Horne and Comcare (Compensation) [2018] AATA 4021 (25 October 2018)

Last Updated: 25 October 2018

Horne and Comcare (Compensation) [2018] AATA 4021 (25 October 2018)

Division: GENERAL DIVISION

File Number(s): 2016/4376 & 2017/1307

Re: Daniel Horne

APPLICANT

And Comcare

RESPONDENT

DECISION

Tribunal: Deputy President Dr P McDermott RFD

Date: 25 October 2018

Place: Brisbane

I affirm the decisions under review dated 1 August 2016 and 22 February 2017.

...........................[SGD]................................

Deputy President Dr P McDermott RFD

Catchwords

COMPENSATION – workers’ compensation claims for psychological condition and impotency condition – previously accepted workers’ compensation claim for back injury – whether the conditions can be classified as injuries or diseases – whether the employee’s employment contributed to a significant degree

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 358

Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11

Comcare v Mooi (1969) 69 FCR 439

Commissioner of Police v David Rea [2008] NSWCA 199

EMI (Australia) Ltd v Bes (1970) 44 WCR 114

Papaioannou and Australian Postal Corporation [2015] AATA 370

REASONS FOR DECISION

Deputy President Dr P McDermott RFD





25 October 2018

BACKGROUND

1. The applicant, Mr Daniel Horne, was employed as an aviation fire fighter for the Royal Australian Air Force from 1994 and 2005, and then for Airservices Australia from 2005 until 12 March 2015.
2. The applicant suffered a back injury on 13 September 2013 as a result of his employment with Airservices Australia and subsequently underwent surgery on 22 February 2014. The Tribunal issued terms of agreement dated 25 March 2015 with the consent of the parties^[1] that the respondent was liable to pay the applicant compensation for his back injury classified as an “aggravation of displacement of intervertebral disc – lumbar”.
3. The Tribunal has to determine whether the respondent is liable to pay compensation to the applicant in relation to a psychological condition and an impotency condition. I also mention that at the outset of the hearing the applicant announced that the claims under sections 16 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) were withdrawn in writing (AAT Ref: 2017/1303).

RELEVANT CLAIM HISTORY

Psychological Condition

4. On 15 April 2016 a delegate for the respondent rejected the applicant’s claim for “adjustment disorder and depression” as a secondary condition to his accepted claim for an “aggravation of displacement of intervertebral disc – lumbar”.^[2]
5. On 1 August 2016 a delegate for the respondent affirmed the decision under review to deny liability for the applicant’s secondary psychological condition.^[3]
6. On 17 August 2016 the applicant applied for review of the decision of the delegate to this Tribunal.^[4]

Impotency Condition

7. On 9 January 2017 the respondent denied liability for the applicant’s impotency condition secondary to his accepted claim for an “aggravation of displacement of intervertebral disc – lumbar”.^[5]
8. On 22 February 2017 a delegate for the respondent affirmed the decision under review to deny liability for the applicant’s impotency condition.^[6]
9. On 6 March 2017 the applicant applied for review of the decision of the delegate to this Tribunal.^[7]

LEGISLATIVE FRAMEWORK

10. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) provides that an employer is liable to pay an employee compensation with respect to an injury suffered by him if it results in death, incapacity or impairment.
11. Under section 5A(1) of the Act, “injury” is defined as follows:

5A Definition of injury

(1) In this Act:

injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

12. Under section 5B(1) of the Act, “disease” is defined as follows:

5B Definition of disease

(1) In this Act:

disease means:

(a) an ailment suffered by an employee; or

(b) an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

13. Subsection 5B(2) of the Act provides:

(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a) the duration of the employment;

(b) the nature of, and particular tasks involved in, the employment;

(c) any predisposition of the employee to the ailment or aggravation;

(d) any activities of the employee not related to the employment;

(e) any other matters affecting the employee’s health.

14. This subsection does not limit the matters that may be taken into account.
15. Section 4 of the Act defines “ailment” as any physical or mental ailment, disorder or morbid condition (whether of sudden onset or gradual development).
16. The term “significant degree” is defined in subsection 5B(3) of the Act to mean a degree that is substantially more than material.

EVIDENCE

17. Extensive material has been filed in relation to these applications. The relevant evidence regarding the applicant’s psychological condition and impotency condition are outlined below.

Psychological Condition

18. The applicant states that his back injury had a huge impact on his emotional state to the point that he became angry, frustrated, emotional and suicidal. ^[8] He remarked that the injury stopped him from being able to do things that made him feel proud and valuable that he previously did.^[9]
19. The applicant states that prior to his injury he never had issues with being angry and frustrated but this changed following the injury as a result of the stress of dealing with the injury and the impacts it was having on his ability to do things he once normally did. ^[10] The applicant describes he would put on a “brave face” in public but took his anger and frustrations out at home subsequently impacting on his family’s wellbeing and his marriage.^[11] He states that in around December 2013 he began to see a counsellor with his wife which was paid for by Airservices Australia. ^[12] The applicant explains that he did not submit a report about his mental state as he was fearful of losing his job and being judged by his managers and colleagues.^[13]
20. The applicant states that throughout 2013 and 2014 he experienced a variety of emotions including feeling hurt when he was deliberately excluded from the celebrations when his crew won “Crew of the Year”. The applicant explains that his supervisor made it clear that he did not deserve to be included in the celebrations as he had been off work due to his injury.^[14]
21. The applicant states that he struggled to get through every day once he returned to work and when his employment was eventually terminated in 2015, he felt “weak and useless”.^[15] He describes feeling humiliated as a result of not being able to provide for the family.^[16] He was also not able to have the same role in his children’s sports as he once previously had. ^[17]
22. It was after this that the applicant was referred to Mr Gos Shahinper, psychologist for treatment.^[18] The applicant has been seeing Mr Shahinper since 4 May 2015^[19] and that in approximately May 2015 he was diagnosed with an “adjustment disorder and major depression”.^[20] In September 2015, Mr Shahinper suggested the applicant get an assistance dog to help manage his anxiety. The applicant funded this himself in March 2016.^[21]
23. The applicant states that he no longer socialises as he struggles to deal with environments with lots of people and the pain makes him withdrawn and quiet.^[22] He said that he struggles with daily activities including housework which is often not a possible task, and also struggles with his short term memory which causes him distress.^[23]

Report of Associate Professor Gordon Stuart, neurosurgeon dated 22 December 2014

24. The majority of this report concerns the applicant’s back condition and Associate Professor Stuart considered that the applicant suffered a work injury aggravating his degenerative disease of the lumbosacral spine with an intervertebral disc herniation.
25. However it is noted that during the assessment the applicant reported being depressed^[24] and it was recommended that he participate in active treatment for his depression. ^[25]

Report of Dr Simon Gatehouse, orthopaedic surgeon dated 21 April 2015

26. The applicant reported during this assessment by Dr Gatehouse that he has feelings of depression.^[26].

Letter of Mr Gos Shahinper, registered psychologist dated 4 May 2015

27. Mr Shahinper opined that the applicant presented with symptoms of an adjustment disorder and depression complaining of frequent episodes of anger and apprehension, marital tensions, fatigue, pain in his lower back, despondency, panic attacks and social withdrawal.^[27]

Treating Practitioner Questionnaire dated 25 May 2015

28. Dr Kumar noted in this questionnaire that the applicant is emotionally unstable – “depression, easy to cry or anger, always tired, rapid and extreme mood swings and snappy and irritable...constantly doesn’t see a future or improvement in life or situation...pain is insufferable and this results in loss of sleep, irritability, more pain and then affects family...relationships with extended family and friends strained and lost...unable to come to terms with loss of career that is his dream job”.^[28]

Report of Dr Erik Eriksen, orthopaedic surgeon dated 11 December 2015

29. The applicant reported to Dr Eriksen that he has been diagnosed with stress and depression and has been seeing a psychiatrist once per week and a psychologist once to twice per week.^[29] Dr Eriksen commented that the applicant undertakes counselling and pain management with his treating psychologist. Dr Eriksen assessed the applicant as having motor radiculopathy of the left leg with loss of sensation of the entire lower limbs.

