What's new in Commonwealth Compensation

DECISIONS IN WEEK ENDING 5 NOVEMBER 2010

• Liability
• Incapacity
• Permanent Impairment 
• Medicial expenses

Liability

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

In August 2007, the Applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) for a lower back injury described as “minor disc bulges L3/4, L4/5, L5/S1” which he claimed to have sustained on 27 July 2007 in the course of his employment as a track labourer with the Respondent. In August 2007, the Respondent accepted liability under the 1988 Act to pay compensation to the Applicant for an injury, namely, “muscle spasm & loss of lumbosacral mobility”, sustained on 27 July 2007. On 28 December 2007, however, the Respondent made a determination under the 1988 Act that the Applicant had ceased to suffer from the effects of his compensable injury on that date and that he was not presently entitled to compensation under the 1988 Act. The Respondent also determined that it was not liable under the 1988 Act to pay compensation to the Applicant in respect of a “secondary claim for anxiety and major depression received on 7 September 2007”.

In 7 April 2008, the Respondent made a “reviewable decision” under the 1988 Act affirming the determination of 28 December 2007. By letter dated 29 August 2008 to the Respondent’s solicitors, the Applicant’s former solicitors confirmed that the Applicant claimed compensation under the 1988 Act for a “psychological condition” described as “adjustment disorder with depressed and anxious mood”. On 28 October 2008, the Respondent made a determination that the Applicant was not entitled to compensation under the 1988 Act for “an anxiety state and major depression, secondary to a back condition”. In January 2009, the Respondent made a “reviewable decision” under the 1988 Act affirming the determination of 28 October 2008. The Applicant applied to the Tribunal for review of the reviewable decisions.

With respect to the Applicant’s lower back condition, the Respondent conceded that the Applicant suffered an “injury” (as defined in section 5A(1) of the 1988 Act) to his lower back on 27 July 2007. Although the Tribunal, having regard to the whole of the evidence before it, had substantial reservations regarding the appropriateness of that concession, it found that the applicant suffered an “injury” (as defined in section 5A(1) of the 1988 Act) to his lower back on 27 July 2007, and that that injury was compensable pursuant to section 14(1) of that Act.

In light of this finding, the Tribunal proceeded to consider the Applicant’s “Medical Treatment” and “Incapacity” entitlements under sections 16 and 19 of the 1988 Act, respectively. The Tribunal’s findings are summarised below under their respective headings.

Regarding the Applicant’s claimed psychiatric injuries, the Tribunal observed that there was uncontradicted medical evidence before it to the effect that the Applicant developed a diagnosable psychiatric condition as a result of his suffering his lower back injury of 27 July 2007, namely, the evidence of his general practitioner and, more importantly, a consultant psychiatrist. Having regarded this evidence, the Tribunal was satisfied, and found, that, by reason of his lower back injury of 27 July 2007 and associated pain, the Applicant suffered Adjustment Disorder with Depressed and Anxious Mood on 6 September 2007 and subsequently suffered Major Depressive Episode on 4 October 2007. Accordingly, the Tribunal found that each of those mental ailments was “contributed to, to a significant degree, by” his employment by the Respondent, and was, therefore, a “disease” (as defined in section 5(B)(1) of the 1988 Act). The Tribunal found, therefore, that each of the Applicant’s mental ailments (being a “disease”) was an “injury” (as defined in s 5A(1) of the 1988 Act) and was compensable pursuant to section 14(1) of the 1988 Act.

The Tribunal, therefore, set aside one of the decisions under review and in substitution decided the Respondent was liable, pursuant to section 14(1) of the 1988 Act, to pay compensation to the Applicant in respect of the following mental injuries, namely, “Adjustment Disorder with Depressed and Anxious Mood”, sustained on 6 September 2007, and “Major Depressive Episode”, sustained on 4 October 2007.

McHenry and Military Rehabilitation and Compensation Commission [2010] AATA 833 (27 October 2010) Brisbane

The Applicant served in the Australian Regular Army from June 1981 to June 1984 and suffered from lower back pain. In November 1987, the Respondent accepted liability for “muscle spasm injury to lower back”, sustained whilst the Applicant was taking part in an obstacle course run on 22 November 1983. The Applicant made a claim for permanent impairment compensation, whichwas denied on the basis that the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“1971 Act”) did not provide for the payment of lump sums for back injuries. He also made a claim for incapacity payments on 10July 2001 and was granted incapacity payments intermittently.

