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[2013] ACTSC 195
Supreme Court of the ACT
2013-09-20
Burns J
Original judgment source is linked above.
2. The finding of the Magistrate that the appellant's entitlement to payment of compensation under Pts 4.2, 4.3 and 4.5 of the Workers Compensation Act 1951 (ACT) ceased as at 20 March 2010 is set aside;
3. I find that the appellant has ongoing entitlements to payment of compensation pursuant to Pts 4.2, 4.3 and 4.5 of the Workers Compensation Act;
4. I find that the appellant is entitled to reimbursement for all medical procedures for which he has personally paid above those already paid by the workers compensation insurer;
5. The respondent is to pay the appellant's costs of the appeal.
1. On 29 July 2008, the appellant was injured when he slipped whilst exiting a scissor lift in the course of his employment. The injury occurred at a worksite at the Direct Factory Outlet ('DFO') at Fyshwick. The second respondent ('Contexx') was the head contractor on the site while the first respondent ('Polyseal') was sub-contracted by Contexx to paint the premises.
2. The appellant started work at the DFO in May 2008. At that time he was 46 years old and in receipt of a Disability Support Pension. He had no formal qualifications as a painter.
3. When the appellant slipped on 29 July 2008, he hit his left hip and fell onto his left side. He developed pain in his lower back, left hip and groin. He left work that day, and has not returned to paid employment since.
4. On or about 23 September 2011, the appellant lodged a Further Amended Application for Arbitration in the ACT Magistrates Court seeking:
5. The arbitration proceeded before a Magistrate on 22 and 23 October 2012, although oral evidence was only taken on 22 October. On 2 November 2012 the Magistrate made the following orders, accompanied by written reasons:
(a) That at all material times, the appellant was a worker as defined in the Worker's Compensation Act 1951 (ACT) (the Act).
(b) that the appellant suffered an injury arising out of or in the course of his employment on 24 July 2008 being pain in the lumbar spine, left hip and left groin area.
(c) That the [appellant] [was] entitled to pursue his rights to compensation against both respondents by virtue of s 13 of the Act.
(d) That the [appellant's] entitlement to compensation pursuant to Parts 4.2, 4.3 and 4.5 of the Act ceased as at 20 March 2010.
6. The appellant appeals from that part of her Honour's orders set out in paragraph 5 (d) above. The grounds of appeal are:
a. [The Magistrate] erred by not finding other compensatory injury in addition to her finding of pain.
Particulars
i. There was sufficient evidence of a compensatory back injury in addition to pain.
ii. There was sufficient evidence of an aggravation, acceleration or recurrence of a pre-existing injury.
b. [The Magistrate] erred in finding that the workplace injury suffered by the appellant had resolved and any ongoing complaints are no longer work-related.
Particulars
i. Once there was a finding of injury, there was no evidence to support a finding that the injury had resolved.
ii. [The Magistrate's] finding that there are on-going complaints is inconsistent with a finding that the injury has resolved.
iii. The accepted medical evidence and unchallenged evidence of the appellant was that the finding of injury ("being pain") was still ongoing.
iv. Once there was a finding that the injury was work- related, there was no evidence to support a finding that any ongoing complaints or pain are no longer work- related.
c. The Magistrate erred in holding that the appellant's entitlement to the payment of compensation pursuant to Parts 4.2, 4.3 and 4.5 ceased as at 20 March 2010.
Particulars
ii. There is no evidential basis or reasons provided why this date marked the end of the appellant's entitlement to compensation.
d. The Magistrate erred in finding that the appellant's responses on medical examination and assessment were so inconsistent that Dr Chandran felt obliged to withdraw from further involvement in his treatment.
Particulars
i. There was no evidence that this was the reason for Dr Chandran's withdrawal from treatment.
e. The Magistrate erred in finding that Dr Chandran's evidence is of little assistance in the ultimate determination of this matter and relied too heavily on the evidence of Associate Professor Oakeshott and Dr Silver ("non-neurosurgeons").
Particulars
i. [The Magistrate] was adversely influenced by her erroneous finding of reasons by Dr Chandran for feeling obliged to withdraw from further involvement in the treatment of the applicant.
iii. There was no evidence as to the non-neurosurgeons' experience in specific specialist field of medical and surgical practice.
iv. There is no evidence to even infer that the non- neurosurgeons have any particular expertise in neurology or neurosurgery or, specifically, in the diagnosis and treatment of back injuries.
v. The non-neurosurgeons did not follow the Code of Conduct for Expert Evidence and volunteered opinions that clearly went beyond their area of expertise.
f. [The Magistrate] erred in finding that notwithstanding that the appellant suffered an injury in the course of employment that he no longer has an ongoing entitlement to weekly payments or the medical treatment expenses.
7. The appellant seeks orders setting aside that part of her Honour's orders challenged, and substituting a finding that the appellant continues to be entitled to compensation pursuant to Pts 4.2, 4.3 and 4.5 of the Act.
8. A Notice of Contention was filed by Polyseal concerning the liability of Polyseal to indemnify Contexx, but the Notice of Contention was not pressed by Polyseal during the appeal.
9. In the course of the appeal I granted the appellant leave to adduce further evidence, being a report of Dr CHR Wriedt, a neuro-radiologist, dated 10 April 2013. I will refer to the contents of that report, and its significance for this appeal, later in these reasons.