Report of Dr Wasim Shaikh, psychiatrist dated 23 March 2016

30. The applicant reported that his father was a hyper aggressive and a violent individual. Other family members were also violent.^[30] The applicant described his upbringing as “rough” but had not received treatment for his childhood issues.^[31] The applicant reported a history of relationship disturbances and domestic violence and has been the subject of a domestic violence order. ^[32] He reported that the precipitant of this was his ongoing pain.^[33] The applicant reported seeing a psychiatrist for a couple of sessions when he was supporting his mother with cancer.^[34]
31. The applicant reported that as a result of his ongoing pain he has struggled with his mental health.^[35] The applicant reported being depressed most days and often has to “push himself through the day”.^[36] The applicant identified agitation and anger as always being an issue.^[37] The applicant reported a variety of problems including with concentration and memory, anxiety, avoidance behaviour, disturbances towards self-care and personal hygiene and self-harm (without intent or planning).^[38]
32. Dr Shaikh considered that the applicant was agitated, angry and resistant to discuss particular issues from the outset.^[39] He assessed the applicant as presenting with symptoms of sensitivity to agitation, impaired cognition, emotional lability, sleep disturbances, and reduced participation in recreational activities.^[40] Dr Shaikh considered that these symptoms are a representation of his physical condition rather than a secondary psychiatric condition^[41] and based on the applicant’s pre-existing vulnerability from a prejudicial childhood, history of substance misuse and expected psychological presentation in relation to his physical restrictions/distress, the applicant’s psychiatric condition was not work related.^[42]
33. Dr Shaikh considered that irrespective of the inconsistencies in relation to physical complaints, the psychological complaints were inconsistent with those noted on the assessment.^[43] He considered that the applicant’s work restrictions were primarily due to his reported physical complaints but did express concern regarding the impact of the applicant’s agitation/aggression on any form of employment.^[44]

Letter of Mr Gos Shahinper, psychologist dated 24 May 2016

34. The applicant attended upon Mr Shahinper with high levels of stress, anxiety and depression.^[45] The applicant complained of fatigue and frequent episodes of stress, anger, irritability and discouragement.^[46] Mr Shahinper considered that these symptoms meet the criteria for an “adjustment disorder with mixed anxiety and depressed mood” and that “there is a clear and causal connection between the workplace incidents that occurred on September 2013 and his psychological diagnosis.^[47] This disorder has led to a significant impairment in his ability to maintain employment in a self-sustaining and rewarding capacity”.^[48]

Report of Associate Professor Saddichha Sahoo, consultant psychiatrist dated 12 December 2016

35. Associate Professor Sahoo assessed the applicant as presenting with ongoing pain, an irritable and depressed mood, anhedonia, lack of energy, social avoidance and lack of concentration in the context of his 2013 back injury, ongoing pain and poorly controlled diabetes mellitus.^[49] He commented that the applicant’s blood sugar levels were high and not in control at the time of the assessment.
36. Associate Professor Sahoo diagnosed the applicant with a major depressive disorder and moderate depression due to the applicant’s back injury and associated pain. He concluded that his prognosis would be guarded given that the applicant continues to be in uncontrolled pain which will continue to impact on his mental state. He also commented that the applicant’s uncontrolled diabetes mellitus in itself is an independent contributing factor to his poor mental state but could not quantify whether it was a significant contributing factor to his mental state.^[50] Associate Professor Sahoo concluded that the applicant’s primary incapacity for work was due to his back injury rather than his mental state but he did suffer a partial incapacity for work due to his mental health condition but was unable to determine when this incapacity commenced.^[51] Associate Professor Sahoo assessed the applicant as having a 10 per cent whole person impairment with respect to his psychiatric condition^[52] and considered that the applicant has a probable loss of life expectancy of 1 to 5 years.^[53]
37. Associate Professor Sahoo noted there was a moderate interference with the applicant’s function in some everyday situations such as being socially withdrawn as he is unable to socialise with anyone outside the house unless he is accompanied by his assistance dog.^[54] There was also a reduction in his recreational activities.^[55]
38. Associate Professor Sahoo concluded that there would be a short period of absence from work due to the major depressive disorder but if the applicant’s back injury and pain were to resolve then he would be able to go back to work. He could not identify any evidence of any other disorders apart from the diabetes mellitus and in the context of Dr Wasim Shaikh’s report he could not make a diagnosis of a personality disorder given that it was a once off assessment and there was insufficient information to determine any personality issues. He also commented that the effect of opioid abuse no longer applies.

Supplementary report of Dr Wasim Shaikh, psychiatrist dated 20 June 2017

39. Dr Shaikh considered his opinion remain unchanged despite the newer material. He stood by his opinion that the applicant did not suffer a work related psychiatric disorder and his complaints were linked to his pre-existing vulnerability, history of substance abuse and frustration with the claims process and not in relation to a diagnosable psychiatric disorder.^[56]
40. Dr Shaikh noted in response to Dr Sahoo’s comments that the best explanation for why the applicant has not had a significant response to psychological treatment is because there is an absence of a formal psychiatric disorder.^[57] Dr Shaikh considered the applicant as having no impairment attributable to a psychological condition.^[58]

Supplementary report of Dr L du Plessis, neurologist and rehabilitation physician dated 6 July 2017

41. Dr du Plessis provided a supplementary report and noted that after reviewing further material the opinions previously expressed in his report of 8 December 2016 had not changed.^[59] He noted that the work-related injury in 2013 was still causing the applicant some discomfort but there are also other significant pathologies which override why he has such severe ongoing problems.^[60] Dr du Plessis noted that the main other significant pathologies are the applicant’s diabetes, diabetic peripheral neuropathy, likely associated diabetic neuropathic pain, osteoarthritis in his hips and his impotency condition as well as his obesity which all contribute to his psychological condition.^[61] Dr du Plessis commented that he would not purely consider the applicant’s lumbar spine pathology as the total cause of the applicant’s psychopathology.^[62]
42. Dr du Plessis further commented that the applicant suffered an injury, either as a result of work or outside work, which caused a disc rupture and subsequent secondary changes. ^[63] This injury precipitated pathology in the applicant which necessitated surgery.^[64] Dr du Plessis could not assess the contribution that the 2013 incident had on the applicant’s overall pain^[65] but noted that the applicant’s pain was being significantly aggravated by his obesity which would be causing extra mechanical strain on his lumbar spine.^[66] He also noted that the applicant’s osteoarthritic changes in his hips would be contributing some physical discomfort.^[67] Dr du Plessis commented that the applicant has developed psychopathology which would magnify his perception of the physical discomfort, irrespective of where it came from.^[68]

Impotency Condition

43. The applicant states that he cannot pinpoint when he first had a problem with impotence but he did not have impotency problems prior to his back injury in September 2013.^[69] He describes that after his back injury he was not intimate with his wife until about three months after his surgery in February 2014 due to the pain.^[70] Since that time the applicant has not been able to have an erection.^[71]

Report of Associate Professor Gordon Stuart, neurosurgeon dated 22 December 2014

44. As stated above, the majority of this report concerns the applicant’s back condition however it is noted that during the assessment the applicant reported experiencing symptoms of pain including numbness and pins and needles of the feet and toes.^[72] The applicant also reported having erectile dysfunction since his back surgery.^[73]

Report of Dr Simon Gatehouse, orthopaedic surgeon dated 21 April 2015

45. The applicant reported during the assessment that he has sexual dysfunction.^[74] He also reported pain in his lower back in addition to paraesthesia and left leg weakness. Dr Gatehouse awarded the applicant 13 per cent whole person impairment with his condition stable and stationary.^[75]
46. Dr Gatehouse did not consider any assessment necessary for a spinal nerve root impairment affecting lower extremity, sensory impairment due to peripheral nerve injuries affecting the lower extremities, motor impairment due to peripheral nerve injuries affecting the lower extremities or lower extremity function.^[76] Dr Gatehouse commented that “although Mr Horne describes sexual dysfunction, he doesn’t appear to have neurological impairment affecting sexual dysfunction”.^[77]

Treating Practitioner Questionnaire dated 25 May 2015

47. Dr Kumar noted in this questionnaire that the applicant’s “feet are constantly numb and tingly most times this encompasses as high as the knees...unable to feel sensations like kicking toes – have stubbed and ripped off toe nails and not felt it”.^[78] Dr Kumar also noted that the applicant has “numb testicles”.^[79]

