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  4. Alborough v Workers' Compensation Regulator - [2018] QIRC 110

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Alborough v Workers' Compensation Regulator[2018] QIRC 110

Alborough v Workers' Compensation Regulator[2018] QIRC 110

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Tyson Alborough v Workers' Compensation Regulator [2018] QIRC 110

PARTIES: 

Alborough, Tyson

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NOS:

WC/2015/268

WC/2015/269

PROCEEDING:

Appeal against decisions of the Workers' Compensation Regulator

DELIVERED ON:

28 August 2018

HEARING DATE:

29 November 2017

27 April 2018

21 – 24 May 2018

MEMBER:

Vice President Linnane

ORDERS :

  1. The appeal in WC/2015/268 is dismissed.

2. The decision of the Workers' Compensation Regulator dated 15 September 2014 to reject the Appellant's back injury is confirmed.

  1. The appeal in WC/2015/269 is dismissed.
  1. The decision of the Workers' Compensation Regulator dated 15 September 2015 to reject the Appellant's psychiatric injury is confirmed.
  1. The Appellant is to pay the Workers' Compensation Regulator's costs of, and incidental to, the appeals.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – PHYSICAL INJURY – whether the Appellant' s low back pain arose out of, or in the course, of his employment.

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – PSYCHIATRIC OR PSYCHOLOGICAL INJURY – whether an anxiety and depression disorder arose secondary to a physical low back pain.

CASES:

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 6

MacArthur v WorkCover Queensland [2001] QIC 21

Stark v Toll North Pty Ltd [2015] QDC 156

APPEARANCES:

Mr M Horvath of Counsel instructed by Nathan Lawyers for the Appellant.

Mr S. Gray of Counsel directly instructed by the Workers' Compensation Regulator for the Respondent.

Decision

[1] This proceeding involved two appeals by Tyson Alborough (Appellant) against decisions of the Workers' Compensation Regulator (Regulator).  The first appeal (WC/2018/268) is one filed in the Industrial Registry on 9 October 2015 against a decision of the Regulator dated 15 September 2015.

[2] On 3 November 2014 the Appellant lodged an application for workers' compensation with Woolworths Limited Workers Compensation Self Insurance Scheme (the self-insurer) for a right side inguinal hernia said to have been sustained during the course of his employment as a retail assistant with Woolworths Limited trading as BWS (BWS).  That injury was alleged to have been sustained over a period of time whilst the Appellant was carrying out his duties at various locations including BWS Springfield.

[3] The self-insurer accepted the Appellant's claim and workers' compensation benefits were paid to the Appellant.  The Appellant, after claiming compensation for the hernia injury, also complained of a back injury said to have arisen from a period of inactivity whilst awaiting the hernia surgery and in convalescing from the hernia surgery.

[4] In a decision dated 22 April 2015 the self-insurer rejected the Appellant's application for a lower back injury.  The Appellant's sought review of that decision to the Regulator.  By its decision dated 15 September 2015, the Regulator confirmed the self-insurer's decision that the claim in respect of a lower back injury should be rejected.

[5] The Appellant now appeals that decision of the Regulator in WC/2015/268.

[6] The second appeal (WC/2018/269) is one filed in the Industrial Registry also on 9 October 2015 against a decision of the Regulator also dated 15 September 2015.   Once again the Appellant lodged an application for workers' compensation with the self-insurer on 3 November 2014 for anxiety and depression following surgery for the right side inguinal hernia.  That claim was rejected by the self-insurer in a decision dated 22 April 2015.

[7] The Appellant sought review of the self-insurer's decision on 21 July 2015 with the Regulator confirming the self-insurer's decision in its decision dated 15 September 2015.  The Appellant now also appeals that decision of the Regulator.

 Legislation

[8] Section 32 of the Workers' Compensation and Rehabilitation Act 2003 (Act) relevantly provides as follows:

  "32 Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if -
  1. (a)
    for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
  1. (b)
    for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury.

…

  1. (3)
    Injury includes the following -
  1. (a)
    a disease …;
  1. (b)
    an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
  1. (i)
    a personal injury other than a psychiatric or psychological disorder;
  2. (ii)
    a disease;
  3. (iii)
    a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;

   …

  (4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation …"

Onus of Proof

[9] The hearing of these appeals was conducted as a hearing de novo.  The Appellant bears the onus of proving, on the balance of probabilities, that his injury is one for acceptance.  The Regulator does not contest that the Appellant was a "worker" in accordance with s 11 of the Act.  Thus the Appellant must prove, on the balance of probabilities that:

  • he has suffered a personal injury;
  • his injury is one arising out of, or in the course of, employment;
  • his employment is a significant contributing factor to his physical injury; and
  • his employment is a major contributing factor to his psychiatric or psychological injury.

[10] I agree with the submission of the Regulator that the evidence supporting the Appellant does not have to prove certainty and 'more probable' means no more than that:  see Bradshaw v McEwans Pty Ltd[1].  That test however will not be satisfied by evidence which fails to do more than establish a possibility.  There must be objective facts to enable the inference to be drawn, beyond mere speculation or conjecture, and which requires a court to reach a level of actual persuasion:  see MacArthur v WorkCover Queensland[2].

[11] Thus, whilst the onus is to be discharged on the balance of probabilities, the Commission must feel an actual persuasion before the alleged facts can be found to exist.

 Evidence

[12] The Appellant relied upon the evidence of the following witnesses:

  • the Appellant himself;
  • Hannah Toci, the Appellant's de-facto wife;
  • Dr Andrew Byth, Psychiatrist whose Medical Report dated 9 July 2015 is Exhibit 17 with a File Note dated 18 May 2018 being Exhibit 57;
  • Dr Andrew Kilian, Orthopaedic Surgeon whose Medical Report dated 1 April 2016 is Exhibit 18 together with a File Note dated 22 May 2018 being Exhibit 59;
  • Professor Michael O'Rourke, General Surgeon whose Medical Report dated 10 August 2017 is Exhibit 22; and
  • Dr Charti Siriwattanarungsri, a General Medical Practitioner referred to in this decision as Dr Charti.

 The Regulator relied upon the evidence of the following witnesses:

  • Professor Mohammed Memon, Specialist Surgeon, whose Medical Report dated 4 March 2015 is Exhibit 67 together with a Further Report of Evidence dated 21 May 2018 which is Exhibit 58;
  • Professor Richard Williams, Consultant Orthopaedic Surgeon, whose Medical Report dated 5 March 2015 is Exhibit 15 together with a Supplementary Medical Report dated 20 May 2016 which is Exhibit 19; and
  • Dr Wasim Shaikh, Consultant Psychiatrist whose Medical Report of 5 March 2015 is Exhibit 16.

 Chronology of the Appellant's Injuries

[13] As a result of the various injuries that the Appellant contends he has suffered and the various medical experts who have been involved in reporting on those injuries, I have found it beneficial to provide a chronology of events in relation to the Appellant's injuries.  Mr Gray, Counsel for the Regulator, provided a rather comprehensive chronology in his written submission and I have used this as the basis for the following chronology.  Whilst the chronology contains various aspects of the documentary material provided by the expert medical witnesses, I will further address the expert medical evidence later in the decision:

28 November 2011 The Appellant attended his general medical practitioner (GP) describing low back pain from recent heavy lifting (Exhibit 23). The Appellant was then 22 years of age.

18 March 2013 The Appellant attended his GP complaining of low back pain and was prescribed Voltaren and told to rest for two days (Exhibit 24).

20 March 2013 The Appellant returned for treatment. The GP's clinical notes reveal that he had woken up on Friday morning (15 March 2013) with a sore back, it was worse on the right side and radiated to the right leg. There was no specific lifting event or injury. There was some stiffness which was not improving with analgesia. The GP discussed physiotherapy which the Appellant could not afford. He also requested a CT of the lumbar spine due to one-sided symptoms. These tests were however never performed.

24 June 2013 Left Shoulder Injury: The Appellant suffered an injury to his left shoulder when he was moving stock in a coldroom. His application for workers' compensation for this injury was accepted. During the course of the workers' compensation investigation the Appellant was sent by the self-insurer to Dr Gerard Powell, Consultant Orthopaedic Surgeon who examined the Appellant on 26 July 2013 and provided a medical report on 16 August 2013 (Exhibit 25). In that report Dr Powell outlined the Appellant's past medical history as:

  "… He reports that he has previously taken Mersyndol for longstanding lower back pain but he did not find it helped his shoulder pain…

  … He reports that he has had lower back pain for the last three years with occasional radiation of pain down in to the right leg. He reports that his weight is currently 146 kg and that this has increased from 130 kg a month ago. He is a smoker since the age of 13, and a pouch of tobacco lasts approximately five days. He takes no regular medication apart from analgesics. He has no known allergies. There is no significant family history."

6 June 2014 The Appellant was doing well on Lovan, an antidepressant, and he was "very different off the tablets" and a further prescription was issued: Exhibit 25.

25 July 2014 Hernia Incident: The Appellant noticed the hernia pain on 24 July 2014. He visited Dr Charti Siriwattanarungsri (Dr Charti) on 25 July 2014 who records "Pain at the right inguinal area (not testes or scrotum) after stretching injury yesterday. Sharp pain score 8/10, aggravated by movement." The musculo/skeletal examination demonstrated tenderness at the right medial inguinal ligament and tendons. There was a normal size of both testes and no tenderness. There was no mention of back pain or of a fall occurring on 24 July 2014. It was recorded as simply a stretching injury.

28 July 2014 An ultrasound found a very small indirect inguinal hernia, which is fully reducible and measures 4 x 4 mm. The hernia contained fat only and no femoral hernia was identified: Exhibit 27. Dr Charti said that the ultrasound demonstrated an indirect inguinal hernia. The Appellant was advised that if he experienced pain he should go to an Emergency Department and he was also advised to reduce abdominal pressure: Exhibit 30.

15 September 2014 The Appellant saw Dr Athuraliya complaining of general malaise and that he had become forgetful. The Appellant said that the Lovan was not helping with his anxiety and he would like something new. The Appellant noted that he had changed jobs and he did not get on well with his new manager: Exhibit 29. The Lovan was ceased and replaced with Zoloft and a series of blood tests ordered.

1 October 2014 The Appellant saw Dr Athuraliya where no complaint is recorded. The diagnostic imaging requested on this occasion related to the Appellant's right foot with "ongoing midfoot pain weeks after injury": Exhibit 30. There is however no mention of any hernia pain.

14 October 2014 The Appellant saw Dr Charti complaining about right inguinal pain and swelling "this morning". Dr Charti recorded a history of small right indirect inguinal hernia and that the Appellant was on the "waiting list for operation". Dr Charti records the reason for the visit as being irreducible indirect inguinal hernia and notes that the examination demonstrated tenderness to touch at the right inguinal area and he could feel bulging. The Appellant was sent for an emergency ultrasound: Exhibit 31. The ultrasound, performed on the same day, confirmed the inguinal hernia: Exhibit 32.

20 October 2014 The Appellant attended Dr Charti in respect of a claim for the indirect inguinal hernia indicating that his symptoms were aggravated from work which caused pain: Exhibit 33. Dr Charti issued him with a Workers' compensation medical certificate: Exhibit 5. That certificate provided the following information:

  • the diagnosed injury was indirect inguinal hernia at the right side;
  • the stated date of injury was 25 July 2014;
  • the stated cause of injury was "abdominal pain at the right lower quadrant while standing and lifting goods";
  • Dr Charti thought that was consistent with the injury;
  • the Appellant was fit for suitable duties from 22 October 2014 to 20 November 2014;
  • the diagnostic plan indicated that an ultrasound had been ordered; and
  • the medical management plan included prescription of endone and referral to a surgeon.

22 October 2014The Appellant completed an application for workers' compensation. The application relevantly provides;

  • the nominated injury is an injury to his right groin that occurred over a period of time;
  • the Appellant first noticed symptoms on 25 July 2014;
  • the injury was sustained from putting away loads;
  • the activity at the time of injury was "lifting, bending and loading";
  • the person to whom the Appellant had reported the injury was said to be Paul Collison, the BWS Springfield Store Manager, and he reported it on 25 July 2014; and
  • the Appellant stopped work at 2.00 pm on 25 July 2014 because of the injury.

23 October 2014  The Appellant first consulted with Professor Memon on this day. Professor Memon describes the consultation as follows (Exhibit 34):

 "Date: Thursday, 23/10/2014 8:22 AM

 Presenting Problem: Pain right groin

 Provider: Dr M.A. Memon

 History: Noticed pain on 25th July 2014 while lifting cartoons of beer

Each carton weighs between 13-16 kg

Also not just lifting but bending, squatting etc

Initially a pich [sic] but kept on lifting the loads and the pain got worse

Told the supervisor – he was told to go and see the doctor

Saw the GP the same day

Had an USS 3 days later 28/07/2014 and 22/10/2014

Pain is getting worse

Not noticed any lumps

Taking endone

Cough quite a bit due to smoking

Does not suffer from chronic contipatrion [sic] or prostatic symptoms

Examination: GIT: No obvious hernia palpable

No cough impulse

Diagnosis: Right inguinal hernia

Treatment/Plan: Emphasize that hernia can be repaired but there is no guarantee that pain will disappear as the size of the hernia is very small 8 mm x 8 mm."

This was the first occasion that any arrangement was made for the Appellant to have surgery.

6 November 2014 The Appellant attends Dr Charti where he records the following (Exhibit 74):

 "Thursday November 6 2014 16:21:48

Dr Charti Siriwattanarungsri

  1. For a medical certificate due to pain at the right inguinal area, and could not stand to work since Friday

He has not heard back from the workcover, and has not received any payment since he has been suffering from hernia

Advise: contact case manager

  1. He has recently feel [sic] stressed and depressed, which he doesnt [sic] want to do anything or going out, no suicidal idea or attempt. Feel down due to financial situation and chronic pain at the hernia.

Management:

Increase the Zoloft, and if feel pain at night, may use endone

Rev next week

Actions:

Letter Created to

Letter Printed to;

ZOLOFT TABLET 50 mg ceased

Prescription added: ZOLOFT TABLET 100 mg 1 daily

Prescriptions printed;

TRAMADOL AN SR TAB – 12 HR 150mg 1 b.d.

ZOLOFT TABLET 100 MG 1 daily."

7 November 2014 An Employers Mutual claim file note completed by Chris Argyle (Exhibit 37) contains the following:

"I was assisting to put away a load on 25.7.14 we had nearly finished doing this and I was moving a carton of beer into the cold room when I felt a funny sensation in my groin.

