Markovic and John Holland Rail Pty Ltd [2010] AATA 856 (2 November 2010)

Last Updated: 2 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 856

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/2268

) 2009/0979

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SLOBODAN MARKOVIC

Applicant

And

JOHN HOLLAND RAIL PTY LTD

Respondent

DECISION

Tribunal

Deputy President S D Hotop Dr A Frazer, Member

Date 2 November 2010

Place Perth

Decision

The Tribunal sets aside the decisions under review and, in substitution therefor, decides as follows: from 28 December 2007 to the present date, and as at the present date, the respondent is not liable to pay compensation to the applicant, pursuant to s 16 or s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), in respect of his accepted compensable injury, namely, “muscle spasm & loss of lumbosacral mobility”, sustained on 27 July 2007; the respondent is liable, pursuant to s 14(1) and Part VIIl of the SRC Act, to pay compensation to the applicant in respect of the following mental injuries, namely, Adjustment Disorder with Depressed and Anxious Mood, sustained on 6 September 2007, and Major Depressive Episode, sustained on 4 October 2007 (“the mental injuries”); the respondent is liable to pay compensation to the applicant, pursuant to ss 16 and 19 of the SRC Act, in respect of the mental injuries, for the period from 6 September 2007 to 7 September 2008; from 8 September 2008 to the present date, and as at the present date, the respondent is not liable to pay compensation to the applicant, pursuant to s 16 or s 19 of the SRC Act, in respect of either of the mental injuries. Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.

..........sgd S D Hotop.........

Deputy President

CATCHWORDS

COMPENSATION – applicant employed by respondent – applicant suffered back injury – applicant claimed compensation – respondent accepted liability – applicant claimed compensation for psychiatric condition secondary to back injury – respondent determined that compensation no longer payable to applicant for back injury and not liable to pay compensation for psychiatric condition – back injury no longer resulting in impairment or incapacity for work – compensation not presently payable for back injury – applicant suffered mental injuries – respondent liable to pay compensation for mental injuries – compensation not presently payable for mental injuries – decisions under review set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 5A(1), s 5B, s 7(4) and s 14(1)

REASONS FOR DECISION

2 November 2010

Deputy President S D Hotop Dr A Frazer, Member

INTRODUCTION

1. On 16 August 2007 Slobodan Markovic (“the applicant”) claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for a lower back injury described as “minor disc bulges L3/4, L4/5, L5/S1” which he claimed to have sustained on 27 July 2007 in the course of his employment as a track labourer with John Holland Rail Pty Ltd (“the respondent”).
2. On 24 August 2007 the respondent accepted liability under the SRC Act to pay compensation to the applicant for an injury, namely, “muscle spasm & loss of lumbosacral mobility”, sustained on 27 July 2007.
3. On 28 December 2007, however, the respondent made a determination under the SRC Act that the applicant had ceased to suffer from the effects of his compensable injury on that date and that he was not presently entitled to compensation under the SRC Act. The respondent also determined that it was not liable under the SRC Act to pay compensation to the applicant in respect of a “secondary claim for anxiety and major depression received on 7 September 2007”.
4. On 7 April 2008 the respondent made a “reviewable decision” under the SRC Act affirming the determination of 28 December 2007.
5. By letter dated 29 August 2008 to the respondent’s solicitors, the applicant’s former solicitors confirmed that the applicant claimed compensation under the SRC Act for a “psychological condition” described as “adjustment disorder with depressed and anxious mood”.
6. On 28 October 2008 the respondent made a determination that the applicant was not entitled to compensation under the SRC Act for “an anxiety state and major depression, secondary to a back condition”.
7. On 5 January 2009 the respondent made a “reviewable decision” under the SRC Act affirming the determination of 28 October 2008.
8. The applicant has applied to the Tribunal for review of the reviewable decision of 7 April 2008 (Application No 2008/2268) and the reviewable decision of 5 January 2009 (Application No 2009/0979).

THE EVIDENCE

9. The evidence before the Tribunal comprised:
   • the “T Documents” (T1–T65 in Application No 2008/2268; T1–T21 in Application No 2009/0979) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
   • Exhibits A1–A4 tendered by the applicant;
   • Exhibits R1–R36 tendered by the respondent; and
   • the oral evidence of the applicant and of the following additional witnesses:
     • - Dr J Di Camillo, Dr J Silver, Mr P Hardcastle, Professor S Gubbay, Dr L Terace, Dr G Edwards-Smith, Mr R Black, Mr N O’Leary and Ms R Bawden.

THE APPLICANT’S EVIDENCE

10. The applicant’s evidence-in-chief was set out in his witness statement, dated 9 October 2009, as follows:

“ ...

3. From 1997 to 2007 I was employed by the Respondent as a track labourer. My job involved laying new railway tracks and maintaining existing tracks. I carried out my job by operating machinery at times and doing manual labour at other times.

1999 Back Injury

4. In 1999 I was at work and was operating a piece of machinery called a dock-puller in order to pull docks from sleepers. The process required me to use the dock-puller to pull each dock up then bend down to retrieve the docks and put the docks in the buckets. I was also required to load and unload the dock-puller from the truck and it weighed between 80-90 kg when it was full of petrol. When I was carrying out this task I injured my back, so I reported it to my boss who sent me to the company doctor. I made a workers’ compensation claim and liability for my claim was admitted.
5. As treatment for my back injury, I attended several consultations with the Respondent’s general practitioner. I cannot recall whether he prescribed me anti-inflammatory medication.
6. After my back injury I returned to work with some restrictions. I was then certified fully fit and wholly recovered from 30 August 1999 so I returned to my normal duties. However I continued to have intermittent pain in my back which at times was very strong.

2006 Foot Injury

7. On 13 November 2006 I suffered an injury to my right foot in the course of my employment. I went to the emergency department at Mandurah Hospital where they assessed me, carried out x-rays and stitched the lacerations. I then continued to be reviewed by my general practitioner (Dr Di Camillo).
8. I returned to work on light duties with restricted hours – I increased up to a few hours a day doing office work. By 27 July 2007 I was certified fit and returned to my normal duties.

July 2007 Back Injury

9. On Thursday (sic) 27 July 2007 I was working for the Respondent performing corrections to tracks on the Kwinana-Rockingham section of the Perth to Mandurah rail line. I would usually start work between 6.00 am and 7.00 am and finish between 4.30 pm and 5.00 pm. I was working Monday to Friday each week as well as frequent Saturdays. That day I was working in a team of 5 or 6 workers – myself Net Harkwhy (Supervisor), Blanky Bill, ‘Chunky’, and 1 or 2 others whose names I cannot recall.
10. This job involved removing the steel railway lines and lifting spacer sleepers. These tasks were usually done by automated machinery; however that day the plant broke down and was out of service for 2 to 3 hours. This meant that for the hours that the plant was broken down I was required to use a jack to manually lift tracks and position them on the sleeper pads and to lift spacer sleepers. The work involved a repetitive levering motion. The load of spacer sleepers being lifted with the jack was particularly heavy. The jack was old and difficult to manoeuvre.
11. I also lifted trolleys, generators and the jacks themselves into the back of a truck. The jacks weighed approximately 20 kg, the generators weighed 30-35 kg and the trolleys weighed approximately 25-30 kg. On that day I was required to lift the trolleys and generators twice each and I was required to lift the jacks themselves approximately 50 times. That equated to approximately 54 lifts. The heavy levering motions were continuous over 2 to 3 hours.
12. While performing these tasks I experienced pain in my right leg. At the time I thought it was connected to my foot injury. I continued to work and did not report my injury to my employer. The following morning (Friday (sic) 28 July 2007) I called Dr Di Camillo but was unable to get an appointment until Monday 30 July 2007.
13. Between 28 July 2007 and 6 August 2007 I noticed that the pain was referred from my back. In particular on the morning of 28 July 2007 I had pain in my back and in both thighs. My back was tender to touch so I rested over the weekend. My symptoms improved but did not go away and my back and leg pain continued.
14. I attended my appointment with Dr Di Camillo on Monday 30 July 2007. I did not go back to work. By that Friday my symptoms had worsened. In particular I had numbness in my thighs, pain in my right leg and foot, and pain in my back.
15. On 6 August 2007 I saw Dr Di Camillo again and reported my back pain to him.

Treatment and Subsequent Course

16. On 16 August 2007 Dr Di Camillo gave me a First Medical Certificate, prescribed me panadeine forte and recommended physiotherapy. I then lodged a workers’ compensation claim form regarding my back injury.
17. On 24 August 2007 the Respondent accepted liability for ‘muscle spasm and loss of lumbosacral mobility’ sustained on 27 July 2007 in the course of my employment.
18. Dr Di Camillo referred me to a Neurosurgeon (George T Wong) for treatment. I saw Dr Wong in late August 2007.
19. I was not sleeping properly as I was having great difficulty finding a comfortable sleeping position. I could only stand for 15 to 20 minutes before I lost the feeling in my left leg. I was frequently experiencing very strong pain at the bottom of my spine, up along my spine, in my legs (the left leg the worst) and in my head. I was inflexible and had a very limited range of movement through my back. I was relying heavily on painkillers to try to ease

my pain. I was also forgetful with very poor concentration levels. All of these symptoms I still experience and some are even worse now than they ever were.

20. On 7 September 2007 Dr Di Camillo reviewed me and noted that I had developed anxiety and depression. He prescribed me Avanza 30 mg.
21. On 22 October 2007 Dr Di Camillo gave me a Progress Medical Certificate diagnosing me as suffering from ‘continuing severe LBP and depression’.
22. On 28 December 2007 the Respondent stopped compensating me for my injury.

Effects of Injuries

23. I am very limited with the things that I can do. I cannot walk properly and my pace is extremely slow. I have to keep my activity down to a minimum and my ventures outside short otherwise I start experiencing pain and cannot sleep that night. I cannot exercise due to the pain. I used to like going out socialising on the weekends but now I cannot do that.
24. Generally my days are filled with the same routine. I wake up at about 9.00 am and stay at home sitting down. I cook a little bit, then the pain drives me back to bed by about 2.00 pm as I cannot sit or stand any longer. I then wake up between 5.00 pm and 6.00 pm, watch television until between 11.00 pm and 12.00 am then return to bed. Sometimes I go to the shops when I need to buy something and I also attend necessary appointments. From time to time I visit friends or relatives but I have to keep my visits short because of my pain.” (Exhibit A1)
    

[The Tribunal notes that, contrary to statements in the applicant’s evidence, 27 July 2007 was a Friday, not a Thursday (as stated by the applicant) (see Exhibit R36).]

11. The applicant confirmed that he was born in Bosnia in January 1969 and that, prior to migrating to Australia in 1995, he was a member of the Yugoslavian Army and, subsequently, the Serbian Army and he fought in the Bosnian War during which he was injured, sustaining two bullet wounds, one in each leg.
12. In cross-examination the applicant was questioned about his evidence that he had sustained a back injury on 27 July 2007. He reiterated that 27 July 2007 was a Thursday and that he saw his general practitioner, Dr Di Camillo, on Monday, 30 July 2007. The applicant was referred to Dr Di Camillo’s clinical notes (Exhibit R1) which refer to a consultation on 3 May 2007 about his foot, a consultation on 6 July 2007 (no details specified), and the next consultation on 6 August 2007 about right foot pain and also a “recurrence” of a lower back pain injury in 1999. The applicant acknowledged that he was possibly wrong about a consultation on 30 July 2007 and was unsure whether he told Dr Di Camillo on 6 August 2007 that he had suffered a back injury at work on 27 July 2007. He was referred to a Workers’ Compensation Progress Medical Certificate issued by Dr Di Camillo on 6 August 2007 (T3) which refers to “painful ® toes” but does not refer to the back. He said that he was “very sure” that he had reported his back pain to Dr Di Camillo at that consultation.
13. The applicant was next referred to a Workers’ Compensation Progress Medical Certificate issued by Dr Di Camillo on 13 August 2007 (T4) which refers to “painful ® toes improving” and “recurrence severe low back pain radiating to lower limbs” and refers to the date of injury as “27.7.07(?)”. He said that he had possibly mentioned his back injury of 27 July 2007 to Dr Di Camillo at that consultation.
14. The applicant said that he had experienced “very bad” low back pain from the Saturday following his injury on “Thursday”, 27 July 2007 (sic). He said that he had seen the CT scan of his lumbosacral spine (dated 14 August 2007 – T5) and that it showed that 3 discs were “gone” and 2 were “bulging”. He said that he thought that he could become a paraplegic and that he had to look after himself.
15. The applicant was referred to the Workers’ Compensation First Medical Certificate issued by Dr Di Camillo on 16 August 2007 in respect of a lower back injury suffered on 27 July 2007 (T7). Dr Di Camillo’s clinical note regarding a consultation on that date states:

“ ... pain started on 27/7/07 after heavy lifting & operation of rail jack; requires new 1st cert.”

The applicant acknowledged that, on that occasion, Dr Di Camillo had recommended physiotherapy and hydrotherapy treatment (as stated in the medical certificate), but he said that he never obtained such treatment because his back pain was “very bad” and he was afraid that such treatment “would make it worse”.

16. The applicant acknowledged that he had taken out an insurance policy with “GE Money” in 2006. He was referred to a letter from GE Money to him, dated 9 May 2008, informing him that his claim for disability benefits had been disallowed on the following ground:

“ ... your current condition has been evident since 1999 ... prior to the date upon which your insurance became effective ... 19/07/2006.” (Part of Exhibit R2)

He was also referred to a clinical note of Dr Di Camillo regarding a consultation on 22 May 2008 which states:

“ GE Money ins causing problems”

and to a subsequent report by Dr Di Camillo to GE Money, dated 23 May 2008, which states:

“ As a result of a work related injury on 27.7.07, Mr Markovic developed severe chronic low back pain complicated by bilateral sciatica, anxiety state and severe (major) depression.
As I understand it, there is a contentious issue that the current condition has been evident since 1999 as stated in your letter to Mr Markovic dated 9.5.08.
This statement is incorrect.
The patient had a back condition in 1999 which made full recovery and was able to work at his usual heavy job the same year and was totally symptom free till the accident in question on 27.7.07. The injury on this date was totally responsible for the ongoing symptomatology and it is not in any way related to the previous back problem in 1999. The mild underlying preexisting disc disease was incidental and asymptomatic.
The relevant fact is that Mr Markovich (sic) had a normal healthy symptom free back between 1999 and accident date on 27.7.07.
Hope this short summary clarifies the issue of patient’s eligibility to claim for disability benefits.”

Dr Di Camillo’s report also stated that the following treatment had been administered to the applicant:

“ Strong analgesia, physiotherapy, heat packs, gentle stretching, hydrotherapy, specialists, antidepressants, psychotherapy & pain psychologist”. (Part of Exhibit R2)

It was put to the applicant that Dr Di Camillo’s statement that his back was “totally symptom free” from 1999 until 27 July 2007 was inconsistent with his evidence that he continued to have back pain following his 1999 back injury. The applicant said that he had “no idea” why Dr Di Camillo had said that he was symptom free from 1999 to 2007. As regards the treatment he had received, the applicant confirmed, contrary to Dr Di Camillo’s statement, that he had never received physiotherapy, hydrotherapy or psychotherapy, he had never used heat packs, and had never seen a pain psychologist. He also confirmed that he had subsequently received a letter from G E Money, dated 18 June 2008, informing him that his claim for disability benefits had been approved (Exhibit R3).

17. The applicant was referred to a report of Mr Philip Hardcastle, dated 11 September 2008, which refers to his “most unusual wide based short steppage gait” (T12 in Application No 2009/0979). He demonstrated his gait in the hearing and he was observed to walk with his legs wide apart, taking short steps, remaining symmetrical with his head forward and looking down. He said that he started to walk in that manner after his back injury of 27 July 2007 because if he walked normally he would feel greater pain in his lower back whereas walking in that manner caused him less pain. He said that, before his foot injury in November 2006, his gait was normal.
18. The applicant said that, during the first year after the incident of 27 July 2007, the level of his back pain was “5–6/10 all the time” but that the pain then became worse. Asked to explain why the pain became worse after one year, he said that it was possibly due to “a loss of physical condition”, adding that he used to play soccer. He said that he took only Panadeine Forte for his pain and he did not exercise or receive physiotherapy or hydrotherapy treatment.
19. The applicant was questioned about efforts made by the respondent to arrange for his vocational rehabilitation from August 2007 which proved to be unsuccessful. It was put to him that he did not want to go back to work. He responded that it was not that he did not want to go back to work, but that he could not do so because of his pain, depression, inability to concentrate, and because he is “slow moving”.

