BALACKI And COMCARE
[2013] AATA 768
•28 October 2013
[2013] AATA 768
DECISION AND REASONS FOR DECISION
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2012/3289
GENERAL ADMINISTRATIVE DIVISION )
ReTANIA BALACKI
Applicant
AndCOMCARE
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 28 October 2013
Place: Melbourne
Decision:The Tribunal affirms the decision of a delegate of the respondent dated 1 June 2012 affirming a determination dated 27 January 2012 disallowing Mrs Balacki’s claim for subacromial bursitis (shoulder) (right), chronic pain syndrome (arm) (right) and tenosynovitis (bicep) (right) under s 14 of the Safety, Rehabilitation and Compensation Act 1988.
_(sgd) S A Forgie_
Deputy President
CATCHWORDS – COMPENSATION – disease – chronic pain syndrome - pain suffered during work tasks – pain suffered outside of work tasks – work tasks do not aggravate or accelerate underlying condition – pain is response of underlying condition to tasks or activities performed - decision affirmed.
WORDS AND PHRASES – “to a significant degree”.
Acts Interpretation Act 1901, s 15AB
Administrative Appeals Tribunal Act 1975, s 39
Compensation (Commonwealth Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, ss 2 and item 2, 3, Sch 1 and item 11
Workers’ Compensation Act 1951 (ACT), s 9
Workers Compensation Act 1987 (NSW), s 4
Commonwealth Employees’ Rehabilitation and Compensation Bill 1988
Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006
Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533; 87 ALR 385
Australian Postal Corporation v Lucas [1991] FCA 612; (1991) 33 FCR 101; 14 AAR 487; 25 ALD 266
Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535; 91 ALD 552; 229 ALR 445; 80 ALJR 1578
Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399; 10 AAR 191; 17 ALD 321
Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232
Comcare v Mooi [1996] FCA 1587; (1996) 69 FCR 439; 42 ALD 495
Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523
Commonwealth v Beattie [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369
Darling Island Stevedoring & Lighterage Co Limited v Hankinson [1967] HCA 10; (1967) 117 CLR 19
Dunstan v Comcare [2011] FCAFC 108; (2011) 125 ALD 362
Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34; (1964) 110 CLR 626
Holt v Comcare [2003] FCAFC 221; (2003) 130 FCR 576
Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547
Kennedy Cleaning v Petkoska [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626
Martin v Australian Postal Corporation [1999] FCA 655; (1999) 29 AAR 420
Re Cook and Comcare [2003] AATA 16
Re Crouch and Comcare [2013] AATA 608
Re Meaney and Comcare [2012] AATA 352
Re Musumeci and Department of Health (NT) (1990) 19 ALD 797
Suters v Australian Postal Corporation (1992) 28 ALD 320
Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535
Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310; 140 ALR 156; 71 ALJR 32
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
REASONS FOR DECISION
Mrs Balacki is a Customer Service Advisor with Centrelink. She has lodged a claim with Comcare seeking compensation for “Regional Pain syndrome Right arm, Right Shoulder Bursitis and Bicep Tendonitis” that she said had occurred on 22 August 2011 at 10:25am. At the time, she was “Taking a call” and believed that the chain of events that had led to her injury began in “Ongoing repetitive duties – typing, mousing”. The action or event that occurred to cause her injury was “Keying correction whilst using Dragon Dictation, arm/hand ‘seized up’. No circulation, pain to move hand.” Comcare disallowed her claim and, on review, affirmed its decision.
At Attachment B, I have set out a chronology of events in order to place the events of 22 August 2011 in their context. During the hearing, there appeared to be no disagreement between the parties as to the order of events. That chronology, which is found in Attachment B, includes a summary of some of the evidence and the remainder is found in Attachment A. On the basis of that evidence, I am satisfied that Mrs Balacki is suffering from an ailment in the form of a chronic pain syndrome but I do not need to come to a precise finding as to its diagnosis. While I am also satisfied that she is suffering pain from her condition while she is at her work at Centrelink, her doing so does not necessarily lead to the conclusion that she is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
Subject to certain qualifications that are not relevant, Mrs Balacki is only entitled to compensation under the SRC Act if she has suffered an injury and that injury has resulted in incapacity for work or impairment. An “injury” may be either “(a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by the employee … arising out of, or in the course of, the employee’s employment …”.[1] Mrs Balacki’s condition is an ailment or an aggravation of an ailment rather than an injury. Therefore, it comes within the first part of the definition of “disease”.[2] I am not satisfied, however, that it comes within the second part of that definition. That is so because I am not satisfied that it was contributed to, to a significant degree, by her employment. It follows that I am not satisfied that Mrs Balacki has suffered a disease as defined in the SRC Act. As she has not suffered a disease, she has not suffered an injury as defined by that legislation and is not entitled to compensation. I have set out my reasons in detail below.
[1] SRC Act; ss 4(1) and 5A
[2] SRC Act; ss 4(1) and 5B
THE LEGISLATIVE FRAMEWORK
Section 14(1) of the SRC Act provides:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
Sections 14(2) and (3) qualify Comcare’s liability but they are not relevant in this case.
The word “injury” is defined in s 5A.[3] Section 5A(1) provides:
“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.”
Section 5A(2) expands on what is meant by the expression “reasonable administrative action”. There is no suggestion in this case that there has been any administrative action taken at all. Therefore, I will not refer to that qualification to the meaning of “injury” any further.
[3] SRC Act; s 4(1)
Section 5B defines the word “disease”.[4] Section 5B(1) begins by providing:
“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.”