In December 2005, the Applicant made a claim for a psychological condition which he said was secondary to his back condition. In January 2007, the Respondent determined that as of that date the effects of the “original soft tissue back injury no longer exist” and that there was no present liability to pay compensation for medical treatment, incapacity or permanent impairment. That decision was affirmed in June 2008. By determination made in January 2007, the Respondent denied liability for a psychological condition and that decision was affirmed in June 2008. TheApplicant lodged an application to the Respondent for review of the decision regarding his psychological disorder; however that matter was not before the Tribunal.

In relation to his application relating to his lower back pain, the Applicant claimed that he suffered continuous lower back pain since the injury that he sustained during his army service in November 1983. The Respondent contended that the injury suffered in 1983 was one that caused short term back pain only, and that the Applicant had not suffered continuing back pain since that time.

The Tribunal noted that in order for it to determine whether liability presently existed to pay medical expenses, incapacity, or permanent impairment pursuant to sections 16, 19 and 24 of the Safety, Compensation and Rehabilitation Act 1988 (Cth) (“1988 Act”), the Tribunal had to decide whether the Applicant continued to suffer work related lower back pain. As such, the Tribunal had to determine whether on 11 January 2007 the Applicant continued to suffer from the effects of the initial back injury sustained in 1983. In this regard, the Tribunal accepted the Respondent’s submissions that it need not accept that the factual basis of the determination that accepted liability was correct. As such, in line with the principle espoused in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253, it was permissible for the Tribunal to make a finding that effectively undercut the necessary findings of fact made in the initial determination of the Respondent to accept liability in respect of the applicant’s claim.

In deciding the cause of the Applicant’s back symptomatology, the Tribunal preferred the opinion of a trauma and orthopaedic surgeon, whose report was detailed and comprehensive, compared to that of a neurologist, and whose opinion was largely consistent with that of an orthopaedic surgeon. The Tribunal considered that the neurologist’s opinion could not be relied upon because it was unlikely that he was aware of the discrepancies in the Applicant’s reporting.

Notwithstanding the witness report to the subject injury, on the basis of the lack of evidence to substantiate the occurrence of an injury to the Applicant’s back on 22 November 1983, the significant volume of medical evidence which was inconsistent with his account, and the unreliability of the evidence given by the Applicant, the Tribunal found that he did not sustain an injury on 22November 1983 whilst participating in a combat course which resulted in him being hospitalised and was thought at the time to have possibly involved his kidney. There was no liability to pay compensation to the Applicant pursuant to sections16, 19, 24 and 27 of the 1988 Act in respect to lower back muscle sprain.

The Tribunal added that even if the Applicant had sustained an injury on 22 November 1983 as he claimed, it would still have made the same decision, on the basis of the specialist medical evidence which indicated that the effects of the original soft tissue back injury no longer existed.

The Tribunal affirmed the decision under review.

Incapacity

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

The relevant details of this application were detailed above under “Liability”. In terms of the Applicant’s entitlement to incapacity benefits in respect of his accepted lower back injury, namely, “muscle spasm & loss of lumbosacral mobility”, sustained on 27 July 2007, the Tribunal acknowledged that the Respondent accepted liability to pay compensation to the Applicant for incapacity for work in respect of his lower back injury, pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”), until 27 December 2007. The matter for the Tribunal’s determination was whether the Respondent continued to be liable to pay compensation to the Applicant in respect of his lower back injury, pursuant to section 19 of the 1988 Act, from 28 December 2007 to date. The specialist medical evidence before the Tribunal overwhelmingly supported the proposition that, in the period from 28 December 2007 to date, the Applicant had not suffered any lower back pain which was causally related to his employment by the Respondent. Accordingly, the Tribunal found, on the basis of that evidence, that the Applicant’s compensable lower back injury, sustained on 27 July 2007, did not continue to result in impairment or incapacity for work, within the meaning of section 14(1) of the 1988 Act, from 28 December 2007 to date.

