Graham and Comcare (Compensation) [2025] ARTA 579 | Case summary

Graham and Comcare (Compensation) [2025] ARTA 579 | Case summary | Zoe

(a) Application 2020/6254 is for review of Comcare's reconsideration decision[1] to revoke a determination Mr Graham was entitled to compensation for a 23 percent permanent impairment under s 24 of the SRC Act and related non-economic loss under s 27 as a result of an injury on 31 July 2013.[2] > > (b) Application 2021/8134 is for review of Comcare reconsideration decision[3] refusing previously accepted compensation for spinal fusion surgery.[4] > > (c) Application 2021/8135 is for review of Comcare reconsideration[5] decision refusing to accept liability for Mr Graham's claimed failed back syndrome.[6] This application was resolved by agreement in the course of the proceedings: the reconsideration decision was affirmed by consent during the proceedings. > > (d) Application 2021/9474 is for review of Comcare's reconsideration decision[7] to refuse liability for Mr Graham's 10 November 2020 claim in respect of a psychological injury on 8 February 2018.[8] This application was resolved by agreement in the course of the proceedings: the reconsideration decision was set aside and substituted with a decision Mr Graham suffered a temporary exacerbation of an adjustment disorder with mixed anxiety and depressed mood secondary to back pain in respect of which Comcare was liable to pay compensation under s 14 of the SRC Act from 8 February 2018 to 22 March 2023, and on 23 March 2023 the ailment did not meet the threshold of a 'disease' under s 5B of the SRC Act and it did not result in impairment or incapacity for work. > > (e) Application 2021/9475 is for review of Comcare's reconsideration decision[9] to refuse liability for Mr Graham's 10 November 2020 claim[10] in respect of a psychological injury, "depression caused by severe back pain",[11] for which he first sought treatment on 3 August 2016. > > (f) Application 2023/0596 is for review of Comcare's reconsideration decision[12] affirming a determination that Comcare had no present liability on 22 November 2022 under s 16 and s 19 of the SRC Act in respect of Mr Graham's accepted low back injury on 8 February 2018.[13] This application was resolved by agreement in the course of the proceedings and a consent decision was issued on 18 July 2024:[14] the reconsideration decision was set aside and substituted with a decision Mr Graham suffered an aggravation of a lumbar sprain on 8 February 2018 in respect of which Comcare is liable to pay compensation under s 14 of the SRC Act. > > (g) Application 2023/3104 is for review of Comcare's reconsideration decision[15] refusing Mr Graham's claim in respect of a low back injury attributable to the nature and conditions of his AFP employment from 2001.[16]

Following further review on 20 May 2015, Dr Ow-Yang reported to Dr Bradfield that Mr Graham continued to have "significant low back pain mainly around the paravertebral region in the region of the L4/5 facet".[118] Dr Ow-Yang considered the "sharp stabbing pain that usually affects him particularly when he tries to twist or bend" was consistent with a "facet joint source of pain".[119] The doctor offered lumbar fusion surgery, including L4/5 and L5/S1 laminectomy, rhizolysis, posterior interbody fusion, pedicle screw internal fixation and posterolateral fusion plus harvest of bone graft.
On 11 June 2015, Comcare determined to accept liability for the lumbar fusion surgery.[120]
On 3 July 2015, Liesl Meyer, an occupational therapist, produced an Activities of Daily Living Assessment Report.[121] Ms Meyer assessed Mr Graham's reported difficulties with activities of daily living[122] and provided recommendations to assist with his "significant difficulty performing movements associated with reaching below knee, as well as having difficulty with squatting and bending forward".[123]
On 7 July 2015, Mr Graham underwent the lumbar fusion surgery Dr Ow-Yang recommended. During the surgical procedure, the "L4/5/S1 nerve roots decompressed" and "Severe facet arthropathy at both levels with surrounding facet cysts adherent to dura on right side" was reported.[124]
On 21 August 2015, Dr Ow-Yang reported Mr Graham had made satisfactory progress after the lumbar fusion surgery and "The stabbing back pain has now resolved but he has the typical ache associated with muscle dissection".[125] On 2 October 2015, following a CT scan of Mr Graham's lumbar spine on 23 September 2015, the doctor reported Mr Graham continued to improve and "There has been a significant reduction in opiate requirements but he still takes some Targin and Endone occasionally".[126] Dr Ow-Yang considered that Mr Graham was able to commence a graduated return to work.
On 16 October 2015, a rehabilitation plan for Mr Graham's graduated return to work commenced, setting out suitable duties and incremental restrictions.[127] Mr Graham progressed satisfactorily and on 30 November 2015 "he was coping with the 3 full work days per week, however felt fatigued by the end of the working week".[128] He upgraded his hours of work on 14 March 2016 and 4 May 2016, at which point he was working "7.5 hours per day, 4 days per week and an additional 4 hours per day on a Wednesday".[129]
On 9 May 2016, Mr Graham advised "he had aggravated his back pain symptoms at the workplace on 4 May 2016": "he had sat down into his chair which dropped down; jarring his back and resulting in exacerbated pain symptoms".[130] On 5 May 2016, Mr Graham consulted Dr Bradfield who certified he was unfit for work until 6 May 2016.[131] On 12 May 2016, Dr Ow-Yang reported Mr Graham was making "steady progress".[132] On 26 May 2016, Mr Graham returned to "full pre-injury hours".[133]
On 1 July 2016, Dr Garth Eaton, an occupational physician, produced a report for Mr Graham's legal representatives addressing a permanent impairment assessment. In Dr Eaton's assessment, Mr Graham sustained a 23 percent whole person impairment under the Comcare Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 "due to the complete loss of a motion segment L4/5 and L5/S1 due to the successful attempt of surgical arthrodesis/fusion".[134]
On 21 July 2016, Mr Graham consulted Dr Sandeep Rajagopal, a general practitioner, who noted "recurrence of back pain- no neurology".[135] The doctor's notes from consultations on 3 August 2016, 16 August 2016, 2 September 2016 refer to back pain, for which he prescribed Targin. The precise location and nature of the back pain is not recorded.
On 18 August 2016, Mr Graham lodged a compensation claim for permanent impairment and non-economic loss in respect of his accepted low back injury.[136]
On 8 September 2016, Carl Hynes, an exercise physiologist employed by Rehab Management, produced a Case Closure Report in which he stated:

On 26 June 2022, Professor Robin Orr, a professor of physiotherapy at the Bond University, produced a statement for Mr Graham, citing a number of research reports in respect of the risk of back injury using tactical body armour, including accoutrement belts.[195]
On 22 November 2022, Comcare issued a determination of no present liability for medical treatment expenses and incapacity for work in respect of the lift incident injury.[196] Following a request for reconsideration of this determination by Mr Graham, on 25 January 2023, Comcare issued a reconsideration decision, affirming the determination.[197] Mr Graham lodged an application for review of this decision by the Tribunal (application 2023/0596).[198]
On 6 February 2023, Mr Graham completed a compensation claim in respect of a lumbar spine condition "caused or aggravated, exacerbated and accelerated degenerative disease in lumbar and lumbosacral spine, particularly the segments (L2/3 to L5/S1) and the facet joints in the back".[199] On 15 March 2023, Comcare determined to refuse the claim.[200] Following a request for reconsideration by Mr Graham, Comcare decided to affirm the determination,[201] whereupon Mr Graham lodged an application for review with the Tribunal (application 2023/3104).[202]
On 4 March 2023, Dr Ow-Yang produced a report for Mr Graham in which he set out a detailed history of his consultations with Mr Graham.[203] The doctor reported "components of pain that are related to a flare-up of facet arthritic or musculoligamentous pain" should be disentangled from "behavioural components of pain or pain arising from external psychosocial factors".[204] He robustly disagreed with Dr Casikar's diagnosis of a failed back syndrome. Dr Ow-Yang rejected Dr Casikar's opinion Mr Graham's pain was muscular, stating there is "clear evidence of structural injury to discs and facetson MRI's, SPECT CT's, discogram, multiple diagnostic procedures with facet blocks and denervations and proven response to surgery".[205]
On 7 April 2023, Professor Orr, produced a report for Mr Graham's lawyer, having conducted a telephone interview with Mr Graham on 20 March 2023.[206] The Professor reported:

On 7 December 2023, Dr Khurana produced a supplementary report for Comcare,[207] in which he agreed with Dr Ow-Yang's critique of Dr Casikar's opinion and observed that the "surgery was technically sound, medically indicated, and has been of great 'salvage' benefit" to Mr Graham.[208] Dr Khurana reiterated his opinion that Mr Graham suffers from symptomatic lumbar spondylosis and probably symptomatic adjacent segment disease in which his employment is "relatively immaterial".[209] The doctor reported that Mr Graham would have required the surgery carried out expertly by Dr Ow-Yang, regardless of the workplace incident, and regardless of wearing an accoutrement belt.[210]
On 19 December 2023, Dr Casikar produced a supplementary report for Comcare,[211] in which he diagnosed "constitutional degenerative disease of the lumbar spine" and "degenerative chronic low back pain".[212] The doctor reported "[t]he aggravation that occurred in 2013 was a minor soft tissue aggravation which in my opinion resolved within a short period, perhaps two to three months" and "[t]he incident in 2018 was not a major factor to his lumbar symptoms. It did not produce or accelerate degenerative disease".[213] Dr Casikar reported that the lumbar fusion surgery on 7 July 2015 "was mainly to address the degenerative disease of the lumbar spine", although he considered there was insufficient evidence of instability of the spine to justify the fusion surgery.[214]
On 29 January 2024, Dr Leon Le Leu, a consultant occupational physician, produced a report for Comcare.[215] The doctor reported a diagnosis of "degenerative disease of the lumbar spine dating back before the 1990s with variable radicular symptoms over the years". [216] Dr Le Leu reviewed extensive briefing materials referred to by Professor Orr and agreed with the Professor's conclusion in respect of the risk of injury from wearing an accoutrement belt and sitting in patrol cars. This notwithstanding, Dr Le Leu reported that the nature and conditions of Mr Graham's employment "did not contribute to the development of his lumbar back condition" and "[t]he accoutrement belt and the patrol car driving could well have temporarily exacerbated his situation, but so could the personal exacerbating factors".[217] The doctor explained Mr Graham's lumbar spine condition "is a multifactorial condition which includes a long-standing pre-existing condition, personal exacerbating factors and work-related factors"[218] and concluded:

At the heart of Mr Graham's case is the proposition the nature and conditions of his AFP employment caused cumulative load and microtraumas in his lumbar spine which, when combined with the effects of specific incidents in his employment, accelerated or aggravated his underlying lumbar spine pathology. He argues the additional load of wearing accoutrement belts and vests for the duration of 12-hour shifts, including on foot patrols and when using patrol vehicles, as well as entering, exiting and sitting in patrol cars with low, poor or damaged seating for long periods, contributed to aggravate, accelerate or exacerbate his pre-existing lumbar spine pathology.
Mr Graham asserts relevant documents have not been produced by the AFP, including reports referred to in the ACT Policing Annual Report 2011-2012 addressing the risk of harm posed by wearing accoutrement belts. In his submission, without this material, his case cannot properly be assessed.
Mr Graham relies on and asserts the evidence of Professor Orr, Dr Brooder and Dr Ow-Yang should be preferred and given substantial weight. He asserts the Tribunal should disregard the medical opinion evidence of Dr Khurana, Dr Casikar and Dr Le Leu in respect of speculation that injuries he suffered in his AFP employment were temporary or were overtaken by other events or pushed into the background by progression of his underlying spinal disease. He contends Dr Khurana's evidence that Mr Graham's spinal disease is attributable to a 'Bertolotti syndrome' and congenital or genetic features, and Dr Casikar's diagnosis of 'failed back syndrome', should be rejected. Conversely, Mr Graham argues the evidence of Dr Ow-Yang and Dr Brooder of the nature and persistence of symptoms and the extent of treatment he obtained after the fuel card incident demonstrates the significance of the injury and the probability it accelerated or aggravated his underlying spinal disease. This, he says, aligns with aspects of Dr Le Leu's oral evidence on this point and it is supported by Professor Orr's evidence of injury risk and probable work contribution.
In Mr Graham's submission, the nature and conditions of his AFP employment, performing operational duties for 12 years, and incidents in his employment contributed materially and significantly to accelerate or aggravate his spinal condition, surpassing the applicable threshold of 'disease'. In the alternative, Mr Graham contends the nature and conditions of his AFP employment and incidents in the course of his employment resulted in physiological changes in his lumbar spine which are consistent with an 'injury (other than a disease)' arising out of or in the course of his employment. In either case, he asserts the injury resulted in impairment and incapacity for work, and it required medical treatment, including surgical treatment in July 2015 which resulted in a permanent impairment.
Comcare submits Mr Graham's 'nature and conditions' claim is directed to the 'disease' provisions in s 5B of the SRC Act, and the integers of his AFP employment must be considered with other relevant factors, including the nature of the underlying degenerative condition and other factors which predispose him to experience symptoms of the condition. Comcare argues the thresholds of employment contribution, a material degree and (from 13 April 2007) a significant degree, are not satisfied.
Comcare contends there is insufficient evidence to satisfy the Tribunal Mr Graham's duties in his previous employment contributed to the requisite degree to the onset, aggravation or acceleration of his low back condition. Comcare argues Mr Graham's low back condition was well established prior to his AFP employment in 2001 and the condition has the character of a degenerative ailment which, in the course of natural progression, is susceptible to temporary irritation with activity or symptom provocation.
In Comcare's submission, Professor Orr's evidence in respect of cumulative load theory, is no more than an unproved hypothesis that activity-related load results in microtraumas which, over time, increase the risk of injury from wearing accoutrement belts for long periods and sitting in patrol vehicles. Comcare argues there is a substantial step between the risk of injury, which is an abstraction influenced by multiple factors in the particular circumstances of each case, and the occurrence of an injury in fact. To find an injury has in fact occurred, so the argument goes, relevant evidence of probative value is required. Comcare asserts Professor Orr's theory is derived from research findings which are substantially informed by the subjective perceptions of study participants, and this is not a reliable basis on which to determine liability under the SRC Act. Comcare contends the theory of gradual accumulation being causative of injury is not consistent with the facts of Mr Graham's case or the contemporaneous medical records. Comcare asserts the theory is contraindicated by the expert opinions of Dr Khurana and Dr Casikar in respect of relevant research findings and the probable causes of the low back symptoms Mr Graham experienced.
Comcare accepts that Mr Graham experienced temporary exacerbations of symptoms in the fuel card incident and the lift incident which are compensable (liability has been positively determined) but maintains that these incidents did not have lasting effects, and they did not contribute to or cause acceleration of Mr Graham's underlying degenerative spinal condition or increased susceptibility to aggravation episodes. The aggravations Mr Graham experienced, Comcare alleges, involved temporary exacerbation of symptoms which were not associated with physiological changes in his lumbosacral spine. Comcare draws authority from Woodhouse v Comcare[228] when arguing that liability for Mr Graham's temporary aggravation injuries is confined to the period in which the contribution threshold is met and each aggravation injury results in incapacity for work or impairment.
As with any injury claim, Mr Graham's 'nature and conditions' claim is to be determined under s 5A and s 14 of the SRC Act, adopting the approach discussed by the plurality in Military Rehabilitation and Compensation Commission v May (May).[229]