THE EVIDENCE OF THE MEDICAL WITNESSES

Dr Joseph Di Camillo

20. Dr Di Camillo confirmed that he is a general practitioner and that he first saw the applicant on 29 May 2006 and has continued to treat him since that date.
21. Dr Di Camillo also confirmed that, in his computerised clinical records, there is no entry for 30 July 2007 and that, therefore, there is a “99% probability” that there was not a consultation with the applicant on that day. He said that the consultation on 3 May 2007 concerned the applicant’s foot and that, at the consultation on 6 August 2007, the “main problem” was the applicant’s foot but the applicant also mentioned low back pain.
22. Dr Di Camillo said that, when he saw the applicant in August 2007, he wanted to help him to get back to work as soon as possible. He said that his impression was that the applicant was “trying” but that his “huge” back pain and depression did not allow him to get back to work.
23. Dr Di Camillo was referred to a fax to him from Rebecca Bawden, Rehabilitation Consultant, dated 12 September 2007, setting out proposed light duties and a proposed graduated return to work program for the applicant. Dr Di Camillo acknowledged that he had responded on 17 September 2007 indicating that it was expected that, by the end of September 2007, the applicant would be fit to undertake the following light work in accordance with the proposed graduated return to work program:
    • “Gate Security”;
    • “Office Based Personnel;
    • “Storeperson”;
      

and adding the following comments:

“ Mr S Markovic has a bad mechanical back problem with associated anxiety & depression. I agree with specialist Dr E Eriksen who advises 2-3 further weeks off on hydro & physio, exercise programme later and pain psychologist & commence part time light duties towards end 9/07.
However if he does not make anticipated progress he will require further time off, MRI, and specialist referrals (orthopaedic & psychiatrist).” (T23 in Application No 2008/2268)

24. Dr Di Camillo was referred to the report which he had provided to GE Money on 23 May 2008 (see paragraph 16 above). He confirmed that he had had a consultation with the applicant on 22 May 2008 and he added that he had prepared that report on the basis of the applicant’s history and honesty and his own examination findings. He said that he had listed the treatment administered to the applicant in reliance on his own knowledge of the applicant’s case and his responsibility to administer or organise the forms of treatment. He was referred to his clinical note of 29 May 2006 which noted that the applicant was complaining of (amongst other things) low back pain, and he acknowledged that his statement in the abovementioned report to GE Money that the applicant’s back was “totally symptom free” from 1999 until 27 July 2007 was incorrect.
25. Dr Di Camillo was also referred to a Centrelink “Treating Doctor’s Report” form which he had completed on 1 August 2008 in support of the applicant’s claim for disability support pension (Exhibit R14). In that report Dr Di Camillo stated that the applicant was suffering from “chronic low back pain” and “major depression & chronic anxiety state”, and that:
    • in respect of his back pain:
      • - his current treatment comprised “oral analgesia, rest, counsel, gentle exercises, pain psychologist”;
      • - his past treatment comprised “hydrotherapy, physiotherapy, strong oral analgesia, injections, specialists”;
      • - he was “very compliant” with recommended treatment; and
    • in respect of his depression and anxiety:
      • - his current and past treatment comprised “antidepressants, psychotherapy & pain management strategies from a clinical psychologist”;
      • - he was “very compliant” with recommended treatment.

Dr Camillo confirmed that he had a consultation with the applicant on 1 August 2008, his clinical note of which refers to “pain & financial stresses”, and that he completed the abovementioned Centrelink form at the applicant’s request.

26. Dr Di Camillo confirmed that he had seen the applicant on several occasions in September 2008 regarding his mental state and that his clinical note of 18 September 2008 indicated that his “impression” was that the applicant was suffering from “paranoid psychosis”. Dr Di Camillo also confirmed that his clinical note of 22 September 2008 referred to the applicant’s being under the care of a “mental health clinic on risperdal 2mg daily”. He said that “risperdal” is an anti-psychotic medication.

Dr John Silver

27. Dr Silver, Consultant Occupational Physician, clinically assessed the applicant on three occasions, namely, on 27 November 2007 (at the request of the respondent’s insurer) and on 18 August 2008 and 13 May 2010 (at the request of the respondent’s solicitors), and he subsequently prepared three reports, dated 3 December 2007 (T41 in Application No 2008/2268), 28 August 2008 (Exhibit R11), and 19 May 2010 (Exhibit R12).
28. In his report of 3 December 2007 Dr Silver set out the applicant’s pre-July 2007 history and continued:

“ HISTORY OF THE CURRENT PROBLEM
Mr Markovic said that he incurred a back injury at work on 27 July 2007. There was no specific injury but Mr Markovic said that following his day’s work in which he was doing some lifting, he simply felt pain in what he indicated to be the paralumbar regions, a little superior to the sacroiliac regions bilaterally and in the inferomedial regions of both buttocks. He said that this was simply an exacerbation of the pain that he had been experiencing since 1999.
Mr Markovic said that he did nothing about this pain as it was a Friday and that he felt that he would rest over the weekend. He also said that his right foot was still sore at this time although he had previously told me that his foot had recovered and he had been back at normal work for some time prior to July of 2007. Indeed, when asked again to be specific about this, he said that this (sic) right foot had not healed by that time and that he remained on light duties, although he said that he was working for his normal 10 hours per day on a job that was ‘very easy’. He did not elaborate further.
When asked again whether his right foot had fully recovered, he said that he does not have any pain in his foot because he is not walking very much. He said that it still hurts if he does.
With respect to his back pain, Mr Markovic said that his back pain improved somewhat over the weekend, similar to the situation that had occurred in recent years where he had some activity-related low back pain.
He said that he continued working, however, throughout the following week but, by the Friday, his foot rather than this (sic) back was sore so he called his doctor. He arranged to be assessed on 06 August 2007. He said by this time that he had no feeling in the distal aspect of the front of both thighs, just above the knees, that his right foot – his big toe and second toe were sore – and he said that ‘I started touching myself everywhere’ and it was ‘extremely painful’ when he touched the bottom of his spine. He said that he was sent for a CT scan.
He was told that the CT scan revealed a spinal injury and problems with discs. He was also prescribed Panadeine Forte and antidepressant medication at his first consultation with Dr Di Camillo in early August of 2007. In the circumstances of antidepressants being prescribed at a first visit for symptoms of musculoskeletal pain, Mr Markovic was asked if he had been prescribed antidepressants in the past. He was adamant that he had not been prescribed Avanza, that he was prescribed at that time, but he prevaricated and said that he was not sure whether or not he had been prescribed other antidepressants in the past. He looked away and added that he is not sure about this. He acknowledged that it was possible that he had been treated with antidepressants prior to August 2007.
Following the CT scan he was referred to Dr Wong, Neurosurgeon, whose report of 29 August 2007 is enclosed with your reference material.
Mr Markovic said that he could not remember what Dr Wong said with respect to a diagnosis, but he does recall that Dr Wong recommended an MRI. This, however, is inconsistent with Dr Wong’s report in which there is no comment about an MRI. Indeed, the comments in Dr Wong’s letter suggest that there are psychosocial issues only. He has not returned to Dr Wong, nor has there been any other specialist referral. His GP, however, did refer him for an MRI and this, undertaken on 03 October 2007, reports no evidence of any focal disc protrusion nor indeed any abnormality. Despite being advised that the MRI reported no abnormality, he has been certified as being totally unfit for work by Di Camillo since; he acknowledged that he has asked Dr Di Camillo to provide these certificates.
Mr Markovic advises that his back pain has gotten ‘not much’ better in the past four months. He has had no treatment other than the analgesic and antidepressant medication. He said that his doctor recommended physiotherapy but he said that he has been unable to attend ‘because this is very painful doctor – it is very hard’.
Work activity
Mr Markovic advises that he was certified as being unfit for work when he first attended Dr Di Camillo in early August of 2007 and that he has been so certified, at his own request, ever since.
PRESENT COMPLAINTS
Mr Markovic said that he has pain that he indicates to be at the base of his spine, over the sacrum, and in a wide area in the paralumbar musculature with this extending into both buttocks. He said that this pain is constant and unrelenting and is present 24 hours per day, although it does fluctuate in intensity. He said that this back pain is exacerbated by showering and by prolonged sitting. He also said that he is unable to stand straight.
When asked about relieving factors, he simply shrugged his shoulders and said nothing. He added, however, that he is also uncomfortable in bed. He also added that his back pain is exacerbated by coughing.
Current treatment
He takes Panadeine Forte tablets, 3 or 4 tablets per day, and 1 Avanza tablet each day. He said that he sees his general practitioner every 2-3 weeks, when he needs medication, and that he gets 2 or 3 packets of Panadeine Forte tablets, dispensed in 20 tablets per packet, when he attends. He is having no other treatment, nor is he having any paramedical treatment.
...”

Dr Silver then outlined his findings on clinical examination and continued:

“ Special Investigations:
I enclose copies of the following radiological reports:

• Plain x-ray of the lumbar spine dated 10 September 1999 that reports no abnormality.
• CT scan of the lumbaosacral spine dated 14 August 2007 that reports minor disc bulging but no evidence of focal disc protrusion in the lower lumbar region.
• MRI of the lumbar spine dated 03 October 2007 that reports no abnormality.

OPINION
There was no specific injury on 27 July 2007, the day on which Mr Markovic said that he had more than normal activity-related low back pain at the end of his day’s work, indeed it was not until ten days afterwards that he said he consulted his general practitioner, principally because of right foot pain for which he had been on modified duties for some nine months, and by which time he had developed pain in the sacral region.
The clinical presentation was pervaded with the well-known Waddell’s signs and without any objective evidence of musculoskeletal or neurological pathology either clinically or radiologically.
There was no history of specific injury and, in the circumstances, with no objective clinical or radiological evidence of any musculoskeletal or neurological pathology, considering the non-organic features of the presentation, it is clear that Mr Markovic has not incurred a back injury. That said, I accept that he does experience some degree of activity-related non-specific back pain, indeed he has had it for years. In addition to the musculo-skeletal determinants of its non specific nature, low back pain is also a common feature of psychological distress, and it certainly appears that Mr Markovic does have psychological/emotional/temperament issues. As already stated, however, there is no objective evidence of any back pathology or indeed, at least on clinical examination, of any right foot pathology. Mr Markovic, as already stated, has had non-specific activity related low back pain for many years.
In answer to your specific questions:
1. The claimed injury
(a) Does the claimant suffer from a diagnosable condition? Please provide a clinical explanation of how his symptoms are consistent with the diagnostic criteria for such a diagnosis.
There is no evidence, either clinical or radiological, that Mr Markovic has any clinically significant musculoskeletal or neurological pathology. His presentation is a manifestation of non-organic factors based on his personality and temperament. His presentation is considered to be a manifestation of somatisation of which, arguably, there is a conscious element, considering his rationalisation. There may also be an element of mood depression that is influential in the presentation.
The diagnostic criteria for the diagnosis of somatisation are expressed in the well-known Waddell’s signs and with the inconsistencies described in the examination section of this report.
(b) If the claimant suffers form a diagnosable condition, was the condition materially contributed to by his employment? The SRC Act requires for there to be a ‘material contribution’, that there be a close connection between the employment and the development or cause of the claimed condition. Please provide an explanation for your opinion, including details of the relevant employment factors.
There is no evidence that Mr Markovic has incurred a work-related medical problem. Indeed, considering his current complaints of back pain, there was no specific incident at work, nor was there any accident. Mr Markovic has complained of activity-related low back pain for many years and he advised that this was subjectively worse after he finished work on 27 July 2007. There is no evidence that anything occurred at work to support this statement and, more importantly, there is no objective clinical or radiological evidence that he has any clinically significant musculoskeletal or neurological pathology.

2. Relevant medical history

(a) Is there any pre-existing or non-work related medical history or condition relevant to this claim?
There is no evidence of a significant pre-existing musculoskeletal or neurological problem but there is good evidence of somatisation in the past, particularly in association with his long history of back pain and of a protracted absence from work for what, on the basis of today’s examination of his right foot, may have been relatively innocuous minor trauma.
...
4. Work Capacity
(a) Is the claimant presently incapacitated for his pre-injury employment duties? If so, please provide particulars, including the extent of his restrictions.
There is no objective evidence that Mr Markovic is physically incapacitated. As already stated, his presentation is a manifestation of non-organic/psychological/emotional/temperament factors.
(b) Is the claimant presently capable of doing full-time or part-time work in alternative duties? If so, what type of work is he/she suited to do and what restrictions would you impose? Please comment on the period for which the restrictions will be required.
He is capable of performing any ergonomically sound physical activity to which he would put his mind.
5. Other Factors
(a) Is there any evidence of any non-organic factors and voluntary or involuntary exaggeration of the symptoms or signs? Please explain.
The presentation is entirely a manifestation of non-organic factors based on personality and temperament as well as, probably, some degree of mood depression.
(b) Should the claimant be examined by a practitioner in any other field of medicine? If so, which?
Assessment by a psychiatrist would be helpful in the overall appraisal and future management of Mr Markovic’s presentation, which I reiterate, is not a manifestation of musculoskeletal or neurological problem.

...”

Dr Silver also referred to the applicant’s shuffling “wide-based” gait and he opined that that gait was not consistent with a back injury.

29. In his report of 28 August 2008 Dr Silver expressed the following opinions:

“ ...
My opinion remains the same as was expressed in my previous report, namely that the presentation was pervaded with evidence of somatisation, including the well-known Waddell’s signs but, as before, without any objective evidence of musculoskeletal or neurological pathology.
As explained in more detail in my earlier report, it is not doubted that Mr Markovic has some degree of activity-related back pain but this is considered to be, in his case, a manifestation of somatisation – ie the manifestation of psychological distress in terms of physical symptoms.
There was no abnormality on examination of the right foot and ankle.
In answer to your specific questions:
3. Matters on which your opinion is being sought
We would be grateful if you would provide your opinion and advice regarding the following:
3.1 The history as given to you by Mr Markovic since your initial examination of him
Mr Markovic advises that his condition has worsened since he was seen in November 2007. His pain, that he said has worsened in intensity, has also spread to involve both buttocks and the paraspinal regions and the lumbar region through the thoracic region and into the sides of his neck.
3.2 Mr Markovic’s current complaints and symptoms
Low back pain that extends across the lumbar region from side to side, even as far as the antero-lateral aspects of the pelvis on each side. This pain, he says, extends downwards into both buttocks and upwards along the paraspinal muscles as far as his neck.
3.3 Your findings on examination
The examination findings were similar to those reported in my earlier report. They are described in detail above but can be summarised as marked limitation of all spinal movements in association with complaints of severe lumbosacral and sacral region pain, which interestingly, was limited to that region and not into the areas described above, ie into the buttocks or extending up the paraspinal regions to the neck.
There were marked inconsistencies and overt features of the well-known Waddell’s signs.
Regarding your views as expressed in your report dated 03 December 2007, please advise:
3.4 Whether you remain of the same view regarding Mr Markovic’s current diagnosable condition
My view regarding Mr Markovic’s current situation remains the same as was expressed in my earlier report.
He is considered to have non-specific activity-related low back pain that is being grossly embellished in association with psychosocial factors that are personality/temperament based. As stated in my earlier report, a psychiatric appraisal of the state of his depression and advice regarding any need for treatment would be of value.
3.5 Whether you remain of the same view about there being evidence (sic) that Mr Markovic has incurred a work-related medical problem
There was no specific accident or incident. Mr Markovic confirmed the history as described in my earlier report that was read in detail to him. He simply said that, on 27 July 2007, he had more than normal activity-related low back pain at the end of the day’s work. That said, it is clear that he has been symptomatic for years, particularly in the circumstances of him having been referred for lumbar spinal x-rays as early as 1999. The CT scan that as (sic) undertaken on 14 August 2007 describes no clinically significant abnormality.
There are minor disc bulges that are common in the community and are considered to be within normal limits for an investigation such as this in a man of his age. Indeed, the MRI of 03 October 2007 describes no evidence of a focal disc protrusion or indeed any significant pathology.
3.6 Whether you remain of the same view regarding Mr Markovic’s requirement for medical treatment
My opinion regarding Mr Markovic’s treatment remains the same. There is no evidence of any clinically significant musculoskeletal or neurological pathology and he needs no treatment directed towards symptoms of such, that, as already stated, are manifestations of his psychological distress. Whether or not he has a clinically significant degree of depression, however, should be considered.
3.7 Whether you remain of the same view regarding Mr Markovic’s work capacity
Yes. There remains no objective evidence that Mr Markovic is physically incapacitated.
...”

30. In his report of 19 May 2010 Dr Silver reiterated the opinions expressed in his earlier reports. He also opined that the applicant’s unusual “wide-based shuffling gait” is “non-organically based”.