In this regard, the Tribunal set aside one of the decisions under review and determined that from 28 December 2007 to the present date, and as at the present date, the Respondent was not liable to pay compensation to the Applicant, pursuant to section 19 of the 1988 Act, in respect of his accepted lower back injury.

In addressing the Applicant’s entitlement to compensation under section 19 of the 1988 Act with respect to his accepted psychiatric conditions, the Tribunal attached great weight to the reports of three consultant psychiatrists, which, in its opinion, were objective, comprehensive and well-reasoned. On the basis of one of the consultant psychiatrist’s reports, the Tribunal found that, as at 8 September 2008, the Applicant was not suffering any symptoms of either of his compensable mental injuries, namely, Adjustment Disorder with Depressed and Anxious Mood, and Major Depressive Episode. The Tribunal further found, on the basis of the reports of the specialist psychiatric opinion, that the Applicant has not suffered any symptoms of either of those mental injuries from 8 September 2008 to date.

As such, in terms of the Applicant’s accepted psychiatric conditions, the Tribunal set aside the relevant decisions under review and substituted a decision that:

• The Respondent was liable to pay compensation to the Applicant, pursuant to section 19 of the 1988 Act, in respect of the mental injuries, for the period from 6 September 2007 to 7 September 2008;

• From 8 September 2008 to the present date, and as at the present date, the Respondent was not liable to pay compensation to the applicant, pursuant to section 19 of the 1988 Act, in respect of either of the mental injuries.

McHenry and Military Rehabilitation and Compensation Commission [2010] AATA 833 (27 October 2010) Brisbane

The relevant facts of this application are detailed above under “Liability”. In light of its findings regarding liability, the Tribunal found that the Respondent was not liable to pay compensation to the Applicant for incapacity benefits pursuant to section 19 of the Safety, Compensation and Rehabilitation Act 1988 (Cth) in respect to lower back muscle sprain. In this respect, the Tribunal highlighted that the specialist medical evidence indicated that the effects of the Applicant’s original soft tissue back injury no longer existed.

The Tribunal affirmed the decision under review.

Slater and Telstra Corporation [2010] AATA 828 (26 October 2010) Canberra

The Applicant injured his knee in 1996 while working for the Respondent installing cable television. He received compensation for the injury, and suffered an ongoing incapacity which had been assessed against the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) as less than total. He attempted to obtain ongoing compensation payments under the 1988 Act. Most recently, in January 2010, the Respondent’s insurer determined that the Applicant’s compensation entitlements since 1 June 2002 were nil. The Applicant sought a review of that decision.

The reviewable decision concerned the calculation of the Applicant’s compensation entitlements. This required a calculation of normal weekly earnings (“NWE”) for the period 1 June 2002 to 1 July 2010. Further, in determining compensation under section 19 of the 1988 Act, the formula required, in the Applicant’s case, two other calculations to be made. The first was a calculation of the amount the Applicant would have been able to earn (“AE”), if he had been in employment. The other involved calculating the deduction, if any, in accordance with section 21 of the 1988 Act, to take account of the superannuation payout made to the Applicant in 1999.

Accordingly, the issues before the Tribunal were:

(a) What were the Applicant’s NWE for 1 June 2002 to 1 July 2010? (b) Did the Applicant fail to seek employment during the period from 1 June 2002 to 1 July 2010? (c) If so, was it reasonable for him not to seek employment? (d) Were there any other issues that should be taken into account in deciding what the Applicant would have been able to AE? (e) Taking into account the answers to (b) (c) and (d), what was the Applicant’s AE for 1 June 2002 to 1 July 2010? (f) What deduction, if any, had to be made to account for the superannuation payout to the Applicant in 1999? (g) Was the Applicant entitled to compensation and if so, at what level?

With respect to (a), the Tribunal observed that on 26 May 2010, the Applicant accepted the Respondent’s revised figure as a basis for NWE calculations, subject to the calculations being redone using a specified starting point, and subject also to his being able to ask questions regarding these calculations in the hearing. In the event, the Applicant did not raise any matters concerning these figures, and the table submitted by the Respondent on 12 August 2010, which was generated using the same indexation parameters as that in an earlier determination, represented common ground between the parties, except in one respect: the Applicant consistently maintained that he was entitled to recognition of his overtime for his employer in the calculation of NWE.