10. Section 197(1) of the Workers Compensation Act 1951 (ACT) gives the appellant a right of appeal. Section 197(2) provides that Pt 4.5 of the Magistrates Court Act 1930 (ACT) applies to such an appeal as if it were on appeal from a civil judgment of the Magistrates Court of a type mentioned in s 274(2) of that Act. Such an appeal is by way of rehearing: Selleys Chemical Company Pty Ltd v Dee Irene Graham (Formerly Burke) [1986] ACTSC 95; Cashmere v Master Builders Association of the ACT [1992] ACTSC 81.
11. The nature of such an appeal is well settled. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 126-127 Gleeson CJ, Gummow and Kirby JJ said:
[T]he appellate court is obliged to conduct a real review of the trial and... of [the trial] judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287).
12. In Lukatela v Birch [2008] ACTSC 99, Rares J heard an appeal by way of rehearing under Div 3.10.2 of the Magistrates Court Act 1930 (ACT). After referring to the High Court decision of Allesch v Maunz (2000) 203 CLR 172, his Honour said (at [21]-[24]):
And, although the appeal is by way of rehearing, the appellate [sic] does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute: Fox 214 CLR at 127-128 [27] per Gleeson CJ, Gummow and Kirby JJ.
Ordinarily, if there has been no further evidence admitted and no relevant change in the law, a court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was an error on part of the court below: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 203 [14] per Gleeson CJ, Gaudron and Hayne JJ. Here, the admission of evidence by consent, which simply confirmed what was before his Honour, thus required the appellant to demonstrate error in the discretionary judgment.
I am of opinion that the nature of an appeal under Div 3.10.2 is of an appeal by way of re-hearing on the evidence below, together with such further evidence as may be admitted under s 214 of the Magistrates Court Act. Such a "re-hearing" does not involve a completely fresh hearing by the Supreme Court on appeal. The Court would ordinarily proceed on the basis of the record in the court below, together with any additional evidence that is admitted under s 214.
Where no oral evidence was given below, or the trial judge's findings based on oral evidence are not challenged, the Supreme Court on appeal is in a good a position as the Magistrate to decide the proper inference to be drawn from the undisputed facts which were in evidence. In deciding the proper inference to be drawn, the Supreme Court must give respect and weight to the conclusion of the Magistrate, but, once having reached its own conclusion, must give effect to it: Fox 214 CLR at 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ, applying Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551; see too CGU Insurance Ltd v Porthouse [2008] HCA 30; (2008) 248 ALR 240 at 252-253 [69]; [2008] HCA 30; 82 ALJR 1135 at 1144 [69] per Gummow, Kirby, Heydon, Crennan and Kiefel JJ.
13. It appears that the appellant was the only witness to give oral evidence before the Magistrate. Medical reports and other documents were then tendered. It appears that none of the authors of the medical reports were required for cross-examination.
14. The Magistrate noted that the appellant had not been seriously challenged in cross-examination as to whether the accident had occurred, or whether he had suffered pain as he alleged after the accident. Not surprisingly, she concluded that the appellant had been injured in the course of his employment on 29 July 2008. The questions the Magistrate posed for herself, in those circumstances, were: what was the nature of the injury, and for how long did its effects last?
15. Her Honour then considered the medical evidence. She briefly summarised the medical reports, before concluding at [46]-[51]:
No specific injury can be identified on the available evidence. What I am presented with is an incident at work, the occurrence of which is unchallenged and which I have no reason to doubt, and ongoing complaints of pain. Pain alone is capable of being characterised as an injury. Where the source of that pain is identified, however, the practical determination of pain as an injury becomes somewhat more difficult.
On the available evidence, there is a possible physical explanation for those complaints of pain in general terms, that is the slip could have caused an aggravation of a pre-existing lumbar degeneration. However, there are significant reasons to doubt the particular complaints made by the applicant and those are detailed particularly in the medical reports that I have alluded to. There is also reason to doubt their correlation to any work incident.
The appellant's responses on medical examination and assessment have been inconsistent, so much so that Dr Chandran felt obliged to withdraw from further involvement in his treatment. The applicant's responses on assessment have generally been recognised to be exaggerated and do not reflect a medical understanding of anatomical response. Dr Marsh, Dr Pik, Dr Stuart, Associate Professor Oakeshott and Dr Silver have all drawn these conclusions.
In so far as a psychological explanation for ongoing complaints have been proffered, the only reporting psychologist has expressed the view that the main issue is physical pain, for which no reliable medical explanation is available.
I am left with an overwhelming body of evidence that the Applicant suffered a work place injury on 29 July 2008 but that its affects have resolved and any ongoing complaints are no longer work-related.
Consequently, I am satisfied that the applicant was a worker in accordance with the provisions of the Act, that he suffered an injury in the course of employment, but there is no longer an ongoing entitlement to weekly payments nor to medical treatment expenses.
16. The arbitration before the Magistrate was not one where the appellant's credibility was challenged by way of photographs or videos depicting him performing physical actions inconsistent with the degree of incapacity he claimed in his evidence. There was no real challenge to his evidence that he was injured in the way he alleged. The real questions for determination by the Magistrate were what was the nature of the injury, and for what period did the appellant suffer incapacity to earn as a consequence of that injury. In that context the medical evidence assumed critical importance. Unfortunately, the summary of the medical evidence set out by the Magistrate in her reasons is inadequate, and in some cases misleading.