Report of Dr Robert Ivers, orthopaedic surgeon dated 17 July 2015

48. Dr Ivers commented that the applicant was initially quite aggressive and evasive.^[80] This was resolved when the applicant’s wife intervened. Dr Ivers considered that the applicant developed disc degeneration in the lower lumbar spine with a disc prolapse requiring surgical intervention.^[81]
49. The applicant reported to Dr Ivers numbness in the region of his perineum and erectile dysfunction,^[82] although concluded that the sensation in the perineum appeared to be satisfactory.^[83] The applicant also reported numbness in his feet. Dr Ivers considered that the applicant’s back and left leg pain was persisting as well as hyperaesthesia in both feet^[84] which were not present prior to the applicant’s surgery.^[85]
50. Dr Ivers concluded that the applicant has 13 per cent whole person impairment^[86] solely attributable to his employment.^[87]

Supplementary Report of Dr Robert Ivers, orthopaedic surgeon dated 17 August 2015

51. The provision of further material regarding the applicant’s successful participation in the Paluma Push was provided to Dr Ivers for his comment. Dr Ivers considered that the applicant presented at the initial consultation significantly impaired. However on the basis that he participated in the Paluma Push two days after his assessment, Dr Ivers considered the applicant must not be significantly impaired if he can participate in such a physical event.^[88]
52. Dr Ivers commented that cycling is an excellent rehabilitation exercise however given the nature of Paluma Push it is a more strenuous activity rather than a gentle static push bike ride. He commented it would not be advisable for a patient suffering from symptoms as described by the applicant to participate in such an event.^[89]

Further Supplementary Report of Dr Robert Ivers, orthopaedic surgeon dated 28 August 2015

53. A further supplementary report was provided by Dr Ivers in which he considered that the applicant exaggerated the true underlying situation at the assessment.^[90] He considered that the applicant’s condition is related to an aggravation of displacement of the intervertebral disc to the work incident^[91] and that the applicant had pre-existing degenerative changes present in the disc prior to the work injury in 2013.^[92]
54. Dr Ivers concluded that the applicant’s condition is 100 per cent related to the aggravation of displacement of the intervertebral disc and not related to any other factors.^[93]
55. Dr Ivers also stated that he was confident that the applicant’s employment related injury continues to contribute to his current condition although given the fact the applicant could participate in the Paluma Push on two occasions, he believed he had been misled about the extent of the applicant’s symptoms (given that he can sit on a bicycle saddle for at least 3 hours, walk for 3 kilometres and carry a bicycle across a waterway).^[94]
56. Dr Ivers concluded that in light of the applicant being able to participate in the Paluma Push, he could not see any impediment with the applicant returning to work and that similar work in a less acute situation would be appropriate.^[95]

Report of Dr Erik Eriksen, orthopaedic surgeon dated 11 December 2015

57. Dr Eriksen assessed the applicant’s cervical spine as normal and when pressure was applied no pain was incurred.^[96] However the assessment of the applicant’s thoracolumbar and lumbosacral spine showed restricted range of movement, muscle spasm and guarding.^[97] The applicant reported constant pain of 6-7 out of 10 with it sometimes being 8-9 out of 10.^[98]
58. Dr Eriksen concluded that there is evidence of motor radiculopathy of the left leg with unilateral muscle wasting of three centimetres of the left calf and left thigh compared to the right thigh.^[99] Dr Eriksen concluded that the applicant has a loss of sensation of the entire lower limbs extending anterior to just below the umbilicus and posteriorly to the upper buttock area of a non-dermatomal distribution.^[100] Dr Eriksen is of the opinion that as a result of the motor radiculopathy there is potentially a sensory disturbance of the L5 and S1 nerve roots which is hard to delineate but accepts that the applicant has a sensory nerve irritation from a lumbar nerve root irritation.^[101]
59. Dr Eriksen concluded that the applicant was fit to participate in a rehabilitation program with goals of vocational redeployment and active job seeking.^[102]

Letter of Dr David Anderson, neurosurgeon dated 27 January 2016

60. In Dr Anderson’s letter he noted that the applicant has had a recurrence of his left buttock pain as well as numbness in both legs from his umbilicus down.^[103] The applicant reported the numbness and pins and needles in his legs to be fairly debilitating, reporting it was difficult to stand for any long period of time.^[104] The applicant also described some problems with impotency.^[105]
61. Dr Anderson commented that he suspected the applicant’s paraesthesia was not related to his lumbar spine given its distribution although acknowledged that it seemed to be a significant problem for the applicant.^[106] Dr Anderson concluded that the applicant’s diabetes is a likely significant factor and might represent a peripheral neuropathy, which may also be impacting on his impotency.^[107] Dr Anderson referred the applicant to Dr Craig Costello, neurologist for specific comment in this regard.

Report of Dr Craig Costello, neurologist dated 22 March 2016

62. On 27 January 2016, the applicant was referred to Dr Costello by Dr David Anderson, neurosurgeon following suspicions that he may have peripheral neuropathy as the applicant was complaining of some paraesthesia in his legs from his umbilicus down and some problems with impotency.^[108]
63. Dr Costello observed that the applicant had a reduced sensory response in the lower limbs and left upper limb which were consistent with a large fibre axonal peripheral neuropathy. ^[109] He also commented that some of the reduction in the left upper limb was related to superimposed left carpal tunnel syndrome and left ulnar neuropathy at the elbow, localised by a recordable left medial antebrachial sensory response.^[110]
64. Dr Costello concluded that the applicant has a large fibre axonal peripheral neuropathy with a superimposed chronic radiculopathy causing mild weakness on the left leg.^[111] He considered that the neuropathy was most likely diabetic which was poorly controlled but other underlying causes should be excluded. Dr Costello did note however that despite the applicant’s poor control of his diabetes since the incident in 2013, this would not explain the onset of symptoms reported at the time of incident.^[112] Dr Costello concluded that the applicant’s ongoing radicular symptoms are related to his disc disease and while impotence is a common symptom of peripheral neuropathy, the applicant’s impotency is out of proportion to the overall severity of his peripheral neuropathy.^[113]

Supplementary Report of Dr Craig Costello neurologist dated 19 April 2016

65. This further report was provided following questions from the applicant with regards to his diagnosis. Dr Costello commented that considering the applicant’s poor control of his diabetes over a number of years, the diabetes will be the driver of his peripheral neuropathy.^[114] Dr Costello recommended that good control of the applicant’s diabetes alongside an exercise program and losing weight will positively impact the applicant’s ongoing prognosis.^[115] Dr Costello also commented that there seems to be concern due to the ongoing difficulties with the applicant’s leg which are being complicated by his recent diagnosis of osteoarthritis in the hip.^[116]

Letter of Dr David Anderson, neurosurgeon dated 18 May 2016

66. Dr Anderson commented that the applicant complained of a burning sensation in his hips and following an MRI scan of his hips, it indicated that he had early osteoarthritis of the hips and some fraying of the acetabular labrum.^[117] Dr Anderson considered that there was no obvious root entrapment and he did not think he would benefit from any further neurosurgical intervention.^[118]

Report of Dr L du Plessis, neurologist and rehabilitation physician dated 8 December 2016

67. Dr du Plessis observed that there were some discrepancies in the findings over the past few years and an issue is that despite the applicant reporting ongoing severe discomfort he participated in two off-road cycle races. ^[119] Dr du Plessis considers that participating in these events led to an aggravation of his physical discomfort.^[120] Dr du Plessis considered that the applicant still has ongoing physical discomfort and pathology relating to his back injury in 2013. Dr du Plessis considered there was sufficient evidence to suggest that the applicant has some permanent abnormality in the lower back but does not consider there is ongoing radiculopathy.^[121] Dr du Plessis concluded that the applicant has a mechanical backache which is a result of degenerative changes in the lumbar spine, the subsequent injury and the surgery required which restricted the movement in his back and caused pain.^[122] His backache is also being aggravated by his obesity.^[123]
68. Dr du Plessis observed that the applicant, as a result of his diabetes mellitus, has significant peripheral neuropathy. ^[124] Dr du Plessis observed that the applicant has lost joint position sensation in his feet causing him to be unsteady as he cannot feel where his feet are in a space. ^[125] Dr du Plessis considered that the applicant’s ongoing sensory changes in his feet are purely attributable to his diabetic peripheral neuropathy^[126] and concludes that the applicant’s diabetes mellitus has “at least some role to play in his erectile dysfunction”.^[127]
69. Dr du Plessis also comments that the applicant’s diabetes mellitus does not always appear to be well controlled and if this continues the applicant will have multiple other generalised secondary complications.^[128] Dr du Plessis concluded that the applicant’s impotency condition is not related to his back condition and as the applicant is grossly overweight, this has a negative effect on his diabetic control, lower back symptoms and osteoarthritic changes in his hips.^[129]
70. Dr du Plessis recommended the applicant see a dietitian for treatment of his diabetes mellitus which was outside his field of expertise.