In terms of overtime, the Tribunal found that the requirements of required regular overtime, set by subsection 8(2) of the 1988 Act, had not been met. The Tribunal highlighted the findings in Comcare v Pires (2005) 143 FCR 104 which confirmed that only required, regular overtime can be factored into NWE calculations. The Applicant’s NWE were therefore set by subsection 8(1).

In terms of (b), the Tribunal highlighted that the scheme of the 1988 Act is that a person who has suffered a work related injury is expected to return to suitable employment when able to do so, even if to a different kind or level of work. The Tribunal noted that the 1988 Act made provision for differing levels of compensation depending on the persistence and willingness an injured employee had shown in returning, or seeking to return, to work. In this regard, the Tribunal noted that the Applicant had not submitted any evidence of any attempt to obtain employment for the period 1 June 2002 to October 2009. In the hearing before Senior Member McCabe in 2009, the transcript of which was before the Tribunal in the present proceedings, the Applicant admitted that he had not sought employment in Australia for nine or ten years.

The Tribunal observed that from October 2009 to March 2010 the Applicant sent material to various employment agencies and the like, but it was by no means clear that he did so in a genuine attempt to find employment. A flurry of applications sent from the UK without enthusiasm, further explanation or follow up did not, in the Tribunal’s view, demonstrate the kind of commitment to obtaining employment that the 1988 Act sets out to recognise.

The Applicant sought assistance from Telstra Corporation Ltd v Warner [1994] FCA 1312 in which Heerey J noted that the failure of Telstra in that case to offer employment to Mr Warner was relevant to the question of what he was able to earn. The Tribunal noted that an approach to the Respondent, without explanation or follow up, some thirteen or more years after working for the Respondent a contractor, did not constitute a comparable set of circumstances to those of Mr Warner in the quoted case. The Tribunal found that the Applicant failed to seek employment over the entire period in question.

Regarding (c), the Tribunal considered it was clear that since 2002 the Applicant had made no attempt to undergo formal training that would make him more employable. He had not sought to find employment and in the Tribunal’s view, his inaction was not because he lacked the skills to undertake clerical work. The Tribunal found that the Applicant assiduously pursued his case through the Tribunal and the Federal Court and he had amply displayed his skills in administrative work through that process. In the Tribunal’s opinion, the Applicant did not advance persuasive evidence that his skills were inadequate for clerical/administrative work. Therefore, the Tribunal did not find it reasonable that on those grounds the Applicant should refrain from seeking employment. It was the Tribunal’s finding that, in all the circumstances, it was not reasonable for the Applicant not to have sought employment over the period 1 June 2002 to 1 July 2010.

With respect to (d), the Applicant identified several issues that he regarded as relevant under subsection 19(4)(g) of the 1988 Act (”any other matter that [the decision-maker] considers relevant”). The Tribunal noted that one issue the Applicant raised might have qualified as relevant to this paragraph and that was the reasonableness of expecting him to change his place of residence from the UK to Australia. The Tribunal turned to that issue below when dealing with the definition of “suitable employment”.

In terms of (e), the Tribunal referred to Member Kenny’s consideration of what constituted suitable employment for the Applicant in Re Slater and Telstra [2002] 597 and concluded at [56-60] that the listed employment options, including clerical work, constituted suitable employment for him. That finding was covered by the terms of Member Webb’s Direction. In the circumstances, the Applicant had moved back to the UK at his own initiative before Member Kenny’s determination. The Tribunal noted that the Applicant’s age was not at the point where he was unable to work.

Taking into account that it had found that the Applicant failed to seek employment, that it was not reasonable for him to fail to seek employment, and that the Tribunal did not identify any other matter that should be considered, the Tribunal found that the Applicant’s AE was as identified in the relevant APM report. These figures were taken from the report, supplemented by figures supplied by Wageline, the employment agency of the Queensland Government.

Regarding (f), the Tribunal observed that in July 1999 the Applicant received $78,921.80 as a lump sum benefit under his superannuation. The Tribunal stated that payout, by section 21 of the 1988 Act, must be factored into the Applicant’s compensation calculation. The Applicant did not challenge the legitimacy of the application of section 21 to his superannuation payout, nor the lump sum amount to which the calculation was to be applied.