Mr Graham's employment contribution argument runs on two limbs. The first is that his duties, particularly (but not exclusively) operational duties, in employment materially and significantly contributed to cause acceleration, recurrence or aggravation of his degenerative lumbar spine ailment. The second is that incidents in his employment significantly contributed to or aggravated the ailment.
Comcare does not cavil with its previous acceptance of liability for an injury in the form of "aggravation of intervertebral disc disorder - lumbar region (left)" in the fuel card incident on 31 July 2013,[230] and "aggravation of lumbar sprain (unspecified)" in the lift incident on 8 February 2018.[231] In resolution of proceedings in application 2017/1415, Comcare accepted and the Tribunal decided that Mr Graham continued to suffer effects of the 31 July 2013 aggravation injury until 7 February 2018.[232] This notwithstanding, Comcare asserts the nature and conditions of Mr Graham's AFP employment, and incidents in that employment, did not materially or significantly contribute to the onset, acceleration or aggravation of his degenerative lumbar spine ailment.
Mr Graham was employed by the AFP from September 2001 to 16 November 2020.[233] He was assigned duties in the Diplomatic Protection Unit. Prior to the spinal fusion surgery on 7 July 2015, other than periods when he was assigned office duties (August 2013 and January to July 2014), and subject to restrictions in respect of incapacity to work (August to September 2013 and from January 2014), his duties had an operational character. On the evidence of Mr Graham and Kelly Connolly,[234] his operational duties included conducting 'mobile patrols' using patrol vehicles (driving and sitting in patrol cars), conducting 'static patrols' on foot, performing protective security functions, undertaking Operational Safety Assessments and wearing accoutrement belts or vests weighing 5 to 6 kilograms when fully loaded (depending on the type of belt or vest and the particular accoutrements). Mr Graham undertook 12-hour shifts with occasional overtime, in which mobile patrol duties were arranged in 2-hour blocks.
After the spinal fusion surgery in July 2015, Mr Graham undertook a graduated return to work performing administrative duties. He was subsequently assigned non-operational duties in the Protection Assessment Team, the Exhibits Management Centre and the Ceremonial and Protocol Team.
Mr Graham's evidence is, in parts, inconsistent, incomplete and affected by poor memory, and there are serious questions about the extent to which it can be relied upon. Nevertheless, it is probable he experienced varying degrees of low back pain episodically over many years, at least from 1990 and, in all likelihood, from 1972. A pattern of episodic exacerbations emerges from the contemporaneous medical records which arose spontaneously or with activity.
There is no doubt Mr Graham's degenerative lumbar spine ailment was present prior to commencement of his AFP employment. The ailment rendered him susceptible to episodic exacerbations of low back symptoms.
Over many years, Mr Graham engaged in physical activities outside his AFP employment, including kick boxing, family activities and activities on his rural property, such as slashing, construction projects and going for walks.
Mr Graham gave evidence that he often experienced low back pain to varying degrees after undertaking operational duties in his AFP employment. He explained he managed these symptoms with exercise and analgesic medications, only resorting to medical or physiotherapy treatment when he experienced more intense or severe symptoms. While I accept Mr Graham might have experienced such employment-related symptoms, there is scant evidence they surpassed the threshold of clinical significance until 31 July 2013.
There is a great deal of medical expert opinion evidence addressing the employment contribution question. Before dealing with the substance of the opinion evidence, it is necessary to address Mr Graham's submissions in respect of the role of expert witnesses and the requirement for impartiality.