Mr Philip Hardcastle

31. Mr Hardcastle, Consultant Orthopaedic Surgeon, clinically assessed the applicant on 9 September 2008 and 4 May 2010 at the request of the respondent’s solicitors and he subsequently prepared four reports, dated 11 September 2008 (T12 in Application No 2009/0979), 19 September 2008 (T13 in Application No 2009/0979), 18 August 2009 (Exhibit R16), and 6 May 2010 (Exhibit R17).
32. In his report of 11 September 2008 Mr Hardcastle set out the applicant’s history regarding his claim for compensation as follows:

“ He reports that in 1999 he initially developed low back pain when he was involved with work involving a lot of bending to pick up railway dogs and using a machine to do the same thing. He said that he continued working and sought medical attention and was put on light duties. Symptoms persisted and after about three months he returned to his normal duties but he was getting continuing symptoms with increased bending or repetitive bending at work.
Then in 2006 he sustained a direct injury to his right foot from some steel or metal bar where he had some fractures and he went off work and then returned to light duties and got back to doing his full normal duties. The foot pain improved and he did avoid heavy lifting and was careful with more physical work. He then recalls that he awoke with lost feeling in both legs in July 2007 and also had low back pain, and he sought medical attention and was put off work at that stage. Dr Di Camillo has a record of 13 August 2007 of a history of severe low back pain for two to three weeks radiating into the lower legs, so presumably he was seen by another doctor prior to this.
He said that he has been off work since and the symptoms are getting worse despite not working. He has developed headaches, though he is not sure when they started and he has had no specific treatment at all, apart from medication.”

He referred to the applicant’s “most unusual wide based short steppage gait” and noted that the applicant had told him that “this had only started since the onset of his back symptoms”. He then set out his findings on clinical examination and continued:

“ OPINION
It is not possible to make a diagnosis based on organic pathology. His presentation is unusual, presenting some features of a neurologic disorder, in particular with the gait pattern. Clinical finings were non-specific and associated with a number of inappropriate or non-organic responses. The radiological investigations do not demonstrate any specific problem that could be related to an injury back in 1999 or more recently.
My recommendation would be to get an opinion from a clinical neurologist and he should remain under the care of the psychiatrist on the basis that there is no underlying organic problem in relation to his back problems and that there may possibly be some underlying neurologic problem, though I could not detect any specific neurologic features that may account for his unusual presentation.
If there was to have been a specific injury in relation to the repetitive bending and lifting events around 1999, there would be evidence on the MRI at least of some pathology and this is certainly not the situation at the time of the MRI on 3 October 2007.
In answer to your specific questions:
3.1 The history as given to you by Mr Markovic
I have outlined the history as provided by Mr Markovic. The only specific injuries he referred to were the one in 1999 when doing a lot of repetitive bending and lifting with the machine and the subsequent direct injury to his foot in 2006 ...
...
3.4 The nature of any back injury or condition suffered by Mr Markovic on 27 July 2007
It is not my opinion that he sustained any back injury on 27 July 2007. He refers himself to just waking up with severe pain in the legs and inability to use them, for which investigations have not demonstrated any specific organic basis.
3.5 Your diagnosis as to any back injury or condition from which Mr Markovic currently suffers
It is not my opinion that there has been any specific back injury that has resulted in a chronic impairment.
3.6 Whether there is any evidence of non-organic factors and voluntary or involuntary exaggeration of the symptoms or signs. Please explain.
There were significant non-organic factors, which I could not say whether they were voluntary or involuntary His gait was unusual but whether this has some underlying neurologic basis for an unrelated condition is out of my area of expertise. I could not detect any objective neurologic signs apart from the loss of ankle jerks, which could well be related to his previous bullet injuries or other pathology unrelated to his spine.
3.7 Whether Mr Markovic continues to suffer from the effects of any injury sustained on 27 July 2007 and, if not, when it is likely that the effects ceased or resolved.
It is not my opinion that he is suffering from the effects of any injury sustained on 27 July 2007.
...”

Mr Hardcastle also opined that, from a physical perspective, the applicant had the capacity to work on a full-time basis without any specific work restrictions.

33. In his oral evidence Mr Hardcastle opined that the applicant’s gait is not one associated with lumbar pain or spinal problems. He added that it is “more associated with motor neurone disease”.
34. In his report of 6 May 2010 Mr Hardcastle generally reiterated the opinions expressed in his report of 11 September 2008.

Professor Sasson Gubbay

35. Professor Gubbay, Neurologist, clinically assessed the applicant on 26 June 2009 at the request of the respondent’s solicitors and he subsequently prepared a report dated 26 June 2009 (Exhibit R27).
36. Professor Gubbay’s report states as follows:

“ ...
Although the date of injury for my consideration was the 13th November 2006, Mr Markovic considered that he had become totally disabled on the 27th July 2007, even though there was no specific injury that occurred on that date. In fact an incident had occurred on the 13/11/06 when he injured his right foot at work, but on the 27/07/07 the soreness of his right foot, which had persisted from the time of that injury on the 13th November 2006, had become worse and he developed loss of sensation in the legs.
...
SUMMARY OF SYMPTOMS
The residual symptoms that Mr Markovic had attributed to the effects of injuries that he had received at work on the 13/11/06 through to the 27/07/2007 included the following:

• Low back pain
• Loss of sensation in his lower limbs
• Impairment of gait
• Sexual dysfunction
• Headache
• Insomnia
• Mental symptoms including forgetfulness, impaired concentration and depression
• He felt totally unable to return to his former employment.

THE ACCIDENT OF THE 13TH NOVEMBER 2006
He was at work at the time and pulling on a metal bar that he dropped to the ground as required for the manoeuvre. The bar however fell by accident onto his right foot. The injury caused him to stop work and to travel to the Mandurah Hospital where x-rays was (sic) said to have shown a crushed bone in his great toe. The crush injury to his toe necessitated the surgical removal of the nail of his great toe as well as the insertion of three stitches. As a result of his injury he was obliged to work only on light duties for a period of two months.
Ever since that time there has not been a complete recovery from that pain even until now. The pain is sometimes worse when he has to walk for any length of time or when he has to apply sustained pressure on his right foot.
THE ‘INCIDENT’ OF THE 27/07/07
He recalls being at work on that day. He does not recall any particular injury at that time, but when he came home from work he complained of increased soreness in his right foot, especially the right great toe and the toe adjacent. At that time he started to feel a loss of sensation for the very first time in his lower limbs.
As this incident apparently was on a Friday, he did not seek medical advice until the following Monday morning, by which time he also complained to his doctor that he had pain at the end of his spine (low back pain). He felt that the loss of feeling in his lower limbs was responsible for his inability to walk. His doctor sent him for a CT scan and he understood that this scan showed multiple disc damage (which apparently it did not in fact).
His doctor prescribed for him Panadeine Forte, which he still takes to this day. Gradually over the course of time he has had to increase the dose to the current maximum of eight tablets per day. He has also commenced treatment subsequent to that with Avanza 30 mg one tablet daily which was subsequently increased to its current level of one tablet twice per day.
He does not take any other medication. Apparently he has never had any physiotherapy or chiropractic treatment but has seen a number of specialists who have recommended treatment. However he has been unable to comply with the recommendations provided by specialists because, as he explains, there has been a lack of mobility.
PAST HISTORY
In 1992 when he was in Bosnia he sustained gunshot wounds in both legs affecting a site below the right knee and a large area of his left calf. Both bullets had entry and exit wounds and did not have to be removed surgically. It took six months before he was able to stand after his rehabilitation but he considers that he returned absolutely to normal by 1995.
In mid 1999 he first complained of low back pain that began at work one day. He reported it to his boss and went to see his doctor. He did not require any time off work but recalls that his doctor said, ‘nothing wrong with you! This is only pulling muscles’. Although he did not take time off work, there were restrictions imposed and he carried on only with light work for a period of two to three months. Thereafter however he continued to have variable low back pain. Possibly he would have a total remission from pain when taking up to three days off work during holidays etc. Otherwise the pain would always be present when he was active at work. He did not take any further time off work until July 2007 and has never returned to work since that time.
...
CURRENT SYMPTOMS
The low back pain has been present as mentioned above since he injured (sic) at work in mid 1999. Currently his pain occurs all day every day. It seems to be aggravated by taking a hot shower. The pain is also aggravated when he is active. When he is fully at rest it sometimes almost disappears. It may radiate into his lateral thighs but otherwise does not go into his buttocks or legs. He is not aware of any weakness in his lower limbs but simply a loss of sensation which is more evident in his left leg than right. Loss of sensation is much worse if he stands for any length of time and resolves almost fully when he sits and rests.
There is no real pain in his lower limbs apart from a longstanding discomfort in the right first and second toes.
He is also troubled by intermittent testicular pain which on one occasion caused him so much agony that he nearly fell to the ground.
It is difficult for him to find a comfortable position to sleep at night and therefore has insomnia. His gait is affected by his low back pain and symptoms in his lower limbs.
He is troubled by headaches particularly over the vertex and occipital region. It occurs daily and is especially severe if he sits for any length of time. He describes it as a tight sensation. There is no associated dizziness or neck pain.
Mentally he has become depressed although this is reasonably controlled with medication. He has been unduly forgetful and there has been a loss of concentration.”

The report then sets out Professor Gubbay’s findings on clinical examination, and continues:

“ I note that he had lodged a claim for compensation on the 16th August 2007 for minor disc bulges at L 3/4, L 4/5 and L 5 S1 attributed to injuries received on the 27th July 2007 using a rail jack to lift the rail to change sleeper pads and lifting these jacks and generators onto the back of trucks. This is certainly not what Mr Markovic had to say to me. Indeed he told me on more than one occasion that there was no specific incident that had occurred on that particular day. He had also stated in your background information at the time of Mr Markovic’s claimed back injury, he had just returned to full duties after having been for some time on modified duties for a work related injury to his right foot and toes.”

The report then summarises various medical reports made by other practitioners who have examined the applicant, and continues:

“ IMPRESSION
Mr Markovic certainly does have neurological physical signs and neurological abnormalities do explain a degree of his dysfunction. The physical signs include the depressed right knee jerk, the absent ankle jerks and impairment of sensation in the distribution of the left posterior tibial nerve.
... The definite neurological damage to his left lower limb and probable minor neurological damage to the right lower limb caused by the bullet wound injuries are of course of longstanding nature and although he denies any residual symptomatology from these injuries, I believe that they are a substantial contributor to his current difficulty with gait.
I do agree however with those who have felt that there is no obvious cause for his low back pain. He is not particularly tender in his lumbosacral region. There is no real explanation on a neurological basis for his impairment of straight leg raising or his limitation of movement. Dr Hardcastle felt that there was no limitation of movement although he exhibited gross limitation of movement of his spine today. Although there could be a mechanical cause for limited movement of his spine, I cannot find any collateral evidence for it radiologically and it does not make sense that this should happen suddenly as a result of injury. Doctors Hardcastle and Silver are in a superior position to advise as to whether there is a mechanical cause for the limitation of spinal movement, for there is no neurological cause.
Although his gait his (sic) atypical, it could be contributed to by the neurological injuries caused by the bullet wounds and it almost certainly is contributed to by the chronic discomfort in his right foot caused by the accidental work injury of 2006. I could see no evidence of chronic regional pain syndrome type I (ie reflex sympathetic dystrophy) in his right foot.
Thus the only reason for me to suspect that there could be a compensable injury ie excluding the bullet wound injuries, is that he has residual unresolved discomfort from the damage to his right foot from 2006. This does not have an obvious neurological basis and does not seem to be related to disturbance of the autonomic nervous system, which can sometimes arise following a latent period after the causative injury.
...”

37. In his oral evidence professor Gubbay said that, if the applicant’s gait only became abnormal on 27 July 2007, the most likely explanation is “non-organic” – that is, there is no physical explanation.

Dr Lawrence Terace

38. Dr Terace, Consultant Psychiatrist, examined the applicant on 8 September 2008 and on 20 May 2010 at the request of the respondent’s solicitors, and he subsequently prepared a report dated 31 October 2008 (T17 in Application No 2009/0979) and a report dated 24 May 2010 (Exhibit R21).
39. In his report of 31 October 2008 Dr Terace commented as follows:

“ I initially met Mr Markovic in the presence of an interpreter downstairs before taking him to my office on the 4th Floor.
I was surprised by the extremity of his claimed presentation in which he shifted from side to side and grasped walls, and insisted on bearing his weight on both and/or either of us continuously in an abnormal manner presenting a strong suggestion, even visually, of the presence of abnormal illness behaviour or gross exaggeration of physical complaints.”

He explained the expression “abnormal illness behaviour” as follows:

“ ... The term abnormal illness behaviour essentially means there is a disparity between the physical symptoms claimed and what should be expected on the basis of the examination and investigations of an appropriate expert. The term is reasonably interchangeable with the other terms somatisation and functional overlay. Psychiatrists generally believe that many cases of abnormal illness behaviour are outside of conscious awareness and thus involuntary, although some cases are within conscious awareness and represent the exaggeration of physical complaints for financial or other gain. Such latter cases are called malingering.”

He opined that the applicant’s presentation involved “abnormal illness behaviour” and that, unless his abnormal gait was “neurological in origin”, it is likely that his presentation was “consciously exaggerated in nature”.

40. As regards the applicant’s psychiatric condition, Dr Terace opined that the applicant was not, as at 8 September 2008 when he examined him, suffering from any diagnosable psychiatric condition. He expressly excluded a psychiatric diagnosis of Pain Disorder. He further opined that, from a psychiatric perspective, the applicant had full capacity for work in suitable employment.
41. In his report of 24 May 2010, Dr Terace, having considered Professor Gubbay’s report of 26 June 2009 (see paragraph 36 above), said that he was now satisfied that the applicant’s abnormal gait was “probably not under conscious control” and appeared to be “due to physical factors”. In his oral evidence, however, he said that, if the applicant’s abnormal gait only commenced on 27 July 2007, then it was possible that it was “contrived abnormal illness behaviour”.
42. In his report of 24 May 2010 Dr Terace referred to an additional recent history given to him by the applicant as follows:

“ Perceptual disturbances – Mr Markovic describes his conviction that there are new noises in the home and his motor vehicle in the form of buzzing sounds which he insists are not natural and which he attributes as being bugged by insurance investigators.
However, I could not elicit other evidence of hallucinations, delusions, made thoughts, made actions, made feelings, thought disturbance, manic or hypomanic experiences.”

He went on to express the following opinions:

“ The further history is that Mr Markovic now describes paranoid ideations, believing that the insurance company has installed listening devices into his home sufficient to render a diagnosis of a paranoid psychosis, and the differential diagnosis must include late onset schizophrenia.
However, the condition is not work-related nor caused and is essentially constitutional in nature. ...”

43. In his oral evidence Dr Terace was referred to Dr Di Camillo’s clinical notes for August–September 2008 which refer to the applicant’s hearing “noises under bed” and being prescribed anti-psychotic medication, and he commented that that suggested an “ongoing psychosis” in the applicant’s case. He amended his opinion on diagnosis to a “provisional diagnosis” of “paranoid schizophrenia of late onset” or “atypical paranoid psychosis”.
44. As regards the applicant’s ongoing work capacity, Dr Terace said that, when he saw the applicant in May 2010, his psychotic symptoms were “reasonably severe” but that he could work even with those symptoms provided that they were controlled by medication.