17. Before I turn to examine the medical evidence, it is appropriate to say something about the way the parties conducted the arbitration before the Magistrate. As I noted, the parties simply tendered the various medical reports, and did not require any of the medical witnesses for cross-examination. I have great sympathy for counsel who wish to minimise the time taken for court hearings, and the greatest admiration for counsel with the ability to determine what does not need to be challenged, or elucidated, by cross-examination and the courage to implement their judgment. But cross-examination in the present case may have been expected to assist her Honour in understanding the differences of opinion between the medical experts, the basis of those opinions and the weight to be attributed to them. Expert witnesses will be expected to be capable of advancing rational reasons for their opinion, and for any disagreement they may have with an opinion of one of their colleagues. Exposure to those reasons through cross-examination could only have assisted the Magistrate in her task.
18. The Magistrate first briefly considered the reports of the appellant's general practitioners. She noted that they gave varying descriptions of the appellant's injury over time, but all referred to a low back injury producing pain. Some of the certificates referred to disc herniation at L4/L5 and L5/S1. The Magistrate did not mention, and apparently did not appreciate, the significance of this evidence as demonstrating continuity of complaint of pain, and continuity of treatment for pain, from the date of the injury until December 2011, with a prognosis in the final certificate that he would not be fit to return to work until May 2012 at the earliest.
19. The Magistrate then considered the reports of Dr Chandran, the appellant's treating neurosurgeon from September 2008 until April 2012. The Magistrate had this to say about Dr Chandran and his reports at [35]:
He first saw the application [sic] on 4 September 2008, about a month or so after the incident occurred. He postulated that the L4/L5 disc was "probably the source" of the appellant's pain. He noted at the time that there was no lower limb deficit, contrary to the applicant's evidence that his leg had been painful from very soon after the slip. Dr Chandran performed a discogram on 18 September 2009, well over a year after the incident, and concluded, based upon this procedure, that the applicant would need surgery at L4/L5 to obtain relief from pain. Dr Chandran's report of 10 November 2009 suggested that what may have been a pre-existing pathology at L4/L5 may have been provoked to ongoing pain by the injury. He recognised, however, the possibility, at that time, of a "functional" or non-organic component to the applicant's complaint. As at February 2010. Dr Chandran still thought that the applicant suffered an abnormality which may be helped by surgery and referred him for a second opinion, to Dr Pik, a neurosurgeon. Following a further discogram, Dr Chandran basically concluded that the issue was "muddled", he could no longer recommend surgery, and declined any further involvement with the applicant's treatment. Ultimately, I am unable to rely on Chandran's earlier view that L4/L5 was injured in the fall. That view was never confidently expressed, rather the possibility that this could have occurred was postulated. Dr Chandran's evidential basis for identifying L4/L5 as the source of pain was proved unreliable. Dr Chandran's evidence assists little in the ultimate determination of this matter.
20. Later, at [48] of her reasons, the Magistrate said:
The applicant's responses on medical examination and assessment have been inconsistent, so much so that Dr Chandran felt obliged to withdraw from further involvement in his treatment.
21. Dr Chandran provided nine reports. The first, dated 4 September 2008, is addressed to the appellant's general practitioner. In it, Dr Chandran notes that he saw the appellant on 4 September 2008, and the appellant complained of back pain radiating into the left groin after a work related injury in July 2008. Dr Chandran noted that a MRI scan showed dehydration of "the two lower discs" and a mild bulge at L4/L5 which was, he thought, probably the source of the appellant's pain. He also noted that mild degeneration was seen at L4/L5 and L5/S1 facet joint levels.
22. Dr Chandran's second report is dated 3 November 2008 and follows a review of the appellant on 31 October 2008. Dr Chandran noted that Dr Chan, a consultant in rehabilitation and pain management, had offered the appellant an injection "into the sacroiliac joint or low back". Dr Chandran felt that he should wait until the outcome of that procedure was known before considering a discogram of the appellant's lumbar spine and possible surgery.
23. Dr Chandran's third report appeared to be incorrectly dated 3 November 2008, but based on the information contained in the report, was likely prepared in May 2009. This report was addressed to Dr Chan of the Rehabilitation Unit at Canberra Hospital. Dr Chandran noted the appellant's complaints of ongoing pain, and raised the possibility of a discogram and surgery. He asked Dr Chan to advise him of any further treatment plans he may have for the appellant.
24. The fourth report from Dr Chandran is dated 21 September 2009. He noted that the appellant underwent a discogram on 18 September 2009, with the L4/5 showing disruption and pain on injection, and no abnormality being detected at L5/S1. Dr Chandran thought the appellant required surgery at the L4/5 level to obtain pain relief.
25. On the same date, 21 September 2009, Dr Chandran wrote to the workers compensation insurer seeking approval for surgery to fuse the appellant's L4/5 processes.
26. Dr Chandran's next report is dated 10 November 2009 and is addressed to the appellant's lawyers. Dr Chandran stated that the history given by the appellant indicated that he had suffered an injury at work on 29 July 2008. He thought that the dehydration present on the MRI scan at the L4/5 level may have been pre-existing, but an injury superimposed on such a disc can provoke on-going pain. Dr Chandran thought it quite possible that the appellant "has some psychological factors", but he was unable to state that the appellant's condition was "entirely non-organic, psychological or malingering." He thought there was a persisting injury in the appellant's lower back, which may have responded to surgical treatment.