The successive radiological scans clearly demonstrate the progression of Mr Graham's degenerative lumbar spine condition and discogenic pathology over the period they traverse, including multi-level disc bulges in January 2011 which were more pronounced in August 2013 and degenerated to the extent of an annular tear in March 2014. The progressive degeneration in Mr Graham's lumbar spine aligns with the contemporaneous medical evidence which demonstrates an increasing incidence of symptoms, medical treatment and incapacity from January 2011. This is consistent with Mr Graham's statement that prior to 31 July 2013 "[m]y back has been getting gradually worse over a long period of time".[239] It is also consistent with Dr Ow-Yang's evidence of the progressive mechanism of discogenic back pain he considered was operative in Mr Graham's case, albeit with additional incidents and contributory factors over a longer timeframe.
In Dr Khurana's opinion, the "workplace contribution here is relatively immaterial" as Mr Graham's underlying spinal conditions are "predictably progressive in time, with notable accelerant effect of a narrow lumbar canal", but the "[accoutrement] belt was not a material accelerant, nor was the sitting, or the workplace incident".[240] This notwithstanding, Dr Khurana explained "it is conceivable that prolonged sitting and/or wearing of an accoutrement belt could temporarily and recurrently exacerbate (i.e. temporarily increase) symptoms of spondylosis" but "prolonged sitting and/or work belt wearing pale in comparison to other factors listed above in terms of putative spinal injury causation from a permanent physiological and/or structural perspective".[241]
The doctor listed 18 factors he took into account, including Mr Graham's age, past obesity, scoliosis, congenitally short pedicles /narrowed lumbar spinal canal and the presence of a Bertolotti variant (at the lumbosacral junction).[242] He explained that a Bertolotti variant at the lumbar junction leads to degeneration of associated segments and L5/S1 pseudoarthrosis, which would accelerate degeneration at the L4/5 level. It is Dr Khurana's opinion the combination of factors "would predictably predispose to biomechanical and clinical disturbance (low back pain, radiculopathy), even with innocuous events".[243] I accept this is so and that the predisposition is an element of Mr Graham's susceptibility to low back injury.
Dr Khurana was cross-examined on these matters and adhered to his reported opinions. His explanation of the mechanism of such biomechanical or clinical disturbance and the likely cause and duration of Mr Graham's low back pain symptoms was detailed and cogent, but ultimately unpersuasive. His evidence Mr Graham's employment duties might be associated with temporary exacerbation of symptoms without any lasting or cumulative effect is not clearly drawn. The doctor does not squarely address the extent of Mr Graham's susceptibility to low back injury, the nature of his operational duties in employment and the increased risk of or susceptibility to such an injury as posited by Dr Ow-Yang and Professor Orr. Consequently, it is difficult to fully comprehend Dr Khurana's reasoning why work-related exacerbation of symptoms of spondylosis were temporary, and these did not materially or significantly contribute to the progress of Mr Graham's degenerative lumbar spine ailment. This reduces the weight which can be given to his evidence that wearing an accoutrement belt and sitting in patrol cars was not "a material accelerant".[244]
In his second report on 6 April 2022, Dr Casikar reported a diagnosis of "constitutional degenerative disease in the lumbar spine" and reasoned that this "is a constitutional problem". The reasoning proceeded on the basis that "degeneration is unrelated to the type of employment"; "the clinical signs of degenerative disease is usually back pain"; "the disease is progressive and therefore patients will continue to complain of pain"; and "[t]hese complaints of pain are unrelated to the employment".[245] He also reasoned that "[i]t is possible that Mr Graham has significant degenerative disease of the lumbar spine" and "sitting for a long period of time could have produced soft tissue aggravation on the back". The doctor reasoned aggravations of this kind "are usually short lived" and "I do not believe the employment continues to contribute to this condition".[246]
Under cross-examination, Dr Casikar adhered to his reported opinions, but he did not provide a detailed neurophysiological explanation of the 'soft tissue aggravation on the back' he described. His opinion that, on the facts of Mr Graham's case, such aggravation was 'short lived' lacks detailed explanation. The doctor's diagnosis of failed back syndrome is controversial. It stands alone and carries little weight.
Dr Khurana and Dr Casikar drew support for their opinions that the nature and conditions of Mr Graham's AFP employment did not significantly contribute to aggravate his ongoing degenerative lumbar spine ailment from medical research and journal papers. No doubt such materials and long experience add to their expert opinions in the context of the particular facts in this case. The relevant research evidence (including the extensive journal articles Dr Khurana provided) is in the background and no doubt, at the level of generality, it assists abstract scientific or epidemiological understanding. On this point, the reports referred to in the ACT Policing Annual Report 2011-2012 would no doubt be relevant, but these have not been provided despite searches conducted by the AFP.
The value of such material in the particular circumstances of any case derives from detailed reasoning, applying scientific research findings to the specific relevant facts of the case. I am not persuaded the journal articles controvert Dr Ow-Yang's explanation or the extensive materials and journal articles Professor Orr provided (including those reviewed by Dr Le Leu). Faced with scientific controversy of this kind, the Tribunal must maintain a steady eye on the matter before it, in which the correct or preferable decision and related factual findings are matters of satisfaction on consideration and evaluation of the relevant evidence.
Dr Ow-Yang gave evidence as a "patient advocate and treating surgeon"[247] and acknowledged that legal questions of causation are not relevant to his role treating the pathological causes of symptoms. This notwithstanding, the doctor explained his opinion about the mechanism underlying Mr Graham's low back pain symptomatology:

In cross-examination, Dr Ow-Yang accepted he relied on the history given by Mr Graham and reported "[Mr Graham] stated to me that his back pain problems began after the work injury. This is what I believe".[249] He explained he was not aware that Mr Graham had suffered from recurrent episodic low back symptoms for many years or that he returned to full duties in employment in October 2013 and then had driven to Queensland and back without incident. I note, however, in his 6 March 2014 report to Dr Bradfield, Dr Ow-Yang referred to Mr Graham's previous experience of low back pain in January 2011.[250]
When informed about the history of Mr Graham's episodic symptoms, Dr Ow-Yang accepted it is not possible to know precisely and with certainty what triggered the severe low back symptoms Mr Graham was experiencing in March 2014, when he was first examined by the doctor. Nevertheless, Dr Ow-Yang explained the twisting injury on 31 July 2013 aggravated Mr Graham's lumbar disc pathology, including sensory innervation of the disc annulus and accumulation of pressure from long periods of sitting in patrol vehicles wearing accoutrement belts, and this was a likely trigger for Mr Graham's persistent but variable low back pain symptoms thereafter.
Dr Ow-Yang's analysis is consistent with and supported by Professor Orr's evidence (including extensive research papers and journal articles) in respect of cumulative load theory. On Professor Orr's evidence, twisting while seated in a patrol vehicle wearing an accoutrement belt or vest probably increased the risk of such an injury occurring, especially if the seat was in a poor state of repair and ergonomically deficient.
Some caution is required assessing Professor Orr's specific evidence addressing the circumstances of Mr Graham's case as, similar to Dr Ow-Yang, the Professor was not given a full history.
On Professor Orr's evidence, wearing an accoutrement belt (from 2001 to in or about 2011) and an accoutrement vest (from in or about 2011 to 2014) is likely to have raised the risk of injury to Mr Graham's lumbar spine. He explained the risk is probably increased by wearing these items for long periods of up to 12 hours per day while performing duties on foot patrol and using the different kinds of patrol vehicles, including sitting for lengthy periods in patrol vehicles with poor ergonomic seating (including damaged seating in which items on the accoutrement belt might catch), and entering and exiting such vehicles. It is Professor Orr's opinion cumulative load, over time, increases the risk of injury. This is consistent with Dr Ow-Yang's evidence of the link between cumulative disc pressure and the emergence of low back pain symptoms, and I accept it is probably correct.
Professor Orr explained that sitting in a patrol car seat multiplies body-weight load on the lumbar spine and limits rotation, and the significance of this increases when wearing an accoutrement belt which fixes the hips when seated. On his evidence, other factors add to the injury risk, including vehicle vibration, fatigue (particularly performing shift work) and microtraumas. In his opinion, in order to interact with items placed on the passenger seat or in the central console, a person sitting in the driver's seat is required to twist and this would place rotational stress on the lumbar spine, thereby increasing the risk of injury. In the Professor's opinion, wearing an accoutrement vest is unlikely to reduce the risk of injury but wearing an accoutrement belt would fix the hips in the seat and this would increase the risk of injury.
Professor Orr gave oral evidence that microtraumas from wearing an accoutrement belt are acute manifestations of chronic load conditions which persist after years of wear. He described microtraumas as neuroplastic changes at acute yield points depending on individual susceptibility. He explained, where these occur over a period of three to six months, pain symptoms could be expected, and persistent occurrences could lead to chronic pain. The Professor accepted that identifying such changes is very difficult as pain is subjective and there is no definitive test. He posited that microtraumas might be identified in radiological imaging as 'hot spots' in tissue which could be matched with the clinical picture, taking account of indicia such as performance, but he explained there is no definitive way to identify microtraumas. Consistent with this, microtraumas are not identified or reported in any of the radiological investigations of Mr Graham's lumbosacral spine.
Having reviewed the extensive literature Professor Orr identified, Dr Le Leu reported he is "open to the idea that wearing accoutrement belts and poor ergonomic circumstances in patrol cars could constitute a risk factor in aggravating back pain".[251] Under cross-examination on this point, the doctor accepted that these factors might have contributed to aggravate Mr Graham's degenerative lumbar spine ailment.
In Dr Le Leu's opinion, Mr Graham's ongoing and deteriorating back condition made him more vulnerable to develop symptoms. In oral evidence, Dr Le Leu revised his reported opinion "there is no evidence that [Mr Graham's] employment accelerated the natural progression of his condition"[252] and explained that the effect of temporary symptoms and other factors could temper or accelerate the natural progression of Mr Graham's degenerative lumbar spine ailment. Dr Le Leu did not give detailed evidence of the likely mechanism for this or the source of the temporary exacerbations of low back pain with activity.
Dr Still's evidence is that "the natural progression of the underlying condition of multilevel spondylosis ... is subject to acute exacerbations and remissions".[253] This is consistent with Dr Souter's report that Mr Graham's "underlying condition is a long standing and degenerative one, and further intermittent recurrences of low back pain are likely to recur".[254] Dr Still and Dr Souter did not express opinion about the effect of Mr Graham's duties in AFP employment on such acute exacerbations and intermittent recurrences or the effect, separately and cumulatively, of such recurrences and exacerbations on the progress of his ongoing degenerative lumbar spine ailment.
The expert witnesses agree, and the contemporaneous medical records clearly demonstrate, that Mr Graham's degenerative lumbar spine ailment was susceptible to irritation in a variety of circumstances within and outside his employment. It is probable his pre-existing and ongoing degenerative lumbar spine ailment rendered him susceptible to acute exacerbations and recurrences. The preponderant weight of the expert and specialist medical evidence supports this conclusion.
On the evidence of Dr Ow-Yang, Dr Le Leu and Professor Orr, I am satisfied Mr Graham's operational duties over 12 years, wearing accoutrement belts for long periods and sitting in patrol cars while wearing such belts, increased the risk of injury to his lumbar spine.
On Dr Ow-Yang's evidence, in the context of Mr Graham's ongoing degenerative lumbar spine ailment, it is probable the employment-related cumulative load contributed to progressive physiological changes in Mr Graham's lumbar discs. Considering the period in which Mr Graham undertook operational duties from September 2001, it is probable the cumulative load of his operational duties affected his lumbar discs and serially contributed to recurrent subclinical low back and discogenic pain in the context of his ongoing degenerative lumbar spine ailment.
Dr Ow-Yang's reasoning is compelling and strengthened by relative contemporaneity and his direct experience treating Mr Graham. It is largely consistent with and draws support from the evidence given by Professor Orr, Dr Brooder and Dr Le Leu, and it is not reliably controverted by other evidence. Dr Ow-Yang's evidence is more persuasive, and it carries more weight, on these points than the evidence of Dr Khurana and Dr Casikar.