…

I have been off work for the last 2 weeks as the pain has gotten worse and I can hardly stand up

…

ACTION

Based on the information on file claim should be accepted especially in light of the job W does

Will request med records to confirm GP notes with causation of injury

Accept claim no reason to hole [sic] up acceptance."

11 November 2014 On this date Dr Charti records the following (Exhibit 36):

"1. Swelling lump at the right testes for one day

Having throbbing pain at the right testes for one day

Swelling of epididymis with soft consistency, size 2 cm in diamter [sic], get-above sign is positive

  1. Low back pain

Could not do many activities while waiting for an operation. No weakness or numbness

Pain at the para-spinal muscles at the lumbar levels

  1. Counselling about sterilization/vasectomy

Information (Dr. Marie) is given

  Reason for contact:

  Low back pain

  ? Epididymitis

  …"

 Dr Charti issued two Workers' compensation medical certificates on 11 November 2014. One diagnosed indirect inguinal hernia with the same stated cause of injury as the certificate issued on 7 November 2014 (Exhibit 6) and with the Appellant having no capacity for any type of work from 11 October 2014 to 12 November 2014. It is noted that the attendance was on 11 November 2014. The other certificate contains a diagnosis of indirect inguinal hernia at the right side and "mechanical low back pain": Exhibit 7. The stated cause of injury was "abdominal pain, right lower quadrant … while standing and lifting heavy goods in the workplace". Dr Charti certified the Appellant as fit for suitable duties from 22 October 2014 to 20 November 2014.

14 November 2014 The Appellant attended Dr Charti for the testicular pain and inguinal pain "which he could not stand and work as usual". The lump in his testes was smaller and he had less pain after he started taking Doxy: Exhibit 38.

18 November 2014 The Appellant told Dr Charti that the pain remains the same, and swelling is on and off, "which affects his working". He was said to be on a WorkCover plan, with no work for about the next two weeks: Exhibit 39. The Appellant is said however to have ceased working on 14 October 2014.

21 November 2014 An ultrasound performed on 21 November 2014 revealed a right epididymal head cyst with a diameter of 23 mm, consistent with a spermatocele, with no other pathology: Exhibit 40. Following this the Appellant attended Dr Charti who explained the results of the ultrasound to him and issued him with prescriptions for Tramadol and Endone: Exhibit 41.

26 November 2014  The Appellant returned to Professor Memon where his consultation note reveals (Exhibit 42):

"Date: Wednesday, 26/11/2014 4:00 PM

Presenting Problem: Pain right groin

Provider: Dr M.A. Memon

History: Very keen to undergo surgery

Got workcover approval

Examination: GIT: Still not able to feel any lump or cough impulse

Diagnosis: Right inguinal hernia based on USS findings

Treatment/Plan: Open mesh repair right inguinal hernia at St A".

As Professor Memon could not feel any lump or elicit any cough impulse his diagnosis was based on the ultrasound findings. Professor Memon explained that his recommendation was to do an open mesh repair of the Appellant's right inguinal hernia at St Andrew's Ipswich Private Hospital: Exhibit 58. The Appellant wanted to proceed that way. Professor Memon forwarded a letter to Dr Charti providing details of this attendance: Exhibit 62.

9 December 2014 By the time he attended on Dr Charti on this day the Appellant had less pain because of the spermatocele, but the swelling remained, the hernia operation had been scheduled for 12 December 2014 and his pain was well controlled. There was no re-script for medications. The medical certificate issued by Dr Charti on this day diagnosed the Appellant with an indirect inguinal hernia (two hernia in the right groin) and the Appellant had no capacity for any type of work from 9 December 2014 to 13 January 2015: Exhibit 8.

12 December 2014 The surgery performed by Professor Memon on this day is recorded as follows (Exhibit 63):

"FINDINGS

Indirect inguinal hernia and a lipoma of the cord

TECHNIQUE

Incision: Transverse groin

Procedure: External oblique incisied [sic] in the direction of superficial inguinal ring

Cord mobilized

Very small indirect sac dissected off the cord structures and reduced in the deep ring

Flat prolene mesh layed [sic] over transversalis fasicia and secured with 2/0 prolene

Closure: External oblique with 0 vicryl

Subcutaneous layer with interrupted 2/0 vicryl

Staples to skin

0.5% marcaine with adrenaline infiltrated below the external oblique and in the wound

Intra-op antibiotics given

POST-OP ORDERS

Eat and drink

Analgesia as per the anaesthetist

No heavy lifting for 4-6 weeks

Can go home today if so desire

Review rooms in 10 days for removal of staples (please provide staple removal prior to discharge)

Was informed by the anaesthetist he had had episodes of tachycardia and bradycardia during anaesthesia and with his history of anxiety and rage he will need to be investigated for pheochromocytoma."

15 December 2014 On this day Professor Memon's surgical nurse telephoned the Appellant to see how he was progressing following surgery. The record of that discussion is found in Exhibit 45:

"Date: Monday 15/12/2014 10:29 AM

Presenting Problem

Provider: Mrs Breda Memon

Treatment/Plan: Post op call placed. Patient reports feeling well, a bit sore. Patient advised to take analgesia regularly and on time. NO fever, dressings in tact, diet tolerated, bowels open. Patient booked in for post op removal of clips. Patient reassured and advised to contact practice if ther [sic] are any concerns."

19 December 2014 Dr Charti records the Appellant's attendance as follows (Exhibit 46):

 "1. Symptomatic left spermatocele

  less pain, but swelling up at spermatocele.

 On waiting list in IPH

 2. Hernia, operated on 12/12/2014

  he had had episodes of tachycardia and bradycardia during anaesthesia and with his history of anxiety and rage, he will need to be investigated for pheochromocytoma

  Pain and swelling in the right testes after the operation

  Testes: swelling lump over the upper pole of right testes, size 1.5 cm in diamter (sic], get above sign +

  Wound: swelling and some haemorrhagic scaps."

22 December 2014 The Appellant was treated by Mrs Memon and the consultation is recorded as follows (Exhibit 47):

"Date: Monday, 22/12/2014 9:15 AM

Presenting Problem:

Provider: Mrs Breda Memon

Treatment/Plan: Post op visit for removal of clips. Same done with no ill effect. Sterstrips applied. Patient also complaining of swollen testicles, already been to GP? Spermatocele. No redness on scrotum, no discharge, not hot to touch. Gp as [sic] given referral for U/S and advised patient to attend clinic tomorrow to discuss with Dr Memon."

23 December 2014 An ultrasound performed on this day was reported as follows (Exhibit 48):

"Findings: There is thickening of scrotal skin on the right side. The scrotal skin is thickened and inflamed. Testes are normal. Cyst in head of epididymis on the right side, maximal diameter 24 mm. No further scrotal mass or collection. Kidneys are normal.

Conclusion: Testes are normal. There is a 24mm diameter cyst in the head of epididymis on the right side and this may account for the palpable lump. The scrotal skin on the right side is thickened and oedematous with some evidence of inflammation on the right-sided scrotal skin. No further abnormality."

23 December 2014 Professor Memon saw the Appellant on this day i.e. 11 days after surgery. The attendance is recorded as follows (Exhibit 44):

"Date: Tuesday 23/12/14 10:20 AM

Presenting Problem: Post-operative

Provider: Dr M.A. Memon

History: 11 days post RIH repair

Right testicle bit sore

No other issue

USS – both testes normal

Right epididymal cyst 24 mm which was already present brefore [sic] surgery and patient spoke to me about it

Also keen on vasectomy

2 children

Discussed with wife

Examination: O/E: Both testicles feel normal

Right epididymal cyst

No scrotal swelling or oedema

Diagnosis: Right epididymal cyst

Treatment/Plan: Voltaren 50 mg tds for the next 7 days

Antibiotics

Will require excision of epididymal cyst and vasectomy later

Review 6/52

Diclofenac potassium 50 mg Tablets 50 mg tds For 5-7 days (20, RNil)

Augmentin Duo Tablets 500 mg/125 mg Tablets 1 tab bd For 5 days (10, R1)"

23 December 2014 The Appellant also visited Dr Charti on this day at 15:19:28 pm with the reason being depression (Exhibit 49). Dr Charti's notes state:

"1. Discussing the result.

He has seen Dr Memon, today and is advised to take Augmentin regarding the scrotum inflammation,? Infectious cyst over the epididymis

  1.  Depression and anxiety

Stemmed from workplace and situations. He has been on the workcover due to developing hernia, and has been suffering from depression, which he feels useless. He has anxiety attack and phobia to go back to work. The anxiety and depression has vastly [sic] his family, partner and relationship. He feel useless that he could not hold and carry his son as well as daughter, due to pain over the scrotum."

There is no recording of any lower back pain. The clinical notes relate to scrotal pain. The Workers' compensation medical certificate issued by Dr Charti on this day has a diagnosis of the hernia only although it is noted in the stated cause of injury that the Appellant was developing depression/anxiety and panic attack when thinking about the workplace: Exhibit 9.

5 January 2015 The Appellant attended Dr Charti for depression and anxiety. He said he felt sore on the right testes and back. He also reported that most activities at home were sitting down since October 2014. The pain referred to appears to have developed from the cyst. The Workers' compensation medical certificate issued by Dr Charti on this occasion diagnosed only the hernia whilst referring to the developing depression/anxiety when thinking about the workplace: Exhibit 10.

14 January 2014 The Appellant advised Dr Charti that he remained depressed if his pain is aggravated or he has heard about issues relating to WorkCover. Dr Charti recorded tenderness at the cyst area and his examination demonstrated tenderness over the incision scar and right epididymal cyst: Exhibit 51. The diagnosis on the medical certificate issued on this visit has a diagnosis of hernia injury but also refers to the developing depression/anxiety: Exhibit 11. According to the medical certificate, Dr Charti diagnosed depression, low back pain (provisional diagnosis) with the stated cause of injury being:

 "Abdominal pain, right lower quadrant area pain while standing and lifting heavy goods in the workplace. Developing depression/anxiety and panic attack when thinking about workplace, lack interest in work, as well as routine activities. Keep himself at home.

 After having the operation, he developed severe right testicular pain, and cyst in the testes.

 While being on the WorkCover, and after the operation, he developed right low back pain, with radiating through the right foot and numbness over the right leg."

 The self-insurer then took steps to determine any additional injuries, arranging for the Appellant to be assessed by Associate Professor Richard Williams, Consultant Orthopaedic Surgeon who saw the Appellant on 2 March 2015 and reported on 5 March 2015: Exhibit 15. The Appellant also saw Dr Wasim Shaikh, Psychiatrist, on 25 February 2015 and he provided a medical report on 5 March 2015: Exhibit 16.

21 January 2014 The Appellant saw Dr Charti who recorded (Exhibit 52) that the Appellant has testicular pain at the right epididymal cyst and that this pain was aggravating his depression. The Appellant also described low back pain which had worsened with sharp pain radiating to the right leg and a pins and needles sensation when sitting on the toilet. Dr Charti further recorded that the Appellant's depression had improved with Effexor although he has remained depressed if his pain is aggravated or he has heard about issues related to WorkCover. Dr Charti does not record any ongoing pain at the site of the hernia repair.

2 February 2015 The Appellant's attendance at Dr Charti relates to testicular pain, low back pain and depression. The Appellant advised Dr Charti that he could not hold or carry his baby due to his low back pain. Dr Charti referred him to the Princess Alexandra Hospital spinal unit advising him to have an ultrasound and to contact Professor Memon about his pain over the hernia scar and right epididymal cyst: Exhibit 53.

 The medical certificate issued on this occasion (Exhibit 12) provided:

A diagnosis of posterior and right para-central disc protrusion at L5/S1, an annular tear and broad based posterior/left para-central protrusion at T6/7.

The stated cause of the injury is said to be "While waiting for an operation for his hernia, he was not able to ambulate and only sitting/lying whole days. On 11/11/2014 he started developing low back pain and progressed to have sciatica in January 2015."

The stated date of injury was 11 November 2014 and that the Appellant was first seen for that injury on 11 November 2014.

Dr Charti also stated that the Appellant had no history of pre-existing back pain or conditions prior to 11 November 2014. This, of course, is contrary to what is contained in Dr Powell's medical report.

These same particulars were noted in the Workers' compensation medical certificates issued on 12 February 2015 and 11 March 2015.

4 February 2015 The Appellant returned to Professor Memon where he expressed keenness for further treatment. Professor Memon's notes record the following (Exhibit 54):

"Date: Wednesday 04/02/2015 2:18 PM

Presenting Problem: Right epididymal cyst

Provider: Dr M.A. Memon

History: Discoverd [sic] on USS in Dec 2014

Getting some pain

Keen on getting the cyst excised along with vasectomy

Also c/o some pain above the right groin incision

Examination: GIT: No recurrence of inguinal hernia

Groin incision healed well

GUS: Right epididymal cyst

Right testis NAD

Diagnosis: Right epididymal cyst

Treatment/Plan: Costing for excision right epididymal cyst and vasectomy."

12 February 2014 At his attendance with Dr Charti on this day the Appellant complained of feeling pain on and off at the right hernia wound and right epididymis: Exhibit 55. At subsequent attendances on Dr Charti however, the Appellant did not make any complaints about the claimed groin pain.

26 February 2015 The self-insurer sought further information from Dr Charti via e-mail on 10 February 2015 with his response on this day (Exhibit 76) being that:

  •  the contributing factors to the development of the Appellant's anxiety and depression were that the Appellant had reported the development of his anxiety and depression to be from the WorkCover process (he feels it is really slow) and that he was not on WorkCover for an injury to his right foot;
  •  when asked whether there were any external or non-work-related factors contributing to his current psychological symptoms, Dr Charti said that the Appellant's back pain may play a role in his current depression as several times he stated that he could not carry his baby due to severe back pain.

2 March 2015  The Appellant was examined by Associate Professor Richard Williams, Consultant Orthopaedic Surgeon, who provided a medical report dated 5 March 2015 (Exhibit 15). The history given by the Appellant to Associate Professor Williams was:

 "Tyson Alborough is a 25 year old male who gives a history of lower back pain which he reports occurred due to a period of inactivity required as convalescence for an inguinal hernia repair. He reports that over a period of time he experienced right groin pain until 25 July 2014 when he was found to have a right inguinal hernia. On 12 December 2014 he underwent repair of right inguinal hernia by Dr Memon at St Andrew's Hospital, Brisbane. He reported the onset of lumbar spinal pain to his local medical officer, Dr Charti of Springfield Lakes, prior to his surgery and after he ceased work in October 2014. Dr Charti suggested treatment with hot packs. After surgery he reported an increase in lumbar spinal pain after two weeks and he reported this to his local medical officer who arranged an MRI examination and the latter demonstrated bulging discs in the neck and the back. As treatment for his lower back pain Mr Alborough has been prescribed Targin and OxyContin. He has undergone two sessions of physical therapy to this stage."