Supplementary report of Dr L du Plessis, neurologist and rehabilitation physician dated 6 July 2017

71. Dr du Plessis’ supplementary report considers that the applicant’s impotency condition is purely a result of his progressive diabetic neuropathy and as the applicant is already experiencing sensory changes at his abdominal level “that would mean that the nerves exiting below T10 level, which include the nerves that control impotence, would be affected”.^[130] Dr du Plessis also noted that the applicant’s impotency is being further affected and worsened by his pain in other areas including his hips, neuropathic pain and depression.^[131]

Applicant’s Submissions

Psychological condition

72. The applicant submits that as a result of the injury in September 2013, he developed dysfunctional psychiatric/emotional symptoms and an impotency condition. The applicant submits that the psychiatric condition is an “injury” within the “disease” limb of section 5A(1)(a) of the Act because it was an “ailment” that was contributed to, to a significant degree, by the back injury. The applicant also submits that the impotency condition is an “injury” within the “injury (other than a disease)” limb of section 5A(1)(b) of the Act because there is a sufficient causal connection.
73. The applicant relies on the definition of “ailment” provided for in Comcare v Mooi (1969) 69 FCR 439; as well as the distinction between “clinically significant” (that is, abnormal behaviour in the circumstances of the particular patient)” and “behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances”.

...the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.

74. The applicant submits that there is an “ailment” where the condition is outside the boundaries of normal mental functioning and behaviour even if that condition does not satisfy a formal diagnosis.^[132]
75. The applicant relies on the decision of Papaioannou and Australian Postal Corporation [2015] AATA 370 in which that applicant claimed to suffer an adjustment disorder with mixed anxiety and depressed mood as a result of chronic pain from his physical injuries. In this case, there was evidence that the applicant did not have a diagnosable disorder but did “suffer from emotional symptoms which were an understandable psychological reaction to his physical complaints and his current situation”.^[133] This did not preclude the Tribunal from finding in favour of the applicant.

Impotency Condition

76. The applicant submits that the timing of the onset of the erectile dysfunction is significant. The applicant outlines that in the absence of medical evidence that provides a definitive answer, the Tribunal has the ability to employ a course of reasoning that combines common sense with the application of logic to physiological facts to draw an inference about causation.^[134]
77. In Commissioner of Police v David Rea [2008] NSWCA 199, the Court of Appeal made reference to the following reasoning in EMI (Australia) Ltd v Bes (1970) 44 WCR 114 at 119:

It is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death in which case of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then in my opinion the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning.

78. The applicant submits that given the close timing between the applicant’s back injury and the development of his impotency condition, it gives rise to the probable inference of causation.^[135]
79. The applicant further submits that the applicant’s peripheral neuropathy had its onset significantly later than the impotency condition which undermines the contention that the peripheral neuropathy is the sole cause of the applicant’s impotency condition.^[136] The applicant submits that the impotency condition had its onset no later than 8 to 12 weeks after the February 2014 surgery and that it was not until January 2016, when possible peripheral neuropathy was identified. Further, in the applicant’s reply submissions it contends that for the impotency condition to be compensable, the applicant’s employment or compensable injury does not need to be the sole cause.^[137] The applicant accepts that at least since early 2016, the diabetes related peripheral neuropathy had been a cause of the impotency condition but that does not deny the proposition that the applicant’s back injury is also a cause of the impotency condition.^[138]

Respondent’s Submissions

80. The respondent denies liability with respect of the applicant’s psychological and impotency conditions. The respondent submits that the physiological change that saw the applicant attend upon medical providers was numbness and that change is consistent with a disease in the nature of diabetes.

81. The respondent relies on the reasoning in Beezley v Repatriation Commission (2015) 150 ALD 11^[139] in which it was said that:

In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 356–7 and 358 (per Woodward J), 366 (per Northrop J) and 369 (per Jenkinson J); Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 at 215–8; and Evans (as executor for the estate of the late Evans) v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; (2012) 289 ALR 237 at [18] and the cases there cited.

82. The respondent submits that the applicant’s impotency condition is a result of his diabetes and there is insufficient evidence to satisfy the statutory requirements. The respondent also submits that there is no other plausible explanation for the physiological change.
83. With regards to the applicant’s psychological condition, the respondent references the case of Comcare v Mooi (1969) 69 FCR 439 outlining that while there is not a need for a particular diagnosis to be attributed, there does need to be more than the emotional experiences that one may expect a person in the circumstances of the applicant to experience.^[140] The respondent submits that there needs to be an injury suffered that has resulted in an incapacity for work as impairment. The respondent contends that while the applicant’s complaints could be suggestive of a psychological condition, they are not, without the concurrence of more, outside the boundaries of normal mental functioning and behaviour.^[141] They also do not result in an incapacity for work or impairment.^[142]
84. Further the respondent submits that the applicant needs to persuade the Tribunal, based on the evidence, that the depressive disorder identified is related to the physical complaints that arise out of the accepted back condition and is a condition of itself. The respondent contends that it is expected that someone in the applicant’s circumstances (having limitations imposed on him because of physical limitations) would suffer a level of irritability by reason of not being able to engage in activities that he once previously did. The respondent submits there needs to be something more.
85. The respondent also contends that the applicant’s evidence is unreliable particularly with regard to the manner in which he gave evidence, not giving a proper account of his life activities (e.g. bees, dog rescue group, beach and other activities and socialising) and attempting to place the respondent in a poor light.

CONSIDERATION

86. The issue before this Tribunal is whether the respondent is liable to pay the applicant compensation in accordance with the Act with respect to a psychological condition and an impotency condition. The applicant relies on section 5A(1)(a) of the Act in relation to his psychiatric condition and section 5A(1)(b) in relation to his impotency condition. As outlined previously, the applicant’s initial claims made under sections 16 and 29 of the Act were withdrawn.