I am satisfied Mr Graham's operational duties in AFP employment from September 2001 increased his risk of low back injury. In the context of the progressive and degenerative nature of Mr Graham's ongoing lumbar spine ailment, it is probable Mr Graham's operational duties, particularly wearing accoutrement belts when entering, exiting and sitting in patrol cars, had an accumulative effect on the discs in his lumbar spine and the accumulative effect increased his susceptibility to a low back injury. It is probable this enhanced his pre-employment susceptibility to low back injury and, in all likelihood, the enhancement was progressive and permanent.
No doubt, other factors also contributed to the progress of Mr Graham's lumbar spine ailment and his susceptibility to low back injury, including the factors Dr Khurana, Dr Casikar and Professor Orr identified. Contributory factors include Mr Graham's age, his weight, the ongoing degenerative nature of his lumbar spine ailment, his vulnerability to symptomatic exacerbation and susceptibility to aggravation of that ailment, the physiological changes in his lumbar spine reported in January 2011, congenital features of his lumbar spine (such as short pedicles), previous incidents (separately and cumulatively) which affected his lumbar spine, activities (such as kick boxing and work on his rural property) unrelated to his AFP employment, tiredness, diet and psychological factors.
These factors provide context for the purposes of s 5B(1) of the SRC Act. The legal test of employment contribution to a significant degree is not exclusive. It is not a sole cause test or even a test of greatest cause. The causal threshold is surpassed if the employment contribution is to a degree which is substantially greater than material, having regard to relevant considerations set out in s 5B(2) of the SRC Act.
I do not accept Comcare's assertion of an evidentiary gap between the risk of injury and the occurrence of an injury in fact. On the facts of Mr Graham's case, the distance between the risk of low back injury and the occurrence of an injury is sufficiently traversed by the evidence of Dr Ow-Yang, Dr Brooder, Dr Le Leu and Professor Orr.
The sharp point is that the operational duties Mr Graham undertook over a 12-year period increased his risk of and susceptibility to low back injury. In all likelihood, wearing accoutrement belts for long periods, including when entering, exiting and sitting in patrol cars, contributed to accumulative effects in his lumbar spine which contributed, to a degree substantially greater than material, to enhance and increase his previously existing susceptibility to low back injury.
I am satisfied it is more probable than not the accumulative effect of Mr Graham's operational duties over 12 years significantly contributed to enhance his susceptibility to low back injury.
In the context of Mr Graham's pre-existing degenerative lumbar spine ailment, the accumulative effects of his employment duties on his lumbar spine and the resulting enhanced susceptibility to low back injury are within the meaning of 'aggravation' as defined in s 4(1) of the SRC Act.[255] This is a 'worsening' of Mr Graham's ongoing degenerative lumbar spine ailment to which his AFP employment contributed to a significant degree.
From this it follows, Mr Graham's employed-related aggravation of his lumbar spine ailment is within the meaning of 'disease' for the purposes of s 5B(1) of the SRC Act, and it is an 'injury' for the purposes of s 5A(1).
Comcare's liability to pay compensation in respect of this 'injury' is to be determined under s 14 of the SRC Act where the 'injury' results in incapacity for work or impairment. This provision is synchronous with s 7(4), which deems the date of an 'injury' in the form of a 'disease' is the earliest day on which the employee first sought medical treatment for the disease, or the disease first resulted in incapacity for work or impairment.
In Mr Graham's case, I am satisfied the enhanced susceptibility 'injury' did not cause impairment or incapacity for work until the fuel card incident on 31 July 2013. In that incident, Mr Graham's elevated risk of and enhanced susceptibility to low back injury intersected with his twisting action while seated in the patrol car and this resulted in an injury in fact.
There is no doubt Mr Graham's 31 July 2013 injury resulted in impairment and incapacity for work. So much is consistent with the Tribunal's decision in application 2017/1415, albeit for different reasons, in which it was decided the effects of Mr Graham's 31 July 2013 injury persisted until 7 February 2018.
As Mr Graham first suffered impairment in the form of pain-related restricted movement as a result of the aggravation 'injury' on 31 July 2013, that is the deemed date of the injury for the purposes of s 7(4) of the SRC Act. Consequently, Comcare is liable to pay compensation in respect of the injury under s 14 of the SRC Act.
From this, two things follow. Firstly, the aggravation 'injury' attributable to Mr Graham's operational duties is concomitant with the 31 July 2013 'injury' for which Comcare accepted liability on 27 September 2013.
Secondly, the reviewable decision in application 2023/3104 must be set aside and substituted with a decision the nature and conditions of Mr Graham's AFP employment significantly contributed to aggravation of his degenerative lumbar spine ailment, and the aggravation is an 'injury' for the purposes of s 5A(1)(a) of the SRC Act in respect of which Comcare is liable to pay compensation under s 14 of the SRC Act.
That being so, it is not necessary to proceed to address the second limb of Mr Graham's argument he suffered an 'injury (other than a disease)' due to the 'nature and conditions' of his AFP employment for the purposes of s 5A(1)(b) or (c) of the SRC Act, relying on Australian Postal Corporation v Burch (Burch)[256] and Health Insurance Commission v Van Reesch (Van Reesch).[257] While there are real doubts about the applicability of the principles Mr Graham purports to draw from Burch and Van Reesch in the context of his 'nature and conditions' claim, I will go no further on these points.