27. On 5 January 2010, Dr Chandran sent a report to the workers compensation insurer. He noted that a discogram had evoked pain at the L4/5 level, but not at the L5/S1. This confirmed to Dr Chandran that discogenic pain was contributing to the appellant's pain and disability. Dr Chandran stated:
He does not have a severe root compromise or compression as an issue, the diagnosis being one of discogenic back pain, with some involvements of the facet joints.
The issue is whether he is entirely functional or non-organic in his complaints and condition. While a functional component exists, I feel he also suffers from pain arising from the injury.
28. Dr Chandran's next report is dated 11 February 2010, and is addressed to the appellant's general practitioner. He said:
My personal view is that while there is a non-organic or functional component to his illness, there is definitely an abnormality which may be helped by surgery.
29. The final report from Dr Chandran is dated 12 April 2010 and is addressed to the appellant's general practitioner. He noted that the appellant had undergone a further discogram, which had confused the picture. A report dated 23 March 2010 from Dr Meng Chung, who conducted the discogram, stated that the appellant was asystomatic during injection of the L4/5 disc, but claimed to suffer significant pain corresponding to his usual back pain on injection of the L5/S1 disc. Dr Chandran noted that discogram is an investigation with its own controversy, as it is largely a subjective test. He then said:
Now that we have two discs possibly not normal, I think the issue is muddled and I do not think I can look at surgery on this man with any confidence any more.
30. In this context, Dr Chandran withdrew from a continuing role in the appellant's management.
31. It is significant that, in this last report, Dr Chandran did not revise his earlier opinion that, while there may be some functional or psychological component present, he believed the appellant had a persisting injury to his lower back. As a neurosurgeon, Dr Chandran's reaction to the results of the discogram conducted on 23 March 2010 was not to suggest they demonstrated that the appellant was malingering, or even that the origin of his pain was purely psychological. It was an entirely inadequate and misleading assessment of the evidence of Dr Chandran to say, as the Magistrate did, that Dr Chandran felt obliged to withdraw from further involvement in the treatment of the appellant due to the appellant's "responses on medical examination and assessment" being inconsistent.
32. The Magistrate next considered the evidence of Dr Chan, a consultant in rehabilitation and pain management. She said this about his evidence at [36]:
Dr Chan, a rehabilitation and pain management physician, treated the applicant. In writing to an insurer in June 2009, Dr Chan referred to his "working diagnosis" including "pain originating from the lumbar disc and/or facet joints". He said that objective testing had not been reliable in either refuting or confirming the diagnosis. The injury described by the applicant was thought by Dr Chan to be a "plausible" explanation of injury to the lumbar spine and sacro-iliac joint structures. He did not consider that the applicant had suffered an aggravation of any underlying condition. However, neither did he opine that the pathology evident on the MRI arose because of, or at the time of, the slip. By February 2010, Dr Chan had changed his diagnosis to one of "chronic pain syndrome". He concluded that the applicant had "developed lower back pain as a result of a fall which contributed to the development on chronic pain syndrome". He stated that this involved psychological, behavioural and physical dysfunction, in addition to complaints of pain.
33. It is worth noting that Dr Chan was the only pain specialist to give evidence, and his report was unchallenged in vital respects. Dr Chan's first report is dated 7 November 2008. He believed that potential sources of the pain experienced by the appellant were the left sacroiliac joint complex, the lumbar facet joints or discs. He proposed various diagnostic procedures.
34. His second report is dated 25 May 2009. He noted that injection of the left sacroiliac joint and the L5/S1 facet joint had not provided lasting pain relief. He also noted that Dr Chandran was planning a lumbar discogram. Dr Chan stated he would like to do diagnostic medial branch blocks to exclude the lumbar facet joints as the source of the appellant's pain, but the workers compensation insurer had not approved those procedures, and the appellant was unable to pay for them. In this report Dr Chan expressed no opinion as to the cause of the appellant's pain.
35. Dr Chan's next report is dated 23 June 2009 and is addressed to the workers compensation insurer. Dr Chan felt that the working diagnosis for the appellant's pain should include pain originating from his lumbar discs and/or facet joints. Dr Chan stated that Dr Oakeshott, a consultant surgeon retained by the workers compensation insurer, did not consider that the appellant had any physical injury that would account for his pain, and Dr Chandran had offered to perform a lumbar discogram to determine if any of the appellant's discs were causing pain. Dr Chan's treatment plan included performing diagnostic lumbar medial branch blocks to assess whether the appellant's pain was arising from his lumbar facet joints. Dr Chan concluded by saying:
Ideally, Mr Stekovic should also receive a multi-disciplinary assessment (if not done already) including assessment by a psychologist dealing in chronic pain management to identify psycho-social factors that may be perpetuating a chronic pain problem...
36. On 5 February 2010, Dr Chan provided a further report to the workers compensation insurer. Because of the importance of this report, I will set out a large part of it here:
With regards to Prof Oakeshott's opinion that Mr Stekovic's work on or around the 29th July 2008 is not a substantial contributing factor to his present alleged condition and that his symptoms are arising from factors other than a physical injury that occurred at work at that time, and that there is a psychological (non-organic) component in regard to his present symptoms. I think the first thing we need to do is come to some agreement on what is Mr Stekovic's "present alleged condition". In my opinion, Mr Stekovic had developed chronic pain syndrome following an initial back injury that occurred at work in late July 2008.
As indicated in my prior report dated 23rd June 2009, Mr Stekovic had reported to me that he had developed left lower back pain and left sided groin pain during a fall at work in late July 2008, when he slipped on his left leg while walking down steps when his right leg was still on the upper level. As I have indicated in my letter on 23rd June 2009, I have no reason to doubt Mr Stekovic's account of how he got injured and developed his back and groin pain.