Psychological Condition

87. The applicant has contended that by no later than December 2014, probably earlier but certainly by then, the applicant was suffering the effects of a depressive psychiatric condition and the psychiatric condition was contributed, to a significant degree, by the compensable injury and, therefore, is itself a disease under the Act.
88. The applicant called Associate Professor Sahoo, psychiatrist, who confirmed that in his report he made a diagnosis of “major depressive disorder, moderate depression, due to a medical condition which is the back injuries and the pain associated with it”. Dr Sahoo stated that he would revise the diagnosis by striking out the words “due to a medical condition” and explained the reasons for the revision of the diagnosis:
    88. “I have, you know, read Dr Wasim Shaikh’s further report that he has been asked to comment on after my report and I have taken his suggestions on board and therefore I would remove the, “due to general medical condition” off. The reason why I had put it in the first place was that I specialise in medical disorders, so the influence of medical disorders on psychiatry and I believed that a large extent of what Mr Horne was undergoing was also because of the uncontrolled diabetes that he was having and because I am quite well aware to the research behind diabetes and depression. Therefore, I had put it as, ‘due to general medical condition’”.
89. Dr Sahoo also remarked “if we were to go strictly by the classificatory system, it would be moderate depressive disorder”. Dr Sahoo also confirmed that the amendment of his diagnosis did not cause him to change his opinion with regards to causation.
90. Dr Sahoo confirmed that his diagnosis was made under DSM-5, and agreed that under DSM-5 the diagnostic criteria include that a person is in a depressed mood most of the day, nearly every day. Dr Sahoo confirmed that the applicant stated he was depressed most days but his depression is more about irritable depression characterised mostly by an irritable mood, rather than a purely depressed mood. Dr Sahoo also confirmed that the applicant told him that he has lost all interest in the activities of his day-to-day life.
91. Dr Sahoo confirmed that the applicant did not inform him about his interest in beekeeping; that he was going to meetings monthly with respect to a beekeeping society; about the communications that he undertakes through a Facebook page for beekeepers; about reading up, or otherwise hands on learning with respect to beekeeping; that he had another Facebook page where he communicates with family and friends and people within that category in his life; that he also has undertaken some enquiries and some reading and has been on the computer with respect to dogs and that he joined a group that help rescue dogs.
92. Dr Sahoo confirmed that the applicant had told him about his bike riding and that he was told that he completed the Mike Carney Toyota Paluma Push (which is a 42 kilometre mountain bike ride). Dr Sahoo was not aware that the applicant travelled to Mackay to undertake a bike ride. Dr Sahoo was directed to his report^[143] where he reports the applicant as being: “...quite disappointed at the response after that and Comcare withdrawing several of his benefits after this incident had happened”.
93. Dr Sahoo confirmed that the applicant informed him of that because Comcare had responded by saying that he would no longer continue with bike riding. Dr Sahoo added: “Yes and probably that’s also one of the reasons why I have mentioned that there seems to be an element of secondary gain”. Dr Sahoo later remarked: “I believe that the secondary gain is more unconscious, so he benefits from probably having his benefits from Comcare continuing in the form of physiotherapy, medical reimbursement done, and that is maybe playing a factor in, you know, his depression continuing”.
94. Dr Sahoo remarked that a moderate depressive disorder does not preclude the applicant from undertaking any of those activities, and it is also stated that upon feeling better, the applicant would be able to do these activities.
95. Dr Sahoo confirmed that he was proceeding on the basis that he accepted that the applicant has the kind of pain in his back that he reports. Dr Sahoo remarked: “Yes. So I accept that he is describing that he has a significant amount of pain in his back, a significant amount of reduced functioning because of his pain, and I accept that that is the one that is a major factor in his developing the psychological condition”.
96. Dr Sahoo confirmed that the treatment that the applicant was getting from Mr Shahinper, the psychologist, was well in excess of the expected number of consultations that you would expect with a psychologist before you would see a positive response. Dr Sahoo remarked: “Mr Shahinper practised mindfulness based therapy, which, was not the ideal kind of therapy to be undergoing, and he probably needed more of a cognitive therapy than mindfulness based therapy, and therefore I felt that having, you know, undergone 30 sessions and not showing adequate amount of improvement, there is no sense in this therapy continuing”. When it was put to Dr Sahoo that it might be an indicator that there is not something there to be actually treated, he answered: “Well, you could argue that way. You could also argue that he has a chronic condition which is resistant to therapy”.
97. In re-examination Dr Sahoo remarked: “I’m going with the assumption that he has a physical condition, I’m not going with the assumption that he does not. So let’s go with that and I say that if he has a physical condition which has led to his psychological condition, now, the psychological condition continues to impact on him, but not to the extent as much as the physical condition. So if the physical condition were to go away, then the limitations caused by his psychological condition would disappear, by itself”.
98. Dr Shaikh was engaged by the respondent to report on the psychological condition of the applicant. In his report, Dr Shaikh referred to the history of the psychological complaints of the applicant. In submissions, the applicant drew attention to various aspects of the history of the applicant that are mentioned in the report being issues with “agitation and anger”; issues with “body image”; difficulties with “concentration and memory”; aspects of “anxiety” and “some avoidance behaviour”; pain and anger having “led to disturbance in his relationship” with his wife and infrequent “ideas of self-harm, without any intent or planning”.
99. The applicant has emphasised that in his report, Dr Shaikh expressed the opinion that “most” of the psychiatric symptoms were better understood as a representation of the applicant’s physical condition. In his report Dr Shaikh remarked:
    99. “As for his psychiatric complaints, there is not much doubt that he presents with symptoms such as sensitivity to agitation, impaired cognition, emotional lability, sleep disturbances, and reduced participation in recreational activities. However, further questioning reveals that most of these symptoms are a representation of his physical condition, rather than of a secondary psychiatric condition”
100. In cross-examination it was put to Dr Shaikh that the fact that the treating psychologist thought there were symptoms of an adjustment disorder and depression was highly relevant. Dr Shaikh answered that: “It is relevant that the treating psychologist thinks that there is an adjustment disorder”. Dr Shaikh was asked that in the light of Mr Shahinper’s findings, did he agree that it is likely that at least as at May 2015, the applicant was experiencing an adjustment disorder. Dr Shaikh answered: “on the balance of probabilities, no”. Dr Shaikh was also asked whether he agreed that it was likely that at that time the applicant was experiencing some psychological symptoms even if they didn’t satisfy the criteria for an adjustment disorder. Dr Shaikh answered: “again, he was experiencing psychological symptoms. I wouldn’t doubt that”. Dr Shaikh accepted that the main contributing causes were diabetes and pain. Dr Shaikh was asked if both of those causes “have some significance in bringing about the psychological symptoms, particularly the pure psychological symptoms” to which he answered: “the pure psychological symptoms, yes, they would be”.
101. The applicant, who was given leave to re-examine Dr Shaikh, asked Dr Shaikh what he was looking for if there was going to be a diagnosis of an adjustment disorder. Dr Shaikh answered:

“so the example of the symptoms that he would be having in his situation, if he did have an adjustment disorder, would be a sense of consistent low mood, which would be present even on the days that he did not have pain. He would have symptoms of anxiety irrespective of the fact that he is anxious about his future, he’s anxious about the fact that his symptoms trouble him. I would be expecting symptoms of lack of motivation or lack of interest in his usual recreational activities, such as in his case would be looking after his bees, or looking after his cycling capabilities. And the fact to me that he has demonstrated an interest in these, and demonstrated a capability to participate in activities like these, excludes such a diagnosis”.

102. Dr Shaikh was asked about the response of the applicant being beyond the bounds of normal mental functioning, he confirmed that was the case. Dr Shaikh commented: “I think there has been agitation and anger beyond normal mental functioning, and that is reflected by his relationship disturbances, and how that has impacted on his relationship, and the things that have happened which I have described in my report”. Dr Shaikh remarked that he would not expect somebody in his situation to normally have that kind of aggression towards his partner. Dr Shaikh accepted that the response in relation to agitation and anger is beyond the bounds of normal mental functioning for someone in these particular circumstances. Dr Shaikh also accepted that if somebody has a feeling of anxiety to the extent that they feel a need, which is satisfied or met by using an assistance dog to alleviate that anxiety, then that is indicative of a symptom that is beyond the bounds of normal mental functioning for those particular circumstances.
103. Dr Shaikh was asked about the various contributions to the mental condition of the applicant. Dr Shaikh remarked that: “it’s important to include that excessive use of opiate medications”. When Dr Shaikh was asked about the contribution from chronic pain, he referred to the ‘contribution from his perception of pain, and that not improving’. When he was asked about the ideas of self-harm is just within the normal boundaries of mental functioning for anyone who has a back injury, he responded: ‘Yes, what I’m trying to say is that there are several things that are happening in his situation, and it’s not just a back injury. It’s the legality of matters. It’s his frustration regarding his incapabilities, which can lead to occasional ideas of self-harm. So I wouldn’t say they’re outside the boundaries or normal mental functioning in his circumstance”.
104. Dr Shaikh did not demur when it was put to him by the applicant that he was saying that the applicant does not have a psychiatric disorder that is formally diagnosable under DSM 4 or DSM 5. Dr Shaikh emphasised that there are “apparently pseudo-psychological complaints” and some of the symptoms “are not explained by the difficult experiences”. He remarked:

“I believe the main psychological symptom contributors are the uncontrolled diabetes, the uncontrolled pain, and the symptoms that are part and parcel of his pain condition. I don’t believe there’s anything else that there, except if you include the effects of medications”.