[4] SRC Act; s 4(1)
Two words and one expression used in the definition of “disease” are themselves defined:
(1)The word “ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development.”[5]
[5] SRC Act; s 4(1)
(2)The word “aggravation includes acceleration or recurrence.”[6]
[6] SRC Act; s 4(1) The definition applies equally to the word when it is used in paragraph (c) the definition of “injury”.
(3)The expression “significant degree means a degree that is substantially more than material.”[7]
[7] SRC Act; ss 4(1) and 5B(3)
Section 5B(2) sets out matters that may be taken into account in determining whether an ailment or an aggravation of an ailment was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee. It provides that:
“… the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.”[8]
CONSIDERATION
[8] SRC Act; s 5B(2)
Has Mrs Balacki suffered an injury or a disease?
It is apparent from these provisions that Comcare’s liability to pay compensation is in respect of an “injury” and that the word “injury” is defined to include both a disease and an injury (other than a disease). Before I can work out whether Mrs Balacki has suffered either, and so an injury in respect of which Comcare may be liable to pay compensation, I need to understand what is meant by a disease and an injury (other than a disease). It is necessary to distinguish between the two for the SRC Act expresses the causal relationship between an injury (other than a disease) and a disease in different ways. In the former, the causal relationship is established if the injury suffered arose out of or in the course of the employee’s employment. In the latter, it is established if the disease was contributed to, to a significant degree, by the employee’s employment.
A. What is a “disease”?
I have set out the definition of a “disease” from s 5B of the SRC Act but it has been explained further by Drummond J in Comcare v Mooi[9] (Mooi). At the time, s 5B had not been enacted but the definitions of “disease” and “ailment” were found in s 4(1) of the SRC Act in terms consistent with their current definitions. His Honour began by noting that:
“… It is apparent from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition: a slight ailment (The Macquarie Dictionary) – that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.”[10]
[9] [1996] FCA 1587; (1996) 69 FCR 439; 42 ALD 495
[10] [1996] FCA 1587; (1996) 69 FCR 439; 42 ALD 495 at [10]; 443; 498
Referring to the ordinary meanings of the word “disease” as well as the meanings given in medical dictionaries, he concluded:
“ Only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus ‘injuries’ for the purposes of s 14(1) of the Act.”[11]
[11] [1996] FCA 1587; (1996) 69 FCR 439; 42 ALD 495 at [16]; 445; 500
Mooi was concerned with a claim for compensation for incapacity as a result of work-related stress. In that context, Drummond J explained:
“… [S]o far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, 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. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, 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, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible [sic] under s 14(1).”[12]
[12] [1996] FCA 1587; (1996) 69 FCR 439; 42 ALD 495 at [12]; 443-444; 499
Later, returning to physical, as well as mental, diseases, Drummond J concluded that:
“Only conditions involving disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus ‘injuries’ for the purposes of s 14(1) of the Act.”[13]
[13] [1996] FCA 1587; (1996) 69 FCR 439; 42 ALD 495 at [116]; 445; 500
How that disturbance of normal functions might be labelled is of no concern for there is:
“… no need … to put a label on the applicant’s illness, or to be concerned because witnesses labelled it differently.”[14]
[14] Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34; (1964) 110 CLR 626; McTiernan, Kitto, Taylor, Windeyer and Owen JJ at 639 per Windeyer J
B. Distinguishing between an injury (other than a disease) and a disease
As can be seen from the definition of an “injury (other than a disease)” and a “disease”, each contains a causal link with the employee’s employment. In the case of an injury (other than a disease), the causal link is satisfied if it is a physical or mental injury, or an aggravation of it “arising out of, or in the course of, the employee’s employment”. In the case of a disease, the causal link is satisfied if it is an ailment, or an aggravation of an ailment, that was “contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee”. The two causal links are different. That means that I must first identify whether Mrs Balacki is suffering from an injury or a disease.
How do I do that? Section 5B(1) does define a “disease”. Apart from specifying that an injury may be either a physical or mental injury, the SRC Act does not attempt to define what an “injury” is. That means that I must look to the authorities for guidance. Some arise under the provisions as they are now enacted as well as in its earlier form before the enactment of s 5B. There are no differences of substance between the two forms. Others arise under State and Territory legislation and under earlier enactments of the Commonwealth Parliament in relation to compensation for Commonwealth employees.
Unlike the SRC Act, those earlier enactments did not necessarily define a “disease”. In Zickar v MGH Plastic Industries Pty Ltd[15] (Zickar), for example, the High Court considered s 4 of the Workers Compensation Act 1987 (NSW), which defined “injury” to mean “personal injury arising out of or in the course of employment” and to include “the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration”. It was decided:
“… [T]here may be an injury by accident although the injury is not attributable to any external agency but results from some force or pressure exerted from within the body. … The Act … does not require that there be an accident, only that there be an injury. …”[16]
[15] 1996] HCA 31; (1996) 187 CLR 310; 140 ALR 156; 71 ALJR 32 Toohey, McHugh, Gummow and Kirby JJ; Brennan CJ, Dawson and Gaudron JJ dissenting
[16] [1996] HCA 31; (1996) 187 CLR 310; 140 ALR 156; 71 ALJR 32 at 330; 170; 42 per Toohey, McHugh and Gummow JJ
The principle is illustrated by the earlier case of Kavanagh v The Commonwealth:[17]
“ According to the medical evidence rupture of the oesophagus by vomiting is a well recognized but very uncommon occurrence. … The cause of the deceased’s vomiting was not ascertainable.