At this time, I think it is difficult to prove or disprove if a physical spine injury had occurred from the fall at work in July 2008, the anatomical structures that could have been injured, and if there are persisting physical abnormalities. However, it is fairly well known that pain from a physical injury can persist and lead to development of a chronic pain syndrome resulting in impaired function and negative effects on mood, social relationships and return to work.
In summary, I believe Mr Stekovic developed lower back pain as a result of a fall at work in late July 2008 which has contributed to a development of a chronic pain syndrome. Such a diagnosis implies that the pain psychological, behavioural and physical dysfunction are present, in addition to pain complaint.
If Mr Stekovic is still experiencing functional impairment associated with persistent pain, he should receive multi-disciplinary pain assessment and management including a psychologist skilled in managing chronic pain patients.
37. In her reasons the Magistrate correctly acknowledges the opinion of Dr Chan that the appellant developed a chronic pain syndrome arising out of the initial injury he sustained in the accident at work on 29 July 2008. It is therefore surprising that her Honour did not address this diagnosis any further in her reasons, beyond simply relating the fact that Dr Chan had made the diagnosis. It is true that the Magistrate acknowledged in her reasons that pain alone is capable of being characterised as an injury, but she then went on to comment "where the source of that pain is not identified, however, the practical determination of pain as an injury becomes somewhat more difficult". With respect, this misinterprets the evidence of Dr Chan. Dr Chan's diagnosis was of a chronic pain syndrome developing from the injury the appellant sustained at work on 29 July 2008. In his report of 5 February 2010 Dr Chan makes it clear that it would be difficult to prove, or disprove, whether any physical spinal injury occurred in the accident that could, some years later, account for the appellant's ongoing complaints of pain. It was in no way necessary to his diagnosis to identify any specific persisting physical injury that may be causing the appellant's ongoing pain.
38. In her reasons the Magistrate makes no finding that the appellant is not suffering ongoing pain as he testified, or that the pain did not commence immediately after the accident on 29 July 2008, or that the pain had not been present continuously since that time. Indeed, those propositions were never put to the appellant in cross-examination.
39. The appellant was treated by a clinical psychologist, Ms Linda Bruce. The Magistrate had this to say about her evidence at [37]:
Ms Bruce, a psychologist, made a diagnosis of depression, anxiety and stress following workplace injury, which she later formalised as an Adjustment Disorder with mixed anxiety and depressed mood. The testing she applied showed a significant improvement between 27 February 2009 and 16 July 2009. She concluded that the applicant's main cause of pain was physical. She went on however to state that the applicant was suicidal. This was not a statement repeated at all by the applicant in his oral evidence.
40. Ms Bruce provided 3 reports. The first, dated 17 March 2009, was directed to the workers compensation insurer. She noted that the appellant had been referred to her for treatment by his general practitioner. She took a history, and administered tests for psychiatric disorders. In her opinion, the appellant's symptoms were consistent with depression, anxiety and stress following his workplace accident, and the consequent pain and inability to perform his normal work.
41. The second report, dated 22 July 2009, was also directed to the workers compensation insurer. Ms Bruce confirmed her earlier diagnosis. She noted that in February 2009, when she first saw the appellant, he had expressed the hope that his injury would quickly resolve, so that he could return to work. Ms Bruce noted that he was subsequently diagnosed with a damaged disc, and that his back pain level was "severe and chronic". She expressed the opinion that his recovery had been hampered by delays in approving specialist services (presumably by the insurer) and lack of effective pain relief. She stated that "Michael is trying very hard, is very compliant with therapy, and there have been improvements in the degree of his depression, anxiety and stress".
42. Ms Bruce's third report, dated 2 March 2010, was directed to Dr Chandran. She noted that between February and July 2009 she conducted 10 treatment sessions with the appellant, directed towards helping him to manage his pain. She stated that the treatment she gave to the appellant had not reduced his pain significantly. In Ms Bruce's opinion, the appellant was suffering from severe, debilitating pain. She expressed her opinion as:
In my opinion the main cause of his pain is physical, and Michael's depression and anxiety stem from adjusting to the pain, his inability to work, and the insurance company refusing to accept that he is in pain caused from the accident.
Michael's recovery has been hampered by delays in Insurance approval of specialist services and lack of effective pain relief. Even so, he is trying very hard, and is very compliant with therapy because he wants to reduce the pain.
In my opinion, because Michael has already completed two pain management courses with minimal improvement, to require him to do another pain management course will not help him, and will in fact exacerbate his depression and suicidal ideation. The pain is so severe and chronic that he does not want to live if it continues. Michael is definitely at risk of suicide if the pain is not alleviated soon.
More pain management programs would be a waste of money, better spent on a more permanent solution to his pain.
43. Ms Bruce did not assert that by March 2010 the appellant was not suffering from any psychiatric condition. Indeed, the opposite is true. She maintained her earlier position that he continued to suffer from anxiety and depression consequent upon the pain caused by his workplace accident. As the Magistrate accurately noted, Ms Bruce thought that the "main cause" of the appellant's pain was physical.
44. The Magistrate commented that Ms Bruce stated that the appellant was suicidal, and noted that the appellant had not given evidence of that fact. A perusal of the transcript of the appellant's evidence reveals that the appellant was never asked whether he was, at any time, suicidal. Counsel for the respondent, armed with Ms Bruce's reports, did not question the appellant on this issue. This is probably because it was irrelevant to the issues to be determined in the proceedings before the Magistrate.