 Associate Professor Williams considered that the MRI scan on 29 January 2015 demonstrated L5/S1 disc degeneration which is non-compressive and also there was mid-thoracic disc degeneration. Associate Professor Williams also stated that there was no consistent evidence of neural compression and there was also an incidental degenerative process at the T6/7 level. Associate Professor Williams also commented that the deconditioning associated with prolonged immobility may have contributed to the Appellant's current symptoms. Associate Professor Williams, in his report, stated that there was a pre-existing degenerative disc prolapse at L5/S1 and that the Appellant was deconditioned further from his usual deconditioned state as a result of peri-operative management and an inguinal hernia.

4 March 2015 Professor Memon provided a medical report to the self-insurer in response to their request dated 10 February 2015: Exhibit 67. Whilst receiving a somewhat different history to the Appellant's evidence, Professor Memon wrote that he certainly thought that the Appellant's right inguinal hernia was more likely secondary to prolonged heavy lifting in his work environment and that the Appellant had a right epididymal cyst which was present prior to the hernia surgery: Exhibit 67.

5 March 2015 Dr Shaikh examined the Appellant on 25 February 2015 and provided a medical report on this date: Exhibit 16. The history reported by Dr Shaikh is as follows:

"HISTORY OF CLAIMED PHYSICAL INJURY

Mr Alborough was diagnosed with an inguinal hernia in July 2014, after having suffered symptoms for the preceding few weeks. He advises to have suffered a 'hernia attack' in October 2014, leading to subsequent surgery in December 2014.

Mr Alborough alleges to have sustained low back pain in relation to inactivity since October 2014, and describes to have been diagnosed with bulging discs in his cervical and lumbar spine. He has received physiotherapy and has also been prescribed significant analgesic medications. He now uses Targin twice daily, OxyContin as required, Panadol and Brufen. He reports ongoing pain in his back and neck, with a severity of 8-9/10, where 10 is the worst pain he has experienced.

HISTORY OF PSYCHIATRIC SYMPTOMS

Mr Alborough mentions that his ongoing physical complaints have led to disturbance in his psychological health. In particular he reports the following:

  • Sleep disturbances - this is mainly due to pain but also due to ruminative thoughts. He states that he is not able to sleep for more than two hours each night.
  • Ongoing ruminations - that lead to agitation, anger and a feeling of sickness.
  • Bowel disturbances - is often constipated which then leads to nausea and vomiting.
  • Inconsistencies in appetite and weight - has lost approximately 15 kg over the past six months.
  • Emotional lability - reports himself to be tearful without due reason.
  • Anxiety - this leads to social isolation – he spends most of his time at home.
  • Impaired concentration - difficulties in holding a conversation.
  • Intense anger - particularly against his previous case manager - Marina.
  • Poor sexual drive - this is mainly due to pain but also due to lack of confidence.
  • Guilt - regarding being unable to spend time with his children, look after them, due to his physical complaints.
  • Reduced participation in recreation - although he does watch TV or spend time on the PlayStation all day."

Dr Shaikh wrote that there was a very prominent theme of anger and rage directed towards the Appellant's employer and the self-insurer. Dr Shaikh commented that the Appellant was extremely aggressive during the assessment and that he frequently used abusive terminology.

Dr Shaikh opined that the Appellant did not suffer with a work-related psychological injury. Dr Shaikh said that the Appellant then suffered from a psychological illness but he did not deem it to be a secondary psychological injury in relation to the Appellant's employment. Dr Shaikh, when asked to review the contributing factors to the development of any work-related conditions, reiterated that he did not see there being the presence of a work-related psychiatric condition. Dr Shaikh further stated that it appeared that the Appellant perceived a strong sense of injustice and lack of support from his employer and their insurer and that the Appellant's extreme agitation was not simply related to his physical complaints but to factors beyond that.

11 Match 2015 Dr Charti recorded pain related to the neck and lower back and no mention was made of the hernia pain: Exhibit 77.

20 March 2015 Professor Memon performed a bilateral vasectomy and excision of the right epididymal cyst. The only pain the Appellant reported to Professor Memon was pain associated with his epididymal cyst: Exhibit 68.

23 March 2015 Mrs Memon telephoned the Appellant at 11:16 AM and left a message given that there was no response. The Appellant returned the call at 11:41 AM reporting that his pain was under control, that he had no fever and that the swelling had subsided. The pain referred to was related to the vasectomy surgery and not pain associated with the hernia repair. A post-operative appointment was made for 1 April 2015: Exhibit 70.

26 March 2015 The Appellant attended Dr Charti with his wife complaining about low back pain. He was said to feel angry, anxious and depressed especially when talking to the WorkCover case managers. It is reported that he "even punched the wall at home, and her children are afraid of getting near him when he was angry". A certificate was given to enable his wife to speak with the "WorkCover people".

15 April 2015 The post-operative appointment with Dr Memon scheduled for 1 April 2015 was rescheduled to this day: Exhibit 71. This appointment was also cancelled with the telephone attendance recorded as:

 "Date: Wednesday 15/04/15 11:59 AM

Presenting Problem:

Provider: Dr M.A. Memon

History: Appt on 15/04/2015 @ 12:30 PM – APPT CANCELLED BY PATIENT – Post Op Appt for Vasectomy – Patient's partner Hannah called and cancelled patient's appointment as he is sick in bed and unable to come to the phone. Will call to reschedule tomorrow."

The Appellant never attended Professor Memon's practice to be reviewed. His appointments were cancelled after he had given advice to Professor Memon's practice that his pain had improved.

22 April 2015 No mention is made at this attendance with Dr Charti of ongoing hernia pain: Exhibit 79.

7 July 2015 The Appellant having been referred to Dr Andrew Byth, Psychiatrist, by his solicitors attended on Dr Byth with Dr Byth providing a medical report dated 9 July 2015: Exhibit 17. The history recorded by Dr Byth is as follows:

"1.4 Tyson Alborough complained of 2 injuries at work: a shoulder injury in 24/6/13, and an inguinal hernia injury on 25/7/14, the latter of which also caused a lower back injury.

…

  1. History from Examination – Second Injury 25/7/14

3.1 Regarding the second hernia injury in 2014, he was 'carrying cartons of drinks into the coldroom, and I slipped on the icy coldroom floor, and I developed a stabbing pain in my right groin which was distressing'.

3.2 When his shift finished, he saw his employer's Doctor, and he recalled 'being sent for an ultrasound test which diagnosed an inguinal hernia; and I tried to keep working - the pain from the hernia was severe, and it gave me secondary lower back pain'.

3.3 About 5 months later, he underwent a surgical repair of the hernia, and he was 'noticing worsening back pain after surgery, and an MRI scan showed a bulging L5-S1 disc; and I was unable to return to work'.

3.4 He was then 'on workers compensation payments for 7 months, until they stopped in April 2014 [sic] - I was upset that I could no longer support my family, and we were living on my partner's parenting payment, like WorkCover had cut me off'."

In his medical report Dr Byth reported that following the injuries at work in 2013 and 2014, the Appellant was distressed that his medical conditions were slow to be finally diagnosed and treated and that he could not return to heavy store work and retailing work. Dr Byth also reported that the Appellant was upset that he was less able to help around the family home and the increased burden that placed on his partner. The Appellant was also distressed that he could no longer play with his children and had to give up his previous pastimes of fishing, 4-wheel driving and riding a motorcycle.

Dr Byth opined that following the injuries in 2013 and 2014 the Appellant has been suffering from an adjustment disorder with anxiety and depressed mood. This psychiatric condition was caused by his difficulty coping with pain from his injuries along with insomnia and restriction of physical activity. The Appellant was upset that his injuries were not compatible with his continuing heavy labouring and retailing work and he disliked being inactive and unable to support his family financially.

Dr Byth agreed with Dr Shaikh's diagnosis of adjustment disorder however disagreed with Dr Shaikh's contention that the condition was not work related. Dr Byth thought that the Appellant's anxiety and depression were caused by his difficulty coping with work-related injuries to his left shoulder and right groin at work, as well as the consequences of these injuries, including his reduced income and he now being virtually unemployable. Dr Byth also thought that Dr Shaikh had underestimated the effect of the Appellant's injuries.

15 September 2015 The Regulator issued its review decision which confirmed the self-insurer's decision to reject each of the Appellant's claims for compensation.

4 December 2015 The Appellant's Statement of Facts and Contentions for the back injury were filed in the Industrial Registry by the Appellant's Solicitors on this day claiming:

"4. On 25 July 2014, the Appellant was carrying cartons of drinks into the coldroom when he slipped on the icy coldroom floor.

  1. Immediately upon landing on the floor, the Appellant experienced a stabbing pain in his right groin and lower back."

It was also alleged that after the hernia repair, there was an extended period of inactivity and the Appellant reported an "increase" in low back pain after two weeks.

8 January 2016 The Appellant's Solicitors referred the Appellant to Dr Gerard Kilian, Orthopaedic Surgeon. The letter of instruction to Dr Kilian (Exhibit 60) recorded the following history:

"On 25 July 2014, our client was assisting to put away a load. While our client was moving a carton of beer into the cold room, he felt pain in his groin and lower back.

Our client attended his GP who referred him to have an ultrasound on his right groin area. He was diagnosed with right side inguinal hernia.

There does not appear to be notes in respect of the back injury.

Five months after the subject injury, our client underwent an operation for the hernia. Following the operation, our client was required to undergo a lengthy period of inactivity as convalescence for the inguinal hernia repair.

In November 2014, our client reported to his GP, Dr Charti Siriwattanarungsri about an increase in lower back pain while waiting for the operation. Following the operation, especially during the convalescent period, our client noticed an increase in the lower back pain. A subsequent MRI scan showed a bulging L5-S1 disc."

Included with that letter of instruction was Dr Powell's medical report (Exhibit 25). Further, there was no history of any slip and fall and this letter was written shortly after the Statement of Facts and Contentions were filed.

1 April 2016 Dr Kilian's report (Exhibit 18) provides as follows:

"On 25 July 2014 Mr Alborough was unloading pallets. He was carrying cartons of beer in both of his arms. These are noted to weigh between 13 and 16 kilograms.

Mr Alborough pushed the door open with a carton of beer and as he stepped forward with his right leg and his foot slipped slightly forward. He jammed his foot into the floor to regain his footing and felt a stabbing pain in his right groin. This pain was constantly present and increased over the next two hours. He developed a limp and also found it hard to breathe and left work to attend a doctor. At this time, it was noted that there was swelling present in his groin and he had some tingling with a shooting pain into his stomach and there was also numbness in the front of his thigh. He had also developed some back pain at this point.

He states that the doctor prescribed analgesia for him and he was placed off work duties for four weeks whilst he awaited a scan. He returned to the doctor and was told that he had a hernia. He then returned to work on light duties for two days and then increased this to full duties, as his employer could not accommodate light duties."

Dr Kilian reported that the MRI scan conducted on 29 January 2015 confirmed L5/S1 disc protrusion, but saw the issue of causation as being complex. Dr Kilian noted that degenerative change in the lumbar spine is commonly constitutionally and naturally developing but then referred to the fact that the Appellant was only 26 years old. Dr Kilian then stated that it was more likely that the Appellant has suffered an acute disc protrusion. Dr Kilian opined:

"On the balance of probabilities, taking into consideration Mr Alborough's age and the fact that he reportedly felt pain at the time of the accident, the 25 July 2014 injury at work contributed to the disc protrusion that is evident on imaging and therefore contributed to the present symptoms. The mechanism of injury likely included spinal twisting and extension as well as raised intra-abdominal pressure. The deconditioning likely increased the symptoms further.

There is however, one episode of pre-existing back pain in the medical records and a subsequent note was made in November after the injury of back pain as well. It is also likely that the period of immobilisation after surgery contributed to the aggravation of his symptoms. A degree of physical deconditioning took place, as previously stated and the psychological issues further contributed negatively to the pain."

In expressing this opinion, Dr Kilian was of the view that the Appellant's disc protrusion occurred on 25 July 2014 (at the same time as the hernia incident) and the deconditioning simply exacerbated the symptoms. Dr Kilian also agreed that the underlying degenerative condition could explain the onset of symptoms experienced by the Appellant in November 2014.

29 April 2016 An Amended Statement of Facts and Contentions was filed by the Appellant's Solicitors alleging:

"4. On 25 July 2014, the Appellant was carrying a carton of drinks into the cold room when he skidded on the cold room floor. The Appellant was required to carry the carton of drinks with both hands and so he was unable to see the state of the cold room floor, which had moisture on it. The Appellant twisted his back and tensed his abdominal muscles. The cold room floor was slippery. The Appellant slipped and injured himself in preventing his fall.

  1. The Appellant experienced a stabbing pain in his right groin. The Appellant had some pain in his back but the pain from his groin was excruciating and made the back pain seem quite minimal."

That history is different to the one recorded by Dr Kilian as the element of twisting to the back is introduced. The Regulator suggests that the change is now significant. The Amended Statement of Facts and Contentions also notes an increase in low back pain coinciding with "the decrease in pain levels from the hernia operation" which the Regulator asserts can readily be interpreted as the Appellant asserting that his hernia pain decreased after the operation.

It is also noted in that Amended Statement at paragraph 19 that "prior to October 2014, the Appellant did not have any issues with lower back pain".

In the Amended Statement of Facts and Contentions filed in respect of the psychiatric injury, the Appellant refers to the injuries sustained on both 24 July 2013 (left shoulder) and on 25 July 2014. It is thus claimed that following the workplace accidents, especially the one of 25 July 2014, that the Appellant was "forced to stop working" and thus decompensated: paragraph 21. In this Amended Statement of Facts and Contentions the Appellant asserted that his psychiatric injury arose as a result of the physical injuries and their consequences.

The replies made to the Regulator's Statement of Facts and Contentions contend that:

  • the Appellant's psychiatric injury was said to be secondary to the impact of his hernia/back;
  • the Appellant's claim for his left shoulder injury had been finalised;
  • in his statutory claim for compensation for the hernia injury, the Appellant had never described a slip and fall and/or a slip;
  • the Appellant had never lodged an application for compensation for a back injury, the claim being determined as secondary to the accepted hernia injury;
  • any pain suffered by the Appellant and his consequent consumption of medication is not because of the compensable injury suffered by him;
  • the Appellant has not been left with an ongoing incapacity because of the incident on 24 June 2013 (the left shoulder injury) that can cause or contribute to the claimed secondary psychiatric injury; and
  • the Appellant did not have a compensable lower back injury and/or that lower back injury would not have contributed to the secondary psychiatric injury.