The first question is whether the rupture of the gullet in these circumstances is to be considered an injury by accident. In my opinion it must be so considered. It is a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection.”[18]
[17] [1960] HCA 25; (1960) 103 CLR 547; Dixon CJ, Fullaghar and Menzies JJ; Taylor and Windeyer JJ dissenting
[18] Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547; Dixon CJ, Fullaghar and Menzies JJ; Taylor and Windeyer JJ dissenting at 553 per Dixon CJ and see also 558 per Fullaghar J and 569 per Menzies J
The principles in Zickar were applied by the High Court in Kennedy Cleaning v Petkoska[19] (Petkoska). Where a worker suffered personal injury arising out of or in the course of employment, the employer was liable to pay compensation. “Injury” had been defined in the Workers’ Compensation Act 1951 (ACT) (ACT Act) to mean “any physical or mental injury” and to include “aggravation, acceleration or recurrence of pre-existing disease”. “Disease” was defined to include “any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development” and “the aggravation, acceleration or recurrence of a pre-existing disease”. Where a worker’s employment was a contributing factor to his or her contracting a disease or suffering an aggravation, acceleration or recurrence of pre-existing disease, s 9(2)(c) provided that the contraction or the aggravation, acceleration or recurrence were deemed to be a personal injury arising out of the employment of the worker.
[19] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Callinan J dissenting
Mrs Petkoska had, for some years, suffered from rheumatic mitral valve disease. Her employment was not a contributing factor to her having contracted that disease or to its aggravation or acceleration. One day, she collapsed at work. As a result of a paroxysm of atrial fibrillation, a blood clot had formed in the left atrium and a piece had broken off. That piece had travelled directly to the left temporo-parietal region of her brain and immediately rendered her incapable of speech and incapacitated for work. A subsequent CT scan showed a lesion in that area of Mrs Petkoska’s brain. As Gleeson CJ and Kirby J said in their joint judgment, “… it is appropriate to conclude that the word ‘lesion’ in the medical reports here meant a sudden change or disturbance to the physiological state of …” Mrs Petkoska.[20]
[20] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626 at [8]; 289; 628-629
On appeal, the employer had argued that the ACT Act had established mutually exclusive classifications of claims for compensation for an “injury” and those for compensation for a “disease”. This was rejected in Petkoska. In their joint judgment, Gleeson CJ and Kirby J underlined previous authority to the effect that “… injuries for which the Act provides are not confined to those originating externally to the body of the worker.”[21] Furthermore:
“… the mere fact that a sudden physiological change is in some way connected with an underlying ‘disease’ process does not, of itself, prevent the classification of such a change as an ‘injury’ within the statutory provisions that apply to such a case. …”[22]
[21] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626 at [35]; 298-288; 636
[22] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626 at [36]; 299; 636
In order to determine whether a person has suffered an injury or a disease, close regard must be had to the evidence. After reviewing some of the previous authorities, Gleeson CJ and Kirby J said:
“… All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and the incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment …. If the propounded ‘injury’ is distinct from the underlying pathology that constitutes a ‘disease’ that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met. …
The foregoing approach does not rob the disease provisions of the Act of utility. They would apply in cases of a disease in the nature of dermatitis, lead poisoning, brucellosis and many others of a progressive type. The disease provisions remain as an alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense. There is no reason to read the word ‘injury’ down because of the alternative and additional definition of compensable disease conditions. On the contrary, considerations of the language and structure of the Act, of legislative history and of the proper approach to construing such legislation reinforce the conclusion to which the majority came in Zickar.”[23]
[23] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626 at [39]-[40]; 300-301; 637 (citations omitted)
The final case to which I will refer is that of Canute v Comcare[24] in which the High Court looked briefly at the interplay between an injury and a disease. It did so in the wider context of assessing an employee’s permanent impairment when he had suffered multiple injuries arising from the one workplace incident. In that incident, Mr Canute had injured his back for which he claimed compensation. His claim was accepted but he later lodged a further claim for compensation in respect of an adjustment disorder with anxious and depressed mood that had arisen out of his back condition. On the particular issue relevant in this case, the High Court said:
“… [T]hree things must be observed about the concept of ‘an injury’. First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of ‘the injury’. Secondly, the term ‘injury’ is not used in the Act in the sense of ‘workplace accident’. The definition of ‘injury’ is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term ‘injury’ is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to ‘disease’ or ‘physical or mental’ injuries and, at least to that extent, it assumes that an employee may sustain more than one ‘injury’. The use in s 24(1) of the indefinite article in the expression ‘an injury’ reinforces that conclusion.”[25]
[24] [2006] HCA 47; (2006) 226 CLR 535; 229 ALR 445; 80 ALJR 1578; 91 ALD 552; Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ
[25] [2006] HCA 47; (2006) 226 CLR 535; 229 ALR 445; 80 ALJR 1578; 91 ALD 552 at [10]; 540; 1581; 555-556
C. What is “aggravation”?
The word “aggravation” is defined in s 4(1) to include “acceleration or recurrence”. The words “aggravation” and “acceleration” were explained by Hill J in Casarotto v Australian Postal Commission.[26] After referring to passages from previous authorities, he said:
“ These quotations illustrate what appears in any event from the ordinary English meaning of the words ‘aggravation and acceleration’, namely that ‘aggravation’ connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease.”[27]
[26] [1989] FCA 116; (1989) 86 ALR 399; 10 AAR 191; 17 ALD 321
[27] [1989] FCA 116; (1989) 86 ALR 399; 10 AAR 191; 17 ALD 321 at [23]; 405; 197; 327
In Martin v Australian Postal Corporation,[28] Burchett J considered the situation in which an employee suffered early degenerative arthritis for which he had surgery. Work accidents had rendered a previously asymptomatic condition symptomatic and they continued to contribute to his condition. He referred to the case of Darling Island Stevedoring & Lighterage Co Limited v Hankinson,[29] in which the High Court had considered a case in which, unknown to him, a worker had been suffering from a spinal infection that had partially destroyed some of his spinal structures. That infection was unrelated to his employment. When he lifted a heavy package at work, he felt acute pain in his back. During the following fortnight, his condition deteriorated and he became paralysed. The acute pain he had experienced had been due to the collapse of one or two of his infected vertebrae. The medical evidence was that, had he not lifted the package at work and had the infection not been treated, then it would have progressed to the stage where it ultimately produced the collapse of the vertebrae. Barwick CJ said:
“… If incapacity in fact results from the acceleration, is this not enough to entitle the worker to an award in the same way or to the same extent as would be the case with any other injury? I have no doubt that it would. If the incapacity it causes ceases, the award will be for that reason terminable. But that incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity. It seems to me nothing to the point that that other cause would have been the pre-existing disease in its own unaided progression. Where the incapacity which results from the acceleration is permanent, in my opinion, the award is not terminable because that incapacity would in any case have been the end result of the pre-existing disease.
…
In my opinion, where the acceleration is the injury if incapacity results, the entitlement to compensation is identical with that which would flow from the like incapacity resulting from any other kind of injury. …”[30]
[28] [1999] FCA 655; (1999) 29 AAR 420
[29] [1967] HCA 10; (1967) 117 CLR 19; Barwick CJ, Kitto, Taylor, Menzies and Owen JJ
[30] [1967] HCA 10; (1967) 117 CLR 19 at 26-27
Resolution of the issue clearly turns on the evidence in each case. This is underlined in the judgment of Taylor J, with whom Kitto J agreed as he did also with Owen J, when he said:
“… Whilst I agree that compensation in respect of incapacity resulting solely from the aggravation of an existing disease must be limited to the incapacity produced by the aggravation it by no means follows that the aggravation of a disease may not, itself, cause permanent incapacity. This could be said to have been the position in the present case for, if what happened on 3rd September 1964 was no more than an aggravation of the respondent's disease, it was the aggravation of that disease which directly resulted in the respondent's incapacity on and after that date. In that case, again, it is beside the point to say that if the aggravation had not occurred total incapacity or death would at some later time have resulted from the natural progress of the disease.”[31]
[31] [1967] HCA 10; (1967) 117 CLR 19 at 31
D. Pain, pathological change and diagnosis
It was accepted by the Full Court of the Federal Court in Commonwealth v Beattie[32] (Beattie) that “… pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.”[33] (emphasis added). I have highlighted the word “may” in this passage for it is clear from a reading of the whole of the joint judgment of Evatt and Sheppard JJ that pain brought on by work activity does not necessarily constitute an aggravation of a pre-existing injury. Whether it does is a question to be decided on the particular evidence in the particular case.
[32] [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369; Evatt, Sheppard and Kelly JJ
[33] [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369 at 201; 378 per Evatt and Sheppard JJ
In the case of Beattie, Mrs Beattie had suffered an injury at home while she was on leave. It was a non-compensable injury and she did not claim in respect of it. When she returned to work, she complained of pain and difficulty in performing her duties. Her duties were changed but she suffered pain, her condition did not improve and her pain, which she described as a burning sensation, became more pronounced. Mrs Beattie claimed compensation in respect of an aggravation of her condition under the predecessor to the SRC Act, the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act). Subject to its provisions, that legislation provided that the Commonwealth was liable to pay compensation in respect of an injury arising out of or in the course of the employment of the employee by the Commonwealth. The word “injury” was defined to mean “any physical or mental injury but, subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease.” Section 29(1) provided for the situation in which an employee contracted a disease or suffered an aggravation, acceleration or recurrence of that disease.
The Commonwealth had argued that the pain and discomfort suffered by Mrs Beattie when she tried to do her work after her return from leave were the normal manifestations and consequences of the non-compensable injury she had suffered at home. Mrs Beattie’s orthopaedic surgeon had said that he thought she had suffered an aggravation of her condition by returning to work too early. By that he meant that she had aggravated her symptoms more than the condition itself. The aggravation came about by straining the injured area in performing her duties in her employment and that made her symptoms, not the pathology of her condition, worse. The then Commonwealth Employees’ Compensation Tribunal accepted that evidence and had found:
“… there was an injury which produced pain. Increased pain and disability were later produced by activity in the course of employment. But that activity did not itself cause any pathological change. The pain arose because of the pre-existing condition and the effect of the work activity upon it. …”[34]
[34] [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369 at 197; 374-375
On the facts of the case as presented to them, Evatt and Sheppard JJ answered in the affirmative the question they had posed for themselves:
“… ‘Can incapacitating pain brought on by an activity undertaken in the course of employment constitute an aggravation of a physical injury, notwithstanding that such pain is not brought about by any further pathological change?’”[35]
They did not have to go on to consider whether there was an aggravation resulting in incapacity for that was a matter upon which agreement had been reached between the parties.