Dr Gemma Edwards-Smith

45. Dr Edwards-Smith, Consultant Psychiatrist, assessed the applicant on 22 January 2010 and 3 February 2010 at the request of the respondent’s solicitors, and she subsequently prepared a report dated 19 February 2010 (Exhibit R25).
46. In her report Dr Edwards-Smith set out the applicant’s relevant physical and psychiatric history as follows:

“ ...
Presenting Complaints:
He said that he had been working as a machine operator with John Holland and that he had worked with John Holland perhaps from 1997. Some time later, perhaps two years after starting work there he had developed pain in his back. He recalled he had seen a company doctor and had X-rays, and was told he had suffered pulled muscles. He had been able to return to light duties. He said that in 2006 a metal bar had smashed his big and 2nd toes of the right foot and he had been off work, again returning to light duties and back to his position although he felt that he had not returned to full duties at the time of the apparent back injury.
He said that in 2007 he had suffered from pain in his back. He recalled it was a Thursday and that he had finished work although had (sic) been suffering pain in his foot. He woke up and said ‘I felt I had lost feelings in my legs. I thought it was from my foot’. He said that the pain had intruded to the end of his spine, that it was extraordinarily painful. He had seen his general practitioner and apparently a CT scan was arranged.
Mr Markovic told me that he had not returned to work since that time and that not returning to work was due to physical problems. He said to work was impossible and that it was very painful. He recalled that he had been treated with various strong painkillers and seen various specialists. He is currently receiving treatment from his general practitioner Dr Di Camillo.
Current Physical Symptoms:
Mr Markovic reported ‘I move with great difficulty. If I stand longer than 10 minutes I lose feelings in both legs up to the knee. When the pain increases I have to go to bed.’
He said it is hard to find a position that is comfortable enough to be able to fall asleep. He said that pains affects (sic) his back and ‘they go everywhere to the head’. The pain will increase and he said ‘I can’t feel normal’. The pain will increase after 2-3 hours of being awake. The worst pain is that affecting his lower back. He said it is therefore hard to sit, to stand, to walk and in fact hard to do anything at all.
Review of Psychiatric Symptoms:
Mr Markovic said that he did not believe he had ever been treated for emotional symptoms. He said that his physical problems have affected him and he said ‘It worries me whether I will be able to look after myself in the future’. I asked him whether or not he was depressed and he said ‘yes’, and when I asked him to explain he said ‘I always do things that are not normal’, for example, he may forget to return a bottle of water to the fridge and he might forget what he goes to a shop to purchase.
We explored his previous experiences during the Civil War in the former Yugoslavia during which he had been shot in both legs in Bosnia while fighting with the Serbian Army. He said that the first month after being injured was very painful and then it was ‘alright’. He said ‘the war never left any emotional problems’.
He said that at times it is hard to concentrate or focus.
He said that his appetite is normal, although he said he has gained weight, perhaps 15-20 kg.
He denied having ever had thoughts of self-harm or suicide.
When I asked him about treatment with antidepressants he did recall having been prescribed Avanza in perhaps 2007 and that it might have been helpful. In fact if he did not take it he found it difficult to sleep.
He recalled having seen psychiatrist Dr Golic in 2007. He said ‘I was feeling better then. Now it’s getting worse.’ He said that now and then he has a feeling of a current passing through his body, that he will lose his voice, and that ‘when I lie on my left side the current (an electrical current feeling) wakes me up.’ He also said that he experiences a ringing in his ears and has to change his position. He finds it hard to tolerate his situation.
When I asked him as to whether he had any unusual experiences he said ‘I’m forgetful’.
I asked him as to whether he has heard things and he said ‘no’, however he subsequently said ‘The investigators from the insurance company put a thing in my bed – it makes a ringing noise’. He said that he had found it when he was in his former home in Maylands. He said ‘inside there is a battery, a speaker – it makes a noise.’ I asked him why it may be there and he said he would like to know too. He said ‘When I was in Maylands I found it in the ceiling and I took it out.’ He has now moved to another home in Subiaco but said that the noise continued. He would hear a buzzing noise either while watching television or in his bedroom when it would be very loud. He said that if he put in ear plugs the noise was in fact louder. He said the noise ‘is a killer’. He said he believed that the insurance company had planted it, however he said ‘I don’t understand the rules of the game’.
I asked him as to whether or not he believed anyone had broken into (sic) plant it and he said that he was not certain. He said he did not hear any other noises and did not hear the noise when he was in other places. He may have heard it in a car but not at friends’ homes or indeed in the doctor’s office. He could not hear it in my office at the time of this review. He said he does not hear any other such noises.
...”

47. Dr Edwards-Smith did not find a mood or anxiety disorder and did not make a diagnosis of major depression or adjustment disorder, although she acknowledged that the applicant may have been suffering a “mild adjustment disorder” when he was examined by Dr Golic in late 2007. As regards a psychotic condition, Dr Edwards-Smith made no firm diagnosis in her report. In her oral evidence, however, she offered a “provisional diagnosis” of “paranoid schizophrenia”. She said that that condition was not work-related and that its cause was unknown and was “probably multi-factorial”. She also opined that the applicant’s psychiatric presentation indicated that he was not fit for work.

ADDITIONAL MEDICAL EVIDENCE

48. The evidence before the Tribunal also includes the following documentary medical material.

Dr Erik Eriksen

49. Dr Eriksen, Consultant General/Orthopaedic Surgeon, provided a report, dated 20 August 2007, following an examination of the applicant on that date, to the respondent’s insurers as follows:

“ ...
HISTORY
History of Injury/accident
Mr Markovich (sic) sustained an injury in the course of his working activities on 27 July 2007. On that occasion he was using a rail jack to change sleeper pads and he was lifting the jack and a generator on to the back of a truck. He undertook those working activities over a day’s duration.
In undertaking those activities, Mr Markovich exacerbated a pre-existing right foot condition which he sustained on 03 (sic) November 2006. He sustained an injury to the tops of the first and second toes and also the top of the right foot when he had been hit by a heavy rail in the course of his working activities. He had been on restricted working activities and had returned to normal duties over a six-week period prior to 27 July 2007, but this is the first day that he had undertaken full-time heavy work, rather than working in ‘bits and pieces’.
Mr Markovich did not experience any back pain on 27 July 2007, but he experienced back pain the next morning, with pain over the anterior thighs above the right and left knees.
PROGRESS
The accident occurred on a Friday and Mr Markovich had the Saturday and Sunday off work. He returned to work on the Monday with persistence of right foot pain, low back pain and anterior thigh pain.
Mr Markovich reported the injury at work and was seen by his general practitioner, Dr Joe Di Camillero (sic) of Yoking (sic), on 7 August 2007. He has been supplied with a certificate of incapacity for work. He has had a CT scan of his lumbar spine and he has been treated with Panadeine Forte. A referral to physiotherapy has been arranged for 25 August 2007.
CURRENT COMPLAINTS
Mr Markovich is experiencing low back pain on a constant basis. His back pain is that of a moderate to severe nature.
At this point it would be pertinent to indicate that there was some difficulty in obtaining a history as Mr Markovich has some difficulty in understand the history and he appeared to be quite tense and anxious. He had some problem expressing his answers to specific questions.
I am not quite sure whether this was due to a language disability or some degree of stress and anxiety factors. It certainly appeared in the latter part of the examination, when he was more relaxed, that his comprehension and expression appeared to be improved.
Mr Markovich indicates his low back pain is situated over the midline lower back and radiates into the upper buttock area without any specific leg radiation of a radicular distribution. He has some anterior thigh pain above the knees but this appears to be discrete and would not be construed as radicular radiation.
His sitting and walking tolerance is about one hour. He has some difficulty in getting to sleep at night and has disturbed sleep. He has a reasonable range of movement of his back as long as he is careful and he does not define any specific weakness or numbness of his legs.
He had some difficulty initially understanding that concept, but I asked if there was any muscle wasting or weakness, or loss of feeling, and Mr Markovich stated that there was not.
Mr Markovich’s right foot symptoms, which appear to be aggravated in the course of his working activities on 27 July 2007, have settled and he is not describing any significant problems with his right foot at this stage.
CLINICAL EXAMINATION
On examination, Mr Markovich presented in a rather flat, tense and anxious manner. He had a worried expression on his face. He was 168 cm in height and weighed 95 kg, giving a BMI of 34.
He walked in an extremely slow manner, without a specific limp. There was significant facial expression and pain verbalisation in dressing and undressing, removing his long pants and his socks, and he sat down to do so. He sat quite comfortably for about half an hour while the history was being undertaken and, although there were arms on the chair, he was able to stand in a normal manner without assistance. Although his gait was slow, there was no specific limp. Walking on his toes and heels was intact, without significant limping.
...
SUMMARY
Mr Markovich has presented in a complex manner. He had a pre-existing soft tissue injury of his right foot, but that appeared to be a contusional injury mainly of the first and second toes and the metatarsophalangeal junctions, with some damage to the nail bed of the right first toe with current nail regeneration.
The right foot injury appeared to be that of a soft tissue nature and one would have expected that the physical component of an injury sustained in November 2006 would have resolved at this stage.
However, Mr Markovich is not experiencing significant symptoms, nor is the (sic) evidence of significant abnormality on clinical examination of the right foot, but there is also a perception on his part that if he undertakes prolonged standing and walking activities, he may have recurrence of right foot symptoms. However, I am not defining any significant persisting physical injury to his right foot at this stage.
Mr Markovich is experiencing low back pain as a result of a specific injury and there is evidence of a degree of muscle guarding and asymmetrical range of lumbosacral mobility. There is some degree of behavioural elements in his presentation, but I believe that there was also evidence to indicate some degree of mechanical low back problem.
There is no evidence of any significant spondylosis or degenerative change of his lumbar spine, nor do I believe there is current evidence of any significant discogenic injury.
Mr Markovich’s low back injury is compounded by what I would regard as significant stress and anxiety factors and possible development of abnormal pain response if correct treatment options are not defined.
I am of the opinion that Mr Markovich needs to have a degree of reassurance of potential recovery (I believe currently he is quite apprehensive that his condition will not improve) and he needs to undertake a physiotherapy supervised back stabilising and strengthening exercise program.
I also believe that referral to a pain psychologist for pain management would be of value in the circumstances.
I perceive that there will be persistent incapacity for work for two to three weeks and, on return to work, Mr Markovich would be likely to require modified working activities for six to eight weeks. This prognosis, however, is uncertain due to the complexity of his presentation.
If Mr Markovich’s condition does not improve quite rapidly with conservative treatment, I am of the opinion that MRI scan would be indicated to exclude any latent abnormality, and I believe identification and exclusion in the early part of his management would be of overall long-term assistance.
In answer to your SPECIFIC QUESTIONS

1. The claimed injury
   • (a) Does the Claimant suffer from a diagnosable condition? Please provide a clinical explanation of how his or her symptoms are consistent with the diagnostic criteria for such diagnosis;

...
The clinical history and examination findings are compatible with a specific injury. The findings include a degree of muscle spasm and an asymmetrical loss of lumbosacral mobility.
My clinical explanation of how Mr Markovich’s symptoms are consistent with the diagnosis is that he gives a history of undertaking bending and lifting activities which are compatible with a spinal straining injury the day prior to the onset of his symptoms.
...
There is a pre-existing soft tissue injury to his right foot, which is currently asymptomatic and clinical examination does not reveal any criteria of ongoing impairment of the right foot, other than objective evidence of impairment of the right foot. I believe, on current medical assessment, that the soft tissue injury of the right foot has essentially resolved.
...

(b) If the Claimant suffers from a diagnosable condition, was the condition materially contributed to by his or her employment? The SRC Act requires for there to be a ‘material contribution’, that there be a close connection between the employment and the development or cause of the claimed condition. Please provide an explanation for your opinion, including details of the relevant employment factors;

It is my opinion that Mr Markovich does suffer from a diagnosable condition and the condition was materially contributed to by his employment.
It is my opinion that the nature of Mr Markovich’s working activities he was undertaking on the day prior to his injury would be a material contribution and there is a close connection between employment and the development of his claimed condition, as his condition occurred over a 24-hour period.
The details of relevant employment factors have been outlined in the body of my report.

2. Relevant medical history

(a) Is there any pre-existing or non work-related medical history or condition relevant to this claim?
I am not defining any significant pre-existing or non work-related medical history to the condition relevant to this claim.
Mr Markovich had sustained a previous muscle strain to his low back in 1999, from which he had essentially recovered, and the current CT scan and plain x-rays taken in 1999 are that of normality and there is no evidence of a pre-existing lumbar spondylosis or a lumbar discogenic injury.
...

3. Current condition

(a) Does the Claimant continue to suffer from the work-related effects of his or her condition? If not, when did the effects, such as incapacity, impairment and the need for medical treatment, cease?
Mr Markovich does continue to suffer from work-related effects of his condition.
(b) If the Claimant continues to suffer the effects of the work-related condition:
(i) What is your prognosis as to this condition?
(ii) Do you consider the effects of the condition will cease and, if so, when do you anticipate the effects will cease?
As Mr Markovich continues to suffer from the effects of the work-related condition, the prognosis is guarded. Because there is thought to be some behavioural elements and stress and anxiety factors, the prognosis is extremely guarded at this stage.
I would consider that the effects of the physical condition will cease over six to eight weeks, if stress and anxiety factors and behavioural elements do not persist in excess of that period of time.
...
4. Work Capacity
...
(b) Is the Claimant presently capable of doing full-time or part-time work in alternative duties? If so, what type of work is he or she suited to do and what restrictions would you impose? Please comment on the period for which the restriction will be required;
I believe that Mr Markovich is incapable of performing full-time or part-time work, or alternative duties, at this stage. I believe that he should be able to return to modified working activities in two weeks. Restricted duties would be required for six to eight weeks and a return to normal working activities would be experienced (sic) after that period of time, in regard to the physical components of his injuries.
...” (T11 in Application No 2008/2268)

Mr George Wong

50. A report of Mr Wong, Neurosurgeon, to Dr Di Camillo, dated 29 August 2007, states as follows:

“ Thank you for asking me to see Mr Slobodan Markovic.
It is a bit difficult to get a clear history but from what I can gather he works as a Rail Track Maintenance Worker. Work can be heavy. On the 27th July, 2007 whilst doing his normal work, he noticed some pain in the right foot. He thought it was a foot problem. It was a Friday. The following week he returned to work but the right foot pain continued. As the week progressed he thought he could not feel his thigh when he touched it. He touched himself and when he touched the back he said he realized where the problem was coming from as he had a back pain which was very tender to touch. Incidentally his right foot pain then improved. The back pain then became severe and persisted. I understand he has not been able to go back to work, mainly because of back pain going into the buttocks. He is taking Panadeine Forte.
His past health has been good He had bullet injury to the left calf and right knee.
On examination, he walks very slowly. Lumbar movement was limited quite significantly. There was tenderness in the lumbar sacral spine. There was no neurology in the lower limbs.
CT Scan of the lumbar spine really shows no significant abnormality. The disc bulge as reported, in my view, is within normal limits.
I think he will need a lot of encouragement. Treatment should be exercise and he would possibly benefit from hydrotherapy to get him mobilized. He may be a difficult rehabilitation problem.” (T18 in Application No 2008/2268)

51. In a report, dated 29 October 2008, to the applicant’s former solicitors, Mr Wong stated that:
    • he had seen the applicant only once, namely, on 29 August 2007;
    • the applicant had complained of back pain;
    • the applicant did not refer to any particular incident or any particular injury which resulted in his back pain. (Exhibit A2)
52. A report of Mr Wong to Dr Di Camillo, dated 25 February 2009, states as follows:

“ I reviewed Mr Slobodan Markovic today.
I last saw him in August, 2007. He has not really changed. He continues to have pain which he said is in his testicles, low back going into both legs. In fact, he said the whole spine is painful together with headache. Treatment has not really been helpful. He is not working. He takes Panadeine Forte and Avanza. He is under the care of a Psychiatrist.
He lives on his own. He takes care of himself. He can drive a car. He can walk for about half an hour and sit for about 20 minutes.
On examination, he walks in a very short wide based gait. Rotation of the pelvis causes pain. SLR is 90 degrees on both sides and in the lying position it is about 30 degrees. There is no obvious neurological deficit.
MRI Scan that was done on the 3rd October, 2007 shows no evidence of disc protrusion, canal stenosis or foraminal narrowing.
I think he is considering settling his claim. I think that is a good idea.” (Exhibit A3)

Dr David Watson

53. Dr Watson, Consultant Physician, examined the applicant at the request of the applicant’s former solicitors on 6 August 2008, and he subsequently prepared a report dated 13 August 2008 (T7 in Application No 2009/0979).
54. Dr Watson’s report states as follows:

“ ...
1.0 GENERAL COMMENTS
1.1 Mr Markovic was born and raised in Bosnia. He came to Australia in 1995.
1.2 He tells me he left school in Bosnia in 1982 at the age of 13. He has had no formal education since then.
1.3 He has always worked in labouring jobs and has poor English speaking and writing skills.
1.4 I understand that his writing skills in his own language are also poor.
1.5 For approximately 10 years from 1997 he worked for John Holland as a labourer mainly in and around railroad tracks.
1.6 In 1992 he suffered his one and only significant health problem as a result of being caught up in fighting in Bosnia. He received a gunshot wound to the right knee and left calf, the latter injury resulting in significant loss of tissue requiring surgery and skin grafting together with a long period of rehabilitation in hospital. He seems to have retained good function of his right knee and good strength and function in his left calf despite some loss of muscle.
1.7 In 1999 he experienced the gradual onset of low back pain. He cannot recall whether there was any radiation of this pain or whether there was any significant limitation in what he could do. He saw a general practitioner on behalf of the company and Dr Rod McDonald of Malaga arranged for plain xrays of the lumbar spine which were performed on 10 September 1999. There were no signs of changes in the disc spaces or evidence of arthritis in the facet joints of the lumbar spine or lumbosacral junction. The vertebral bodies appeared normal. There were no fractures seen and no signs of soft tissue abnormalities. I have had a chance to review the films and agree they appear normal.
1.8 Mr Markovic continued to work with John Holland. His main interest in those days was playing soccer. He said his general health was good although he smoked heavily, as he continues to do.
1.9 His only other comment about his work in that period of ten years was that there always seemed to be some ongoing friction between himself and other members of the group with whom he worked at John Holland.
2.0 INJURY
2.1 On 13 November 2006 he and a colleague were using machinery to drag 118 metre lengths of heavy gauge railway track (weighing an estimated 60 kgms/metre) for laying. The rail was positioned with steel bars which apparently weighed about 30 kgms.
2.2 One of these 30 kgm bars fell onto Mr Markovic’s right foot injuring the 1st and 2nd toes. He was wearing steel capped safety work boots.
2.3 He stopped work, was seen in the Emergency Department at Peel Health Campus (PHC) where staff removed the nail of the right great toe and sutured a laceration. Xrays were taken which I have not seen.
2.4 Mr Markovic went home and was reviewed by the company doctor twice. He had dressing changes and some analgesics and saw his family physician, Dr J Di Camillo of Yokine. Mr Markovic continued on light duties.
...
2.7 A CT scan of the right foot was arranged by Dr Di Camillo on 24 January and this revealed fractures of the tips of the distal phalanges of the 1st and 2nd toes of the right foot with osteopoenia secondary to the injury. There was no soft tissue abnormality and the rest of the study was normal. I have seen those films as well and agree with the reported findings.
...

