condition is causally related to the 1984 workplace incident. While acknowledging the Applicant suffers both from degenerative spinal disease and diabetes, nonetheless, these gentlemen were each strongly of the view that the 1984 accident continues to play a role. Having regard to the expansive and beneficial interpretation of "in relation to", that would be sufficient, if accepted, to meet the threshold test.
8. The Tribunal notes that each of these gentlemen have had interactions with the Applicant over an extended period of time. In the case of Dr Guirguis: for more than two decades. It is also the case that they have a broad range of experience and relevant qualifications. In most circumstances when the Tribunal is presented with unequivocal diagnoses from suitably qualified persons, the Tribunal will accept the medical evidence presented and make the appropriate determination.
9. However, in this matter the Tribunal is presented with equally unequivocal diagnoses from specialist medical practitioners that the effects of the 1984 workplace injury have dissipated and that the Applicant's current condition is caused by degenerative spinal disease and diabetes.
10. Apart from the extensive (16 pages) report of Dr Virginia Pascall prepared in 2006, the Tribunal also was presented with the report of Dr Derrick Billett (Consultant Orthopaedic Surgeon) prepared in 2003 and Dr Griffith (Consultant Surgeon) prepared in 2007. Each of these very detailed and extensive reports provide clear and unambiguous diagnoses that the 1984 accident only resulted in, to quote Dr Griffith, "a temporary aggravation" of his degenerative spinal condition - Exhibit 1 T10 p. 61.
11. Dr Billett opined that any lumbar spine pain experienced by the Applicant "would be due entirely to the underlying degenerative changes in the discs and facet joints of his lumbar spine", and that the effects of the aggravation caused by the 1984 accident by 2003 "would have resolved completely" - Exhibit 1 T5 p. 24.
12. Dr Pascall was even more blunt. She opined that there "has been no acceleration of the degenerative changes caused by any work-related (or any other) injury. These degenerative changes have continued gradually increasing and worsening as is their nature. Any aggravation that occurred due to the incident at work has long since resolved..." - Exhibit 1 T7 p. 36.
13. Dr Pascall opined that the Applicant was not assisted by his original treatment which she categorised as "overly conservative" and which "compounded in Mr D'Amico's thinking that he suffered a severe injury" - Exhibit 1 T 7 p.36.
14. There is other material before the Tribunal which tends to support Dr Pascall's view that the Applicant refused various treatments that may have assisted him. Dr Calder, in a report dated 11 April 1985 said - Exhibit 1 T8 p.52:

"I reviewed Mr D'Amico today. He is unfortunately no better. He is having a lot of trouble coping with the Woden Valley rehabilitation programme with ear ache and dizziness after he has been in the pool which may well be worthwhile investigating, but also with increased back pain. He has said that he will not be prepared to have any needles in his spine therefore I cannot give him an epidural and nor can I elucidate the level of his pathology any more closely. I do not think that a CT scan will help in his case. I therefore have nothing further to offer him. I think that he is, at the very least, not attempting to minimize his symptoms. I refer him back to you."

1. Dr Griffith examined the Applicant on 10 July 2007; 18 months after Dr Pascall examined him (on 7 December 2005). He was briefed with Dr Pascall's report as well as the decision of Senior Member Constance together with radiology reports dating back to 1987. Dr Griffith made these observations - Exhibit 1 T10 pp. 58 - 59:

"Dr Billett's comments that he has received 15 years massage treatment without benefit. He was of the opinion that the episode in May 1984 resulted in aggravation of his age-related degenerative changes, but that any such aggravation would have resolved within months, the underlying condition continuing to progress in accordance with its natural history. He considered that his whole person impairment of 10% (probably in terms of First Edition of Comcare Guide to Permanent Impairment, Table 9.6) would be due to underlying pre-existing constitutional age-related changes and not to the index incident. By way of comment, I agree with the report...

Dr Virginia Pascall has conducted a forensic dissection of your client's history and his physical findings. Again she reports there was quite incongruous straight leg raising when seated and when recumbent - a clear indication of embellishment. There is no true sciatica, merely referred pain from his lower back. There were no objective neurological signs in the lower limbs. It is of interest that his peripheral pulses were diminished, though still present, more marked on the left than on the right, with decreased capillary return. It should be remembered that currently he is diabetic, with peripheral circulatory problems a well recognised complication of this condition (having been present for some years) peripheral neuropathy also a theoretical complication.