[35] [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369 at 197; 375
It is clear from their Honours’ judgment that their answer to the same question might well be different if the facts were different for they said:
“ It does not follow that in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.”[36]
[36] [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369 at 201; 378
In Beattie, there was medical evidence of what had happened when Mrs Beattie injured herself at home. It was described as a strain of the nerves in the inguinal region but was not given a name beyond that. In Re Musumeci and Department of Health (NT)[37] (Musumeci), Deputy President Todd had found that the applicant had continuing and sustained pain, at the outset, from her employment with the Department of Health (NT) and that employment was a contributing factor to the production of that pain and she had suffered incapacity for work. He also found that there was some dispute and uncertainty in the medical evidence concerning the source of the pain but that there was evidence supporting a diagnosis of fibrositis.
[37] (1990) 19 ALD 797; Deputy President Todd
The respondent had argued that, as the applicant’s pain cannot be attributed to a specific and accepted physiological condition, the fact of its existence should not be accepted. It could not be compensable under the 1971 Act, which was the relevant legislation. In rejecting this argument, Deputy President Todd made the following points:
“… [W]hile inability to make a precise and incontrovertible diagnosis may well make more difficult a finding of a link between employment and a claimed incapacity, that fact of itself does not militate against a finding for an employee under the legislation here applicable where the proofs are otherwise adequate. …”[38]
“… I consider that the pain suffered by the applicant is in the circumstances attested to by the evidence an ‘ailment’, and is in consequence compensable.”[39]
“… To say that ‘pain of itself is compensable’ would indeed be too broad a statement. What I am saying is that proven pain may in some circumstances fall within the statutory definition of disease notwithstanding that medical science is unable to agree on the label that is to be attached to the condition that gives rise to the production of non-transient symptoms that constitute pain …
The problem here in any event is not one of initial liability. It is simply a question of whether the effects of the original injury have been somehow exhausted so that the applicant’s continuing pain must be found to be no longer attributable thereto, but rather to some other source. There was in my opinion no evidence in support of such a finding. The matter was clouded by the fact that the medical and para-medical evidence, while it was entirely supportive of the finding of the existence of pain, has some difficulty in establishing the precise physiological basis of that pain. …”[40]
[38] (1990) 19 ALD 797 at 798
[39] (1990) 19 ALD 797 at 798
[40] (1990) 19 ALD 797 at 798-799
Musumeci is a case very much grounded on the evidence and, as Burchett J said in Australian Postal Corporation v Lucas,[41] cannot be “… regarded as a licence for the Tribunal to avoid reaching any conclusions on the evidence.”[42] Further, his Honour said:
“… Re Musumeci was a rare case, and the point made in it a very special one. I do not wish to cast any doubt upon the conclusion that, given an incapacitating condition is satisfactorily shown, the mere fact that the diagnosis of its medical nature may not be able to be made precisely, though obviously a factor which might militate against a finding of a causal link with employment, will not necessarily present an insuperable obstacle to such a finding. It must depend on the evidence. Nor is it to be doubted that proof of incapacitating pain may be relevant to show an aggravation: cf Commonwealth v Beattie (1981) 53 FLR 191 at 201, per Evatt and Sheppard JJ.”[43]
[41] [1991] FCA 612; (1991) 33 FCR 101; 14 AAR 487; 25 ALD 266
[42] [1991] FCA 612; (1991) 33 FCR 101; ; 14 AAR 487; 25 ALD 266 at 106; 492; 271
[43] [1991] FCA 612; (1991) 33 FCR 101; ; 14 AAR 487; 25 ALD 266 at 108; 494; 272-273
D. Aggravation of an injury (other than a disease) or of a disease
The Full Court of the Federal Court touched on the distinction between aggravating a person’s symptoms and aggravating the condition itself. It was the latter that was an aggravation of a disease or of an injury (other than a disease) and not the former. It is a point that was made by the High Court in Asioty v Canberra Abattoir Pty Ltd[44] (Asioty) when considering the ACT Act. The word “disease” had been defined to include “the aggravation, acceleration or recurrence of pre-existing disease”. Mr Asioty suffered from underlying constitutional dermatitis. His condition had not been caused by his employment as a slaughterman but it flared up in carrying out his duties. The medical evidence was that it would flare up in any occupation in which his hands were constantly wet or handling irritant chemicals and the like. Medical evidence was also given that the more the condition flared up, the more recalcitrant it became and the more difficult to treat. The condition tended to become resistant to treatments that would have brought it under control.
[44] [1989] HCA 40; (1989) 167 CLR 533; 87 ALR 385
In his judgment in Asioty, Toohey J said that determination of what constitutes an aggravation of a disease is to be resolved by reference to the terms of the legislation having regard to the particular circumstances of the applicant. On the evidence in Asioty:
“ While it is apparent that an aggravation of the appellant’s underlying dermatitis may take the form of immediate incapacitating symptoms, the existence of some more permanent aggravation is not precluded because those symptoms abate on each occasion that the appellant ceases work. The proper conclusion is that the condition of the appellant’s hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. This enhanced susceptibility constitutes an aggravation of the disease and, in the circumstances, falls within the language of the Ordinance.”[45]
A little later in his judgment, Toohey J restated the same point saying:
“… [T]here is no reason why a disease which produces susceptibility to some debilitating condition should not be regarded as aggravated when that susceptibility is heightened by a circumstance such as work of a particular type or in particular conditions. The Ordinance does not require an aggravation of the symptoms of a disease. …”[46]
[45] [1989] HCA 40; (1989) 167 CLR 533; 87 ALR 385 at [15]; 540; 389-390 per Toohey J with whom Mason CJ, Brennan, Dawson and McHugh J agreed
[46] [1989] HCA 40; (1989) 167 CLR 533; 87 ALR 385 at [19]; 541; 390
The Full Court of the Federal Court considered Asioty in Holt v Comcare[47] (Holt). Mrs Holt had suffered from asthma before she joined the Australian Public Service. Her case was that, in 1985, she had suffered an aggravation of her asthma due to climate changes brought about by the need for her to travel frequently, her workload and the level of her responsibility. Liability had been accepted but, in 2000, Comcare determined that it was no longer liable. The question before the Tribunal had been whether the aggravation that had occurred in 1985 was continuing in 2000.