2.9. Mr Markovic continued to have pain in his right foot, 1st and 2nd toes and in late July 2007 he attempted to resume his normal duties outside the office.
2.10. Within a week on 2 August 2007 he had stopped work because of increasing low back pain and pain in his right foot.

3.0 SUBSEQUENT COURSE
...

3.2 With the return of back pain, Dr Di Camillo arranged CT scanning of the lumbar spine on 14 August 2007. This study demonstrated minor disc bulges at L3/4, L4/5 and L5/S1 without intrusion on the contents of the vertebral canal or evidence of encroachment into the intervertebral foramina at these levels on either side. I have reviewed these films and agree with that finding and there seems to be no neurological compromise.
3.3 Mr Markovic appears to have been treated with analgesics and anti-inflammatory agents with little modification of his symptoms. Increasingly, he seems to have been troubled by difficulty walking.
3.4 He now is seriously hampered in all activities of daily living. He lives by himself.
3.5 Although he owns a car, he only drives short distances. He needs help looking after his flat. His only relative in Australia, a cousin provides some assistance at home.
3.6 He does some cooking. Friends and neighbours help with shopping. He can use a washing machine but does not have a dryer and so clothes are hung around his flat to dry.
3.7 He says his low back pain is constant. It is increased by sitting for long periods. Rapid movements increase the pain. Bending over to dress or do anything else in the way of activities of daily living also increase the pain.
3.8 He cannot twist, extend his spine. He cannot reach up to any heights.
3.9 Mobility is severely compromised because of his abnormal gait.
3.10 His current medications are Paracetamol/Codeine (Panadeine Forte) between 3–6 tablets a day for pain and Mertazapine (Avanza) 30 mgms at night. This is an antidepressant with mild sedative effects.

4.0 EXAMINATION
...
4.2 He walked in a most unusual way. He had a broad based gait with his feet approximately 20 cms apart. His steps were short, nor more than 15–20 cms in length. He shuffled. He was slightly flexed at the hips. When he walked, he had a tremor of his left hand involving all five digits as well as movement of the wrist. The movement was flexion and extension and not supination or pronation. There did not appear to be tremor in the right wrist or hand. His spine tended to be flexed overall and he looked down with little head movement whilst he walked.
...
6.0 ASSESSMENT
6.1 Mr Markovic suffered low back pain in 1999. I have no details of his examination at that time but xrays in September of that year showed no bony or soft tissue abnormalities.
6.2 He appeared to have made a full recovery from this problem.
6.3 On 13 November 2006, Mr Markovic suffered an injury to his right 1st and 2nd toes that resulted in fracture together with lacerations to both digits. This was treated with removal of the toenail of the right great toe, the laceration was sutured, the wounds were dressed until they healed but the fractures themselves did not require any surgical intervention. There was no evidence that either toes (sic) became infected. Radiologically, the terminal phalanges of the two affected digits developed some secondary osteopenia. The fractures have healed.
6.4 Mr Markovic continues to experience pain in the right foot and following attempts to get him back to work re-developed low back pain.
6.5 The combination of pain in the right foot and back pain has led to a progressive reduction in his physical capacity that has forced him off work.
6.6 All activities of daily living are affected as a result of the pain and his most unusual gait.
...
6.8 Mr Markovic’s gait does not appear to have any direct physical relationship to either his previous low back pain, the pre-existing and healed gunshot wound to both legs or the injury that occurred on 13 November 2006. It also does not appear to relate to the deterioration in his back and right foot in July 2007 when he had just returned to full time work.
6.9 Mr Markovic is described by his GP as having anxiety and depression.
6.10 His gait would appear to be primarily a psychological problem more consistent with a conversion reaction that (sic) to any neurological, musculoskeletal or other physical problem.
...
8.0 SUMMARY
8.1 Mr Markovic presents as a gentleman who was apparently fit and well until the 13 November 2006.
8.2 He had a previous history of a gunshot wound involving both legs from which he has made a good recovery.
8.3 He had previous back pain.
8.4 Despite treatment to his foot and a return to work, Mr Markovic is now unable to work by virtue of severe pain in the right foot, back and a very unusual gait disturbance.
...”

Dr Zlatan Golic

55. Dr Golic, Consultant Psychiatrist, assessed the applicant on 4 and 18 October 2007 at the request of the respondent’s insurer, and he subsequently prepared a report dated 2 November 2007 (T4 in Application No 2009/0979).
56. Dr Golic’s report states as follows:

“ ...
HISTORY
Taking into consideration the close proximity between Mr Markovic’s injury on 13 November 2006 and a subsequent alleged injury and deterioration on 27 July 2007, I will comment on them in a chronological order.
Mr Markovic stated that he was involved in an accident on 13 November 2006. He was with a group of workers who were repositioning a rail using crowbars. A section of rail, a metal bar, had slipped so that it slammed down on his right foot. Although he was wearing protective clothes including safety boots, the impact of the bar across his right forefoot was severe enough to cause the leather to be cut. He suffered an abrasion and laceration to his right great toe. According to him, he was taken to the Emergency Department of the Peel Health Campus. X-rays revealed he had a fractured right great toe and second toe (distal phalanx). The injury to his toe was surgically treated under local anaesthetic. Initially he was declared unfit for work for ten days. Mr Markovic saw his General Practitioner, Dr Di Camillo, and as well the company doctor who recommended he be assigned to light duties on his return to work. According to Mr Markovic, he was unhappy with the company’s GP who apparently gave him advice to go with crutches to work. According to Mr Markovic, his pain had deteriorated and for three weeks following the accident he had to use crutches. Mr Markovic stated that his pain was intense at that time and that he could hardly walk. He continued to take Panadeine Forte for pain.
I note that a comprehensive investigation was done by Dr Di Camillo, in particular on 18 January 2007 when he ordered x-rays and CT scan of the right foot. Apparently there was no evidence of soft tissue abnormality. It appeared that his fractures have healed appropriately.
Overall, the healing was somewhat protracted. He stated that he had returned to work in March 2007, resuming full-time work but doing some lighter duties. He was assigned to continue rail maintenance work.
Following that, Mr Markovic stated that he was working to some extent normal duties and normal hours, however he would experience severe pain of the right lower leg and thigh after four to five hours of work. Also, he described that he was frequently getting the sensation of ants crawling over his right leg and that was disturbing for him. He said nevertheless he continued to work as a railway track maintenance worker.
Mr Markovic stated that he had returned to normal duties, his full-time heavy work, on 27 July 2007. Apparently Mr Markovic sustained an injury in the course of his working activities on 27 July 2007 when he was using a rail jack to change sleeper packs. According to him, he had to lift the jack and a generator on to the back of a truck after finishing work, he did not have help and the equipment was heavy. He described ongoing pain in his right foot but immediately after lifting he did not experience any back pain on the same day. According to him, he experienced back pain the next morning on 28 July 2007. He described it as feeling a weakness bilaterally in his knees, with the pain radiating from his back over the anterior thighs into particularly the right and as well left knees. He felt numb in his legs and could not control fully his coordination. His accident occurred on Friday, and according to him he had Saturday and Sunday off work. According to him, he rang his GP Dr Di Camillo on Monday 30 July 2007 for an appointment to see him. He returned to work on the Monday feeling weak in his knees, experiencing low back pain and of right foot pain. Also he complained of increasing headaches. Mr Markovic reported the injury to his workplace.
He saw his GP on 6 August 2007 and since then he has been on workers’ compensation. His General Practitioner, Dr Di Camillo, has organised a workers’ compensation injury management medical certificate.
Dr Di Camillo organised a referral for the Perth Radiological Clinic and Mr Markovic had a CT scan of the lumbosacral spine. He was seen by Dr Susan Lamp who reported, ‘Minor disc bulges, with no CT evidence of a focal disc protrusion or nerve root compromise’. ...
Mr Markovic has been conservatively managed with Panadeine Forte. He was referred for physiotherapy.
FINDINGS AT THE INTERVIEW AND CURRENT COMPLAINTS
On enquiry, Mr Markovic has continued to experience ongoing back pain, radiating in particular in his right foot, with a weakness of his knees bilaterally. He feels that his pain is debilitating in all aspects of his functioning. According to Mr Markovic, it appears that he was treated conservatively with a combination of physiotherapy, general mobilisation and analgesic therapy. According to him, due to ongoing pain and reduced mobility, he was convinced and afraid that further physiotherapy would increase his level of pain. He also advised at our review that his symptoms had in fact worsened and significantly affected his overall functional capacity. He gave me the impression that he was not optimistic regarding any quick recovery. In addition, it appears that he had developed a range of psychological signs and symptoms.
Specifically, he described his mood as being depressed all the time since the accident, slowly and gradually deteriorating in it (sic) course. He appeared agitated restless and frustrated. He described feeling disappointed with his first injury recovery time, treatment that he has received so far and overall attitude of his co-workers including his General Practitioner at work. He felt that he had not been ready to return to full-time heavy duty work and that it interfered with his full adjustment leading to a subsequent injury and an overall deterioration. He also indicated that his energy levels had diminished and that his motivation had significantly declined. He feels hopeless but not helpless.
He denied suicidal thoughts and self harm ideation. He described initial and terminal insomnia. He lays (sic) awake at night, frequently thinking about the injury and worries most of the time about his future. He fears increasingly of incapacity and getting permanently unwell. He stated that his self-confidence had diminished that (sic) he had gained a significant amount of weight due to an unhealthy lifestyle. His weight on examination was 93 kg and I could not measure properly his height has (sic) he could not straighten up. It appeared that his height was 176 cm or 178 cm. Additionally, he bitterly complained about diminished sexual drive.
As well as his symptoms of depressed mood, Mr Markovic indicated that he felt anxious and at times experienced acute episodes of anxiety associated with feeling hot and sweaty. According to him, he has never experienced a clear-cut panic attack. On direct questioning, he stated that he had experienced nightmares regarding the accident and having disturbed dreams almost every night. I did not get the impression that he had flashbacks frequently or on a daily basis. He stated that on several occasions, he had felt somehow detached from the environment and had difficulties grasping the nature of that. He spends most of his time in his apartment in bed and hardly goes out.
He noticed, in particular recently, more frequent episodes or irritability and anger. According to him, when he feels like that, as it occurred at the interview, he tends to forget how to verbalise those feelings in English language and tends to speak in his mother tongue, Slav.
I enquired of his feelings immediately after the accident and Mr Markovic had denied any significant anxiety or depressive symptoms. According to him, he felt that his injury was minimal and that he would return back to work within a matter of days.
According to his information, I understand that Mr Markovic has experienced ongoing problems with sitting, lying down, walking and unable to do most of his previous work. He finds cooking extremely difficult and depends on fast food. In particular, he was bitter regarding showering as he finds that extremely difficult. He finds it difficult to dry and dress as according to him he experiences an acute increase of pain.
He stated that he discussed his psychological difficulties with his General Practitioner, Dr Di Camillo, who apparently started him on Avanza 30 mg, but Mr Markovic decided to stop that a week prior to seeing me to see if he could cope without it.
CURRENT SYMPTOMS
As per history above, Mr Markovic insisted that his physical and emotional symptoms had deteriorated. Specifically, he reported that he continued to experience significant pain in his low back which tends to radiate in the upper buttocks area but more pronounced radiation in his right leg. In particular, he complains of weaknesses in his knees bilaterally. According to him, he is unable to extend himself, has to walk bent forward with a broad based gait.
He stated that the treatment to date had not been effective in minimising his physical symptoms. Also he told me that he does not consider going to physiotherapy as according to him that increases the level of pain. He also reported that his symptoms of depression and anxiety have as a matter of fact increased in intensity, and have in fact deteriorated with particular (sic) over the last month.
...
SUMMARY
Mr Slobodan Markovic is a 38 year old single man who sustained in injury in the course of his working activities on 27 July 2007. This has been described above. As a consequence of the accident he sustained an injury to his lower back, radiation to his legs and weakness in both knees. He is experiencing low back pain, according to him as a result of the injury. That injury has continued to generate significant symptomatology. In addition, he developed a range of psychological signs and symptoms which have been outlined in my report. His presentation is complex and challenging.
...
PSYCHIATRIC DIAGNOSIS
Using the internationally recognised diagnostic system of the American Psychiatric Association known as the DSM-IV TR:
Axis 1 Clinical Disorders
Mr Markovic manifested depressive phenomena associated with anxiety symptoms. It is my view that his clinical state has met the diagnostic criteria initially of Adjustment Disorder with depressed and anxious mood, and has recently exacerbated to reach criteria of Major Depressive Episode (mild to moderate). ...
...
It is in my opinion that Mr Markovic has reached criteria for an Adjustment Disorder initially, however variety and severity of symptoms have progressed to a Major Depressive Episode.
...
In my opinion, taking into consideration Mr Markovic’s presentation, that (sic) another diagnostic category needs to be considered, namely of Pain Disorder, in particular sub-category Pain Disorder associated with both psychological factors and a general medical condition.
...
OPINION
I shall phrase my opinion around your specific questions raised in your letter.
1. THE CLAIMED INJURY
(a) Does the claimant suffer from a diagnosable psychiatric condition? Please provide a clinical explanation of how his symptoms are consistent with the diagnostic criteria for such a diagnosis.
(b) If the claimant suffers from a diagnosable psychiatric condition, was the condition materially contributed to by his employment? The SRC Act requires for there to be a ‘material contribution’, that there be a close connection between the employment and the development or cause of the claimed condition. Please provide an explanation for your opinion, including details of the relevant employment factors.
... I believe that he meets the DSM-IV diagnostic criteria for Pain Disorder and Major Depressive Episode. I have outlined the diagnostic criteria above. It is my opinion that Mr Markovic suffers from a diagnosable psychiatric condition and the condition was materially contributed to by his employment. In my opinion there is a close connection between his employment and the development of his physical condition, and subsequent development of depression and anxiety in an increasing severity pattern. There is a close link between development of the injury, associated physical pain in subsequent development of either, and Adjustment Disorder with depressed or anxious mood and/or progression to a Major Depressive Disorder. It is in (sic) my opinion that Mr Markovic’s condition and subsequent pain is associated with both a physical condition and psychological factors. Therefore, he has reached the diagnostic criteria as well for Pain Disorder of acute onset with a duration of less than six months. The details of his symptoms, explanation and its relationship are outlined in my report.
...
5. OTHER FACTORS
(a) Is there any evidence of any non-organic factors and voluntary or involuntary exaggeration of the symptoms or signs? Please explain.
I have discussed this as part of my diagnostic explanation. There is evidence of non-organic factors, in particular, I note there some (sic) discrepancy between Mr Markovic’s physical symptoms and the objective findings. One needs to consider if Mr Markovic fulfils the criteria for the term ‘abnormal illness behaviour.’ However, at present this is quite difficult in the presence of major depression and anxiety symptoms. The essential point that abnormal illness behaviour is that it presents as exaggeration or an emphasis of physical symptoms. Under most circumstances such exaggerations are believed to be unconscious in their nature.
Abnormal illness behaviour represents a patient’s individual psychological reaction to physical injury or maladjustment to a physical injury. Therefore, it is a condition which is at the interface of general medication in psychiatry but in itself, it is not the equivalent of a specific psychological condition, although sometimes it can be explained by the existence of a specific psychological condition. It is the general consensus of psychiatrists that abnormal illness behaviour is generally perceived by the claimant in ninety percent of cases. A determination as to whether abnormal illness behaviour (which is the disparity between the claimant’s complaints of disability and the actual physical findings of the relevant expert) represents a conscious exaggeration of complaints, or unconscious exaggeration, is a difficult one.
The former is the equivalent of fabrication or malingering, and in my opinion does not seem to be in Mr Markovic’s case.
...”