105. The applicant in his submissions contends that he suffers from a psychiatric or emotional ailment whether described as major depressive disorder, adjustment disorder, or not having any specific diagnostic label and that the compensable injury was a significant factor in the development of that for adjustment disorder or otherwise is a “disease” within section 5B(1) of the Act and thus an “injury” under section 5A(1)(a).
106. I consider that Dr Shaikh has carefully considered the circumstances of the applicant and I rely upon his opinions to conclude that the applicant does not have a diagnosable mental health condition in terms of either DSM 4 or DSM 5. Dr Shaikh confirmed that he considered that the applicant does not have a psychiatric disorder that is formally diagnosable under DSM 4 or DSM 5. His opinion in this regard was not challenged by the applicant. Dr Shaikh was firm in his opinion that the applicant did not satisfy the criteria for an adjustment disorder and he gave full and adequate reasons for his conclusion.
107. While Dr Shaikh accepted that the applicant has “pure psychological symptoms”, Dr Shaikh remarked that they are “apparently pseudo-psychological complaints, which would deal with lesser of the psychiatric disorder” and that “some of them are not explained by the difficult experiences”.
108. In Dr Shaikh’s second report dated 20 June 2017,^[144] he remarked:
     108. “I would rephrase this from my opinion’s perspective as, his uncontrolled diabetes and uncontrolled pain, as well as other factors noted above, are contributing causes of his psychological symptoms, but not to the extent that a psychiatric disorder is diagnosable”.
109. Section 4 of the Act provides that an “ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). I rely upon the opinion of Dr Shaikh who considers that the applicant does not have a psychiatric disorder within the meaning of the definition of “ailment” in section 4 of the Act. For there to be an ailment there has to be “a morbid affection of the body or mind; indisposition; a slight ailment”.^[145] In a beneficial statute the expression “ailment” is not to be narrowly construed. However, there is no cogent and probative evidence before the Tribunal that the applicant has a mental indisposition of any kind. The fact that Dr Shaikh had referred to there being “apparently pseudo-psychological complaints” is one thing but there is no credible evidence of the indisposition of the applicant. It is apparent that Dr Sahoo who was called by the applicant was unaware of the wide range of social and sporting activities the applicant undertook when he wrote his reports.
110. I have considered the evidence concerning whether the applicant was outside the boundaries of normal mental functioning and have concluded that there is no cogent evidence that the applicant was outside the boundaries of normal mental functioning. Dr Shaikh was closely questioned about whether the complaint of the applicant of having ideas of self-harm was within the normal boundaries of mental functioning. Dr Shaikh explained that “the fact that he hasn’t had any intent or any plans or any attempts, and the fact that these thoughts are not frequent, to me, do not mean much”. I do not consider that there is any cogent evidence that the applicant had any such plans as Mr Shahinper recorded in his initial session that there was no suicidal ideation or homicidal ideation on the part of the applicant.
111. I have considered the contentions made by the applicant concerning his pain. Certainly, Dr du Plessis reported that the applicant still had pathology relating to the lumbar spine injury. However, it is difficult to accept the contentions of the applicant that his pain is insufferable. The medical specialist advice before the Tribunal has been predicated on the assumption that the applicant has uncontrolled pain from the back condition. However, I do not think that this is in fact the case. The evidence before the Tribunal was that the applicant had a positive post-operative experience. The evidence of the applicant is that after the operation he obtained pain relief. For example, on 2 October 2015, Mr Joubert, physiotherapist, wrote to Dr Kumar to inform him that there is less need for pain management with medication and on 2 January 2016, Dr David Anderson reported that the applicant: “post operatively, he did well with the rehabilitation program”.
112. Now the applicant asserts that he has uncontrolled pain. In evidence the applicant remarked: “my priority right now is getting myself into the pain management clinic and getting to see a psychologist. That’s my priority right now”. It is difficult to accept the assertion of the applicant that his priority is to seek the assistance of a pain management clinic. The medical documents refer to a number of occasions in 2016 when the applicant was referred to a pain management clinic. Dr Kumar on 30 March 2016 made reference to a referral to a pain management clinic. On 18 May 2016, Dr David Anderson saw the applicant and his partner and his notes record: “At our last meeting and again today we talked about the possibilities of the benefit of perhaps seeing a pain clinic”. His partner recalled those discussions. On 8 June 2016, Dr Kumar referred the applicant to the Mater Townsville Pain Specialist Clinic – the respondent had agreed to pay reasonable medical expenses for the initial consultation. Dr Scott from that clinic remarked in a note dated 21 November 2016: “I’ve not had any consultation with Mr Horne. My reception staff left two messages on Mr Horne’s phone for him to call or make an appointment, however he never returned that call and thus an appointment was never made”.
113. The applicant asserted that he never received any messages from the pain management clinic. It is not plausible that there were no messages made having regard to the records of the pain management clinic. Even if he did not receive the messages he should have followed up the request to the pain management clinic. If the applicant truly wanted to attend the pain management clinic he would have arranged an appointment having regard to the recommendation from Dr David Anderson who has, at least, twice informed the applicant about the need to have treatment from a pain management clinic.
114. Dr Low who was called by the applicant agreed that pain is subjective and that you are reliant on the reporter. It is difficult to accept that the applicant has uncontrolled pain. If he indeed had uncontrolled pain he would have arranged an appointment at the pain management clinic. Even now the applicant has not sought a mental health plan to get free consultations with a psychologist and his present general practitioner has not made any referral to a psychiatrist for treatment.
115. As there is no cogent evidence that the applicant has a “mental ailment” or a “disorder” within the meaning of the definition of “ailment” in section 4 of the Act, he does not have a “disease”. Even if the applicant has a “mental ailment” there is no cogent evidence that there is satisfaction of the causal test in section 5B of the Act and so cannot have an “injury” in terms of section 5A(1)(a) of the Act.
116. If the applicant indeed has a “mental ailment” (which I consider not to be the case) caused by pain, it is important to consider the cause of that pain. While I certainly recognise that the applicant has experienced pain from his back condition, the evidence indicates that there has been an improvement of his back condition. Dr du Plessis considered that: “the ongoing pain now is more likely to be due to the progressive nature and the deterioration in his diabetic neuropathy as opposed to the initial ongoing symptomatology secondary to his back pathology which I said I considered to be a mechanical background”. In such circumstances, I am unable to make a finding that the ailment was contributed to, to a significant degree, by the applicant’s employment.
117. The applicant has contended that the other problems that are identified in a number of the reports, in particular the hip condition, had a later onset and that is relevant in determining the causative factors in relation to both the psychiatric condition and the impotency condition. I should also mention that Dr Anderson in his report dated 18 May 2016 indicated that the applicant had early osteoarthritis of the hips and some fraying of the acetabular labrum. My review of the records of the general practitioner reveal that the hip condition of the applicant had a much earlier onset then has been contended by the applicant. For instance, on October 18 2013, the applicant’s general practitioner recorded: “says hip still sore, still can’t bend down and pick up things”. The contention that the hip condition had a later onset is also not supported by the initial incident report that was completed by the applicant. The back injury in question happened at 6:00pm on 13 September 2013. The applicant reported that he then had permission to attach a bike rack to his personal vehicle, and that task was completed at 8:30pm. The applicant had then experienced pins and needles in his right hip and on the next day woke up with a burning sensation to the right hip. Having regard to the medical documentation, I do not accept that the hip condition of the applicant had a later onset as contended.
118. There is no cogent evidence that the psychological condition of the applicant is related to his back injury.