With respect to (g), the Tribunal noted that by not seeking employment over an extended period when he had not been found totally incapacitated for work under the Act, the Applicant chose, and in the Tribunal’s view chose knowingly, to risk a lower compensation entitlement. The Tribunal found that it was not reasonable, in all the circumstances, that he failed to seek employment. The Tribunal considered these matters must be taken into account in the calculation of compensation to which the Applicant was entitled.

The formula applied to determine compensation was decided by subsection 19(3) of the 1988 Act, as modified by section 21. The Tribunal incorporated the NWE figures, the AE figures, and the superannuation deductions set out above in calculating the amount of compensation which the Applicant was entitled to.

The Tribunal affirmed the decision under review.

Permanent impairment

McHenry and Military Rehabilitation and Compensation Commission [2010] AATA 833 (27 October 2010) Brisbane

The relevant facts of this application are detailed above under “Liability”. In light of its findings regarding liability, the Tribunal found that the Respondent was not liable to pay compensation to the Applicant for permanent impairment pursuant to section 24 and 27 of the Safety, Compensation and Rehabilitation Act 1988 (Cth) in respect to lower back muscle sprain.

The Tribunal affirmed the decision under review.

Medical expenses

Boswell and Comcare [2010] AATA 830 (27 October 2010) Melbourne

In May 2006, the Applicant claimed he injured his right shoulder and subsequently suffered from food poisoning three days later which caused him to fall and injure his neck and upper back. The Applicant lodged a claim for workers' compensation on 6 September 2006 in respect of both of these injuries. The Respondent accepted liability for all injuries claimed by the Applicant and met his medical expense claims. The injury to the Applicant’s right shoulder was described as “rotator cuff (capsule) strain (right)” and it was only that injury which was the subject of this claim before the Tribunal.

The Applicant continued to experience right shoulder pain throughout 2007, 2008 and 2009 and he had treatment for that injury which was paid for by the Respondent. However, following a number of extensions to liability for medical expenses, on 3 February 2009, the Respondent notified the Applicant that it had decided that as of that date, he ceased to suffer effects from his compensable injury. The Respondent therefore determined that no compensation for medical expenses pursuant to section16 of the Safety, Rehabilitation and Compensation Act 1988 (“1988 Act”) was payable after 3 February 2009. The Applicant sought reconsideration of that decision and on 17 April 2009, the Respondent affirmed the determination made on 3February 2009.

The issues which arose for determination in this matter were:

(a) Whether the Applicant continued to suffer from the effects of his compensable right shoulder injury after 3 February 2009; and, (b) If so, whether the Applicant was entitled to compensation for medical expenses in respect of the medical treatment he obtained in relation to his right shoulder injury.

In addressing these issues, the Tribunal noted that the difficult question with which it was faced was whether it could be said, on the balance of probabilities, that the problems the Applicant experienced with his right shoulder which resulted in him having surgery in June 2009 should be attributed to the injury he claimed to have suffered in May 2006. In this respect, the Tribunal noted that much depended on the expert medical evidence and the accuracy of the account given by the Applicant of his activities and symptoms prior to and since suffering the claimed injury.

The Tribunal considered that the evidence before it seemed to raise a number of possibilities. They were:

• The Applicant’s ongoing symptoms in his right shoulder were simply manifestations of the injury he sustained in 1991 when he fractured his right clavicle;

• The Applicant was now suffering from degenerative changes which arose out of his original 1991 injury or from the sustained physical activity in which the Applicant appeared to engage both privately and in the course of his employment;

• The Applicant suffered an aggravation of the degenerative changes to his shoulder as a result of the May 2006 incident in the gymnasium while in the Solomon Islands but that aggravation was temporary and its effects had now ceased;

• The Applicant suffered an aggravation of degenerative changes to his shoulder as a result of the May 2006 incident in the gymnasium while in the Solomon Islands the effects of which had not ceased; and

• The Applicant suffered a new injury into 2006 the effects of which had not ceased.