Dr Eileen Tay

57. Dr Tay, Consultant Psychiatrist, assessed the applicant on 16 July 2009 at the request of “Comminsure”, and she subsequently prepared a report dated 29 July 2009 (Exhibit R35).
58. Dr Tay’s report states as follows:

“ ...
HISTORY:
Presenting Complaints:
Mr Markovic attended the appointment in the company of a friend who sat out in the waiting room. He stated ‘I am here for my TPD claim’. He stated that he has also been in receipt of a Centrelink Disability Support Pension since June 2008. Mr Markovic stated that he had sustained two injuries whilst working with John Holland Constructions as a railway track maintenance officer. On 13 November 2006 he sustained a crush fracture to his right great toe and second toe which healed and he was able to return to work initially with restrictions which meant he had to be on light duties and when he returned to full time work when the restrictions finished on 27 July 2007 he injured his back. This is related to moving and heavy lifting using a rail jack to change sleeper packs on the tracks. He stated he felt pain the next day in both his legs and particularly feeling weak, especially on the left side anteriorly and to the side. He stated he could only get in to see his GP for the following Monday on 30 July who subsequently organised CT scans. Mr Markovic stated that he did not work again from that day.
On specific questioning as to why he did not return to work since the day he felt back pain he related it to initial back pain that he suffered in 1999. I quote ‘because the back pain started in 1999 but the company doctor did not treat it properly and has told me there was nothing wrong just pulled muscles so when it happened again with loss of feeling in my legs I decided I have had enough’.
According to Mr Markovic he was informed by his GP that his neuro-imaging showed problems including disc problems and he allegedly has been informed that he has ‘disc problems’. However he did understand also that subsequent MRIs ‘showed nothing’.
Current Symptomatic History:
Mr Markovic stated that the pain in his back has got worse since 2007. He said he also finds it difficult to get into a comfortable position for sleep at night and it hurts to turn over in bed. He reports losing feeling in both his legs to the knees anteriorly and laterally if he stood for 10 to 15 minutes. He explained that he could not walk properly in case it made the pain in his back worse. If he was not sitting properly in good chairs it would also make his pain worse. He stated his big toe and other toe do not hurt as much any more as he is no longer working.
In terms of other symptoms he reported that he is feeling better mentally since being on Mirtazepine. He said he tries not to think about bad things and that the medications have definitely helped with that process including with his sleep. However he still states he is unable to concentrate properly stating again that it is due to pain rather than any psychological symptoms.
...
MENTAL STATE EXAMINATION:
Mr Markovic presented dressed in a tracksuit and was malodorous. He walked with a stiff short based gait with his shoulders hunched forward. This has been noted in previous reports and it is consistent in terms of his maintenance of this abnormal gait. He walked slowly and stiffly to the chair but was able to sit throughout the hour assessment although he moved around in the chair. He maintained eye contact throughout the assessment and spoke in halting English but was able to cooperate with the interview. Rapport was difficult to establish due to both cultural and language barriers.
His mood appeared euthymic. He did not appear distressed, anxious and was able to smile at different times during the interview.
He stated the only thing he wanted to be able to do for the future was to be able to take care of himself. He stated he did not know how much he would be paid or how he would be paid if the TPD came through. There was no evidence of mania or psychosis on today’s assessment. He did not make any threats towards himself nor others during the assessment. On the whole he also stated that John Holland has been ‘not a bad’ company to work for.
SUMMARY AND ASSESSMENT:
Diagnosis
AXIS 1: Depressive Episode that was diagnosed by Dr Golic in 2007 now in remission. Mr Markovic presented today without reporting any depressive or anxiety symptoms and on presentation appeared euthymic and interacted spontaneously. ...
...
I will now answer the questions in the order posed:
...

5. Based on your assessment, what is your specific diagnosis of the condition for which the insured is making a claim? Please explain on what basis you have determined this diagnosis. Is this a permanent disablement?

In terms of the diagnosis of depression, I believe that this is now improved since 2007. This is determined on Mr Markovic’s self-report on his depressive and anxiety symptoms as well as his presentation on today’s examination where there is no evidence of residual depression or anxiety. His psychiatric diagnosis is likely to be of a permanent duration in so far as it was linked to his pain initially. I am unable to comment on the chronic pain condition.
6. What was the cause of the disability? How and when did this happen?
The cause of the psychiatric disability was that of his chronic pain and his injuries that resulted in him being unable to work. This first occurred in late 2007 (sic).
...

10. In regard to the physical and sedentary duties of the insured’s USUAL occupation, what are their current capabilities, limitations and restrictions in relation to work hours and job role? Please provide reasons for your answer.

His current capabilities and limitations and restrictions are related mainly to his pain condition rather than a psychiatric condition.
Mr Markovic is restricted in terms of being competitive in the workforce due to issues pertaining to his low formal education, lack of formal trade qualifications and his lack of motivation to regain employment. He appears to have simple needs stating that he would be happy if he could continue to look after himself.

11. In regard to the duties of ANY occupation to which they are suited by their education, training or experience, what are the insured’s current capabilities, limitations and restrictions in relations (sic) to work hours and job role? Please provide reasons for your answer.

See Q10 above. Mr Markovic’s subjective perception of pain is the main limiting factor to his return to work. From a psychiatric point of view there are no limitations or restrictions to his capacity to work.

12. What does the insured perceive as being the most disabling factor in preventing them from returning to gainful employment? Do you agree or disagree with this opinion and why?

Mr Markovic’s perception is that the most disabling factor preventing him returning to gainful employment is that of his chronic pain.

13. Are there any other factors/medical conditions affecting the recovery and return to full time work of the insured and do they seem motivated to return to work?

He does not present as being motivated to return to work only that he has sufficient funds to be able to look after himself in his current state. There are no other psychiatric factors affecting his recovery and return to full-time work.
...

15. Prognosis:
    1. Can the current effects of the insured’s condition be reasonably expected to lessen/resolve? If so, when would you realistically expect the insured to be able to return to work
       50. on a part-time; and/or
       0. full-time basis?

From a psychiatric perspective, his Depressive Episode has been adequately treated and he is in remission. Therefore, he is able to return to work on a part-time and full-time basis from a psychiatric perspective.
...”

Dr James Fellows-Smith

59. Dr Fellows-Smith, Psychiatrist, assessed the applicant on 31 August 2009 at the request of the applicant’s former solicitors, and he subsequently prepared a report dated 2 September 2009 (Exhibit A4).
60. In his report Dr Fellows-Smith set out his assessment of the applicant’s mental state, and his opinions, as follows:

“ ...
Mental state examination
Mr Markovich (sic) was late for this appointment. He had difficulty climbing the stairs to my rooms. When he first presented I remarked that he appeared unsteady on his feet in view of his wide stepping gait and stooped posture. I inquired as to why he was not carrying a walking stick. He stated that on no occasion had he fallen over due to his injuries. Subjectively he complained of feeling depressed however his affect was incongruous. He smiled throughout the interview and impressed as a pleasant historian. In view of the difficult nature of his past history in particular traumatisation in Bosnia I took the view that he was illness denying for his psychological conditions. In contrast he was illness affirming for his physical condition. The discrepancy between subjective complaints and physical signs suggested an unconscious mechanism.
Based on the prosody of his speech there was a gross restriction to his affect which was flat and unresponsive at interview.
He stated that he had some mild cognitive difficulties. For example he had difficulty locating my consulting rooms. On formal testing however he was grossly unimpaired.
His insight was that injury to his back had adversely affected his lifestyle as he was no longer able to do the heavy lifting work that he was accustomed to and he had worse cognitive functioning and regulation of his mood.
In answer to your specific questions:
...

3. Whether our client is currently suffering from a diagnosable psychiatric condition and if so the nature of the condition;

Yes. His diagnosis according to DSMIV TR
Axis l Adjustment Disorder unspecified 309.9. There is a maladaptive psychological reaction with physical complaints, social withdrawal and work difficulties in reaction to stressor that are not classifiable as one of the specific subtypes of Adjustment Disorder. His condition is chronic.
...

4. Whether our client’s employment has contributed to the condition;

Yes.

5. Whether our client suffers from any incapacity as a result of the condition and if so to what extent;

Mr Markovich’s impairment according to the PIRS WorkCover 2007
...
13.6 Employability
Class 3 Moderate impairment
Cannot work at all in the same position and has major restrictions due to his orthopaedic condition and mental state.
The medium score was 3. The aggregate score was 15. The whole person impairment was 15%.

6. Whether our client is totally or permanently disabled by his condition. In this regard, we ask that you address whether our client is incapacitated to such as (sic) extent as to prevent him from engaging in his own occupation or any other occupation that he is reasonably suited to based on his education, training and experience;

Mr Markovich has three separate aetiologies to his presentation. Discussion regarding his orthopaedic injuries is beyond my area of expertise. He does however have incongruity of affect at interview particularly regarding subjective complaints and observation of the facial expression of his mood. Early loss of his mother when aged one year old which may have adversely contributed to his personality development. Furthermore he appears to be in denial for any psychological trauma occurring during the Bosnian War. His physical injuries from the war alone are substantial.
The direct temporal relationship between his injury at work and ceasing employment suggests that his orthopaedic injuries have been a significant contributor to his inability to work. The assessment of the degree of severity of his condition suggests that he has moderately severe symptoms and there is a lack of motivation for him to return to pre-accident duties.
The psychological sequelae following his orthopaedic injury was 5%. ...
...”

THE EVIDENCE OF THE LAY WITNESSES

Robert Black

61. Mr Black’s witness statement, filed on 11 December 2009 in these proceedings, states as follows:

“ 1. I am currently employed with John Holland Group as a Health and Safety Manager. I have occupied this role for around 3 months, and was previously the Operation Safety Manager, Rail from May 2008.

2. During 2007 and up until May 2008, I was the Safety Co-ordinator then Project Safety Superintendent on the Perth to Mandurah Railway project.
3. I have worked at John Holland for around 5 years.
4. I have a Graduate Diploma in Occupational Health and Safety and I completed this Diploma around 3 years ago.
5. I have known Slobodan Markovic (Slobodan) for around 3 ½ years.
6. I first became involved in Slobodan’s return to work co-ordination in November 2006 after he had injured his right foot while at work. My involvement with Slobodan’s return to work continued as a result of his foot injury, and this then carried on during the period of his back condition up until an occasion when he abused me and I then removed myself from any further direct involvement with him (see paragraph 12 (sic)). My involvement with Slobodan’s rehabilitation and return to work involved me as Return to Work Co-ordinator.
7. It is my recollection that Slobodan’s reported back injury occurred within the 6 weeks of him returning to perform his normal duties and normal hours following a period of time on light restricted duties relating to his right foot.
8. During the period when Slobodan was undertaking restricted office based duties as a result of his foot injury, he raised an issue with me concerning his compensation payments which I then needed to discuss with Slobodan’s project manager. I recall that this occurred in or around April 2007. Slobodan spoke to me and said that he believed that he was not being paid what he was entitled to receive, and I told him that I agreed with him. I told Slobodan that I would speak to his project manager about the matter and arrange for the correct compensation payments to be made by payroll. In the interim however, Slobodan immediately went off to see a lawyer, and I recall that a letter from his lawyer was received the next day, that is, the very next day after we first discussed his payments. I immediately arranged for a special pay run to pay Slobodan his correct entitlements, and I recall that this payment was a gross amount of $7,927.23.
9. When Slobodan was undertaking restricted office based duties during March and July 2007, Slobodan made a comment to me that he believed that he was entitled to a disability ‘payout’ for his right big toe. I recall that a figure of 20% disability was mentioned by Slobodan at the time, and this was a figure Slobodan claimed to have been given to him by someone in his lawyer’s office. My recollection of this conversation was that the information Slobodan had received was not given to him by his lawyer, and from the manner in which he described it to me I believed that it could have been the receptionist or somebody else who gave him this informal advice, and I expressed an opinion to Slobodan at that time that I considered it to be incorrect information.
10. Following my conversation with Slobodan which included me saying that I doubted that he would be entitled to any disability ‘payout’ for his big toe, I felt that his overall attitude changed from around this time. He may have become aggrieved at being told something he didn’t want to hear.
11. Slobodan’s compensation claim for his right big toe was not a claim covered by the Safety, Rehabilitation and Compensation Act 1988.
12. After Slobodan complained of his back condition in August 2007 I tried to keep his return to work attempts regarding his back separate from that of his big toe. When I spoke to him I always encouraged him to try and give it a go in getting back to work in some light work capacity, similar to when he first injured his toe.
13. There was a following occasion when I went out to see Slobodan and to pick him up to go and see one of John Holland’s doctors. After we had left his home and had only travelled a couple of kilometres he complained about the bumps in the road. Slobodan started yelling and swearing at me, and abused me and refused to go to the doctors and demanded that he be taken home because he was in too much pain. I considered the issue of pain to be a bit of an exaggeration by Slobodan and that it was just an excuse to avoid being seen by another doctor. It was at this time that I elected to remove myself from having any further direct contact with Slobodan and I allowed the matter to be run by the rehabilitation case manager from APM, Rebecca Bawden. I had already driven Slobodan to the doctors on previous occasions and there were no issues that arose, and even though I drove Slobodan to the doctors, he was still able to drive a car even with his toe and back conditions.
14. It is my opinion that Dr Di Camillo didn’t try to be helpful in getting Slobodan back to work. I believe that Dr Di Camillo formed an opinion and then was not prepared to move away from that opinion towards assisting John Holland in its rehabilitation attempts. I remember that there was a time when Slobodan was not showering properly and I offered to involve ‘Silver Chain’ to assist Slobodan, but Slobodan and Dr Di Camillo declined this offer.
15. I found there to be a marked difference with Slobodan as his claims went along, and he certainly put up a barrier to any attempts to get him back to work. I still don’t know why his attitude changed to being negative towards coming back to work other than a possible changed attitude as a result of the disability payment issue.

...” (Exhibit R32)

62. It is unnecessary to refer to Mr Black’s oral evidence in these reasons.

Nicolas O’Leary

63. Mr O’Leary’s witness statement, filed on 4 December 2009 in these proceedings, states as follows:

“ 1. I am currently employed at the Water Corporation (WC) in Perth as an OSH (Occupational Safety and Health) Manager Specialist Services. I have been employed in this position since October 2009, after joining the WC in December 2008.