45. Next, the Magistrate considered the evidence of Dr Marsh, an occupational physician. She said this about Dr Marsh's evidence at [38]:
Dr Marsh, occupational physician, reported for the insurer on 10 June 2009 and noted "non-organic features" in his assessment of the applicant. That included "pain on simulated trunk rotation and non-dermatomal sensory deficit in the left leg". He considered there may be an underlying cause for some of the pain but that there were also "non-organic" features.
46. This is an utterly inadequate description of the content of Dr Marsh's report. A single report from Dr Marsh dated 10 June 2009 and directed to the workers compensation insurer was tendered before the Magistrate. The plaintiff was referred to Dr Marsh in his capacity as an injury management consultant. He noted that the appellant had been referred to him due to the insurer being "unable to obtain co-operation from the nominated treating doctor to assist the return to work". He noted that Professor Oakeshott considered that the appellant did not suffer from any injury, and that Dr Chandran, the treating neurosurgeon, was requesting permission to conduct a discogram preparatory to possible lumbar spinal fusion.
47. Dr Marsh reviewed the report of Dr Oakeshott and reports from Dr Chandran, Dr Chan and Ms Bruce, as well as viewing reports of the MRI of the appellant's lumbar spine and a report on surveillance carried out on the appellant. This surveillance material was not used by the respondent in the proceedings before the Magistrate. Dr Marsh took a history from the appellant, and conducted a clinical examination.
48. Based on all of this material, Dr Marsh said that it appears that the appellant sustained a chronic low back injury, with an MRI indicating some disc bulging at L4/5 and some facet joint degeneration. He thought there "may be" a disc lesion at L4/5 which was responsible for his pain, but there was no way of determining this from a clinical point of view. He went on to say:
There does appear to be a non-organic element in Mr Stekovic's presentation with marked pain focus and some non-organic features such as pain on simulated trunk rotation, non-dermatomal sensory deficit in the left leg and the alleged problem with lying flat even for short periods without elevating the legs. Although there may indeed be a strong non-organic element, this does not exclude an underlying physical cause such as a disc lesion for at least some of his pain and it is well accepted that pain from disc lesions may persist for well over 12 months.
49. Dr Marsh stated that the appellant was not fully fit to return to his pre-accident duties, but he should be encouraged to try to return to the workforce despite ongoing pain. He then went on to say:
However, there do appear to be psychosocial barriers which have an adverse effect on attempts at return to work. These include the fact that Mr Stekovic has now been off work for nearly a year and is showing no improvement and in fact complains of getting worse. He does appear pain focused with some non-organic features and he has indicated that he does not consider himself fit for any form of work and is looking for something which will quickly and totally fix his low back.
50. Dr Marsh spoke with the appellant's treating doctor, Dr Haynes, who agreed that there were "non-organic elements and indications of a chronic pain condition which tend to mark any underlying physical injury". In conclusion, Dr Marsh said the appellant had a low back injury which had been present for nearly a year. He concluded there were "elements of a secondary chronic pain syndrome with non-organic features" which would make the appellant's rehabilitation and return to work extremely difficult.
51. It is apparent from Dr Marsh's report that he did not doubt the appellant's complaints of ongoing pain, and the history of that pain originating at the time of the accident. There is no suggestion in the report that Dr Marsh thought the appellant to be malingering. The evidence that the appellant's presentation had elements of a secondary chronic pain syndrome is perfectly consistent with the opinion of Dr Chan.
52. The Magistrate next referred to the evidence of Dr Pik, a consultant neurosurgeon, in the following terms at [40]:
Dr Pik, on his examination on 9 March 2010, noted the presence also of "non-dermatomal pattern of sensory alternation involving the whole of the left leg". His review of the MRI report found no evidence of spinal canal stenosis or nerve root compromise. The applicant's presentation was thought to be "suggestive" of mechanical low back pain but noted symptoms and signs in excess of what could be explained on that basis. He subsequently conducted a discogram at the L2/L3 levels through to the L5/S1 level. His findings were at odds with those of Dr Chandran. He concluded that surgery would not produce good results.
53. This is an inadequate summary of Dr Pik's evidence. Dr Pik's first report is dated 10 March 2010 and is directed to the appellant's general practitioner. Dr Pik saw the appellant on 9 March 2010 and noted a history of low back pain. He stated that, on examination, the appellant appeared to be in significant pain. However, Dr Pik noted a number of symptoms and signs that were in excess of what could be explained based on diagnostic pain. In that regard, Dr Pik viewed the MRI of the appellant's spine from late 2008. This showed desiccation of the lower 3 lumbar intervertebral discs, a minor right sided L4/5 foraminal disc bulge without significant severe root compromise and early facet joint disease involving the L4/5 and L5/S1 levels. There was no evidence of any spinal canal stenosis or severe nerve root compromise. Dr Pik noted that the appellant had previously undergone a lumbar discogram with Dr Chandran with injection of the L4/5 and L5/S1 discs. Dr Pik commented in relation to this previous discogram:
However, this would indicate to me that the previous discogram has not incorporated a normal looking disc to act as a control level. Therefore, it would be difficult to determine whether the patient's pain is in fact concordant or disconcordant.