Impotency Condition

119. The applicant has contended that the surgery that was undertaken on 27 February 2014 was as a result of the compensable injury and that no later than about 8 to 12 weeks after the surgery, and most likely sooner, the erectile dysfunction had manifested itself and that that erectile dysfunction is causally related to the compensable injury.
120. It is not clear when the impotency condition of the applicant first arose. The applicant has claimed that it arose some 8 to 12 weeks after he had his surgery on 27 February 2014. However, this assertion is not supported by the evidence of his partner who was not called to give evidence on this issue. It is also not supported by the contemporaneous medical evidence. The applicant when giving evidence stated that he might have discussed the impotency condition with Dr David Anderson. The summonsed notes of Dr David Anderson certainly reveal that on 22 March 2016 the applicant reported to Dr David Anderson that he had “difficulties about impotence since the accident”. This statement was made more than two years after the incident on 13 September 2013 and is not probative of the contention that the impotence condition arose some 8 to 12 weeks after the surgery.
121. On 21 October 2014, Dr Bodell issued a report but his report does not contain any reference to the impotency condition. The applicant was asked if he was capable of telling other doctors (one of them only two months later) what the problem was in telling Dr Bodell if he indeed actually suffered from that condition, to which the applicant replied: “It was the embarrassment of it”. However, that explanation is not plausible because the whole purpose of the consultation with Dr Bodell was to obtain medical evidence in support of his compensation claim. It would appear to be the case that the impotency condition was not in existence when the applicant saw Dr Bodell.
122. On 22 December 2014, Associate Professor Gordon Stuart reported on the erectile dysfunction condition of the applicant. In that report there is a reference to “erectile dysfunction since surgery”. This reference appears to be based on self-report and there is no contemporaneous medical evidence to support this assertion. There is a suggestion by Dr David Anderson on 27 January 2016 that there might be a peripheral neuropathy; in his report he makes reference to, “symptoms of numbness in both legs from the umbilicus down and also referred to “some problems with impotency”.
123. There is no cogent evidence that supports the contention that the impotency condition arose soon after the surgery or was a consequence of the surgery. This timing issue is one reason why I do not accept that the impotency condition of the applicant is related to his employment or his surgery.
124. Dr du Plessis considered that the neuropathy being caused by his diabetes was the “only explanation” that he can come to. Dr du Plessis gave reasons for his conclusion: “considering the level of his original spinal problem, the only explanation I can come to is that he’s got a peripheral neuropathy due to diabetes in his case. Because diabetes and alcohol make up about 60 per cent of all the cases of peripheral neuropathy and he doesn’t have a history of excessive alcohol then I would consider that the most likely cause is diabetes and particularly in a guy who was not looking after his blood sugar very well”. Dr du Plessis also confirmed in evidence that given the unchallenged evidence that the applicant was experiencing numbness, out of the three possible causative effects, neuropathy was the more probable of the three.
125. I have concluded that the impotency condition of the applicant is not related to his back injury in reliance on the evidence of Dr du Plessis. Dr du Plessis has provided cogent reasons for his conclusion and in his supplementary report, explained that the impotency condition is related to the diabetic neuropathy condition which affects the nerves exiting below the T10 level which includes the nerves that control impotence.
126. Dr Low in discussing the impotency condition stated in his evidence that the applicant has had significant spinal stenosis at L4-5. Dr du Plessis has also carefully considered whether the impotency condition was linked to central canal stenosis. Dr du Plessis in giving evidence remarked:
     126. “Now, I accept what you want to know is the canal was narrowed and therefore there was spinal stenosis - or canal stenosis. That could compress those nerves. I accept that could happen - but then it would also have previously compressed all the nerves above that level as well and when it compresses S2, 3, 4 it does not only cause the issue of impotence, it causes erectile dysfunction so you lose your - you can’t control your bowel action any more, you lose bladder function and you become incontinent. Those three factors - impotence, bladder function and erectile control are all governed by S2, 3, 4 and if one goes it affects - if that bundle of 2, 3, 4 goes then it affects all the functions to a greater or lesser degree. It will not selectively lose function of just impotence - causing impotence, it will also have bladder dysfunction and bowel, erectile dysfunction”.
127. Dr du Plessis was asked if there was some history of problems with the bowel and bladder and whether that would lend some weight to the idea that there might have been some partial impact on those S2, 3, 4 nerves through that central canal stenosis. Dr du Plessis answered: “I would find it difficult to accept that because the incontinence would have to be also permanent but if you were postulating that the pressure is causing impotence on a permanent basis because he has been complaining of that all the time, I would have expected concomitant permanent urinary and erectile incontinence because they all run together, those nerves - those nerve roots”.
128. Dr du Plessis rejected a suggestion that the nerves relating to the sexual function might be more sensitive to these changes than some of the other nerves. Dr du Plessis added:

“I don’t know how you can prove that that’s the case. I don’t know how you would go about that. There are more obvious reasons for his impotence and that’s the neuropathic changes that have occurred in the peripheral part of those nerves due to diabetes mellitus and due to autonomic dysfunction. I have not personally in my entire practice since 1980 as a neurologist, seen the impotence without bladder and bowel, erectile dysfunction occurs when there is damage at that level of S2, 3, 4. It’s understood that impotence is not a very uncommon condition in males and it occurs fairly early and it is often transient in some cases and is very often linked to emotional and psychological issues”.

129. There was evidence that after the incident on 13 September 2013 and the surgery that was undertaken on 27 February 2014 that the applicant had no difficulties with sphincter function. Associate Professor Gordon Stewart in his report of 22 December 2014 reported: “there is no disturbance of his sphincter function”. The fact that at this time the applicant did not have difficulties with his bladder leads me to conclude that the impotency condition is not related to stenosis of the central canal.
130. Dr du Plessis in his report of 29 November 2016 and in giving evidence has quite properly acknowledged that there are three factors which could contribute to the impotency condition. Dr du Plessis regarded the diabetes factor as the greater factor but also referred to psychological impacts as well as physical pain. In giving evidence Dr du Plessis was closely questioned by the parties upon the cause of the impotence condition. While Dr du Plessis has opined that there may be other factors adding to the impotence condition including chronic pain and underlying secondary psychopathology, there is no cogent evidence before me that either or both of these factors have contributed to the impotence condition to a significant degree having regard to the definition in section 5B(3) of the Act which provided that of “significant degree” means a degree that is substantially more than material.
131. I conclude that the more probable cause of the impotency condition of the applicant is the neuropathy caused by diabetes. Dr David Anderson in his report dated 27 January 2016 opined that the paraesthesia is not related to his lumbar spine given its distribution and then thought that the diabetes was a significant factor. I also rely on Dr du Plessis’ report dated 29 November 2016 where he concluded that having regard to the blood test done by Dr Costello, there was no other obvious cause for the peripheral neuropathy found, other than it being related to the applicant’s diabetic condition.
132. There is no cogent evidence that the impotency condition is an injury in terms of section 5A(1)(b) of the Act. While no claim was made by the applicant under section 5A(1)(a) of the Act in respect of the impotency condition, there is no cogent evidence that the condition is a disease that was contributed to, to a significant degree, by the employee’s employment.

CONCLUSION

133. For the reasons given above, I do not accept that the applicant’s psychological condition and impotency condition are related to his back injury.

DECISION

134. I affirm the decisions under review dated 1 August 2016 and 22 February 2017.

.........................[SGD]...............................

Associate

Dated: 25 October 2018

^[1] Exhibit A, T-Documents, T27, p.863.

^[2] Exhibit A, T-Documents, T101.

^[3] Exhibit A, T-Documents, T108.

^[4] Exhibit A, T-Documents, T1.

^[5] Exhibit B, Supplementary T-Documents, ST11.

^[6] Exhibit B, Supplementary T-Documents, ST14.

^[7] Exhibit B, Supplementary T-Documents, ST1.

^[8] Exhibit E, Applicant’s Supplementary Statement of Evidence.

^[9] Exhibit E, Applicant’s Supplementary Statement of Evidence.

^[10] Exhibit E, Applicant’s Supplementary Statement of Evidence.

^[11] Exhibit E, Applicant’s Supplementary Statement of Evidence.

^[12] Exhibit D, Applicant’s Statement of Evidence.

^[13] Exhibit D, Applicant’s Statement of Evidence.

^[14] Exhibit D, Applicant’s Statement of Evidence.

^[15] Exhibit E, Applicant’s Supplementary Statement of Evidence.

^[16] Exhibit E, Applicant’s Supplementary Statement of Evidence.

^[17] Exhibit E, Applicant’s Supplementary Statement of Evidence.

^[18] Exhibit E, Applicant’s Supplementary Statement of Evidence.

^[19] Exhibit D, Applicant’s Statement of Evidence; Exhibit A, T-Documents, T103, p.1250.

^[20] Exhibit D, Applicant’s Statement of Evidence.

^[21] Exhibits D and E.

^[22] Exhibit D, Applicant’s Statement of Evidence.

^[23] Exhibit D, Applicant’s Statement of Evidence.

^[24] Exhibit A, T-Documents, T26, p.856.

^[25] Exhibit A, T-Documents, T26, p.857.