20 April 2017 The self-insurer also referred the Appellant to Professor Michael O'Rourke, General Surgeon, who provided a report dated 20 April 2017 (Exhibit 21). Professor O'Rourke expressed the opinion that as a consequence of the hernia surgery, the Appellant has developed chronic post-surgical pain which is severe and prevents him from working and performing many of his activities of daily living. According to Professor O'Rourke the treatment of the condition is extremely difficult and is mainly associated with pain relief and waiting for a hopeful spontaneous remission.

The history recorded in Professor O'Rourke's report does not provide much detail other than to record that the Appellant whilst putting a carton of beer into the cold room, experienced severe right-sided groin pain. Otherwise the history of the hernia pain is noted as follows:

"INITIAL TREATMENT

On 12 December 2014, Mr Alborough underwent a repair of a right sided inguinal hernia by Professor Ash Memon, General Surgeon. Prior to the operation Mr Alborough had had severe pain, and post operatively he had a very different severe pain which has persisted."

Professor O'Rourke opines that the Appellant has two pathologies i.e. "he has a chronic post surgical pain (CPSP), which is a neuropathic pain and appears particularly after mesh surgery. It also [sic] more common in patients with severe pre-operative pain. The pain undergoes spontaneous remission in the majority of cases though in those where it persists longer, it is a more difficult situation, and a severe back pain."

 Professor O'Rourke noted that the Appellant was unable to work with his degree of whole person impairment.

[14] I do not intend to repeat the evidence contained in the abovementioned Chronology.  I will however deal with the additional oral evidence of witnesses and the various documents introduced into evidence through those witnesses. 

[15] Appellant's Evidence:  The Appellant, according to his oral evidence, said that on 25 July 2014 he was in the BWS store loading a pallet out the front into the cold room and he walked in holding the box.  He said he kicked the door open and took a step inside and he slightly slipped.  He then pressed his weight down to re-gather his footing and felt a sharp stabbing pain in his right groin.  He said he was holding the carton of beer out in front of him, to the right side of his groin.  When he took a step with his right foot he felt a burning pain.  The Appellant finished putting the load away and reported the incident and then went to see a doctor at the Springfield Medical Centre.  After seeing the doctor he went back to work and then returned home.  He had been given a shot of morphine by the doctor and this made him feel sick.

[16] On the following day he saw Dr Charti, his regular GP at the Stellar Medical Centre.  Dr Charti's records reveal that the Appellant saw him on 25 July 2014 so the incident itself must have occurred on 24 July 2014.  Dr Charti sent him for an ultrasound and he returned to Dr Charti to be advised of the results of the ultrasound.  Dr Charti gave him a medical certificate:  Exhibit 4.  The Appellant said that he started taking painkillers in July 2014.  Dr Charti provided the Appellant with various medical certificates during the relevant period:  see Exhibits 5 – 11.

[17] The Appellant stated that prior to this incident he had started to come good after the shoulder injury in 2013.  He said he was back to his normal fitness level.  The Appellant's evidence was that he was on "light duties" after 25 July 2014 as he was heavily medicated and could only stay for an hour at a time and then he would leave work.  He ultimately ceased work on 14 October 2014 following the hernia attack stating that he just could not do it any more.

[18] The Appellant said that prior to the hernia operation in December 2014, the pain was "very bad – he was in quite a lot of pain".  His hernia was very painful.  He then clarified that by saying that it was the hernia and his back "so it was the front and the back of me that was hurting prior to the operation".  It was noted that when he was indicating where the pain he was experiencing was, the Appellant indicated an area that went higher than the belt area and he said that his "backpain was all through his lower back, just above his belt".  He then clarified that by saying that the pain in the back was above his belt, and the pain in the front was below his belt and that the groin pain was below his pant line on the right side.

[19] After Professor Memon did the hernia operation, the Appellant said that the burning, stabbing and pain sensation in his groin had gone but his back was still hurting.  He said that he was told it was just normal pain after an operation.  The hernia incision was four to five inches and runs at 30 degrees to 45 degrees towards the middle of his body from the outside.  The Appellant says that, at the site of the incision, he has always had pain, that it has never gone away - it is a dull throbbing pain in his groin.  He assessed the pain level as 5/10.  If however there is any kind of pressure placed on the scar his pain level was 10/10.

[20] Professor Memon also removed a cyst from the Appellant's right testicle and performed a vasectomy on the Appellant three months after the hernia surgery.  During his examination-in-chief, the Appellant said that he found out about the cyst after the hernia operation saying the cyst was not painful.  The Appellant confirmed this under cross-examination.

[21] The Appellant further confirmed that he had seen Profession Williams on 2 March 2015, Dr Shaikh on 25 February 2015, Dr Byth on 7 July 2017 and Dr Kilian on 22 January 2016.  He confirmed the history recorded in the various medical reports as being the information he gave to the various experts.  He did however note an error in Dr Kilian's report.  Dr Kilian reported that the Appellant told him that he experienced back pain at the same time as the hernia incident.  The Appellant said that the back pain started about three weeks prior to the hernia surgery in December 2014.

[22] The Appellant gave evidence that "prior to all this" he was the "happiest person you could think of".  He said he had plenty of friends and was a social outgoing person.  He said he was that "loud, laughable bloke at a party" and with all his friends.  He said that changed after the shoulder incident in 2013.  He said he started to feel "useless" as he had just had a daughter and he could not do things with her and could not be a father to her.

[23] The Appellant said that he was prescribed Lovan and it helped him initially.  He was then prescribed Effexor prior to the hernia incident which had been increased from 50 to 150 milligrams over the time.  Following the hernia incident, his medication was further increased.  The prescribing of medication was done by his GP, Dr Charti, and Dr Himali Athuraliya at the Stellar Medical Centre.  The Appellant said that his emotional state got worse after the hernia incident as he felt "useless" as he could not do anything.  He said he wondered what "was the point".  The evidence is, however, that the Appellant continued to work at BWS performing full duties until 14 October 2014.

[24] This is when the Appellant started to feel suicidal.  He said that his back made him suicidal.  It was too much for him.  He said he felt "useless and worthless".  He said he tried to kill himself.  This was around the Christmas period in 2014 and he attempted to drive at a tree at 200 kilometres an hour on more times that he could "remember".  He clarified that by saying it was four or five times and he told no one about them at the time.  The location of the tree was at Cedar Road in Redbank right before the quarry where there is a big tree right next to the gates and a long straight road.  The Appellant said that the road was long and straight and enabled him to drive fast enough.  The Appellant never collided with the tree as he stopped on each occasion.  It is to be noted that the hernia surgery was on 12 December 2014 and the Appellant was either speaking with, or seeing, Professor Memon and/or his nurse on 15 December, 22 December 2014 and 23 December 2014 and Dr Charti on 19 December and 23 December 2014.  Nothing in any of the reports of those discussions and/or consultations would suggest the Appellant was suffering such severe physical pain warranting him attempting to take his life.  The suicide attempts have not been mentioned to any of the medical practitioners that saw him around this Christmas period.

[25] The Appellant said it was after the back started hurting that he wanted to kill himself.  He said he was experiencing pain at a level 10 whereas his pain level in the witness box was an 8 or 9.  He said his memory was disgraceful and he put that down to painkiller abuse and "all of this".  He said he tried to put his emotional state down to "this experience what I've been through.  The pain I've been, the mental torment I've gone through".  He then referred to both the physical and mental pain he had gone through and when asked where the physical pain was he responded "the back and the groin area".

[26] The Appellant said that he became "extremely violent" with the side effects of the medications saying that is why he doesn't take them.  He said that none of the anti-depressants helped him.  He further stated that the medications burnt holes in his stomach and he now has chronic stomach pain all the time.

[27] In the period post the hernia surgery, the Appellant said that the hernia pain did not go away and his back was just in agony.  He said he was heavily medicated just after the hernia operation and thus had little or no level of concentration.  He said he was so doped up he was "addicted to Endone".  He further stated that he lost his libido for a period of three years and was just finding it again.  He also gave evidence of a feeling of guilt that he was not a father to his children saying "what kind of piece of shit is that".  He also feels guilty that his wife has to do everything and that deprives her of a life given that she has to help him at all times.  He said that his children are going to grow up "fucked" because they "don't know what it is like to have a dad", that as children "they've just got some angry prick on the couch".

[28] Under cross-examination, the Appellant was asked whether, prior to November 2014, he had experienced any episodes of back pain throughout his life.  His initial response was "no, not that stopped me from working".  When it was suggested to him that he attended Dr Payervand for back pain on 28 November 2011 advising the doctor of a history of low back pain from recent heavy lifting, the Appellant said he could not remember.  Dr Payervand's medical notes containing that statement is found at Exhibit 23.

[29] It was further put to the Appellant that on 20 March 2013 (two days after) he saw Dr Athuraliya where the Appellant gave him a more extensive history i.e. that he had woken up on the previous Friday morning with a sore back and the pain was on the right-hand side and it was radiating to his right leg.  The Appellant had told the doctor that there had been no injury:  Exhibit 24.   The Appellant said he could not remember.  He further stated that he did not remember his back ever hurting to stop him from working before November 2014.  It was suggested to the Appellant that he suffered in 2013 from a quite serious back injury because he had pain radiating into his right leg.  The Appellant responded "okay". 

[30] The Appellant was then asked whether he recalled seeing Dr Gerard Powell, an Orthopaedic Surgeon.  He did recall being examined by Dr Powell on 26 July 2013.  The history provided by Dr Powell was that the Appellant advised him on this occasion that he had previously taken Mersyndol for "longstanding lower back pain".  The Appellant said he disagreed.  It was further suggested to the Appellant that he told Dr Powell that Mersyndol did not help with his shoulder pain because he had previously taken Mersyndol for lower back pain and he was familiar with the medication.  The Appellant said he did not recall saying this to Dr Powell.

[31] The Regulator then provided the Appellant with a copy of Dr Powell's medical report which had been utilised in his shoulder injury claim for workers' compensation:  Exhibit 25.  In that medical report Dr Powell comments:

 "… His local doctor changed his mediations to Mersyndol and an anti-inflammatory.  He reports that he has previously taken Mersyndol for longstanding lower back pain but he did not find it helped his shoulder pain…

 … He reports that he has had lower back pain for the last three years with occasional radiation of pain down in to the right leg.  He reports that his weight is currently 146 kg and that this has increased from 130 kg a month ago.  He is a smoker since the age of 13…"

[32] It was then put to the Appellant that he had suffered from back pain which had radiated into his right leg prior to the hernia incident and he responded that what Dr Powell stated was not correct.  The Appellant agreed that he had been in receipt of Dr Powell's medical report for some time and had never challenged the history contained in that report.  The Appellant's response was "I've never had back pain.  Like, I've never had back pain".

[33] Dr Charti on 28 July 2014 had told the Appellant that, if he suffered pain as a result of the hernia, he should go to an emergency department.  At no time prior to 14 October 2014, or at any time thereafter, did the Appellant have to attend an emergency department.  The Appellant agreed that when he saw Dr Athuraliya on 15 September 2014 he never mentioned he was having pain with the hernia.  He did however tell the doctor that the Lovan was not helping his anxiety and that he wanted to try a different medication and the Appellant agreed with that note of Dr Athuraliya.  He did not, however, agree that he told the doctor that he was not getting on with his new manager and that that had contributed to his anxiety.  He disagreed that he told the doctor that was the reason that was causing his problems at the time:  Exhibit 29. 

[34] When he went to the Ipswich Hospital Emergency Department on 14 October 2014 he told them that the hernia occurred two months previously but that he only had the sudden onset of sharp stabbing pain to the right groin recently.  The Appellant disagreed with that part of the Ipswich Hospital report saying that he had the pain the whole time.  The Hospital Records (Exhibit 80) also revealed that the Appellant said that he had not taken any pain relief for the hernia.

[35] The Appellant agreed that he had visited Dr Charti earlier on 14 October 2014 telling him of the pain he was suffering and the swelling of the hernia that morning.  Prior to that time he had no treatment for the hernia - the Appellant disagreed.  He said that previously he had been taking a lot of pain medication.  This does not accord with the account given to the Ipswich Hospital later in the day.  Nor does it accord with Dr Charti's clinical note of 14 October 2014 (Exhibit 3) that the Appellant told him that he was off painkiller medication and he was refusing to take them.  The Appellant said that he had refused to take painkillers a lot depending on how he was feeling as the painkillers caused problems with his stomach.

[36] The Appellant subsequently went to Dr Charti seeking a Workers' compensation medical certificate and the first such certificate was issued by Dr Charti on 20 October 2014.  That was issued as a result of the Appellant advising Dr Charti that his hernia symptoms were aggravated while working.  It was then put to the Appellant that up until October 2014 he remained employed with BWS.  The Appellant responded "on light duties".  It was put to him that he remained at BWS performing his normal duties and the Appellant responded "incorrect".  The Appellant could not advise the Commission how he got to be on light duties as the first Workers' compensation medical certificate was only issued on 20 October 2014.

[37] The Appellant responded that the employer put him on light duties and sent him to a different store to do those light duties.  The Appellant was then referred to his visit to Dr Kilian where he advised Dr Kilian that the employer had no light duties for him to perform.  He said that he stopped working shortly after the hernia incident.  The Appellant was then referred to the fact that he told Dr Kilian that he was on light duties for two days and then he was back on full duties.  The Appellant said he didn't believe that was correct. 

[38] It was put to the Appellant that he continued performing his full normal duties for BWS up until 14 October 2014 and he responded that that was incorrect.  Given that no workers' compensation application had been lodged in respect of the hernia incident until 3 November 2014 (signed by the Appellant on 22 October 2014) relying on a Workers' compensation medical certificate issued on 20 October 2014, I prefer the account outlined in Dr Kilian's medical report i.e. that the Appellant worked a couple of days on light duties and then he returned to work at BWS on full duties up until 14 October 2014.

[39] The Appellant agreed that the first time he saw Professor Memon was on 23 October 2014 and that he gave him a history that he had noticed pain on 25 July 2014 when lifting cartons of beer.  When it was suggested to him that he did not refer to any bending and squatting in addition to the lifting, the Appellant's response was that was part of the loading and unloading process:  Exhibit 34.  At that appointment the Appellant agreed that Professor Memon told him it was a very small hernia and that he relied upon the ultrasound to identify the hernia as it could not be identified in an examination.  It was then put to the Appellant that Professor Memon told him that surgery may well not take away the pain that he was describing:  Exhibit 35.  The Appellant said that was untrue.  The Appellant said that Professor Memon "guaranteed" to him that the pain would disappear.  The Appellant said that Professor Memon told him that after the operation, the pain that he was feeling, the burning and stabbing pain, would go away.