54. Dr Pik's report of 10 March 2010 was also circulated to Dr Chandran. It was the receipt of this report, and Dr Pik's subsequent report, which prompted Dr Chandran to write his report of 12 April 2010 and to withdraw from management of the appellant's case. What is important about Dr Pik's report of 10 March 2010 is that it casts doubt on the validity of the earlier discogram. Dr Chandran, in his report of 12 April 2010, did not dispute the factual basis upon which Dr Pik doubted the validity of the earlier procedure.
55. Dr Pik's second report is dated 31 March 2010 and is also directed to the appellant's general practitioner. He noted that a further discogram had been conducted with injection of the L2/3, L3/4, L4/5 and L5/S1 discs. The L2/3 normal disc was used as a control. The L4/5 disc on injection showed extensive internal disruption and annular tear. There was no pain on injection of the L4/5 disc. Injection of the L5/S1 disc also revealed internal disruption and some annular tear and there was reproduction of the appellant's usual pain on two separate injections. Dr Pik concluded by saying:
I have explained to Michael that surgical treatment for his current symptoms would carry a low chance of success given the discrepancy between the two discograms. I have emphasised to the patient that I fully appreciate the degree of pain and disability he feels. I also understand that he has tried an exhaustive list of non surgical treatment without improvement. However, I would rate the chance of success with surgical treatment to be low rather than high given the discogram findings. It is likely that Michael may still be in significant pain despite having a technically successful fusion.
56. It is apparent from this material that Dr Pik did not doubt that the appellant was in pain. It is equally apparent that Dr Pik did not consider the divergent results of the two discograms to be evidence of malingering on the part of the appellant.
57. The Magistrate next referred to a report from Dr Gordon Stuart, consultant neurosurgeon, dated 13 May 2010. Dr Stuart's report was directed to the appellant's lawyers, and followed an assessment on 11 May 2010. The Magistrate said this about Dr Stuart's report at [41]:
Dr Stuart, neurosurgeon, reported as an independent expert for the applicant. He, too, commented on the fact that the complained of numbness in the applicant's leg did not fit a dermatomal distribution. He concluded that the applicant had suffered a temporary aggravation of degenerative disease of the lumbosacral spine. He did not consider that the applicant's presentation at assessment was consistent with the stated cause of injury. He thought the applicant incapable of a RTW at that time but not because of a work injury. He recommended against surgery.
58. With respect, this is a misleading and inaccurate summary of Dr Stuart's report. With regard to the apparent discrepancy in the discogram results, Dr Stuart said "discograms are a very subjective and unreliable investigation in relation to patient's symptomatology". He considered the appellant's condition to be "worsening". Whilst he noted subjective sensory impairment of the whole of the appellant's left leg, which was not in the distribution of any dermatomes, he did not suggest this to be an indicator of malingering. Dr Stuart thought the appellant may be suffering from a chronic pain syndrome, which was defined as the persistence of symptoms following healing of an injury. It is clear from the report that Dr Stuart thought that any such syndrome was a consequence of the injury that the appellant sustained in his workplace accident.
59. Dr Stuart recommended further investigation including assessment by a multi-disciplinary pain clinic with review of analgesic requirements, review and treatment for depression, institution of cognitive techniques for pain management and commencement of physical rehabilitation. He considered the appellant to be currently incapable of returning to work. Whilst Dr Stuart thought the appellant's current disabilities were "no longer caused by the work accident of 29 July 2008", he thought they were "due to underlying degenerative disease of the lumbosacral spine which was aggravated by the work injury on 29 July 2008". As I understand Dr Stuart's report, he says the appellant sustained an injury to his lumbar spine in the accident on 29 July 2008. That injury aggravated underlying degenerative disease of the spine. Whilst the original injury has resolved, the aggravation to the underlying degenerative disease continued, causing pain.
60. A report and letters of Dr Mobbs, a neurosurgeon, were also tendered in the proceedings at first instance. As noted by the Magistrate, he thought that the appellant's work accident was a significant contributor to the appellant's "overall back condition". A further neurosurgical report from Dr Bookalill also supported the connection between the appellant's workplace accident and his back condition.
61. The Magistrate had before her two reports from Associate Professor Oakeshott, a general surgeon. Her Honour summarised those reports in this way:
Associate Professor Oakeshott, a general surgeon, reported for Contexx. He considered that there were definite non-anatomical and inconsistent responses by the applicant and no abnormality observable in the left groin region. He considered that the applicant's symptoms did not correlate to physical injury at work or indeed aggravation of a pre-existing condition at work. He maintained this view following a review of further evidence.
62. Again, with respect, this is an inadequate summary of Professor Oakeshott's reports. Professor Oakeshott's first report is dated 12 March 2009 and is directed to the workers compensation insurer. He noted the history of injury on 29 July 2008, and the results of subsequent investigations of his lumbar spine. He believed that the reported changes in the appellant's lumbar spine seen in the MRI scans were constitutional in origin and not work related. He conducted an examination of the appellant. He concluded that there was a psychosocial component to the appellant's alleged symptoms, and that his current symptoms arose from factors "other than a physical injury that occurred at work". Professor Oakeshott stated that the challenge was to identify the psychosocial issues contributing to his present situation, and manage them accordingly. That would involve "recruiting his understanding and co-operation in the development of agreed outcomes (for example, pain free, full time work)." Professor Oakeshott thought that any symptoms the appellant had were not related to physical injuries caused at work.