Mr Graham asserts Dr Ow-Yang undertook the spinal fusion surgery to treat the effects of physiological changes and related symptoms of pain stemming from the twisting injury in the fuel card incident on 31 July 2013, particularly at the L4/5 and L5/S1 levels in the left paravertebral area of his lumbar spine. He contends the effects of the twisting injury persisted thereafter and these were not overtaken or pushed into the background by subsequent events prior to the surgery Dr Ow-Yang performed.
In Mr Graham's submission, prior to the twisting injury he was not incapacitated for work, and previous episodes of back pain were short-lived and self-limiting, whereas after the twisting injury disabling symptoms persisted in his lower back without complete remission and resulted in incapacity to work. This change, he argues, demonstrates the significance and enduring effect of the twisting injury on 31 July 2013 as reported by Dr Ow-Yang, Dr Brooder, Dr Le Leu, Dr Souter and Dr Eaton, whose evidence should be preferred to the opinions expressed by Dr Khurana, Dr Casikar and Dr Still.
Comcare does not agree. Comcare asserts the 31 July 2013 injury was a temporary exacerbation of Mr Graham's previously existing degenerative low back condition and related symptoms. Comcare argues the effects of the 'injury' were short-lived and resolved, probably by October 2013, and it is implausible to suggest the surgical procedure in July 2015 was obtained in relation to the 31 July 2013 incident. On Dr Le Leu's evidence, Comcare asserts any effects of the 31 July 2013 merged into the background of Mr Graham's underlying and ongoing degenerative lumbar spine ailment well before the surgical treatment Dr Ow-Yang recommended to treat Mr Graham's low back problems in July 2015.
In Comcare's submission, if there were any lingering effects of the 31 July 2013 injury, on the evidence of Dr Khurana, Dr Souter, Dr Casikar and Dr Still these ceased by November 2014 or they were overtaken by subsequent events which were more serious and more proximate to the surgery carried out by Dr Ow-Yang. Comcare contends, by Mr Graham's own account, the incident in February 2014 caused more intense symptoms and placed Mr Graham in the care of Dr Ow-Yang. Comcare asserts Mr Graham recovered from the February 2014 incident sufficiently to be certified fit to undertake Operational Safety Assessment in October 2014 and he would have returned to work without restriction, as reported by Dr Souter, but for the occurrence of the shopping centre incident on 28 November 2014. This incident, Comcare contends, intervened in his recovery and severed any nexus between subsequent symptoms and Mr Graham's AFP employment, overtaking any effects of the 31 July 2013 exacerbation. Comcare asserts it was the effects of the shopping centre incident Dr Ow-Yang treated in the surgical procedure on 15 July 2015.
In Comcare's submission, the lumbar fusion surgery was not obtained in relation to the 31 July 2013 aggravation 'injury' and related expenses are not, therefore, compensable.
The expenses incurred in the fusion surgery Dr Ow-Yang carried out will be compensable if the threshold set out in s 16(1) of the SRC Act is met:

This is supported by and consistent with the weight of medical evidence at the time, including Dr Ow-Yang's extensive consultation and progress reports from 6 March 2014.
I am satisfied the lumbar spine fusion surgery was for the purposes of treating Mr Graham's discogenic and facet joint low back pain which was mainly located at the L4/5 and L5/S1 levels in the left paravertebral region of Mr Graham's lower back. This is consistent with and supported by the evidence of Dr Brooder, Dr Khurana and Dr Bradfield, as well as physiological changes reported on radiological investigations.
There is no doubt Mr Graham experienced episodes of low back pain over many years, probably from 1972. The contemporaneous evidence clearly demonstrates episodic exacerbation of clinically significant low back symptoms over many years, the duration of which increased incrementally from January 2011.
The symptoms precipitated by the incident in January 2011 subsided after 3 months or so, whereas the symptoms precipitated by the incident in April 2012 likely persisted to varying degrees for several months, probably until Dr Bradfield ceased Mr Graham's analgesic prescriptions in July 2013.
The incident on 31 July 2013 precipitated increased low back symptoms which remitted to some extent in October and November 2013, but did not completely resolve and were exacerbated by subsequent events, including in August 2013, October 2013, December 2013, January 2014, March 2014 and November 2014. This is supported by the contemporaneous notes of Dr Bradfield and Mr Cousins in the period from September 2013 to January 2014.
Even though Mr Graham returned to his full operational duties in October 2013, on Mr Cousin's evidence he continued to experience low back symptoms which were not as acute as they had been but persisted and intensified with activity. These are noted on 16 October 2013, 25 October 2013, 5 November 2013, 18 November 2013, 11 December 2013, 18 December 2013, 16 January 2014, 23 January 2014, 29 January 2014 and 5 February 2014. On this evidence I am satisfied the effects of the 31 July 2013 aggravation injury had not resolved by October 2013. In the period from September 2013 to January 2014, Mr Graham was taking prescribed analgesic medications, including Panadeine Forte and he was obtaining treatment from Mr Cousins. He was adversely affected by persistent symptoms which limited his range of movement and caused stiffness and variable low back pain.
I am not persuaded, and the relevant evidence does not establish, that the symptoms Mr Graham experienced in October 2013 were solely attributable to his underlying and ongoing degenerative lumbar spine ailment and not to the injury he sustained on 31 July 2013. The contemporaneous medical records and the weight of expert medical evidence support a contrary conclusion.
The progression of physiological changes in Mr Graham's degenerative lumbar spine ailment is exemplified by comparison of the CT scans taken on 31 January 2011, 21 August 2013 and 25 February 2014, and MRI scans taken on 4 March 2014, 11 March 2014, 4 December 2014 and 2 April 2019.
Without radiological imaging from the period immediately prior to 31 July 2013, it is not possible to be certain the physiological changes which are apparent from comparison of the January 2011 CT scan and the 21 August 2013 CT scan are attributable to or were significantly contributed to by the incident on 31 July 2013. The precise nature of the effect of the twisting action on Mr Graham's degenerative lumbar spine ailment and any physiological changes (if any at all) cannot be seen and can only be drawn by reasonable inference.
Dr Brooder drew an inference from the nature and persistence of Mr Graham's low back symptoms and related disability after the fuel card incident. On his evidence, the incident on 31 July 2013 probably caused a pathophysiological change in Mr Graham's lumbar spine and irritated the left L4/5 facet joint which triggered a sudden exacerbation of persistent low back symptoms. This is consistent with Dr Bradfield's contemporaneous clinical notes of Mr Graham's low back symptoms and related treatments over subsequent months. It is also consistent with Dr Ow-Yang's initial opinion and recommended treatments.
It is significant that CT guided steroidal injections into the L4/5 facet joints in August 2013 provided temporary but not enduring relief. This is illuminated by Mr Cousins' contemporaneous notes. The persistence of symptoms is consistent with and explained by Dr Ow-Yang's evidence of discogenic involvement in Mr Graham's low back pain at the L4/5 and L5/S1 levels and the mechanism of discogenic low back pain he described.
Dr Brooder explained that the specific pathology of the exacerbation in July 2013 was likely an acute inflammation of the left L4-5 facet joint, which he likened to a cartilaginous finger joint. He explained this symptomatology was prolonged by aggravating movement and it persisted to varying degrees thereafter until it was treated by spinal fusion surgery performed by Dr Ow-Yang. Dr Brooder's evidence is consistent with Dr Souter's report of aggravation of Mr Graham's degenerative lumbar disc and facet joint pathology, and Dr Speldewinde's report of severe intrusive subacute on chronic left lumbosacral vertebral dysfunction.
Dr Brooder's reasoning is substantially drawn from the reported effects of the fuel card incident which he considered to be more severe, persistent and disabling than previous episodes. Initially, the doctor did not have access to a full history of Mr Graham's low back condition, symptoms, treatment and imaging, and he relied on the history Mr Graham provided and information he was given. When he was provided with a more complete history in cross-examination, Dr Brooder adhered to his original conclusion and the reasoning for it. The doctor agreed he was not aware Mr Graham was previously hospitalised in 2011 with low back pain following an incident involving rowing and bike exercises and traction, but Dr Brooder did not consider this was as significant as the fuel card incident which caused persistent symptoms. The doctor accepted that Mr Graham experienced low back symptoms for an extended period after the roofing incident in April 2012 but argued that the symptoms after the fuel card incident lasted for a longer time. Dr Brooder explained he was not aware Mr Graham had returned to full duties in October 2013 but that his return to work was despite persisting low back pain. It was Dr Brooder's evidence that the exacerbations Mr Graham experienced after the fuel card incident, including the shopping centre incident in November 2014, were exacerbations of the exacerbation he experienced on 31 July 2013.
Dr Ow-Yang gave evidence he did not consider Mr Graham's injury on 31 July 2013 was an exacerbation of degenerative lumbar disease or a muscular pain. On 22 April 2014, the doctor reported that Mr Graham's pain from the twisting injury was reported to be located "mainly around the left paravertebral region in the region of the L4/5 facet" and, in August 2013, consistent with Dr Bradfield's contemporaneous notes, this was treated with CT guided steroid injection to the L4/5 fact joints which gave some improvement.[265] There is clear radiological evidence on 11 March 2014 of an annular tear of the disc at the L4/5 level. In all likelihood, Dr Ow-Yang's diagnostic conclusions evolved over time. On 26 November 2014, the doctor reported Mr Graham's low back pain was likely discogenic.[266] On his 22 May 2015 report, the discogram results showed significant pain on provocation of the L4/5 and L5/S1 disc spaces, but there were "some inconsistencies with regards to the discogram and the region of pain that [Mr Graham] describes".[267]
Dr Le Leu explained the occurrence of a 'click' in the fuel card incident may well have contributed to Mr Graham's back "going south" more rapidly and, following the fuel card incident, it is probable his low back symptoms persisted even though he was cleared to return to work. Dr Le Leu did not accept that driving to Queensland suggests Mr Graham was free of persisting low back symptoms. In his opinion, Mr Graham's low back symptoms increased after the fuel card incident and merged into the underlying condition at some later point. The doctor explained, by natural progression, Mr Graham's degenerative lumbar ailment "would get to that level" and would have "eclipsed" the aggravation on 31 July 2013 at some stage, although determining when this might have occurred is a matter of speculation and guesswork.
Dr Eaton considered the 'click' Mr Graham experienced was significant. While I do not accept Dr Eaton's evidence this signified an annular tear, it is probable the 'click' had a physiological cause which, on Dr Le Leu's evidence, may well had been of enduring effect. It is likely the 'click' was associated with discogenic or facet joint pathology when Mr Graham twisted while sitting in the patrol car with his hips immobilised wearing an accoutrement belt.