^[26] Exhibit A, T-Documents, T30, p.868.

^[27] Exhibit A, T-Documents, T35, p.881.

^[28] Exhibit A, T-Documents, T39.1, p.898.

^[29] Exhibit A, T-Documents, T73, p.1143.

^[30] Exhibit A, T-Documents, T96, p.1212.

^[31] Exhibit A, T-Documents, T96, p.1212.

^[32] Exhibit A, T-Documents, T96, p.1212.

^[33] Exhibit A, T-Documents, T96, p.1212.

^[34] Exhibit A, T-Documents, T96, p.1212.

^[35] Exhibit A, T-Documents, T96, p.1213.

^[36] Exhibit A, T-Documents, T96, p.1213.

^[37] Exhibit A, T-Documents, T96, p.1213.

^[38] Exhibit A, T-Documents, T96, p.1214.

^[39] Exhibit A, T-Documents, T96, p.1217.

^[40] Exhibit A, T-Documents, T96, p.1217.

^[41] Exhibit A, T-Documents, T96, p.1217.

^[42] Exhibit A, T-Documents, T96, p.1217.

^[43] Exhibit A, T-Documents, T96, p.1219.

^[44] Exhibit A, T-Documents, T96, p.1221.

^[45] Exhibit A, T-Documents, T103, p.1250.

^[46] Exhibit A, T-Documents, T103, p.1250.

^[47] Exhibit A, T-Documents, T103, p.1250.

^[48] Exhibit A, T-Documents, T103, p.1250.

^[49] Exhibit B, Supplementary T-Documents, ST9, p.76.

^[50] Exhibit B, Supplementary T-Documents, ST9, p.77.

^[51] Exhibit B, Supplementary T-Documents, ST9, p.78.

^[52] Exhibit B, Supplementary T-Documents, ST9, p.79.

^[53] Exhibit B, Supplementary T-Documents, ST9, p.80.

^[54] Exhibit B, Supplementary T-Documents, ST9, p.79.

^[55] Exhibit B, Supplementary T-Documents, ST9, p.79.

^[56] Exhibit H, Supplementary Report of Dr Shaikh, p.2.

^[57] Exhibit H, Supplementary Report of Dr Shaikh, p.3.

^[58] Exhibit H, Supplementary Report of Dr Shaikh, p.4.

^[59] Exhibit G, Supplementary Report of Dr L du Plessis, p.10.

^[60] Exhibit G, Supplementary Report of Dr L du Plessis, p.11.

^[61] Exhibit G, Supplementary Report of Dr L du Plessis, p.11.

^[62] Exhibit G, Supplementary Report of Dr L du Plessis, p.11.

^[63] Exhibit G, Supplementary Report of Dr L du Plessis, p.11.

^[64] Exhibit G, Supplementary Report of Dr L du Plessis, p.11.

^[65] Exhibit G, Supplementary Report of Dr L du Plessis, p.11.

^[66] Exhibit G, Supplementary Report of Dr L du Plessis, p.12.

^[67] Exhibit G, Supplementary Report of Dr L du Plessis, p.12.

^[68] Exhibit G, Supplementary Report of Dr L du Plessis, p.12.

^[69] Exhibit E, Applicant’s Supplementary Statement of Evidence.

^[70] Exhibit E, Applicant’s Supplementary Statement of Evidence.

^[71] Exhibit E, Applicant’s Supplementary Statement of Evidence.

^[72] Exhibit A, T-Documents, T26, p.855.

^[73] Exhibit A, T-Documents, T26, p.855.

^[74] Exhibit A, T-Documents, T30, p.868.

^[75] Exhibit A, T-Documents, T30, p.871.

^[76] Exhibit A, T-Documents, T30, p.871-872.

^[77] Exhibit A, T-Documents, T30, p.872.

^[78] Exhibit A, T-Documents, T39.1, p.895.

^[79] Exhibit A, T-Documents, T39.1, p.895.

^[80] Exhibit A, T-Documents, T45, p.925.

^[81] Exhibit A, T-Documents, T45, p.931.

^[82] Exhibit A, T-Documents, T45, p.929.

^[83] Exhibit A, T-Documents, T45, p.930.

^[84] Exhibit A, T-Documents, T45, p.931.

^[85] Exhibit A, T-Documents, T45, p.934.

^[86] Exhibit A, T-Documents, T45, p.941.

^[87] Exhibit A, T-Documents, T45, p.942.

^[88] Exhibit A, T-Documents, T49, p.964.

^[89] Exhibit A, T-Documents, T49, p.965.

^[90] Exhibit A, T-Documents, T53, p.1006.

^[91] Exhibit A, T-Documents, T53, p.1006.

^[92] Exhibit A, T-Documents, T53, p.1007.

^[93] Exhibit A, T-Documents, T53, p.1007.

^[94] Exhibit A, T-Documents, T53, p.1008.

^[95] Exhibit A, T-Documents, T53, p.1009.

^[96] Exhibit A, T-Documents, T73, p.1145.

^[97] Exhibit A, T-Documents, T73, p.1146.

^[98] Exhibit A, T-Documents, T73, p.1143.

^[99] Exhibit A, T-Documents, T73, p.1147.

^[100] Exhibit A, T-Documents, T73, p.1146.

^[101] Exhibit A, T-Documents, T73, p.1147.

^[102] Exhibit A, T-Documents, T73, p.1148.

^[103] Exhibit C, Indexed bundle of summons records, p.213.

^[104] Exhibit C, Indexed bundle of summons records, p.213.

^[105] Exhibit C, Indexed bundle of summons records, p.213.

^[106] Exhibit C, Indexed bundle of summons records, p.214.

^[107] Exhibit C, Indexed bundle of summons records, p.214.

^[108] Exhibit C, p.2.

^[109] Exhibit A, T-Documents, T95, p.1205.

^[110] Exhibit A, T-Documents, T95, p.1205.

^[111] Exhibit A, T-Documents, T95, p.1206.

^[112] Exhibit A, T-Documents, T95, p.1206.

^[113] Exhibit A, T-Documents, T95, p.1206.

^[114] Exhibit C, Indexed bundle of summons documents, p.37.

^[115] Exhibit C, Indexed bundle of summons documents, p.37.

^[116] Exhibit C, Indexed bundle of summons documents, p.37.

^[117] Exhibit C, Indexed bundle of summonsed records, p.201.

^[118] Exhibit C, Indexed bundle of summonsed records, p.201.

^[119] Exhibit B, Supplementary T-Documents, ST8, p.59.

^[120] Exhibit B, Supplementary T-Documents, ST8, p.59.

^[121] Exhibit B, Supplementary T-Documents, ST8, p.59.

^[122] Exhibit B, Supplementary T-Documents, ST8, p.59.

^[123] Exhibit B, Supplementary T-Documents, ST8, p.59.

^[124] Exhibit B, Supplementary T-Documents, ST8, p.59.

^[125] Exhibit B, Supplementary T-Documents, ST8, p.59.

^[126] Exhibit B, Supplementary T-Documents, ST8, p.59.

^[127] Exhibit B, Supplementary T-Documents, ST8, p.60.

^[128] Exhibit B, Supplementary T-Documents, ST8, p.61.

^[129] Exhibit B, Supplementary T-Documents, ST8, p.60.

^[130] Exhibit G, Supplementary Report of Dr L du Plessis, p.12.

^[131] Exhibit G, Supplementary Report of Dr L du Plessis, p.12.

^[132] Applicant’s submissions dated 11 August 2017 p.8.

^[133] Papaioannou and Australian Postal Corporation [2015] AATA 370, [85].

^[134] Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 358

^[135] Applicant’s submissions dated 11 August 2017 p.12.

^[136] Applicant’s submissions dated 11 August 2017 p.12.

^[137] Applicant’s submissions in reply dated 31 August 2017 p.1.

^[138] Applicant’s submissions in reply dated 31 August 2017 p.1.

^[139] At [68].

^[140] Respondent’s submissions dated 25 August 2017 p.10.

^[141] Respondent’s submissions dated 25 August 2017 p.10.

^[142] Respondent’s submissions dated 25 August 2017 p.10.

^[143] See page 4.

^[144] See page 3.

^[145] Macquarie Dictionary.