Dr Cassar claims that he suffered 'acute lumbar disc compression injury with discitis and subsequent disc degeneration at L4/5'. I believe this opinion cannot be sustained, in particular in relation to discitis (which is rarely suffered as a primary sequel to a lifting incident of the nature claimed) and that there was no acute lumbar disc compression demonstrated - merely slow progression of degenerative disease. In my opinion, Dr Cassar's statement is based on an erroneous concept of the pathology present and cannot be justified on the basis of proven radiology. In fact, the discs are virtually stable over a period of many years as documented in repeated MRIs and C/Ts of the lumbar spine.

In my view Dr Pascall's analysis of the situation is precise, accurate, and based on observable fact, both in regard to investigation and physical findings. She also noted that his symptoms were sufficiently in abeyance during the 90's to engage in golfing on a regular basis..."

1. In addition, the Tribunal had the benefit of listening to the evidence given by Dr Janaka Seneviratne who is an experienced Consultant Neurologist with specialist interest in nerve injuries and neuromuscular disorders. Dr Seneviratne was briefed by the Respondent on 6 February 2017 with 32 documents, including all the reports of Dr Cassar presented to the Tribunal as well as the medical reports of Drs Billett, Pascall and Griffith - Exhibit 3.
2. Again, Dr Seneviratne was in no doubt that the Applicant's 1984 injury had resolved and that the pain and associated problems he is currently experiencing are due to age related spinal disease and diabetes.
3. The Tribunal was very impressed by the testimony of Dr Seneviratne. He expressed his opinions in an objective manner and was open to making concessions if he was not totally convinced about a proposition. In short, he gave measured and balanced evidence.
4. The task required of the Tribunal is to ascertain if there is a relational connection between the massage therapy and the compensable injury. This question is to be determined objectively by reference to all of the relevant evidence presented
5. Central to this task is a consideration of the various medical evidence presented and a finding as to which of the conflicting evidence is, on the balance, preferable.
6. The overwhelming weight of specialist medical evidence supports the contention of the Respondent that the 1984 injury no longer negatively impacts on the Applicant's condition, and his underlying spinal disease and diabetes have "taken over". In short, the aggravation of the Applicant's underlying condition brought about by the 1984 accident has resolved and is no longer a cause, let alone the primary cause, of his current condition.
7. In summing up the Tribunal has taken into account the following matters:
   • (a) the Applicant suffered a workplace injury in May 1984;
   • (b) the accident caused the Applicant pain in his lower back - reports of Dr Wardman dated 31 August 1984 and 30 July 1986, Exhibit 2 pp. 359-360;
   • (c) he has not been in the workforce since this accident;
   • (d) he was 78 years of age at the time of the hearing;
   • (e) in 1984 the Commissioner for Employees Compensation accepted liability to compensate the Applicant for his injury, and he has received compensation for medical expenses and/or loss of earnings since that time;
   • (f) the Applicant has received at least 1016 massage therapy treatments in the period 18 March 1994 - 29 June 2016;
   • (g) the preponderance of medical evidence is that the workplace accident of May 1984 temporarily aggravated the Applicant's pre-existing constitutional age-related degeneration in his lumbar spine - Exhibit 1 T5 p. 24;
   • (h) the preponderance of specialist medical evidence is that the Applicant's current condition is solely caused by progressive degenerative changes to his spine as well as his diabetes - Exhibit 1 T10 pp. 61 -62;
   • (i) specialist medical evidence suggests that at some time after 1984 the aggravation caused by the workplace injury dissipated, and the Applicant's underlying constitutional condition continued to deteriorate resulting in a range of symptoms including pain and reduced mobility - Exhibit 1 T 7 pp. 35 - 36;
   • (j) sometime after the 1984 accident the Applicant's condition improved such that by the 1990s he was playing golf - Exhibit 1 T7 p. 37;
   • (k) evidence presented at the hearing disclosed that the Applicant, despite his advanced years, was continuing to play golf a regular basis and "going well" - Exhibit 2 pp. 43 - 45;
   • (l) extensive records of the Applicant's massage treatments disclose that this therapy was not always focused on his lower back. Indeed, on numerous occasions he would receive full body massage, or treatment focused on his neck, arms, feet, upper back and shoulder - Exhibit 2 pp. 4 - 24; and
   • (m) the evidence of Dr Seneviratne is preferred to that of Dr Guirguis and Mr Radnedge not only because of Dr Seneviratne's specialty, but because he presented as a dispassionate and objective witness whereas Dr Guirguis and Mr Radnedge presented more as advocates of the Applicant.
8. It therefore follows that the massage treatment obtained by the Applicant is not medical treatment obtained in relation to his compensable injury as that injury at some time after 1984, but certainly before the reviewable decision, resolved itself.
9. Having determined the threshold question in favour of the Respondent, it is not necessary to proceed to the second question, namely whether massage therapy was a reasonable treatment to obtain in the circumstances.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

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