In his first report on 3 March 2020, Dr Casikar's reasoning for the opinion Mr Graham suffered no more than a "muscular injury" or "muscular pain" on 31 July 2013 initially proceeded on the basis that "his susceptibility to recurrent attacks of back pain" was attributable to him being "significantly overweight".[268] In this opinion, the doctor did not refer to the extensive materials, including reports by Dr Ow-Yang, Dr Speldewinde, Dr Still, Dr Eaton, and radiological imaging in the period from February 2014 to 27 April 2019. The doctor's conclusion in respect of "failed back syndrome" is reasoned on the basis of generalities such as "[f]ailed back syndrome normally occurs after spinal surgery" and "[i]t is generally due to inappropriate selection of patients" and "additional factors" including "obesity, pre-existing emotional issues". This opinion stands alone and it is unpersuasive.
Dr Casikar explained the twisting injury was likely a muscular or minor soft tissue injury, but he did not give detailed evidence of the specific soft tissues he thought were affected or the mechanism by which pain was exacerbated or generated, consistent with the symptoms Mr Graham experienced. Consequently, Dr Casikar's reasoning for his conclusion the exacerbation was temporary remains opaque and this reduces the weight it can be given. Nevertheless, his opinion of a soft tissue injury partially aligns with Dr Brooder's oral evidence that the twisting action probably triggered an inflammatory process affecting soft tissues related to the left L4/5 facet joint.
Dr Khurana gave evidence the twisting injury on 31 July 2013 exacerbated symptoms of Mr Graham's underlying degenerative spinal condition without causing "permanent physiological or structural change to [Mr Graham's] spine and neurological system".[269] Dr Khurana reported there is "no radiological evidence for acute structural worsening based on that relatively innocuous movement in the car at the petrol station [on 31 July 2013]",[270] and that the findings reported in the CT scan on 25 February 2014 "indicate predominant constitutional disease" and "represent a combination of factors that would predictably predispose to biomechanical and clinical disturbance (low back pain, radiculopathy), even with innocuous events, and would also predictably foreshadow the need for surgery at some point".[271] In Dr Khurana's opinion, the fuel card incident was "aetiologically insignificant compared with the pre-existing pathology" and speculated there "may have been a structural or clinical worsening" in the months after the 31 July 2013 aggravation, or between "early October and the beginning of February" 2014, which was unlikely to be specifically work-related. Dr Khurana reported the aggravation was temporary "at most" and, on the evidence of Dr Souter, it objectively ceased by October 2014.[272] Despite the extensive journal articles Dr Khurana referred to, his precise reasoning for this conclusion on the facts of Mr Graham's case is not entirely clear and this reduces the weight it can be given. Even so, his conclusion is consistent with the evidence of Dr Casikar and Dr Still.
On Dr Still's report, the low back symptoms Mr Graham experienced on 31 July 2013 would have resolved within weeks or months.[273] He described these as an "acute exacerbation" and explained that "the natural progression of the underlying condition of multilevel spondylosis ... is subject to acute exacerbations and remissions".[274] As I comprehend Dr Still's reasoning, Mr Graham's acute exacerbation remitted by the time he returned to full duties in October 2013 even though he reported Mr Graham stated sitting in the patrol car aggravated the symptoms in his lower back and he managed the pain with physiotherapy and medication. As the doctor was not called to give oral evidence, the apparent inconsistency between remission of the acute exacerbation despite the reported persistence of symptoms remains unexplained. This reduces the weight given to Dr Still's evidence.
Dr Souter was not provided with a full history of Mr Graham's low back condition and related symptoms, treatments and imaging. The doctor reported Mr Graham's account of a 60 percent reduction in his low back symptoms from a "peak in February 2014" and that "the underlying condition is a long standing and degenerative one, and further intermittent recurrences of low back pain are likely to recur".[275] Dr Souter reported Mr Graham "had resolution of symptoms to a degree but still reports taking opiate-based analgesia" and considered that his condition was improving.[276] The doctor expected Mr Graham to return to his full unrestricted duties within "3-4 weeks" subject to him meeting training requirements (which I infer is the Operational Safety Assessment Dr Souter certified he was fit to undertake),[277] and to have returned to his usual role within 3 months.
I do not accept Dr Khurana's opinion that Dr Souter's report is objective evidence that the effects of the exacerbation on 31 July 2013 ceased by October 2014. Dr Souter reported no such conclusion.
Dr Khurana, Dr Casikar and Dr Still did not provide a detailed neurological or physiological explanation of the sudden onset low back pain Mr Graham experienced on 31 July 2013. Without a detailed explanation of the causal or contributory mechanisms posited, the rationale for attributing symptoms to soft tissue or muscular aggravation, or a temporary aggravation of Mr Graham's degenerative lumbar spine ailment, remains opaque. Consequently, the reasoning underlying their opinions that the effect of the resulting injury was temporary is not entirely clear and the weight given to their opinions is reduced.
Weighing these opinions, I give the evidence of Dr Brooder and Dr Ow-Yang of the likely physiological processes and effects of the 31 July 2013 incident greater weight than the relevant evidence of Dr Khurana, Dr Casikar and Dr Still.
I am satisfied it is more probable than not that Mr Graham's symptoms after 31 July 2013 were attributable to inflammatory processes involving his L4/5 facet joint as well as symptomatic discogenic changes at the L4/5 and L5/S1 levels. In relevant parts, the evidence given by Dr Eaton and Dr Le Leu lends support to this finding.
On the evidence of Dr Ow-Yang, Dr Le Leu, Dr Brooder, Dr Souter and Dr Bradfield, I am satisfied there is an unbroken relational link between the aggravation 'injury' on 31 July 2013 and the surgical treatment Mr Graham obtained from Dr Ow-Yang on 7 July 2015. The relational link is not broken by subsequent episodic aggravations, including the shopping centre incident on 28 November 2014. This is consistent with Dr Ow-Yang's evidence of the ongoing discogenic nature of Mr Graham's low back pain as a result of the employment-related aggravation of his degenerative lumbar spine ailment in the fuel card incident.
I am satisfied the effects of the aggravation injury on 31 July 2013 persisted, despite remission of symptoms sufficient to enable Mr Graham to return to his full operational duties in October 2013, and it was more than a temporary exacerbation. In all likelihood, the twisting action was a significant factor in the context of the employment-related aggravation of discogenic elements in Mr Graham's degenerative lumbar spine ailment.
That being so, for the purposes of s 16(1) of the SRC Act, relation between the 31 July 2013 aggravation injury and the medical treatment Mr Graham obtained from Dr Ow-Yang on 7 July 2015 is made out. I find the surgical treatment Dr Ow-Yang provided on 7 July 2015 was 'in relation to' Mr Graham's injury on 31 July 2013.
The question whether it was reasonable for Mr Graham to obtain the medical treatment from Dr Ow-Yang was not squarely argued. This question involves objective and subjective considerations, including the relative costs and benefits of the specific 'medical treatment' and alternatives to it in the particular circumstances of any case.[278]
I am satisfied it was reasonable for Mr Graham to obtain the treatment in the circumstances. It is perfectly clear Mr Graham relied on the medical opinion and the recommendations of his treating doctors, primarily Dr Ow-Yang and Dr Bradfield. He was experiencing significant and persistent disabling low back pain and, despite the risks and evidence of the likelihood of success, the lumbar fusion surgery was the recommended treatment for his symptoms.
Alternative treatments, including physiotherapy, CT guided steroid injections and analgesic medications had been obtained, with only temporary benefits. There is no evidence of other treatments which might have been considered or preferred in the evaluation of costs and benefits. Dr Casikar considered lumbar fusion surgery was not preferred and Mr Graham was not a suitable candidate. Dr Khurana disagreed and supported Dr Ow-Yang's assessment of the appropriateness of the surgical procedure in the particular circumstances.
Approval was sought from and given by Comcare for the surgical procedure to be undertaken.
I am satisfied it was reasonable for Mr Graham to obtain the medical treatment from Dr Ow-Yang in those circumstances.
From this it follows the reviewable decision in application 2021/8134 must be set aside and substituted with a decision that Comcare is liable to pay compensation for the lumbar fusion surgery Dr Ow-Yang undertook on 7 July 2015.
The amount of the compensation is to be determined by Comcare on remittal.

Graham and Comcare (Compensation) [2025] ARTA 579 (11 April 2025)

At a glance

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Judgment (206 paragraphs)

Graham and Comcare (Compensation) [2025] ARTA 579 (11 April 2025)

Legislation Cited (4)