[40] It was at this time that I raised with the Appellant the fact that he was disputing the records of a number of the medical experts as Professor Memon had stated in his clinical notes that "I emphasised the hernia can be repaired but there is no guarantee that pain will disappear as the size of the hernia is very small, eight millimetres by eight millimetres".  The Appellant then responded "well I may have misunderstood" then "I apologise".  I then referred the Appellant to his earlier evidence which was quite emphatic that he was guaranteed no pain after the operation and the Appellant responded "No, he told me that it would clear up the pain", that "is my understanding".  In this regard I prefer the evidence of Professor Memon and his clinical notes and medical report i.e. that he warned the Appellant that the surgery may not take away the pain because of the small nature of the hernia.

[41] I then pointed out to the Appellant that the medical experts are taking notes at the time of the consultation and then writing their reports whereas he was attempting to recall conversations that occurred some four years previously.  I indicated to the Appellant that it was difficult for me to accept that a number of the medical experts in their medical reports were wrong in recounting the history provided by the Appellant.  I then suggested to him that if he could not recall he should say so rather than saying something quite different like "he guaranteed".  In Professor Memon's correspondence with Dr Charti dated October 2014 (Exhibit 35) he confirmed the information provided in his clinical notes:

 "GIT examination did not reveal any obvious hernia, and certainly, I could not feel any cough impulse, suggestive of hernia.  I appreciate that, however, he has been diagnosed with right indirect inguinal hernia based on his ultrasound finding.  Clinically as there is no hernia my big concern is that even if I repair this hernia, this pain may not be cured by the surgery".

[42] The Appellant then had an injury to his right foot which caused him to visit his GP on 1 October 2014 complaining of ongoing pain:  Exhibit 30.

[43] The Appellant was given another opportunity to respond to the fact that it was only after 14 October 2014 when his hernia became worse, that he stopped doing activity.  The Appellant responded "no, I stopped doing activity in July and worked light duties" and then in October 2014 he ceased all activity because it got much worse.

[44] It was then suggested to the Appellant that the cyst was evident to him prior to the hernia operation.  His response was that he could not remember.  He said he only remembered finding it after the operation although the doctors say that it was there before the operation.  He did not recall going to his GP about it and then being sent for tests about the cyst - all prior to the hernia surgery.  Yet the Appellant was very clear about when he told the doctor about his low back pain saying that when he is in pain he goes to his doctors and tells them about it.  This evidence is relevant when considering the Appellant's claims about "severe low back pain" at a later date.

[45] The Appellant agreed that he visited Dr Charti on 11 November 2014 where he complained of swelling and a lump at the right testes that he had noticed the previous day and that he was having "throbbing pain".  The Appellant's response was he did not remember exactly.  At this time the lump was the size of two centimetres.  This was the same size lump that the Appellant, in examination-in-chief, had said he first noticed after the hernia operation.  On this visit the Appellant also spoke to Dr Charti for the first time of low back pain. 

[46] The Appellant ultimately agreed that the first time that there had been any mention of an operation for his hernia was when he saw Professor Memon on 22 October 2014.  It was not until after this consultation that any arrangements were made for an operation for his hernia.  Once again the Appellant's memory of events was not reliable indicating frequently that he could not remember things.  He agreed that it was not until after the bad attack of pain from the hernia on 14 October 2014 that the hernia operation was organised.  It was not until after that date that he made an application for workers' compensation benefits in respect of the hernia. 

[47] The Appellant said he had no memory of any discussion with Mr Argyle from the self-insurer which occurred on 7 November 2014.  His response to all cross-examination questions with respect to Mr Argyle's note (Exhibit 37) was "I have no memory of Argyle".

[48] The Appellant said that he had a "little", "very minute" pain with the cyst.  This is in circumstances where he reports to Dr Charti that he has "throbbing pain of the right testes for one day".  The Appellant then said it was a "dull throb.  It wasn't painful but there was a lump on my testicle.  So any male would sort that out".  The Appellant said it was not an excruciating debilitating pain but he knew it was there.

[49] It was put to the Appellant that on 14 November 2014, he told Dr Charti that he was complaining about his testicular pain and his inguinal pain" and he agreed to that.  He told Dr Charti on this occasion that he could not stand and work doing his usual work and the Appellant agreed with that suggestion.  He further agreed that he mentioned to Dr Charti that he had been staying and sitting at home during the previous two days i.e. the 12and 13 November 2014.  Dr Charti then sent him for some blood tests to assist in a diagnosis of the cause of the cyst.  The Appellant failed to get those blood tests and could not remember why he chose that course.

[50] The Appellant was referred to Dr Charti's clinical note of 18 November 2014 where it is noted that the Appellant told Dr Charti that "he is in the workcover plan for no work for about next two weeks".  The Appellant could not remember anything about the visit to Dr Charti on this date.  The Appellant could not remember whether it was after this consultation with Dr Charti that he ceased performing any work duties. 

[51] The Appellant could not recall having Dr Charti advise him of the outcome of the ultrasound on his scrotum on 21 November 2014:  Exhibit 40.  Further, he could not recall what Dr Charti relayed to him about the results of the ultrasound:  Exhibit 41.

[52] The Appellant agreed that he returned to see Professor Memon on 26 November 2014 when he expressed keenness to undergo the surgery for the hernia:  Exhibit 42.  Further, the Appellant could not remember seeing Dr Charti on 9 December 2014 where he advised that he was experiencing less pain in connection with the cyst but that the swelling had gone up:  Exhibit 43.

[53] The Appellant had no recollection of complaining of swollen testicles when he visited Dr Charti on 19 December 2014.  This visit was some seven days after the hernia surgery.  The Appellant could not remember whether he told Dr Charti on this occasion that he had less spermatocele pain.  Dr Charti's clinical notes for this day indicate that the Appellant had already made arrangements with Professor Memon to have surgery on the cyst and the vasectomy as the records reveal he was on the Ipswich Hospital's waiting list for that surgery.  The Appellant also could not remember being advised by Professor Memon to contact his rooms if he had any concerns following the procedure:  Exhibit 45.  I accept that the Appellant was advised by Mrs Memon to contact Professor Memon if he had any concerns following the hernia surgery. 

[54] The Appellant could vaguely remember the discussion with Professor Memon about being booked in for the epididymal cyst.  He could recall an ultrasound being done on his testes and this ultrasound occurred after the hernia surgery i.e. on 23 December 2014:  Exhibit 48.

[55] The Appellant could not remember the follow up with Professor Memon's surgical nurse on 22 December 2014 although he remembered having the clips removed.  The Appellant could recall, in terms of consultations with Professor Memon and/or his surgical nurse, very little following the hernia surgery.  The Appellant recalled seeing Professor Memon for the vasectomy and the cyst removal. He could recall telling Professor Memon that there was pain over the side of the surgical scar after the surgery.  When the Appellant saw Professor Memon on 23 December 2014, he complained to him that the right testicle was a bit sore but that he had no other issues.  He did not tell Professor Memon on 23 December 2014 that he had a new pain at the surgical scar and he did not complain of low back pain.  The Appellant responded that he had just had an operation and it was sore but he could not recall the exact conversation with Professor Memon.  There was however no burning pain or anything like that - that had gone away. 

[56] It was then suggested to the Appellant that he had a bit of tenderness because he had just had surgery.  The Appellant responded "yes, and the tenderness has never really gone away".  The Appellant said that it remains very tender over the area and if it is touched it is extremely painful, it has always been there - just a "dull dullness".  It was further suggested to the Appellant that when Professor Memon was examining the hernia area and was prodding the area post surgery, that he didn't have an extreme reaction to that and the Appellant's response was "I don't remember". 

[57] Mrs Memon's account of the Appellant's visit on 22 December 2014 when he had the clips removed was "Same done with no ill effect".  The Appellant could not remember whether or not he complained at this time about the "excruciating" pain he was experiencing.  Certainly there is nothing in Mrs Memon's note of the visit or of Professor Memon's note of the Appellant's visit on 23 December 2014 which would suggest that the Appellant was experiencing "excruciating" pain.  On 23 December 2014 the Appellant's concern was with his cyst rather than the after effects of the hernia surgery when one considers Professor Memon's clinical notes.

[58] In any event it would appear that the Appellant was not overly concerned about any pain he was experiencing at this time as he was consulting Professor Memon eleven days after the hernia surgery about the vasectomy surgery and the cyst removal.  This surgery was performed in March 2015.  

[59]] The Appellant saw Dr Charti on 23 December 2014 wherein Dr Charti explained to him the results of the ultrasound on his cyst.  The ultrasound had only been performed on the same day.  This is eleven days after the hernia operation.  At this time it is obvious that the Appellant's pre-occupation was with the cyst and not any low back pain. 

[60] On this occasion the Appellant could not remember speaking to Dr Charti about the depression and anxiety that he was experiencing.  He could recall telling Dr Charti that he felt "useless".  The Appellant further did not recall telling Dr Charti of the impact this was having on him being unable to hold and carry his son and daughter.  Further, the Appellant agreed that he told Dr Charti on this occasion that his depression and anxiety were because of the pain he was having over his scrotum. When it was suggested to the Appellant that the pain he was having over his scrotum related to the pain from his cyst, he said he did not remember:  Exhibit 49.  He responded that the pain in his testicles was next to nothing when compared to the pain of the hernia.

[61] These medical consultations were occurring around the Christmas 2014 period when the Appellant had given evidence of being suicidal because of back pain.  He visited Dr Charti on 23 December 2014 and Dr Charti's records indicate that he was having problems walking because he had a "sore on the right testes" and his "back".  The Appellant agreed that it had nothing to do with pain over his hernia scar "on this day":  Exhibit 50.

[62] The Appellant again saw Dr Charti on 14 January 2015 where he was again complaining about the testicular pain at the right epididymal cyst:  Exhibit 51.  He agreed that he again saw Dr Charti on 21 January 2015 and the Appellant accepts that he told Dr Charti about the pain in his right epididymal cyst that was causing him a lot of problems.  The Appellant further agreed that he told Dr Charti on this occasion that this pain was aggravating his depression.  The Appellant further agreed that he complained about his low back pain radiating to the right leg.   He agreed that he also spoke with Dr Charti about the depression and that he would get very angry as soon as there was any issue to do with WorkCover.  The Appellant further complained that he had lodged an application for workers' compensation in respect of his foot injury and that it had been rejected.  The Appellant could not remember being angry at the outcome of that claim.

[63] The Appellant agreed that as soon as he spoke about anything regarding work and WorkCover it would set him off and make him lose his temper:  Exhibit 52.

[64] The Appellant did not remember seeing Dr Charti on 2 February 2015 where he referred to pain in the area around his cyst.   On 4 February 2015, on a visit to Professor Memon, he advised Professor Memon that he wanted the cyst removed at the same time as the vasectomy and Professor Memon provided him with costings for that:  Exhibit 54.  The Appellant did not remember what he told Professor Memon about the pain he was then experiencing:  Exhibit 55.

[65] It was then suggested to the Appellant that he never described to Professor Memon that he had severe pain at the site of the surgery.  The Appellant said that he did remember telling Professor Memon that he had a pain over the scar and Professor Memon responded "That's normal.  You've just had an operation".  I suspect that this discussion occurred at the visit to Professor Memon to have the clips removed or the visit the following day i.e. on 22 or 23 December 2014.  Further, it was suggested to the Appellant that later on in the lead up to the vasectomy he did not tell Professor Memon that he had a different type of pain over the location where the hernia surgery had been performed.  Once again the Appellant could not remember.  Again it was suggested to him that he never told Professor Memon that he had this ongoing pain that was different to what he had experienced prior to the surgery.  The Appellant could not remember.

[66] At a visit to Professor Memon on 11 February 2015, the Appellant was concerned with the epididymal cyst and the vasectomy surgery.  At this time it was suggested to the Appellant that he had never said to Professor Memon that he had a different pain that was developing and it was excruciating.  The Appellant responded that he didn't mention that as he was seeing Professor Memon about the cyst and the vasectomy surgery.  He said that he did not raise with doctors any pain that he was not there to see them about i.e. that he only talks to the doctors about the pain he is going to see them about and not other pain.

[67] When I questioned the Appellant about his previous response he then said he did not remember whether he told Professor Memon that he was experiencing different pain that was excruciating.  I intend to rely upon Professor Memon and his surgical nurse's clinical notes as to what the Appellant conveyed to him during the period October 2014 to March 2015.

[68] The Appellant agreed that when he saw Dr Charti on 4 March 2015 he told him of having problems with testicular pain:  Exhibit 56.

[69] In reference to his earlier evidence that he disagreed with the history outlined by Dr Kilian in his medical report about experiencing pain in his lower back on 25 July 2014, it was put to the Appellant that he had given a similar history to his Solicitors who in turn included that in their instructions to a medical practitioner:  Exhibit 60.  Once again the Appellant said he did not remember and then changed that position to a denial.  When it was then suggested to the Appellant that his Solicitors must have just made that up, the Appellant said he could not remember saying that to his Solicitor.

[70] Credibility/Unreliability of the Appellant's Evidence:  The Appellant, on a number of occasions during his evidence, referred to the fact that his memory was not good given the injuries he had suffered and the painkiller and anti-depressant medications he had taken.

[71] Throughout his evidence-in-chief the Appellant appeared to recall a lot more of what went on during the period July 2014 to March 2015 than he appeared to remember when he was under cross-examination.  His response to many questions in cross-examination was that he did not recall or did not remember.  It is thus very difficult to accept the Appellant's evidence where it conflicts with documentary evidence such as the notes of the medical practitioners or the historical accounts that the Appellant gave to the various medical experts.

[72] I thus have accepted the histories provided to the medical experts by the Appellant as outlined in their various medical reports and/or clinical notes.  This is particularly so in respect of Dr Charti's clinical notes as they were recorded at the time of his various consultations with the Appellant but it also applies to all the clinical notes and medical reports in evidence.  I also rely upon the account of past lower back pain recorded by Dr Powell in July 2013 as, at that time, the Appellant was pursuing a claim for compensation for a right shoulder injury and was not concerned about any lower back pain.  The Appellant, in advising Dr Powell about a history of lower back pain over the three previous years with occasional radiation of pain down in to the right leg, was discussing the medication Mersyndol and its effect upon him.  I accept the account of Dr Powell in his medical report of 24 June 2013 and the clinical notes of the Appellant's GP's in November 2011 and March 2013 where the Appellant reports low back pain.  I further accept that what those medical practitioners have recorded is what the Appellant informed them at the time.  None of those medical practitioners had any reason whatsoever to include the material, if the Appellant had not reported it to them.   I am also aware that the Appellant had Dr Powell's report before him for some considerable time and had taken no exception to the past lower back pain experienced by the Appellant. 