The Tribunal considered that without doubt, the best evidence of the Applicant’s shoulder condition was to be obtained from an orthopaedic surgeon’s operation report dated 16 June 2009. In the Tribunal’s opinion, the pathology identified by that orthopaedic surgeon was consistent with the symptoms the Applicant claimed to have experienced. The Tribunal considered the Applicant’s problems were not merely degenerative change. The Tribunal noted there was damage to the rotator cuff and the AC joint and this pathology was consistent with the Applicant’s evidence about the changed symptoms he experienced after the May 2006 incident and the statements recorded in the clinical notes after this time. Therefore, the Tribunal found that the Applicant did suffer a physical injury in the course of his employment on 2 May 2006. Alternatively, the Tribunal found that the Applicant suffered an aggravation of a physical injury or ailment on 2 May 2006 which was contributed to in a material degree by his employment, the effects of which had not ceased.

Having found that the Applicant suffered an injury as that term is defined in section 4(1) of the 1988 Act and that the effects of the injury or an aggravation of an underlying ailment had not ceased, the Tribunal set aside the decision under review and substituted a decision that the Respondent was liable to pay the costs of the Applicant’s reasonable medical treatment for his right shoulder, including the cost of surgery conducted on 16 June 2009. The Tribunal further determined that the Respondent was liable to pay any further reasonable medical expenses incurred by the Applicant in the course of recovery from his surgery.

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

The relevant details of this application were detailed above under “Liability”. In terms of the Applicant’s entitlement to compensation for medical expenses in respect of his accepted lower back injury, namely, “muscle spasm & loss of lumbosacral mobility”, sustained on 27 July 2007, the Tribunal acknowledged that the Respondent accepted liability to pay compensation to the Applicant for medical expenses in respect of his lower back injury, pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”), until 27 December 2007. The matter for the Tribunal’s determination was whether the Respondent continued to be liable to pay compensation to the Applicant in respect of his lower back injury, pursuant to section 16 of the 1988 Act, from 28 December 2007 to date.

The specialist medical evidence before the Tribunal overwhelmingly supported the proposition that, in the period from 28 December 2007 to date, the Applicant had not suffered any lower back pain which was causally related to his employment by the Respondent. Accordingly, the Tribunal found, on the basis of that evidence, that the Applicant’s compensable lower back injury, sustained on 27 July 2007, did not continue to result in impairment or incapacity for work, within the meaning of section 14(1) of the 1988 Act, from 28 December 2007 to date.

In this regard, the Tribunal set aside one of the decisions under review and determined that from 28 December 2007 to the present date, and as at the present date, the Respondent was not liable to pay compensation to the Applicant, pursuant to section 16 of the 1988 Act, in respect of his accepted lower back injury.

In addressing the Applicant’s entitlement to compensation under section 16 of the 1988 Act with respect to his accepted psychiatric conditions, the Tribunal attached great weight to the reports of three consultant psychiatrists, which, in its opinion, were objective, comprehensive and well-reasoned. On the basis of one of the consultant psychiatrist’s reports, the Tribunal found that, as at 8 September 2008, the Applicant was not suffering any symptoms of either of his compensable mental injuries, namely, Adjustment Disorder with Depressed and Anxious Mood, and Major Depressive Episode. The Tribunal further found, on the basis of the reports of the specialist psychiatric opinion, that the Applicant has not suffered any symptoms of either of those mental injuries from 8 September 2008 to date.

As such, in terms of the Applicant’s accepted psychiatric conditions, the Tribunal set aside the relevant decisions under review and substituted a decision that:

• The Respondent was liable to pay compensation to the Applicant, pursuant to section 16 of the 1988 Act, in respect of the mental injuries, for the period from 6 September 2007 to 7 September 2008;

• From 8 September 2008 to the present date, and as at the present date, the Respondent was not liable to pay compensation to the applicant, pursuant to section 16 of the 1988 Act, in respect of either of the mental injuries.

McHenry and Military Rehabilitation and Compensation Commission [2010] AATA 833 (27 October 2010) Brisbane

The relevant facts of this application are detailed above under “Liability”. In light of its findings regarding liability, the Tribunal found that the Respondent was not liable to pay compensation to the Applicant for medical expenses pursuant to section 16 of the Safety, Compensation and Rehabilitation Act 1988 (Cth) in respect to lower back muscle sprain. In this respect, the Tribunal highlighted that the specialist medical evidence indicated that the effects of the Applicant’s original soft tissue back injury no longer existed.