2. Prior to commencing with my current employer, I was employed with the John Holland Group for just over 9 years.
3. During the last 2 years of my employment with John Holland I was an Operations Safety Manager. A component of this role was Workers Compensation and Case Management (WCCM) The case management aspect of the job required me to act in a liaison role with third parties (eg rehabilitation providers and the injured person’s Line Supervisor), attend case conferences, and sign off on return to work programs.
4. I have a Post-Graduate Certificate in Occupational Health and Safety Management, and I have completed both levels of Comcare’s case manager training, Case Management Essentials and Case Management The Next Step.
5. I have known Slobodan Markovic (Slobodan) since around July 2007 which is when I became involved in his rehabilitation following his back injury. Prior to this time I only knew Slobodan from my visits to work sites, and recall on a couple of occasions making informal inquiries regarding a previous injury to his foot. The day to day return to work coordination for Slobodan’s foot injury was carried out by the Project Safety Advisor (PSA) Robert Black, in conjunction with the insurer CGU. During this period, under state workers compensation legislation the day to day contact with Slobodan was a task of the PSA. This was based on the premise that a working relationship on the project would have developed.
6. The only formal involvement I had with Slobodan was in relation to his back injury in my role as Operation Safety Manager.
7. An Independent Medical Examination (IME) was arranged by Mr Ian Hobba from Self Insured Services Australia, and this occurred on 20 August 2007.
8. On the 24 August 2007 I raised and forwarded a section 36 referral to Advanced Personnel Management (APM) requesting an assessment of Slobodan’s capacity for rehabilitation.
9. On 31 August 2007 and in my role of Case Manager I wrote to Slobodan and issued him with a determination under section 36 of the Safety, Rehabilitation and Compensation Act advising him that his capacity to undertake a rehabilitation program was to be assessed. Slobodan didn’t speak to me regarding this determination, however, I do recall that he spoke to Robert Black.
10. On 5 September 2007 I attended a meeting at Slobodan’s home with Robert Black and Rebecca Bawden of APM. The purpose of this meeting was to explain to Slobodan the rehabilitation process, to discuss any issues regarding his placement onto a return to work plan and to explain the roles of each of the people involved. During this meeting I had concerns that there may be a language issue, Slobodan appeared to not understand all of the discussion points. This was discussed at the time and Slobodan was fairly non committal about the issue.
11. After the meeting on 5 September 2007, I raised my concerns regarding any possible language issues and discussed options to have documentation transcribed (sic) into Serbian which is Slobodan’s native tongue. It was agreed that translation would be a positive way forward and would provide Slobodan with a better chance of fully understanding the documents being presented.
12. I recall attending a further meeting on 19 September 2007 with Robert Black, Rebecca Bawden and Andrew O’Brien at Rail Link in Jandakot to discuss Slobodan’s return to work and to try to overcome some language issues involving Slobodan. Because of the language issues, I arranged to have all of the relevant rehabilitation and return to work documents translated into Serbian so that Slobodan fully understood the legislation requirements, and what was expected of him. These documents were then hand delivered by me to Slobodan at his home for him to read, and I considered that he begrudgingly opened and read them at that time.
13. During my involvement with Slobodan as part of his rehabilitation and return to work attempts, I would have only spoken to him on about 3 or 4 occasions, and maybe had 1 or 2 telephone conversations. I also had a failed attempt at trying to visit Slobodan at his home to inquire on his progress, and even though I believe that he was at home at the time of visiting, he did not come to the door.
14. From my discussions with Rebecca Bawden, I consider that there were plenty of options given to Dr DiCamillo that were consistent with Slobodan’s return to work capacity. While Dr DiCamillo initially appeared to be keen and supportive by giving indications that Slobodan could be rehabilitated back to work, his attitude changed and there was a ‘shift away’ from focussing on successfully getting Slobodan back to work.
15. I recall that Robert Black offered Slobodan lots of support in his endeavours to get him back to work. This included offering to pay for taxis to take Slobodan to and from medical specialists and his general practitioner, plus the offer of home help. I also recall that Robert was prepared to ‘ferry’ Slobodan around to various work locations as part of assisting with his return to work. I believe that all of these offers were declined by Slobodan. This was emphasised to me when Ms Bawden put forward a very low key return to work model, which basically proposed that Slobodan be transported to the Rail Link offices for smoko to keep in contact with the workplace and then transported back to his residence. This offer also wasn’t accepted by Slobodan.
16. Based on my involvement in the attempts at getting Slobodan to return to work in his pre injury role and then to return him to work in any capacity, it is my view that his lack of inclination to take part in any form of rehabilitation whatsoever, demonstrated that he was not at all committed to either returning to work or to his rehabilitation. That is, I am of the view that he simply didn’t want to be rehabilitated.” (Exhibit R29)
    
64. It is unnecessary to refer to Mr O’Leary’s oral evidence in these reasons.

Rebecca Bawden

65. Ms Bawden’s witness statement, filed on 11 December 2009 in these proceedings, states as follows:

“ 1. I am employed as a Team Leader / Rehabilitation Consultant with Advanced Personnel Management (APM) in West Perth.

2. I have been employed with APM for approximately 2 ½ years, in the most recent 12 months working as a Team Leader. Prior to joining APM, I was employed as a Rehabilitation Consultant for approximately 4 years with Worklink in West Perth.
3. I am a qualified psychologist and have been registered since 2007. I completed my Bachelor of Arts (Psychology Major) in 2002, and achieved a Post-Graduate Diploma in Psychology (Specialising in Rehabilitation) which I completed in 2004 at Curtin University.
4. APM received a referral from John Holland Group on 27 August 2007 for vocational rehabilitation for Mr Slobodan Markovic. I commenced this referral following contact with the referrer on 28 August 2007, at which time I arranged a meeting with Mr Rob Black (Rehabilitation Coordinator, John Holland Group). Mr Black provided me with an introduction for referral of Mr Markovic to APM for vocational rehabilitation.
5. My initial contact with Mr Markovic was on 28 August 2007 via telephone contact, at which time I introduced myself and explained the rehabilitation referral and the reason for my contact. At this time, Mr Markovic advised that he was unsure of the reason for the referral for rehabilitation and said to me that he had incurred a back injury and was in a lot of pain. He said that he did not understand the referral and after several attempts at explaining, I suggested that he may wish to arrange an interpreter to allow me to clearly explain the situation and for him to understand. He advised me that he wished to speak to his lawyer prior to attending a meeting with me. I advised this was understandable and also suggested that he may wish to speak with Mr Rob Black as well, and alternatively advised that he could have his lawyers contact me if he wished.
6. Subsequently, I again contacted Mr Markovic on 30 August 2007, at which time I advised I had not been contacted by his lawyer and again explained my involvement. He told me that he did not consider he required my help and that he would return to work by himself. He again reiterated that he did not wish to have my involvement. In light of this, I advised that I would inform Mr Rob Black of his view and advised him that Mr Black may contact him further to discuss his rehabilitation.
7. I spoke with Mr Rob Black on 30 August 2007, at which time he advised that he would contact Mr Markovic to further discuss the referral and seek agreement for my involvement.
8. I received email correspondence from Mr Rob Black on 31 August 2007, at which time he confirmed that he had arranged a meeting with Mr Markovic on 5 September 2007, and requested me and Mr Nick O’Leary, Operations Safety Manager (of John Holland), be present to discuss Vocational Rehabilitation for Mr Markovic.
9. I attended the meeting on 5 September 2007 with Mr Nick O’Leary, Mr Rob Black and Mr Markovic, at which time the roles of each party were discussed in detail in addition to the reason for the vocational rehabilitation referral. Mr Markovic advised at this time that he continued to experience a lot of pain and reported that he could not undertake any activities. He advised that he could cook, but only just, and experienced a lot of pain when doing so. At this time, Mr Markovic expressed that he would not return to work until he feels 100%. The process of vocational rehabilitation and assistance with gradually returning to work was again explained. I provided Mr Markovic with information regarding his rights and entitlements for vocational rehabilitation, at which time he advised he would get his lawyers to explain and advise him on this information. Mr Markovic advised he had ceased physiotherapy treatment and that he would speak to his General Practitioner about this further. At this time he suggested that I speak to his General Practitioner after he had been reviewed. In light of this, I provided Mr Markovic with information about APM’s services, however, Mr Markovic said that he would be unable to read them given English is his second language. In light of this, Mr O’Leary advised that he would have this information translated into Serbian for him. At the end of the meeting, Mr Markovic advised that he would be seeing his General Practitioner the next day and after that would be attending for a further review with Dr G Wong (his treating Specialist). It was agreed that he would contact me after this appointment to discuss the outcome and he was agreeable to me contacting his GP following this review.
10. I observed at this meeting that Mr Markovic walked slowly and stiffly and seemed restricted in his movements. He seemed comfortable sitting, however, he did present with overt signs of pain when standing and moving around.
11. I provided my contact details to Dr Di Camillo’s (Mr Markovic’s treating General Practitioner) practice and asked him to contact me following his review with Mr Markovic.
12. In an email dated 6 September 2007, Mr Nick O’Leary confirmed that he had obtained written approval from Mr Markovic for me to obtain information from key parties.
13. On 6 September 2007, I was also contacted by Dr Di Camillo, at which time he advised that he had reviewed both Dr E Eriksen’s and Dr Wong’s medical reports and advised that there was a mechanical problem and that he had recommended that Mr Markovic undertake hydrotherapy and exercise and explore a return to work in approximately 2 weeks. Dr Di Camillo said that he considered Mr Markovic would require 2 weeks to undertake hydrotherapy to assist in his Graduated Return to Work Programme. He advised that he was agreeable to me contacting the physiotherapist to arrange the appointments for Mr Markovic. Dr Di Camillo advised if there was no improvement through hydrotherapy and the graduated return to work, he would refer Mr Markovic for an MRI and further specialist review.
14. Following this time, I contacted the employer (John Holland) to advise of the contact with Dr Di Camillo, in addition to contacting the physiotherapist in Yokine to advise of the referral for hydrotherapy.
15. I contacted Mr Markovic on 7 September 2007 and advised him that I was following up to discuss the outcome of his doctor’s appointment and to arrange a time to meet to discuss his vocational rehabilitation. During this discussion, Mr Markovic spoke openly and said that he did not want me to waste money and time if I was calling to discuss a return to work. At this time I explained the importance of his involvement in rehabilitation and the potential outcomes if he chose not to participate, however, he advised that he did not require a return to work and would be agreeable for John Holland to cease his wages. Mr Markovic ended this conversation by hanging up the phone. In light of this I liaised with key parties to advise that Mr Markovic had stated that he did not require vocational rehabilitation and is agreeable to a cessation of wages.
16. John Holland advised that they wished to proceed with a rehabilitation programme under Section 37 of the relevant legislation, and to have a meeting with Mr Markovic to discuss the relevant documentation in light of the medical recommendations regarding him returning to work in 2 weeks. I then prepared a Return to Work Programme of Suitable Duties for review, with the view to discussing this proposed programme further at a meeting on 19 September 2007.
17. On 12 September 2007 I wrote to Dr Di Camillo and referred to my discussion with him on 5 September 2007 when he had advised that Mr Markovic may be fit to commence a graduated return to work in the week commencing 17 September 2007. In my letter to Dr Di Camillo I advised that I had consulted with John Holland to identify a variety of alternative light duties that may be suitable to incorporate in a graduated return to work programme for Mr Markovic, and I attached a detailed description of these duties for Dr Camillo’s review. In addition to this, I confirmed that Mr Markovic would be attending the meeting on 19 September 2007 for which an appointment letter was sent via post.
18. Mr Black advised on 17 September 2007 that he had met with Mr Markovic to advise of the meeting on 19 September 2009, at which time Mr Markovic stated he would not be attending the meeting and also advised that he would not be attending the physiotherapy appointment, rather he would be attending for a review with his treating General Practitioner on 27 September 2007. I understand that Mr Black encouraged Mr Markovic to attend the meeting on 19 September, and to attend his General Practitioner review at an earlier time if pain continued to be severe. I agreed to proceed with the meeting on 19 September 2007 in case Mr Markovic should attend.
19. I spoke further with Mr O’Leary on 19 September 2007, and he advised that he had again met with Mr Markovic and Mr Markovic was a lot more relaxed. He said that Mr Markovic was quite happy with the documents in Serbian and also advised that he was agreeable for us to arrange a medical case conference with Dr Di Camillo after his appointment on 27 September 2007. Mr O’Leary confirmed with Mr Markovic that I would be attending. In light of this, I arranged a medical case conference with Dr Di Camillo on 3 October 2007 given no earlier appointments were available and Dr Di Camillo was on leave until 30 September 2007. In addition to this, I confirmed with key parties that I had received information from Dr Di Camillo, certifying Mr Markovic fit to undertake the identified duties from the end of September 2007. In light of this, it was agreed that the Return to Work Programme would reflect the new information and would be forwarded to key parties.
20. I attempted to contact Mr Markovic following 24 September 2007 to confirm the medical case conference for 3 October 2007, however, I was only able to leave messages and did not receive any return calls. In addition to this, I confirmed with Mr Markovic’s physiotherapist that Mr Markovic had cancelled his appointment for 27 September 2007 and had reported that he was in too much pain to attend. I liaised with key parties to update on status. Given that I was unable to contact Mr Markovic, the medical case conference for 3 October 2007 was re-scheduled for the following Tuesday and it was agreed that I would confirm this with Mr Markovic. I also left a message with Dr Di Camillo to contact me to discuss.
21. I spoke with Mr Markovic on 2 October 2007, at which time he reported that he still continued to experience ongoing symptoms and reported that he was unable to sit, walk or sleep. At this time, I advised him of the medical case conference that had been scheduled for 3 October 2007, at which time he advised that he had an MRI scan at 1.30 pm. I advised that we had re-scheduled the appointment time to the following Tuesday to which Mr Markovic advised that he was unable to attend this appointment as he had a medical appointment at 3.00 pm. I advised at this time that the doctor case conference was at 8.30 am and therefore he should still be able to attend his medical appointment in the afternoon in plenty of time. Mr Markovic advised that he would not be able to have two appointments in one day. In light of this, I advised that we would attempt to again re-schedule the medical case conference, at which time he was agreeable, however, advised that he would prefer just to see his General Practitioner on Friday as that was the best day for him. I advised that I would attempt to schedule the case conference for this day, however, depending on the doctor’s availability it may need to be another day. In addition to this, I enquired why he had not attended his physiotherapy treatment at which time he said that he was too sore and was unable to sit, stand or walk. I light of this, I said that the doctor had recommended physiotherapy treatment to assist in his recovery and that it would help him, at which time he said he would reconsider. I re-scheduled the medical case conference to 10 October 2007.
22. I continued to liaise with key parties, and attempted to contact Mr Markovic on two further occasions prior to the medical case conference on 10 October 2007. I attended the medical case conference, however, Mr Markovic did not present. From discussions with Dr Di Camillo, he reported that he had reviewed Mr Markovic on Monday and received the results of the MRI, which did not indicate any issues. Dr Di Camillo reported that Mr Markovic continued to present in a lot of pain with very limited movement and he considered at this time that it was Mr Markovic’s mental status that was the main problem. Dr Di Camillo reported that he referred Mr Markovic to two further specialists, a Psychiatrist and Orthopaedic Specialist, and recommended that he continue to attend for his physiotherapy treatment. I advised Dr Di Camillo at this time that Mr Markovic had in fact not attended for any physiotherapy appointments. Dr Di Camillo advised that he did not consider he was physically or psychologically ready to return to work. I discussed the need for socialisation and returning to a normal routine, at which time Dr Di Camillo advised he agreed with this and considered it would be suitable for Mr Markovic to return to a working environment. He advised that he wanted to wait until the results of a psychiatric review prior to confirming a formal Return to Work Programme. In light of this, I liaised with key parties and advised of the outcome.
23. I spoke with Mr Markovic on 16 October 2007, at which time he advised that he continued to experience ongoing pain and reported that he was in pain all of the time. He advised that he had difficulty in sleeping, cooking and experienced extreme pain when driving. I discussed with Mr Markovic the outcome of the medical appointment, and further advised that the doctor had recommended that he continue with physiotherapy treatment. Mr Markovic advised he cannot do this as his pain was too bad. I further discussed the recommendation for a psychiatrist appointment and an orthopaedic review in addition to exploring returning to work in a social capacity to re-socialise in a work environment. Mr Markovic advised that he did not consider he would be going anywhere at this time as he was in too much pain.
24. I further liaised with Mr Markovic on 23 October 2007, at which time he advised that he had attended a medical review with an independent specialist on 16 October 2007. In addition he reported that he saw Dr Di Camillo on 22 October 2007, and was certified unfit for work pending the psychiatric report. He advised that his next review with Dr Di Camillo would be in 1 month’s time on 23 November 2007. He reported that he continued to experience a lot of pain and advised that he is unable to touch his back and was taking three to four Panadeine Forte tablets per day. I continued to advise key parties of the ongoing status.
25. I scheduled a medical case conference on 28 November 2007 to discuss Mr Markovic’s ongoing status. During this time I attempted to contact Mr Markovic on several occasions to advise him of the case conference and to discuss his ongoing status, however, I was only able to leave messages and did not receive any return calls. I confirmed this with Mr Nick O’Leary and he said that he was also unable to contact Mr Markovic and was only able to leave messages.
26. I attended for the case conference review on 28 November 2007 at Dr Di Camillo’s practice, however, neither Mr Markovic nor Dr Di Camillo were present although a medical appointment had been confirmed for 12.30 pm. I confirmed with Dr Di Camillo’s secretary at that time whether it would be convenient to wait until after 1.00 pm, at which time she advised she was unsure when Dr Di Camillo would attend, even though the case conference was booked for 12.30 pm.
27. From this time, I attempted to make contact with both Dr Di Camillo and Mr Markovic, however, was unsuccessful in contacting either. I was advised on 6 December 2007 by John Holland that the vocational rehabilitation would be placed ‘On Hold’. I continued to liaise with key parties to confirm the ongoing status of vocational rehabilitation, at which time I was advised by Mr Nick O’Leary on 3 June 2008 to close Mr Markovic’s vocational rehabilitation file. I attempted to liaise with key parties to advise of the closure, however, I was unable to speak with Mr Markovic and therefore proceeded to close the vocational rehabilitation on 6 June 2008.
28. During the course of the vocational rehabilitation, Mr Markovic indicated ongoing symptoms and appeared very resistant to exploring suitable return to work options, and did not involve himself in treatment such as physiotherapy and hydrotherapy to assist in his return to work.
29. Throughout the course of vocational rehabilitation, I contacted Mr Markovic on numerous occasions, however, he did not attempt to make any contact with me, and did not return any messages that I had left on his answering machine.” (Exhibit R18)
66. It is unnecessary to refer to Ms Bawden’s oral evidence in these reasons.