[73] Whilst the Appellant's account of the history of the hernia incident varies in these medical reports, I accept that what the various experts have recorded is what the Appellant, at the time, told the various medical experts.  The closer to the relevant period (October 2014 to March 2015) that the history has been given to the medical experts, the more reliable the Appellant's account would seem to be.  Once again, I note that the Appellant's memory is not good at this time, and probably was not good as at the relevant period (October 2014 to March 2015) and this may account for the differences in the histories the Appellant provided to the medical experts. 

[74] Whilst I find that the Appellant's evidence was unreliable in a number of respects, I also find that his evidence in some respects was not all that credible.  This is particularly the case on the issue of when the Appellant first experienced lower back pain in connection with the hernia.  The suggestion that it occurred at the same time as the hernia incident is not credible.  I find that the first occasion that the Appellant suffered any form of lower back pain, following the hernia incident, was when he reported such to Dr Charti on 11 November 2014.  Also, the Appellant's evidence as to when he first noticed the cyst and the effect of the cyst on him lacked credibility. In examination-in-chief the Appellant said that the first time that he noticed the cyst was after the hernia surgery performed by Professor Memon i.e. after 12 December 2014.  It was the Appellant's evidence that Professor Memon informed him that the cyst resulted from the hernia surgery.  Professor Memon denied any such conversation with the Appellant and denied any such statement being made to the Appellant.  I accept Professor Memon's evidence.

[75] The ultrasound performed on 21 November 2014, at the request of Dr Charti, identified a cyst measuring 23 mm:  Exhibit 18.  Professor Memon in his consultation with the Appellant on 23 December 2014 spoke about the cyst which was already present before surgery.  It was on 11 November 2014 that the Appellant first raised the lump on his right testes which he himself had noticed.  I have outlined in the Chronology the various occasions when the cyst issue was raised with the various medical experts.  The cyst was present prior to the hernia surgery.

[76] I do not accept the contention of the Appellant that Professor Memon guaranteed him that the surgery would relieve him of the pain he was suffering as I have not accepted the Appellant's contention that Professor Memon advised him that he had a cyst as a result of the hernia surgery.  The Appellant's assertions in this regard casts serious doubt on the credibility of his evidence.  The statements appeared to have been aimed at Professor Memon yet the Appellant was very keen for Professor Memon to perform further surgery on the Appellant, discussing the issue of further surgery on 23 December 2014 i.e. within eleven days of the hernia surgery.  This is also at a time when the Appellant has indicated he was suicidal and attempting to take his life on four or five occasions. 

[77] What is contained in the medical reports and the clinical notes has, in my view, been based on what the Appellant has told the experts at the time.  They are contemporaneous notes, made by professionals who have no interest in the outcome of the Appellant's application for workers' compensation and are, in my view, more reliable than what the Appellant says he now remembers:  see decision of Bowskill QC, then DCJ, in Stark v Toll North Pty Ltd[3] - a decision relied upon by the Regulator.

[78] Hannah Mari Toci Evidence:  Ms Toci is the partner of the Appellant.  Ms Toci said that the Appellant had advised her that the hernia pain was worse a couple of days after the hernia operation.  Her evidence was that the Appellant got out of bed and fell to the floor in pain and that she had to pick him up.  This was never reported by the Appellant to any of the medical experts, particularly Professor Memon and Dr Charti.  Nor was it reported by Ms Toci as she regularly attended medical consultations with the Appellant.  According to Ms Toci the Appellant was screaming in pain.  She said that the Appellant still had pain in his groin.

[79] It was Ms Toci's evidence that the Appellant tried to get on light duties prior to the operation but he just could not cope with the pain.  She said he was working at the BWS Orion store on light duties.  Ms Toci said that the Appellant, when he was at home prior to the hernia operation, was anxious and depressed and heavily medicated.

[80] Ms Toci said that prior to the shoulder injury, the Appellant was happy and that they would go out and do things with friends.  After the shoulder injury he was depressed and anxious (getting nervous doing things).  She said that he hated himself and the world.  Ms Toci confirmed that it was after the hernia operation that the Appellant become suicidal.  She said that he would say that nothing was fixed.  He became even more anxious leaving the house and he would start to vomit when leaving the house.  He was in so much pain in his groin.

[81] In examination-in-chief, Ms Toci was asked whether the Appellant referred to back pain.  Ms Toci said that he complained to her around the hernia operation time although she could not remember the exact time however he was not working at the time.  Ms Toci said that the Appellant had been at home a good six months before he started complaining about back pain.  I have accepted that the Appellant only ceased work on 14 October 2014.  If the Appellant is complaining of back pain six months after that, it is well outside the facts outlined in the Appellant's Statement of Facts and Contentions.

[82] Ms Toci agreed that the Appellant had been on pain medications and various anti-depressants since the shoulder injury.

[83] Under cross-examination, Ms Toci said that it was only at the end of October 2014 that the Appellant stopped working and agreed that he had been going to work since the hernia incident in July 2014.  Ms Toci then altered her evidence somewhat in saying that it was a short time after the Appellant stopped working that he started complaining about his back pain.  Ms Toci agreed that the Appellant told her that he felt worthless because of the back pain that was stopping him from being able to lift the children.

 Medical Evidence - Physical

[84] Dr Johannes Kilian, Orthopaedic Surgeon:  Dr Kilian's medical report is Exhibit 18 and a file note which is Exhibit 59.  Dr Kilian examined the Appellant on 22 January 2016 with the Appellant complaining of lower back pain at a level of 10/10 which Dr Kilian found was centrally present across the back into the buttocks of both the Appellant's legs but more so on the right.  The Appellant complained that he often had shooting pains down the back of both legs to the ankle, that his ankle swells up and he has some numbness in the toes of both feet.  Further, the Appellant said that he continued to experience intermittent right sided groin pain over the hernia surgical scar.  When the pain is present, it is at 8/10 on the visual analogue pain scale.

[85] The Appellant notified Dr Kilian that he last worked in October 2014.  The Appellant weighed 145 kg at the time of examination, his height was 188 cm and he had a BMI of 41.  On examination of the Appellant's lumbosacral spine, Dr Kilian found tightness and tenderness around the T12 level as well as the lower back.  There was no muscle guarding present.  Spinal range of motion was full and normal.  Reflexes and power were intact but sensation was decreased subjectively in both toes and the dorsum of both feet.  Dr Kilian's examination of the right groin demonstrated a 5 centimetres transverse scar which was very tender.  According to Dr Kilian, it was difficult to assess swelling due to obesity.  There was no thigh sensitivity with local pressure on the scar.

[86] Dr Kilian noted that a review by a general surgeon confirmed the presence of the hernia but there was concern about whether surgery would fully resolve the problem given the size of the hernia.  In his medical report, Dr Kilian also recorded that the Appellant stated that he had some back pain as at 25 July 2014.  He further notes that back pain was reported on 23 March 2013 and again in November 2014.  Again, Dr Kilian reported that the Appellant notified him that he initially had light duties but this could not be accommodated at work and he found that his pain increased because of a return to full duties until October 2014.  This is contrary to the evidence provided by the Appellant at the hearing.

[87] Dr Kilian also noted that the MRI scan confirmed an L5/S1 disc protrusion.  Dr Kilian noted the degenerative change in the Appellant's lumbar spine was commonly constitutional and naturally developing but noted that the Appellant was only 26 years old.  He thus formed the opinion that it was more likely that he had suffered an acute disc protrusion.  On the balance of probabilities and taking into account the Appellant's age and the fact that he reportedly felt pain at the time of the accident, Dr Kilian opined that the 25 July 2014 injury at work contributed to the disc protrusion that is evident on imaging and therefore contributed to the present symptoms.  The mechanism of injury likely included spinal twisting and extension as well as raised intro-abdominal pressure.  The deconditioning likely increased the symptoms further.

[88] Dr Kilian did however note the one episode of pre-existing back pain in the medical records and the subsequent note in November of back pain.  Dr Kilian then opined that it was also likely that the period of immobilisation after surgery contributed to the aggravation of his symptoms.

[89] In Exhibit 59, Dr Kilian was made aware that the Appellant did not experience back pain on 25 July 2014 but rather he first noticed the lower back pain in November 2014.  With that information to hand, Dr Kilian said that the back pain was materially contributed to by the Appellant's deconditioning while waiting for the hernia operation.  The Appellant's degenerative back and being overweight also contributed to the back pain developing.  Dr Kilian said that the three conditions combined to bring about the onset of back pain but that on balance, Dr Kilian said that the back pain would not have developed as at 11 November 2014 without the deconditioning.

[90] In his evidence Dr Kilian said that he had not seen Dr Powell's medical report until recently.  He had been under the impression that there had only been one entry of pre-existing back pain.  Dr Kilian said that he also did not have the history of Mersyndol use that had been specifically documented by Dr Powell.  He said that this information was very important when looking at what might have contributed to the back injury.  Under cross-examination, Dr Kilian said that what was shown on the MRI was a degenerative process.  He also agreed that the back was not an injury because it was a naturally occurring degenerative process.  Dr Kilian further agreed that, if the history given to him was not accurate, then he would need to revisit his opinion.  Dr Kilian said that the level of degenerative change shown on the MRI scan was a little bit more than the natural degeneration one might find for the Appellant's age and, if it had been an older patient he would be more likely to say that 100% was degenerative in development.

[91] Dr Kilian agreed that the history of Dr Himali Arthuraliya given on 20 March 2013 was indicative of someone that has a degenerative spine.  Dr Kilian also agreed that the studies he referred to in his medical report didn't really assist when the Appellant's very significant pre-injury history of symptoms to the lower back was known.

[92] Dr Kilian said that the Appellant had not told him of any previous lower back injury or previous back pain but he did tell him that he had a pre-existing spinal problem but was not specific in saying that he had any significant issues.  Dr Kilian agreed that the pain experienced by the Appellant was what one would expect from someone with a degenerative condition i.e. the pain condition does not have to be regular but there is a reporting of back pain because of the degenerative condition.  Dr Kilian also agreed that smoking was a factor that increased the likelihood of back pain and obesity was another risk factor.  The Appellant had all those risk factors.  Dr Kilian agreed that given the previous degenerative condition and the risk factors, it would not be surprising that the Appellant would be describing back pain in November 2014.

[93] Professor Mohammed Memon, Specialist Surgeon:  Professor Memon performed the hernia surgery on the Appellant on 12 December 2014 and following that, performed the Appellant's bilateral vasectomy and the excision of the right epididymal cyst on 20 March 2015.   Professor Memon saw the Applicant for the first time on 23 October 2014 with pain in the right groin.  On that occasion the Appellant notified Professor Memon that he noticed the pain on 25 July 2014 and Professor Memon diagnosed the Appellant with a right inguinal hernia.  Professor Memon again saw the Appellant on 26 November 2014 where he diagnosed the Appellant with the right inguinal hernia based on the ultrasound findings as he could not feel any lump or cough impulse.

[94] The hernia surgery was performed on 12 December 2014 with the Appellant being telephoned on 15 December 2014 by Professor Memon's surgical nurse.  The Appellant attended a post operation visit on 22 December 2014 with Professor Memon's surgical nurse and the Appellant saw Professor Memon on 23 December 2014 at a post operation follow up.  Professor Memon's record of that visit has previously been detailed.  Other than the fact that the Appellant's right testicle was a bit sore, no other issues were identified to Professor Memon.  It appears that the Appellant was, at this time, more concerned about his right epididymal cyst that Professor Memon diagnosed on that occasion.  There is no reference whatsoever in Professor Memon's clinical notes of any lower back pain although it is at this time that the Appellant gave evidence that he was suicidal and had, on four or five occasions, attempted to commit suicide.

[95] The Appellant again saw Professor Memon on 11 February 2015 expressing keenness for further treatment for the cyst and the vasectomy.  The presenting problem on this occasion was noted by Professor Memon as "right epididymal cyst" and he gave the Appellant costings for that surgery.  Once again no mention is made of lower back pain or pain over the hernia scar.

[96] Professor Memon provided the self-insurer with a medical report on 4 March 2015 opining that the Appellant's right inguinal hernia was most likely secondary to prolonged heavy lifting in his work environment.  Professor Memon also noted that the Appellant had a right epididymal cyst which was present prior to the hernia surgery.  Professor Memon performed a bilateral vasectomy and excision of the right epididymal cyst on 20 March 2015 with the only pain being reported by the Appellant being pain associated with his epididymal cyst.

[97] The Appellant did not attend on Professor Memon after that surgery even though appointments had been made for him.  The only advice to Professor Memon's room was on 23 March 2015 that the pain associated with the epididymal cyst surgery and vasectomy was under control, that he had no fever and that the swelling had subsided.

[98] Associate Professor Richard Williams, Consultant Orthopaedic Surgeon:  Associate Professor Williams examined the Appellant on 24 February 2015 for an independent examination and report.  The history given was of lower back pain which the Appellant reported as being due to a period of inactivity required as convalescence for an inguinal hernia repair.  The Appellant reported the onset of lumbar spinal pain to Dr Charti prior to his hernia surgery and after ceasing work in October 2014.  After surgery, it is reported that the lumbar spinal pain increased two weeks after the hernia surgery and that a MRI examination demonstrated bulging discs in the neck and the back. 

[99] The Appellant reported lower back pain passing to the right buttock and into the right posterior thigh and calf.  The Appellant also had cervicothoracic pain and he reported numbness in the legs and that pain is present every day.  Under past medical history there is no mention made of lower back pain with the medical report noting that the Appellant reported no specific past history of lumbar symptoms.  Associate Professor Williams noted that there was evidence of the Appellant's rage disorder occurring during the interview.    There was also considerable evidence of inorganic influence on the perception of pain.  He indicated the right L5/S1 as the region of his pain.

[100] Associate Professor Williams opined that the Appellant experienced the natural history of a degenerative process affecting the lumbar spine.  He indicated that there was a possibility that the deconditioning associated with not working and the lack of mobility since October 2014 had contributed to his current level of symptoms.  Associate Professor Williams however stated that the Appellant's symptoms were considerably overstated and this was evidenced by inorganic influence on pain behaviour present during the examination together with the influence of significant psychiatric illness.  Associate Professor Williams opined that the Appellant could experience improvement in lumbar symptoms with increased aerobic capacity which could be obtained by returning to employment following recovery from the inguinal hernia surgery.