63. Professor Oakeshott's second report, also to the workers compensation insurer, is dated 2 December 2009. For the preparation of that report, Professor Oakeshott did not interview or examine the appellant. Instead, he reviewed reports from Dr Marsh, Ms Linda Bruce, Dr Chan and Dr Chandran. Professor Oakeshott reiterated his opinion that "there is a significant psychosocial (non-organic) component in regard to his present symptoms". He thought that the appellant's back symptoms would persist "as long as he remains pain focussed and for as long as other psychological issues continue". He concluded that the appellant should be managed in a multidisciplinary pain management program, with a return to work focus.
64. A close reading of Professor Oakeshott's reports reveal that Professor Oakeshott confined his opinions to whether the appellant had sustained a physical injury to his spine on 29 July 2008, which continued to operate upon the appellant so as to explain his complaints of pain and disability in 2009. Professor Oakeshott expressed the opinion that if the appellant suffered a physical injury on 29 July 2008, the effects of that injury were short term, and had resolved before he saw the appellant in March 2009. What Professor Oakeshott did not say was that the appellant was not suffering pain in his lumbar spine in 2009, or that the appellant's work injury played no part in the appellant's condition. The evidence of Professor Oakeshott is consistent with that of Dr Chan that the appellant is suffering from a chronic pain syndrome following the back injury he sustained on 29 July 2009.
65. The only medical witness to suggest that the appellant was malingering was Dr Silver, an occupational physician retained by the respondent's lawyers. Dr Silver saw the appellant on 19 May 2011, and clearly had access to Professor Oakeshott's reports. Dr Silver apparently considered that Professor Oakeshott had reported that the appellant's complaints of back pain were "grossly and deliberately embellished", which does not accord with my reading of those reports. Surprisingly, Dr Silver draws an analogy between the previous compensable injuries sustained by the appellant and his condition in 2011:
It seems apparent that Mr Stekovic is being provided with significant secondary gains by his current situation, as was the case with his previous compensable injuries that saw him out of the workforce for several years in total and respect to each of which he received significant financial settlements before recovering.
66. Dr Silver was not in a position to comment on the appellant's prior injuries, or on his entitlement to compensation for those injuries. His willingness to comment as he did brings into question his objectivity regarding the appellant. In addition, his opinion that the appellant was engaging in conscious exaggeration was not supported by any other medical witness. For these reasons I do not accept his assessment of the appellant.
67. In his report, Dr Wriedt commented that it is essential when conducting a discogram to use a normal looking disc as a "control level" in order to ensure accurate assessment of the physiological component of the procedure. This was entirely consistent with the opinion expressed by Dr Pik. Dr Wriedt also suggested that the differences between the way that radiologists and neurosurgeons label, or number, lumbar disc segments could account for the apparent conflict in the two discogram results, but that suggestion is entirely hypothetical. As such, while I allowed the fresh evidence, it is not of significance in the resolution of this appeal.
68. I am satisfied that the Magistrate made a number of errors in determining that the appellant's entitlement to the payment of compensation pursuant to Pts 4.2, 4.3 and 4.5 of the Act ceased as at 20 March 2010. These errors are:
69. The Magistrate was entitled to find that no specific, continuing physical injury can be identified on the available evidence. It is possible that one or more previously asymptomatic degenerate lumbar discs were rendered symptomatic in the accident, but the available evidence did not enable her Honour to make such a finding with the requisite degree of certainty. It may be that further investigations will clarify that issue. However, the Magistrate was in error in finding that there was "an overwhelming body of evidence" that the effects of any injury the appellant suffered in the accident had resolved, and any ongoing complaints were not work related. The opposite was the truth. The overwhelming body of evidence was that the appellant continues to be incapacitated for work by pain connected with his work injury, most likely via the mechanism of a chronic pain disorder.
70. Having found that the Magistrate made an error or errors in her reasoning, it falls to me to make a decision which I consider to be correct on the evidence. Before making those orders, there is one final matter which must be addressed. In the absence of any finding establishing an ongoing, underlying physical cause for the appellant's pain, such as a disc damaged in the accident, it is necessary to determine to what extent the appellant is entitled to be reimbursed for medical expenses pursuant to Pt 4.5 of the Act for past treatment. Section 70 of the Act makes an employer liable to pay for medical treatment reasonably received in relation to an injury. In my opinion, the medical treatment received by the appellant prior to the proceedings before the Magistrate was reasonable. This is particularly so bearing in mind the varying opinions of the medical experts, and the difficulty in diagnosing the precise cause of the appellant's pain.
72. The finding of the Magistrate that the appellant's entitlement to payment of compensation under Pts 4.2, 4.3 and 4.5 of the Workers Compensation Act 1951 (ACT) ceased as at 20 March 2010 is set aside.
73. I find that the appellant has ongoing entitlements to payment of compensation pursuant to Pts 4.2, 4.3 and 4.5 of the Workers Compensation Act.
74. I find that the appellant is entitled to reimbursement for all medical procedures for which he has personally paid above those already paid by the workers compensation insurer.
75. The respondent is to pay the appellant's costs of the appeal.
I certify that the preceding seventy five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Counsel for the Second Respondent: Mr D A Stretton SC
Solicitor for the Second Respondent: Sparke Helmore
Stekovic
Polyseal Waterproofing Technologies Pty Limited and Contexx Pty Ltd [2013] ACTSC 195
(2003) 214 CLR 118
(2000) 203 CLR 172
(1908) 7 CLR 549
(2000) 203 CLR 194
(1979) 142 CLR 531
(2008) 248 ALR 240