THE RELEVANT LEGISLATION

67. Pursuant to s 14(1) and Part VIIl of the SRC Act, the respondent is liable to pay compensation in accordance with that Act “in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
68. The word “injury” is relevantly defined in s 5A of the SRC Act as follows:

“ (1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
...”

The word “disease” is defined in s 5B as follows:

“ (1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.”

Section 4(1) contains the following definitions of relevant words:

“ ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
“ impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”

Section 4(9) provides:

“ A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in any work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”

69. Section 7(4) of the SRC Act provides:

“ For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”

70. Finally, s 16 of the SRC Act provides for the payment of compensation in respect of the cost of reasonable medical treatment obtained in relation to an “injury”, and s 19 provides for the payment of compensation for incapacity for work resulting from an “injury”.

ANALYSIS AND FINDINGS

Did the applicant suffer a physical “injury” (as defined in s 5A(1) of the SRC Act) to his lower back on 27 July 2007?

71. The respondent conceded that the applicant suffered an “injury (as defined in s 5A(1) of the SRC Act) to his lower back on 27 July 2007.
72. Although the Tribunal, having regard to the whole of the evidence before it, has substantial reservations regarding the appropriateness of that concession, it is prepared to accept that concession and will proceed with the following analysis, and make the necessary findings, on that basis.
73. Accordingly, the Tribunal finds that the applicant suffered an “injury” (as defined in s 5A(1) of the SRC Act) to his lower back on 27 July 2007, and that that injury is compensable pursuant to s 14(1) of that Act.

Is compensation payable to the applicant, pursuant to s 16 or s 19 of the SRC Act, in respect of his lower back injury in the period from 28 December 2007 to date?

74. The respondent accepted liability to pay compensation to the applicant for reasonable medical expenses and for incapacity for work in respect of his lower back injury, pursuant to ss 16 and 19 of the SRC Act, until 27 December 2007. The matter for the Tribunal’s determination is whether the respondent has continued to be liable to pay compensation to the applicant in respect of his lower back injury, pursuant to s 16 or s 19 of the SRC Act, from 28 December 2007 to date.
75. The applicant has testified that he has continued to suffer from ongoing lower back pain, and his general practitioner, Dr Di Camillo, has continued to certify him as unfit for work by reason of his compensable lower back injury.
76. In the period from November 2007 the applicant has been examined, in respect of his lower back injury, by Dr Silver, Dr Watson, Mr Hardcastle, Mr Wong and Professor Gubbay. Their opinions may be relevantly summarised as follows.
77. Dr Silver opined, in his reports of 3 December 2007, 28 August 2008, and 19 May 2010, that the applicant did not sustain a back injury at work on 27 July 2007 and that his ongoing “non-specific activity-related low back pain”, which he has had “for many years”, is not related to his employment by the respondent at that time.
78. In his report of 13 August 2008 Dr Watson referred in detail to the applicant’s right foot injury in November 2006 and did not refer to any incident in July 2007 involving the applicant’s back. He noted that the applicant continued to experience pain in the right foot and that he “re-developed” low back pain “following attempts to get him back to work” in July 2007.
79. Mr Hardcastle, in his reports of 11 September 2008 and 6 May 2010, opined that the applicant did not sustain any back injury on 27 July 2007 and that he was not suffering from the effects of any injury sustained on that date.
80. Mr Wong noted that the applicant did not refer to any particular incident or any particular injury which resulted in his back pain, and he did not express an opinion regarding the cause of the applicant’s back pain.
81. In his report of 26 June 2009 Professor Gubbay referred to the accident of 13 November 2006 in which the applicant injured his right foot but, as regards the applicant’s back pain, he noted that the applicant had told him, “on more than one occasion”, that no particular incident involving his back had occurred at work on 27 July 2007, contrary to the statement in his claim for compensation whereby he attributed a back injury on 27 July 2007 to “using a rail jack to lift the rail to change sleeper pads” and “lifting these jacks and generators onto the back of trucks”. Professor Gubbay agreed that ‘there is no obvious cause for [the applicant’s] low back pain”, and he concluded that “the only reason ... to suspect that there could be a compensable injury ... is that [the applicant] has residual unresolved discomfort from the damage to his right foot from 2006”.
82. The specialist medical evidence before the Tribunal overwhelmingly supports the proposition that, in the period from 28 December 2007 to date, the applicant has not suffered any lower back pain which is causally related to his employment by the respondent.
83. Accordingly, the Tribunal finds, on the basis of that evidence, that the applicant’s compensable lower back injury, sustained on 27 July 2007, has not continued to result in impairment or incapacity for work, within the meaning of s 14(1) of the SRC Act, from 28 December 2007 to date.
84. The Tribunal determines, therefore, that the respondent is not liable to pay compensation to the applicant, pursuant to s 16 or s 19 of the SRC Act, in respect of his compensable lower back injury for the period from 28 December 2007 to date, and as at the present date.

Did the applicant suffer a mental “injury” (as defined in s 5A(1) of the SRC Act) subsequent to the lower back injury sustained on 27 July 2007?

85. Given the respondent’s concession that the applicant suffered a compensable lower back injury on 27 July 2007, and the Tribunal’s acceptance of that concession, the question arises, having regard to the evidence before the Tribunal, whether the applicant subsequently suffered a mental “ailment ... that was contributed to, to a significant degree, by” his employment by the respondent. If that question is answered in the affirmative, that mental ailment will be a “disease” (as defined in s 5B(1) of the SRC Act) and, therefore, a compensable “injury” (as defined in s 5A(1) of the SRC Act).
86. There is uncontradicted medical evidence before the Tribunal to the effect that the applicant developed a diagnosable psychiatric condition as a result of his suffering his lower back injury of 27 July 2007, namely, the evidence of Dr Di Camillo and, more importantly, Dr Golic.
87. It appears from Dr Di Camillo’s clinical notes (Exhibit R1) that he first prescribed “Avanza” (anti-depressant medication) for the applicant on 6 September 2007. The Tribunal also notes the following certification by Dr Di Camillo on 7 September 2007 in relation to the applicant:

“This is to certify that abovenamed patient who is under my care for a work related low back injury on 27/7/07, was examined by me yesterday and found him to have developed an anxiety state & major depression. This is considered to be causally related to the industrial accident in question & was prescribed avanza 30 mg nocte.” (T21 in Application No 2008/2268)

88. Dr Golic was, as far as the Tribunal is aware, the first psychiatrist to assess the applicant following his lower back injury of 27 July 2007. He did so on 4 and 18 October 2007. In his very comprehensive report of 2 November 2007, he opined that the applicant, as a result of his lower back injury of 27 July 2007 and associated lower back pain, initially developed Adjustment Disorder with Depressed and Anxious Mood, and that his symptoms progressed to the point where he subsequently developed Major Depressive Episode. He also opined that the applicant contracted Pain Disorder of acute onset with a duration of less than six months.
89. None of the other psychiatrists who subsequently examined the applicant, and whose reports are in evidence, rejected Dr Golic’s opinion that the applicant suffered a diagnosable psychiatric condition as a result of his lower back injury of 27 July 2007.
90. Dr Terace, who first examined the applicant on 8 September 2008, opined that he was not then suffering from any diagnosable psychiatric condition. He noted Dr Golic’s opinion that the applicant had suffered Adjustment Disorder and Major Depressive Episode and he did not dispute that opinion, although he did reject Dr Golic’s opinion that the applicant had contracted Pain Disorder. He opined that the applicant is presently suffering from a psychotic condition, which he provisionally diagnosed as “paranoid schizophrenia of late onset” or “atypical paranoid psychosis”, and that that condition is not work-related.
91. Dr Tay, who examined the applicant on 16 July 2009, expressly agreed with Dr Golic’s diagnosis of Depressive Episode although she added that that condition was presently in remission and that the applicant had not presented with any depressive or anxiety symptoms. She also opined that the cause of the applicant’s psychiatric condition was “his chronic pain and his injuries that resulted in him being unable to work”, and she added that this “first occurred in late 2007 (sic)”. The Tribunal notes that Dr Tay had earlier referred to the applicant’s injuring his back on 27 July 2007 and not thereafter returning to work.
92. Dr Fellows-Smith, who examined the applicant on 31 August 2009, opined that the applicant was suffering from a diagnosable psychiatric condition, namely, Adjustment Disorder Unspecified, and that his employment had contributed to that condition.
93. Dr Edwards-Smith, who examined the applicant on 22 January 2010 and 3 February 2010, did not find that the applicant was then suffering from Major Depression or Adjustment Disorder, although she acknowledged that he may have been suffering a “mild Adjustment Disorder” when he was examined by Dr Golic in late 2007. She opined that the applicant is presently suffering from a psychotic condition, which she provisionally diagnosed as “paranoid schizophrenia”, and that that condition is not work-related.
94. Having regard to the abovementioned psychiatric evidence – especially, the report of Dr Golic – the Tribunal is satisfied, and finds, that, by reason of his lower back injury of 27 July 2007 and associated pain, the applicant suffered Adjustment Disorder with Depressed and Anxious Mood and subsequently suffered Major Depressive Episode. Accordingly, the Tribunal finds that each of those mental ailments was “contributed to, to a significant degree, by” his employment by the respondent, and is, therefore, a “disease” (as defined in s 5(B)(1) of the SRC Act).
95. The Tribunal finds, therefore, that each of the applicant’s mental ailments (being a “disease”) is an “injury” (as defined in s 5A(1) of the SRC Act) and is compensable pursuant to s 14(1) of that Act.
96. Pursuant to s 7(4) of the SRC Act, the Tribunal finds that, for the purposes of that Act:
    • the applicant is taken to have sustained Adjustment Disorder with Depressed and Anxious Mood on 6 September 2007 when he first sought treatment for his mental state from Dr Di Camillo and was prescribed “Avanza”;
    • the applicant is taken to have sustained Major Depressive Episode on 4 October 2007 when he was first seen and assessed by Dr Golic.

Is compensation payable to the applicant, pursuant to s 16 or s 19 of the SRC Act, in respect of his mental injuries in the period from 6 September 2007 to date?

97. In his report of 2 November 2007 Dr Golic opined that his prognosis regarding the applicant’s ongoing psychiatric condition and symptoms was “guarded” but that those symptoms “eventually will cease” although he was unable to specify “the exact date”. He opined that:
    • the applicant presently required ongoing medical treatment; and
    • the applicant was presently “incapacitated for his pre-injury employment duties” and was “incapable of doing full-time or part-time work in alternative duties”.
98. Dr Di Camillo continued to certify the applicant as totally unfit for work by reason of lower back pain and depression.
99. Dr Terace examined the applicant on 8 September 2008, however, and he opined that the applicant was not then suffering symptoms of Adjustment Disorder with Depressed and Anxious Mood or symptoms of Major Depressive Episode, and he further opined that, from a psychiatric perspective, the applicant had full capacity for work in suitable employment.
100. Dr Tay, who examined the applicant on 16 July 2009, also found that he did not present with symptoms of depression or anxiety. She also opined that, from a psychiatric point of view, there were no limitations or restrictions on his capacity to work.
101. Dr Edwards-Smith, who examined the applicant on 22 January and 3 February 2010, did not find that he was then suffering from Major Depressive Episode, Adjustment Disorder with Depressed and Anxious Mood or any other mood or anxiety disorder. She did opine, however, that the applicant was unfit for work by reason of a psychotic condition which was not work-related.
102. Dr Fellows-Smith, on the other hand, had examined the applicant on 31 August 2009 and found that he was suffering from Adjustment Disorder Unspecified which was work-related and which rendered him incapacitated for work.
103. The Tribunal attaches great weight to the reports of Dr Terace, Dr Tay and Dr Edwards-Smith which, in its opinion, are objective, comprehensive and well-reasoned. On the basis of Dr Terace’s report of 31 October 2008, the Tribunal finds that, as at 8 September 2008, the applicant was not suffering any symptoms of either of his compensable mental injuries, namely, Adjustment Disorder with Depressed and Anxious Mood, and Major Depressive Episode. The Tribunal further finds, on the basis of the reports of Dr Terace, Dr Tay and Dr Edwards-Smith, that the applicant has not suffered any symptoms of either of those mental injuries from 8 September 2008 to date.
104. Accordingly, the Tribunal determines that:
     • the respondent is liable to pay compensation to the applicant, pursuant to ss 16 and 19 of the SRC Act, in respect of his compensable mental injuries, for the period from 6 September 2007 to 7 September 2008;
     • the respondent is not liable to pay compensation to the applicant, pursuant to s 16 or s 19 of the SRC Act, in respect of either of his compensable mental injuries for the period from 8 September 2008 to the present date, and as at the present date.

CONCLUSION

105. The Tribunal notes that the initial determination dated 28 December 2007 (T45 in Application 2008/2268) determined both that:
     • as at 28 December 2007 the applicant was not entitled to compensation pursuant to ss 16 and 19 of the SRC Act in respect of his accepted lower back injury of 27 July 2007; and
     • the respondent was not liable under s 14 of the SRC Act to pay compensation to the applicant in respect of his “secondary claim for anxiety and major depression received on 7 September 2007 via Dr Joseph Di Camillo” (see T21).

That determination was affirmed by a reviewable decision dated 7 April 2008. The applicant applied to the Tribunal for review of that reviewable decision (Application No 2008/2268). Accordingly, both the matter of the applicant’s entitlement to ongoing compensation in respect of his accepted lower back injury and the matter of his entitlement to compensation in respect of a claimed mental injury, were before the Tribunal in Application No 2008/2268.

106. It follows that the subsequent determination dated 28 October 2008 (T15 in Application No 2009/0979) was superfluous (as the maker of that determination was aware – see T15, p 95) – as were the subsequent reviewable decision of 5 January 2009 (affirming that determination) and the applicant’s application to the Tribunal for review of that reviewable decision (Application No 2009/0979).
107. As regards Application No 2008/2268, although the Tribunal has come to the same conclusion as that reached in the decision under review in relation to the applicant’s entitlement to ongoing compensation pursuant to ss 16 and 19 of the SRC Act for his accepted lower back injury, it has come to a different conclusion from that reached in the decision under review in relation to the respondent’s liability pursuant to s 14(1) of the SRC Act in respect of the applicant’s claimed mental injury. That being the case, it is appropriate, in the Tribunal’s opinion, to set that decision aside and substitute a fresh decision, rather than merely to vary that decision. In the case of Application No 2009/0979, on the other hand, the Tribunal’s conclusion regarding the applicant’s claimed mental injury will obviously necessitate the setting aside of the decision under review and the substitution of a fresh decision. Accordingly, both Application No 2008/2268 and Application No 2009/0979 may conveniently be disposed of by the single decision which follows.

DECISION

108. For the above reasons the Tribunal sets aside the decisions under review and, in substitution therefor, decides as follows:
     • from 28 December 2007 to the present date, and as at the present date, the respondent is not liable to pay compensation to the applicant, pursuant to s 16 or s 19 of the SRC Act, in respect of his accepted compensable injury, namely, “muscle spasm & loss of lumbosacral mobility”, sustained on 27 July 2007;
     • the respondent is liable, pursuant to s 14(1) and Part VIIl of the SRC Act, to pay compensation to the applicant in respect of the following mental injuries, namely, Adjustment Disorder with Depressed and Anxious Mood, sustained on 6 September 2007, and Major Depressive Episode, sustained on 4 October 2007 (“the mental injuries”);
     • the respondent is liable to pay compensation to the applicant, pursuant to ss 16 and 19 of the SRC Act, in respect of the mental injuries, for the period from 6 September 2007 to 7 September 2008;
     • from 8 September 2008 to the present date, and as at the present date, the respondent is not liable to pay compensation to the applicant, pursuant to s 16 or s 19 of the SRC Act, in respect of either of the mental injuries.
       

I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr A Frazer, Member

Signed: sgd E Jordan .....................................................................................

Associate

Dates of Hearing 16–20 August 2010

Date of Decision 2 November 2010

Representative of the Applicant Self-represented

Counsel for the Respondent Ms P Giles

Solicitor for the Respondent Sparke Helmore