[101] In Exhibit 19, Associate Professor Williams commented on Dr Kilian's diagnosis saying that he was unable to conclude that the Appellant suffered clinically significant radiculopathy based on his examination and would not agree that there was any neurocompressive lesion evident on the MRI of the lumbar spine.

[102] In his evidence, Associate Professor Williams said that the smoking of 60 cigarettes per day was a comorbidity associated with lower back pain.  He explained his diagnosis of discogenic pain due to L5-S1 intervertebral disc degeneration as being pain usually in the axial spine, which means in the central lower back with possible radiating of the buttock area and down the back of the thighs to some extent, which relates to the degeneration of one of the intervertebral discs, which is the one situated lowermost in the spine.  The degenerative process is generally responsible for the pain which relates to wear characteristics of one of the discs which is the soft tissue which joins the bones together at the front of the spine. 

[103] Associate Professor Williams said that the Appellant was suffering pain in the lower back as a result of a worn disc, that the pain in his lower back was possibly being perpetuated by not only the wear changes which could be observed on radiological imaging, but also his increased body mass index and reduced cardiovascular conditioning.

[104] Associate Professor Williams was then referred to the GP records of 18 and 20 March 2013 and the reference in those notes to him waking up with pain that radiated to the right leg.  The Associate Professor said that that was in keeping with his diagnosis i.e. that the pain began as a result of a degenerative process with the superimposed factors mentioned above.  He was not convinced that there was any evidence of nerve compression on the Appellant's imaging, so the leg pain was probably radiating from the involved disc rather than due to compressed nerves in the back.

[105] The Associate Professor was then referred to the medical report of Dr Powell of 26 July 2013 where the Appellant's history of lower back pain in the three years prior with occasional radiation of pain down into the right leg and the Appellant's taking of Mersyndol for that pain.  Associate Professor Williams said that it further confirmed that the process was one of a degenerative nature which is typical of that type of process.

[106] The Associate Professor was then asked to rank the co-factors that he had referred to  in terms of what was more likely to be the explanation for the onset of symptoms that the Appellant was talking about.  He responded by saying that the degenerative factor as opposed to the aerobic deconditioning/increased body mass index was the primary cause of the Appellant's pain.  The Associate Professor said that the onset of symptoms of lower back pain in November 2014 could have occurred as a result of the degenerative process alone, however, there was also the period of inactivity in October/November 2014 which may also have contributed.

[107] Under cross-examination, the Associate Professor said that as an orthopaedic surgeon with a speciality in spinal surgery solely, the majority of the patients he sees have similar conditions to the Appellant.  The assessment of these patients is done through a process of investigation and examination and then he provides advice on how to deal with the pain.  Most of the time that involves non-surgical or non-operative measures and only rarely does it involve spinal surgery.  He further stated that the indications for spinal surgery are not necessarily always made by a spinal surgeon.  The Associate Professor said that he felt qualified to be able to provide an opinion as to the Appellant's condition based on the material which he had to hand.

[108] Associate Professor Williams said he thought that the Appellant overestimated his pain as there were several findings on examination which indicated that there was some inorganic influences on his pain perception and that was reflected on a number of different parameters during the examination.  The Appellant reported widely distributed pain.

[109] According to Associate Professor Williams, being inactive for a month was possibly enough in a patient with the intercurrent factors associated with the Appellant, for the Appellant to have developed lower back symptoms given that he was prone to developing those symptoms.  When it was suggested to him that the only external factor to the onset of lower back pain was the period off work, the Associate Professor said but that was superimposed on his increased body mass index, low aerobic capacity, smoking behaviour and his intercurrent psychiatric illness.  All of these factors predisposed lower back pain.  One way of putting it, according to the Associate Professor, was that it was the straw that broke the camel's back.  Each of these triggers are significant and the inactivity due to a painful hernia and recovering from the hernia surgery probably tipped the scales in favour of the Appellant having lower back pain when he was possibly holding his own before that.

[110] In re-examination the Associate Professor was asked whether the cause of the pain was the period of inactivity or the pre-existing degenerative condition and he responded that the "pain is caused by the degenerative process fundamentally".  In the Appellant there are a series of contributing factors to the pain and its onset and each has a role i.e. his weight, his aerobic pre-conditioning, his smoking behaviour, his psychiatric condition and the level of inactivity.

[111] Professor Michael O'Rourke, General Surgeon:  Professor O'Rourke's medical report is Exhibit 21 and is dated 20 April 2017 and his Clarification is Exhibit 22 and dated 10 August 2017.  Professor O'Rourke examined the Appellant on 19 April 2017 i.e. almost three years after the hernia incident and two years four months after the hernia surgery.   Professor O'Rourke provided an Executive Summary as follows:

 "Mr Tyson Alborough developed a hernia associated with severe pain in his groin in July 2014.

 Mr Alborough had a bilateral inguinal hernia repair in December 2014.  This has been followed by severe ongoing groin pain which is classical of the neuropathic pain or chronic post surgical pain (CPSP).  The pain is severe and prevents him from working and performing many of his activities of daily living.  The treatment of the condition is extremely difficult and is mainly associated with pain relief and waiting for a hopeful spontaneous remission.

 I have assessed Mr Alborough's Permanent Impairment as 19% Whole Person Impairment."

[112] Professor O'Rourke identified two pathologies that the Appellant had and they are included in the Chronology.  On examination Professor O'Rourke said that the Appellant had severe tenderness in the right pubic tubercle area, restriction and pain on straight leg raising of the right leg and also severe pain on flexion of the right hip.  His diagnosis was of "chronic post surgical pain" which is neuropathic pain which Professor O'Rourke says appears particularly after mesh surgery.  It is also more common in patients with severe pre-operative pain.  There is no record in any of the Appellant's treating doctors of "severe pre-operative pain".  The pain undergoes spontaneous remission in the majority of cases though, in those where it persists longer, it is a more difficult situation. 

[113] In Exhibit 22, Professor O'Rourke said he examined the Appellant "ten months after his operation".  The hernia operation was 12 December 2014 and Professor O'Rourke examined the Appellant on 19 April 2017 i.e. two years and four months after the hernia surgery.

[114] Dr Charti Siriwattanarungsro, General Medical Practitioner:  Dr Charti also gave evidence for the Appellant.  All relevant aspects of Dr Charti's clinical notes have been dealt with in the Chronology.

 Medical Evidence – Psychiatric or Psychological

[115] Dr Byth, Psychiatrist:  Dr Byth's medical report is Exhibit 17 and there is a file note which is Exhibit 57.  Dr Byth examined the Appellant on 7 July 2015 and provided his report dated 30 June 2015.  Dr Byth recorded that the Appellant complained of two injuries i.e. the shoulder injury of 24 June 2013 and the inguinal hernia injury of 25 July 2014 with the latter causing a lower back injury.  In his history, Dr Byth records:

 "About 5 months later, he underwent a surgical repair of the hernia, and he was noticing worsening back pain after surgery, and an MRI scan showed a bulging L5-S1 disc; and I was unable to return to work."

[116] Dr Byth notes the Appellant's then current physical symptoms as including "soreness and tenderness in his right groin and the surrounding abdominal area" and "constant low back pain along with numbness in his legs and toes".  There was no reporting of severe low back pain.  As for the Appellant's psychological symptoms, Dr Byth noted that the Appellant had thoughts of setting fire to the workplace amongst various other identified symptoms.

[117] Dr Byth diagnosed the Appellant as suffering an Adjustment Disorder with anxiety and depressed mood (Reactive Anxiety and Depression).  Following the injuries at work in 2013 and 2014 he gradually developed a psychological reaction of anxious and depressed mood, accompanied by low self-esteem, agitation, difficulty concentrating and suicidal thoughts.

[118] Dr Byth thought that the Appellant had obsessive-compulsive premorbid personality traits, and possibly some mild impulsive traits, which fell short of personality disorders.  Dr Byth ruled out a number of disorders including antisocial personality disorder, psychosis, Factitious Disorder, exaggeration or malingering, Chronic Pain Disorder and Somatoform Disorder.

[119] The prognosis of Dr Byth was that the Appellant's anxiety and depression had only marginally improved with his treatment and that he would expect him to make a partial improvement with specialist counselling and higher doses of antidepressant medication over the next two years.  Dr Byth however doubted that the Appellant would obtain a full remission with treatment.  The Appellant was likely to be left with chronic moderate to marked anxiety and depression arising from the injuries at work in 2013 and 2014 despite the additional treatment that Dr Byth had recommended.

[120] When Dr Byth examined the Appellant he failed to inform him of the cyst, the vasectomy or that he had made a number of attempts at suicide in December 2014.  Dr Byth said that the suicide attempts were a very significant history for a psychiatrist.  Dr Byth said that the Appellant was very disturbed throughout his interview, was withdrawn, restless and agitated and he poured out his history in bits and pieces.

[121] It was Dr Byth's evidence that he thought the Appellant's depression had escalated from when the hernia became apparent and he could not work and had to have time off for the surgery and then he could not get back to work.  He thought it had worsened to double the severity that it was prior to the hernia incident.

[122] It was suggested to Dr Byth in cross-examination, that at the time the Appellant became suicidal he seems to be seeing his GP about the cyst - that appears to be his primary concern and the pain associated with that.  Dr Byth responded that the Appellant did not bring any of that up with him.  He said he understood that the hernia was an ongoing problem, the post operative neuropathic sort of pain. 

[123] Dr Byth was also of the view that there was no period of remission from the hernia pain during the period August 2014 to 22 October 2014.  He was of the view that the Appellant just went from bad to worse gradually following the hernia incident.

[124] Dr Byth said he disagreed with Dr Shaikh's diagnosis of a rage disorder as the Appellant's presentation was more of just anger or frustration with his employer because he thought that his anxiety and depression were more caused by his physical limitations and the physical injuries he had sustained at work.  Dr Byth said he did not think that the Appellant's anger with WorkCover was chronically contributing to his anxiety and depression anywhere near as much as his physical injuries.  He agreed that the Appellant's reactions as outlined in Dr Charti's notes of an attendance

 with Ms Toci where the Appellant advised of punching a wall at home and that his children were afraid of getting near him when he was angry, was more than a normal reaction to the injury but he found the Appellant to be someone who was agitated suffered from depression, very volatile, restless and irritable.  He agreed that his reaction was extreme and fell within the high class 4 out of 5 rating for psychiatric impairment. 

[125] Dr Byth agreed that there was a big difference in a person going to a doctor complaining of "throbbing pain" and one complaining of pain.  According to Dr Byth "throbbing" implies a pulsation to the pain. 

[126] Dr Wasim Shaikh, Consultant Psychiatrist:  Dr Shaikh provided an independent medico-legal report dated 5 March 2015 which is Exhibit 16.  Dr Shaikh's history of the Appellant's physical injuries and his psychiatric symptoms is outlined in the Chronology.  Dr Shaikh's "Summary and Conclusions" are as follows:

 "Mr Alborough is a 25 year old gentleman, married, currently resident with his wife and two children in Redbank Plains.  He is employed as a team member at BWS Springfield but has not returned to work since October 2014.  He claims for back injuries secondary to a period of inactivity following being diagnosed with an inguinal hernia.  He also claims for secondary psychological injury.

 From a physical perspective, he has been deemed to suffer a degenerative condition of his lumbar spine.  From a psychological perspective, Mr Alborough presents with a combination of emotional lability, cognitive disturbances, sensitivity to agitation and claimed restriction in social and recreational activities.  There is a very prominent theme of anger and rage directed towards his employer and their insurer.  Mr Alborough was extremely aggressive during the assessment and frequently used abusive terminology.

 Mr Alborough has a history of a prejudicial childhood, as discussed in the body of the report.  There is a history of nicotine and cannabis misuse.  It also appears that he is misusing his prescribed analgesic medications.

 The most appropriate diagnosis is that of an adjustment disorder, along with significant comorbid personality vulnerabilities and substance misuse.  In the absence of an ongoing physical condition related to his employment, I cannot justify his psychological condition to be related to a sustained work injury of 25 July 2014.

 It appears to me that Mr Alborough has developed strong feelings of anger and rage towards his employer since his first shoulder injury of 2012 and subsequent events have only served to feed his rage.  I am concerned that he is driving despite this rage and inconsistent use of medication/drugs."

[127] Dr Shaikh has relied upon Associate Professor Williams' report that the Appellant no longer suffers with a physical condition related to his employment in that he states:

   "His back complaints are deemed to be related to a degenerative disorder.  Therefore, whilst he currently suffers with a psychological illness, I do not deem it to be a secondary psychological 'injury' in relation to his employment". 

 Dr Shaikh thus concludes that the Appellant does not suffer with a work related psychological injury.

[128] In his oral evidence, Dr Shaikh stated that he thought the Appellant's anger and rage directed towards his employer and their insurer was a substantial contribution to his psychological injury as whenever he would talk about the employer or the insurer, the Appellant would get extremely agitated and worked up and the use of abusive terminology would become more frequent at those times.

[129] Dr Shaikh said that his diagnosis of adjustment disorder was based on the Appellant experiencing symptoms of low mood, including being teary, and the anxiety he was experiencing which prevented him from engaging socially.  The Appellant primarily reported pain in his back, all day, every day.  Dr Shaikh said that if the physical injury were to be found to be work related then he would change his opinion.  That would mean that the adjustment disorder was perhaps temporarily related to an employment-based condition, and thereafter was more significantly related to the pre-existing degenerative condition.

[130] Dr Shaikh said that whilst the Appellant's strong feelings of anger and rage toward his employer and their insurer was substantial, he felt that, at the time of assessment, the pain he was experiencing was higher in significance in contributing to his psychological injury.

 Conclusion

[131] This decision relates to appeals against two separate decisions of the Regulator.  The first of those relates to the Appellant's claim for workers' compensation in respect of the back pain said to have occurred on 11 November 2014.  The claim was lodged with the self-insurer in reliance on a Workers' compensation medical certificate issued by Dr Charti on 14 January 2015 for "low back pain" (WC/2015/268).

[132] The credibility and reliability of the Appellant's evidence and his recounting of events to the various medical experts is a very important consideration in the determination of this appeal.  I have already made some findings in this regard.  In his written submission, Mr Horvath, Counsel for the Appellant, submits that the Appellant's memory has been affected by a combination of trying to block out the events and the medication that he has taken over a number of years (painkillers and antidepressants). 