[47] [2003] FCAFC 221; (2003) 130 FCR 576; Gray, Cooper and Selway JJ
The Full Court reviewed Asioty and concluded:
“ It is plain that the High Court was not laying down the principle that, whenever there is an aggravation of a pre-existing condition resulting from working conditions, the person suffering from the condition is to be taken to be suffering from an enhanced susceptibility to the condition. No such principle could be laid down, because the question whether a person's susceptibility has been enhanced is a question of fact in every case. Asioty is no more than the High Court's recognition of the fact that the Federal Court in that case had ignored a crucial finding of fact, which was that there was enhanced susceptibility as a result of repeated exposure to the conditions under which the worker was employed.”[48]
[48] [2003] FCAFC 221; (2003) 130 FCR 576 at [40]; 585
E.Has Mrs Balacki suffered an injury (other than a disease) or a disease?
At Attachment B, I have set out a chronology of events relating to various aspects of Mrs Balacki’s employment, condition and treatment in order to get a sense of their timing. In the following discussion of the evidence and in making findings of fact, I have drawn on that chronology and the material in the chronology can be located by reference to the dates given in my reasons.
Mrs Balacki has given a history of suffering pain for many years. It is a history that is supported by her medical history. The earliest reference to her experiencing discomfort is found in the report from the LCS/Rehab Factor dated 11 March 2005. It had carried out an assessment the previous day. In addition to reporting on the clinical findings made that day, the report noted that an earlier report it had prepared on 28 July 2004 had referred to Mrs Balacki’s first experiencing discomfort before July 2002. She first felt discomfort in her left hand and that discomfort later extended to her upper left limb where she experienced a burning sensation and swelling. When she began to use her right upper limb more than usual, she said that she began experiencing discomfort in the right upper limb. This is consistent with the Injury/Illness Report Mrs Balacki submitted to Centrelink on 22 July 2002.
Since 2002, the evidentiary material shows a regular history of Mrs Balacki’s reporting discomfort and pain in one or other, or all of, her wrists, arms, neck and upper scapula. Dr Jensen summarised complaints of this sort in his first report dated 18 November 2003. They are again seen in the report of LCS/The Rehab Factor dated 11 March 2005. After that time, the focus turned to the particular injury suffered by Mrs Balacki in a car accident on 2 March 2005. That was a fracture of her wrist at the right scaphoid. By 9 August 2005, I find on the basis of the report of Dr Nolan dated 3 May 2006, Mrs Balacki had been referred for treatment and diagnosed with a Complex Regional Pain Syndrome (CRPS). Dr Nolan repeated that diagnosis on 28 March 2006 when he diagnosed Mrs Balacki as suffering from both a ® scaphoid fracture and ® CRPS.
Another car accident on 29 November 2005 did not change the diagnosis. The accident, Mrs Balacki told her general practitioner, Dr Nolan, had caused a minor increase in the pain in her right wrist. There have been a number of occasions since then on which Mrs Balacki has experienced an increase in the level of her pain or what she describes as “flare ups”. Her description varies a little and the area complained about also varies a little when regard is had to the written records. Those variations are of no consequence for they all relate either to her right arm or to her shoulder or to both. She might describe the pain in her arm at one stage, such as on 16 March 2011 to Dr Milward, as a shooting pain and feeling as if the arm is lacking circulation, stiffness and tightness. At another, such as on 16 June 2011 to her supervisor, she might state that she is suffering a pain in her shoulder area and pins and needles in other areas. The variations in description are inconsequential in this case. They all describe pain in her arm and shoulder.
Apart from the first car accident, there is no evidence that Mrs Balacki has suffered any external force or pressure to her body. Her first complaints predated that accident by more than three years. Since then, I am not satisfied that there has been something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state of her condition. There is nothing that can be described as an external force or agency that has brought about a change or some force or pressure exerted from within her body. Rather, she is suffering from a condition which, I find, is ever present. It is a condition whose symptoms wax and wane and manifest themselves with minor variations in Mrs Balacki’s right arm and shoulder. It is a condition that is outside the boundaries of normal physical functioning and behaviour and so may be described as an “ailment”, or an aggravation of an ailment, and so a “disease”. In the absence of any external or internal force or pressure, I am not satisfied that it is an injury (other than a disease).
Was Mrs Balacki’s disease contributed to, to a significant degree, by her employment?
Before Comcare becomes liable under s 14 of the SRC Act to pay compensation in respect of Mrs Balacki’s disease, her ailment, or aggravation of her ailment, must have been contributed to, to a significant degree, by her employment by Centrelink. That is provided for in s 5B(1).
A.When is a “disease … contributed to, to a significant degree” by an employee’s employment?
Section 5B(3) provides that the expression “significant degree” means “… a degree that is substantially more than material.” Together with the remaining provisions of s 5B, it was inserted in the SRC Act with effect from 13 April 2007.[49] Before that, a “disease” was defined in s 4(1) in very similar terms to those used in s 5B(1). Rather than a requirement that an employee’s employment has contributed to a significant degree to the ailment or to its aggravation as is the case now, s 4(1) required that the degree of contribution be a “material degree”. Parliament did not go on to specify matters that may be taken into account in deciding what amounted to a material degree as it does now in s 5B(2) in relation to “significant degree”.