[133] The most telling issue in relation to the Appellant's recollection of events is his failure to recall that he had previously suffered low back pain.  One can somewhat understand the Appellant not remembering to advise the various medical experts of previous low back pain unless and until he was asked specific questions about whether he had previously suffered low back pain.  However, in giving his evidence, he was specifically asked questions about previous low back pain and he denied absolutely having experienced such pain.  Yet his early response to such questioning was that he had not had any low back pain that "stopped" him "from working".  I formed the view that the Appellant, in responding to questions asked in cross-examination about his prior low back pain, could recall his previous low back pain but he did not wish to harm his case. 

[134] The fact that on 26 July 2013 when the Appellant was examined by Dr Gerard Powell, Consultant Orthopaedic Surgeon, he advised that "he had lower back pain for the last three years with occasional radiation of pain down in to the right leg", is a highly relevant fact.  There is not just one incident of low back pain but a period of three years of low back pain.  I have enormous difficulty in accepting that the Appellant could not recollect experiencing such pain such that he would deny the existence of any prior low back pain.  This was conveyed to Dr Powell almost twelve months to the day prior to the hernia incident.

[135] The Appellant's evidence, that when he was experiencing pain he went to a doctor and told that doctor about the pain, was not evident in the period that the Appellant is contending he was experiencing severe low back pain.  There is no record of Dr Charti or any other medical practitioner, of a severe low back pain complaint during the relevant period.

[136] I also have great difficulty with the Appellant's evidence of events around Christmas 2014.  The Appellant had the hernia operation on 12 December 2014.  He was contacted by Mrs Memon on 15 December 2014 where he reported that he was feeling a "bit sore" from the surgery and he was advised to contact Professor Memon if he has any concerns.  The Appellant does not contact Professor Memon.  The Appellant then sees Dr Charti on 19 December 2014 where he is concerned with the cyst issue although Dr Charti does record a discussion about the anaesthetist's concerns from the hernia surgery.

[137] The Appellant then sees Mrs Memon on 22 December 2014 and Professor Memon on 23 December 2014 where his only concern appears to be the cyst.  On 23 December 2014, the Appellant attends for an ultrasound for the cyst and also visits Dr Charti on the same day.  Yet the Appellant's evidence is that he is in such severe back pain at this time, that he attempts suicide on four or five occasions.  There is no mention in any of the medical records around this time of severe back pain.  The best is that on 5 January 2015 he reports to Dr Charti that he felt a bit sore on the right testes and back. 

[138] His own evidence is that the back pain made him suicidal at this time, that it was too much for him, that he wanted to kill himself and that he was experiencing a 10/10 level of pain.  It was at this time that the Appellant also said that the "hernia pain did not go away" and his "back was just in agony".  On the hernia pain, the Appellant's evidence is that at the site of the hernia incision he has always had pain and that it had never gone away – it was a dull throbbing pain in his groin which he assessed at a 5/10 level but when pressed rose to 10/10.  None of this is mentioned to Professor Memon following the hernia surgery.   It must also be noted that the Appellant continued to seek the assistance of Professor Memon with the vasectomy surgery in March 2015 and the incision of the cyst.  Once again the Appellant's evidence does appear truthful. 

[139] In this regard I agree with the view expressed by Associate Professor Williams that the Appellant "overstated" or "overestimated" his level of pain, particularly around this relevant time i.e. November 2014 to March 2015. 

[140] In light of the unreliability of the Appellant's evidence, I can only rely upon the clinical notes, particularly the clinical notes taken around the hernia surgery time i.e. the December 2014/January 2015 period.  Those clinical notes reveal that no severe back pain is reported by the Appellant.  They reveal that the Appellant was preoccupied with the cyst and his depression.  I find it difficult to accept that a person having had a hernia operation and experiencing severe low back pain after the hernia surgery does not report that severe back pain to either his GP or the specialist who has performed the hernia surgery.  Rather, the Appellant appears consumed about the removal of an inguinal cyst and a vasectomy from the same specialist that performed the hernia surgery.

[141] I also have concerns about the variety of accounts from the Appellant as to how the hernia incident occurred.  I need only refer to the Statement of Facts and Contentions and the Amended Statement of Facts and Contentions.  Similarly, I have difficulty with the Appellant's version of how and when the "back pain" started i.e. from 25 July 2014 to 11 November 2014.  I do not find the Appellant's evidence in this regard to be credible. 

[142] I accept Professor Memon's evidence in relation to the hernia surgery and his interactions with the Appellant through October 2014 to March 2015.  I accept that the Appellant did not advise Professor Memon of any severe back pain either before or after the hernia surgery.  I further accept that the Appellant's interactions with Professor Memon following the hernia surgery on 12 December 2014 primarily related to the inguinal cyst.  It is during this period of the Appellant's interactions with Professor Memon that he alleges the low back pain was severe and rates it 10/10, yet he fails to mention this to Professor Memon or his surgical nurse.  It is inconceivable, in my view, that a patient suffering a severe low back pain after a hernia surgery would not be advising the Surgeon of this pain.  The Appellant was advised to contact Professor Memon's surgery should he have any concerns.

[144] The fact that the Appellant did not bother to attend any post-operative follow up with Professor Memon following the vasectomy and the cyst removal does not also stand the Appellant in good light.  He had the opportunity to tell Professor Memon of his severe low back pain (if he had it) but he declined the opportunity.

[145] The past history of low back pain suffered by the Appellant in 2011 and 2013 is a highly relevant factor in my determination.  The history is of a three year period of low back pain up to 26 July 2013.

[146] As for the medical evidence of the Appellant's low back pain, I prefer the evidence of Associate Professor Williams as to the cause of the Appellant's back pain i.e. that the Appellant's degenerative process was generally responsible for any low back pain suffered by the Appellant.  That the Appellant was suffering pain in the lower back as a result of a worn disc and that the pain in the lower back was possibly being perpetuated not only by the wear changes, which are able to be observed on the radiological imaging, but also by the Appellant's increased body mass index and his reduced cardiovascular conditioning.

[147] Associate Professor Williams said the GP's records of 18 and 20 March 2013 and the account of a three year history of lower back pain with occasional radiation of pain down into the right leg contained in Dr Powell's medical report, confirmed his diagnosis that the pain began as a result of a degenerative process with the superimposed factors of increased body mass index and reduced cardiovascular conditioning.   

[148] In ranking the co-factors that Associate Professor Williams had referred to in his evidence, he said that the degenerative factor as opposed to the aerobic deconditioning/increased body mass index was the primary cause of the Appellant's pain.  The Associate Professor's evidence was that the symptoms of lower back pain in November 2014 could have occurred by itself without any period of inactivity.

[149] The period of inactivity, according to the Associate Professor, was not the only external factor that contributed to the Appellant's low back pain.  The Associate Professor said that the external factors included the Appellant's increased body mass index, his low aerobic capacity, his smoking behaviour and his intercurrent psychiatric illness.  Associate Professor Williams said that all of these factors predisposed the Appellant to lower back pain.  When asked whether the period of incapacity both prior to and following the hernia surgery was the cause of the Appellant's low back pain, Associate Professor Williams said that the Appellant's "pain is caused by the degenerative process fundamentally".

[150] Dr Kilian, in relying upon the historical account provided to him, based his opinion contained in his medical report on the fact that there had been only one entry of pre-existing back pain and no history of the Appellant using Mersyndol.  His evidence was that such information was very important when looking at what might have contributed to the Appellant's back injury.  Dr Kilian in evidence agreed that what was shown on the MRI was a degenerative process which was a naturally occurring degenerative process.  Dr Kilian also stated that if the history provided to him by the Appellant was not accurate then he would need to revisit his opinion. 

[151] Dr Kilian stated that the level of degenerative change shown on the MRI was a little bit more than the natural degeneration one might find in a male of 26 years of age and that if he had been older Dr Kilian said that he would have opined that 100% was degenerative in development.

[152] Dr Kilian in oral evidence said that the pain experienced by the Appellant was what one would expect from someone with a degenerative condition in that the pain does not have to be regular, but that there is a reporting of back pain.  He also noted that obesity was also another risk factor.  Dr Kilian agreed that given the Appellant's previous degenerative condition and the risk factors that the Appellant had, it would not be surprising that the Appellant would be describing back pain in November 2014.

[153] Given Associate Professor Williams analysis of the Appellant's low back pain and the evidence of Dr Kilian's concerns about his original opinion given that relevant information provided to him was lacking in some significant aspects,  I accept that the back pain suffered by the Appellant in November 2014 and beyond was significantly caused by a degenerative naturally occurring condition.  The back pain is thus not compensable as there was no connection with the Appellant's work and it did not result from the hernia surgery or the period of convalescence associated with the hernia incident.

[154] The Appellant's low back pain thus did not arise out of, or in the course of, the Appellant's employment at BWS.  Nor was the Appellant's employment a significant contributing factor to his low back pain. The low back pain results from a degenerative, naturally occurring, condition.

[154] I agree with the comments by most of the medical experts that the Appellant suffers a significant psychological disorder.  I acknowledge that the Appellant has a compensable psychological injury arising from the shoulder injury in 2013. 

[155] Dr Shaikh, in his medical report, relied upon Associate Professor Williams' conclusion that the Appellant's low back pain was degenerative in nature.  In those circumstances Dr Shaikh diagnosed the Appellant with an adjustment disorder along with significant comorbid personality vulnerabilities and substance misuse.  In the absence of any ongoing physical condition related to his employment, Dr Shaikh could not justify the Appellant's psychological condition to be related to a sustained work injury of 25 July 2014.  Dr Shaikh appeared concerned about the Appellant's strong feelings of anger and rage towards his employer since the shoulder incident and he found that the hernia incident only served to feed his rage.  Dr Shaikh was so concerned about this aspect of the Appellant's condition that he expressed concern that the Appellant was driving a motor vehicle.

[157] Dr Shaikh said that the Appellant primarily reported pain in his back, all day, every day.  Dr Shaikh conceded that if his back pain was found to be work related than he would change his opinion.  He said that he would then say that the adjustment disorder was perhaps temporarily related to an employment-based condition, and that thereafter, it would be more significantly related to the pre-existing degenerative condition. 

[158] Dr Shaikh did acknowledge that the pain the Appellant was said to be experiencing was higher in significance in contributing to his psychological injury than was his anger and rage toward his employer and their insurer.

[159] Dr Byth recorded that the Appellant only complained to him of the shoulder injury in 2013 and the inguinal hernia injury of 25 July 2014 with the hernia causing a lower back injury.  I have however found that the hernia did not cause the lower back injury and the Appellant already has an accepted psychological injury arising from the shoulder injury.

[160] Dr Byth concluded that the Appellant is likely to be left with chronic moderate to marked anxiety and depression arising from the injuries at work in 2013 and 2014.    However, when Dr Byth examined the Appellant, he failed to inform Dr Byth of the cyst, the vasectomy or that he made a number of attempts at suicide.  Dr Byth saw these as significant, particularly the suicide attempts.  Dr Byth was also under the impression that the Appellant had no period of remission from the hernia pain during the period August 2014 to 22 October 2014, being of the view that the Appellant just went from bad to worse gradually following the hernia incident.  This history is wrong as the Appellant continued to work until 14 October 2014 when he had the hernia attack.  The Appellant had been informed by Dr Charti to attend at an Emergency Department should he experience further pain.  The attendance at an Emergency Department on 14 October 2014 was the only such attendance

[161] If I was required to accept the evidence of one of the Psychiatrists over the other, I prefer the evidence of Dr Shaikh as the information provided to him by the Regulator was more comprehensive than the information provided to Dr Byth.  In the circumstances, however, I am not required to prefer the evidence of one over the other.

[162] The appeal in WC/2015/269 is against a decision of the Regulator on the Appellant's application for compensation which relied upon Dr Charti's Workers' compensation medical certificated dated 14 January 2015 (Exhibit 11).  That medical certificate refers to the Appellant's depression given that after the hernia operation, "he developed severe right testicular pain, and cyst in the testes".  This clearly is not a compensable injury and was not agitated in the hearing.  The medical certificate further refers to the Appellant, while being on workcover, and after the operation, developing "right low back pain, with radiating through the right foot, and numbness over the right leg". 

[163] I have found that the Appellant's low back pain is not a compensable injury.  Any depression and/or anxiety suffered by the Appellant as a result of the low back pain is thus not a disorder secondary to a compensable physical injury.  In those circumstances the claim for depression and anxiety as a result of the low back pain is not compensable.

[164] I acknowledge that the Appellant is suffering greatly both physically and psychologically.  The issue I have had to determine, however, is whether those physical and psychological conditions are compensable given the provisions of the   Act.  I have determined that they are not compensable.  That does not minimise the pain that the Appellant continues to experience, both physically and psychologically.

[165] In the circumstances I make the following orders:

  1.  The appeal in WC/2015/268 is dismissed.
  1. The decision of the Workers' Compensation Regulator dated 15 September 2014 to reject the Appellant's back injury is confirmed.
  1.  The appeal in WC/2015/269 is dismissed.
  1. The decision of the Workers' Compensation Regulator dated 15 September 2015 to reject the Appellant's psychiatric injury is confirmed.
  1. The Appellant is to pay the Workers' Compensation Regulator's costs of, and incidental to, the appeals.

Footnotes

[1] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 6

[2] MacArthur v WorkCover Queensland [2001] QIC 21

[3] Stark v Toll North Pty Ltd [2015] QDC 156

Close

Editorial Notes

  • Published Case Name:

    Tyson Alborough v Workers' Compensation Regulator

  • Shortened Case Name:

    Alborough v Workers' Compensation Regulator

  • MNC:

    [2018] QIRC 110

  • Court:

    QIRC

  • Judge(s):

    Member Linnane VP

  • Date:

    28 Aug 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
2 citations
Jump To
Cite 1 - (1951) 217 ALR 1
Cite 2 - (1951) 217 ALR 1
MacArthur v WorkCover Queensland [2001] QIC 21
2 citations
Jump To
Cite 1 - [2001] QIC 21
Cite 2 - [2001] QIC 21
Stark v Toll North Pty Ltd [2015] QDC 156
2 citations
Jump To
Cite 1 - [2015] QDC 156
Cite 2 - [2015] QDC 156

Cases Citing

Case NameFull CitationFrequency
Alborough v Workers' Compensation Regulator [2019] ICQ 202 citations
Starling v Workers' Compensation Regulator [2020] QIRC 394 citations
Weigel v Workers' Compensation Regulator [2019] QIRC 1622 citations
1

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