[49] Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, s 3, Schedule 1, Item 11 and for commencement, see s 2(1), Item 2
A.1 A “material degree”
Under the 1971 Act, s 29 had provided for an entitlement to compensation when “any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence …” of that disease. That had been held to require a causal link, established on the balance of probabilities, between the disease or its aggravation or acceleration and the employment. Once that link had been established, it did not matter whether the contribution was of any particular size or degree.[50] Furthermore, the Full Court said in Treloar v Australian Telecommunications Commission:[51]
“… All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not ‘contribute’.
… [T]he section [s29] is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”[52]
[50] Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535 at [21]; 323; 328; 541-542 per Sweeney ACJ, Sheppard and Foster JJ
[51] [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535
[52] [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535 at [21]-[22]; 323; 328; 542
When Ryan J looked at the definition of “disease” in the form then found in s 4(1) of the SRC Act, he said in Suters v Australian Postal Corporation[53] (Suters):
“Although it is true that Treloar’s case was expressly limited to a consideration of the 1971 Act, in which the word ‘material’ did not appear, the case none the less contains a valuable exposition of that meaning of that word to which courts and tribunals are entitled to have regard when considering legislation considering it.”[54]
[53] (1992) 28 ALD 320
[54] (1992) 28 ALD 320 at 331
The Full Court of the Federal Court came to look at the definition of “disease” in Comcare v Canute.[55] It was in the same form considered by Ryan J and so that found in s 4(1) of the SRC Act. French and Stone JJ set out the relevant passage from the Second Reading Speech to the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988:
“‘Under the existing Act an employee was required to establish only that his or her employment was a contributing factor in the contraction of a disease. This test does not adequately reflect the rights and obligations of the Commonwealth and its employees in relation to work-related disease and frequently results in the Commonwealth being liable to pay compensation for diseases which have little, if any, connection with employment. This Bill seeks to remedy that situation by requiring an employee to show that his or her employment contributed in a material degree to the contraction of the disease. The Government believes that this is a test which is firm but fair and which properly reflects the balance between the interests of the Commonwealth as employer and its employees. An employee will not be required to show that his or her employment caused the disease, or even that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.
In determining whether employment contributed in a material degree to the contraction of a disease in a particular case, regard would be had to whether the employment in which the employee was engaged carried an inherent risk of the employee contracting the disease in question and whether some characteristic or feature of the employment tended to cause, aggravate or accelerate the disease. A disease which has been contributed to in a material degree by employment will be deemed to be an injury. Compensation will be payable if that injury results in the death, incapacity or impairment of the employee.’
(Emphasis added)”[56]
[55] [2005] FCAFC 262; (2005) 148 FCR 232; French and Stone JJ; Gyles J dissenting The judgment was reversed on appeal but not on this point: Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535; 229 ALR 445; 80 ALJR 1578
[56] [2005] FCAFC 262; (2005) 148 FCR 232 at [66]; 249 citing from Second Reading Speech, House of Representatives, 27 April 1988, Hansard at 2191
The majority went on to say:
“ On this basis, the observations of the Full Court in Treloar at 323 that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility of conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a “but for” test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be ‘more than a mere contributing factor’ and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word ‘material’ contained in the definition of ‘disease’ in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded. However, it is not necessary for present purposes to consider the proper meaning of ‘material’ and nothing more need to [sic] said about this issue.”[57]
[57] [2005] FCAFC 262; (2005) 148 FCR 232 at [67]; 249
When Finn J came to consider Comcare v Sahu-Khan[58] (Sahu-Khan), s 4(1) still defined “disease” to mean any ailment or aggravation of an ailment that was suffered by an employee “that was contributed to in a material degree by the employee’s employment by the Commonwealth”. He examined the history of the provision and the way in which the word “material”, has at times, been used to indicate that the employment needs to be a contributing factor without suggesting that the contribution need be of any particular size or degree. That word was used in that way by the Full Court in Treloar when it was not a word that had been used by Parliament in the definition of “disease” under the 1971 Act. Parliament’s reference to a “material” contribution in the definition of that word in s 4(1) led Finn J to look to the dictionary definition. He thought:
“… that one of the meanings of the word ‘materially’ in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is:
4. In a material degree; substantially, considerably
An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy [Repatriation Commission v Bendy[59]] described (10 AAR at 325) as the ‘loose sense’ of the definition of ‘material’ in the Macquarie Dictionary ‘namely, “of substantial import or much consequence” [rather than the] legal sense of “pertinent” or “likely to influence”’.”[60]
[58] [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523
[59] (1989) 10 AAR 323
[60] [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523 at [15]; 542; 530
In summary, Finn J came to the following conclusion as to what would satisfy the causal link in the definition of “disease” in its previous form in s 4(1) of the SRC Act:
“ Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i)requires a stronger causal relationship between employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);
(iii)whether this will be so in a given case will be a matter of fact and degree.”[61]
[61] [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523 at [16]; 542-543; 530
The law that the Full Court applied in Dunstan v Comcare[62] was the same. Speaking of the judgment of French and Stone JJ in Comcare v Canute, the Full Court said:
“ Canute must be regarded as authority for the proposition that the intention of Parliament was to impose a more stringent test of the causal relationship between employment and disease than the Full Court in Treloar had thought. In addition, as the Full Court had done in Treloar, French and Stone JJ in Canute rejected the notion that the ‘but for’ test is an appropriate test of the causal relationship.”[63]
[62] [2011] FCAFC 108; (2011) 125 ALD 362; Gray, Cowdroy and Reeves JJ
[63] [2011] FCAFC 108; (2011) 125 ALD 362 at [39]; 371 per Gray and Cowdroy JJ with whom Reeves J agreed
A.2 “significant degree”
What is meant by “… a degree that is substantially more than material” and so a “significant degree” for the purposes of the definition of “disease”? In Re Crouch and Comcare,[64] Deputy President Handley referred to submissions made on behalf of Comcare and referring to the judgment of Finn J in Sahu-Khan. Particular reference was made to the dictionary meaning of “materially” and to (ii) of the passage I have quoted at [50] above. Deputy President concluded:
“… A ‘significant degree’ means ‘substantially more than material’ (s 5B(3)) in a context where ‘material’ itself means something of substance (see above Sahu-Khan).”[65]
[64] [2013] AATA 608; Deputy President Handley
[65] [2013] AATA 608 at [40]
In Re Meaney and Comcare (Meaney),[66] Professor Creyke, Senior Member cited Sahu-Khan as authority for the following proposition:
“The Act requires that in the case of a disease …, employment must have contributed to the development of the condition ‘to a significant degree’, … that is, to a degree which is more than de minimis and is substantial or considerable….[: Comcare v Sahu-Khan (2007) 156 FCR 536 at [15]]”[67]
[66] [2012] AATA 352
[67] [2012] AATA 352 at [103] An appeal from the decision was allowed by Buchanan J on 6 February 2013. His Honour’s order of that date is found through the Commonwealth Courts Portal and reads: “1. The appeal be allowed. 2. The decision of the Tribunal given on 13 June 2012 be set aside. 3. The matter be remitted to the Tribunal for reconsideration according to law. 4. The constitution of the Tribunal on remitter is to be determined by the President. 5. Each party is to bear its/her own costs of the application.” The error of law is not identified on the face of the order and there is neither an accompanying statement of reasons nor a document available publicly that explains what the error of law might have been. An indication of his Honour’s reasons comes from the reasons for decision given by the Tribunal’s President, Kerr J, in determining the constitution of the Tribunal on remittal: Re Meaney and Comcare [2013] AATA 299; (2013) 60 AAR 384. The President noted that “The remittal orders were made by consent without formal hearing.” He then set out the matters that Buchanan J had agreed warranted his making the orders: [2013] AATA 299; (2013) 60 AAR 384 at [3]; 385. Those matters are focused on the adequacy of the reasons given and do not touch on what is meant by a “significant degree”.
Given the history of the case law, and particularly Sahu-Khan and Comcare v Canute, the approach in Crouch is initially attractive but that very same case law gives reason to pause for thought. That pause leads me to conclude that the approach in Meaney is to be preferred. I respectfully suggest, though, that the principles in Sahu-Khan do not take me to that conclusion.
I paused for thought because the word “material” can, as Finn J said, be used in the legal sense to refer to what is “pertinent” or “likely to influence” or it can be used to signify a link “of substantial import or much consequence”. If the approach taken in Crouch were correct, s 5B(3) would provide, in effect, that “significant degree means a degree that is substantially more than …” a degree of substantial import or of much consequence. If the word “material” is understood in its legal sense, s 5B(3) would provide, in effect, that “significant degree means a degree that is substantially more than …” a degree that is “pertinent” or “likely to influence”. When set out in this way, a test that requires a causal link between the disease and employment to be a contribution that is substantially more than a degree of substantial import or of much consequence begins to lose a little of its lustre. It remains, however, an arguable interpretation as does the alternative interpretation.
The hesitation that I have over the approach in Meaney comes from the fact that Finn J in Sahu-Khan did not consider what is meant by the expression “to a significant degree” or its definition in s 5B. His Honour was considering what was meant by the expression “in a material degree”. The passage quoted in Meaney as support for what is meant by a “significant degree” is concerned only with the meaning of “materially” and so with “material”.
In order to resolve the ambiguity I find in s 5B(3), I have looked to extrinsic material.[68] I will begin with the Second Reading Speech. In introducing the new definition of “disease” in s 5B as part of the amendments effected by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006, the Minister for Employment and Workplace Relations said:
“ The definitions of ‘disease’ and ‘injury’ are of central importance to the SRC Act. These definitions will be amended to strengthen the connection between the employee’s employment and the employee’s eligibility for workers compensation under the scheme.
The act currently requires a material contribution by employment to a disease before compensation is payable. When originally enacted this provision was meant to establish a test requiring that an employee - and I quote from the then minister’s second reading speech in 1988 – ‘demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease’. The issue being addressed was – and again I quote from the then minister’s 1988 second reading speech – ‘the Commonwealth being liable to pay compensation for diseases which have little, if any, connection with employment’. Notwithstanding this clear expression of legislative intent, the courts have read down the expression ‘in a material degree’ to emphasise the causal connection between the employment and the condition complained of rather than the event of the contribution itself.
The bill therefore includes an amendment to restore the initial legislative intent by requiring that an employee’s employment must have contributed in a significant way to the contraction or aggravation of the employee’s ailment.”[69]
[68] Acts Interpretation Act 1901, s 15AB(1)(b)(i)
[69] Second Reading Speech, Hansard, House of Representatives, 30 November 2006
The Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 referred to the principles set out in Treloar and to the statement made by Ryan J in Suters v Australian Postal Corporation, to which I have referred at [46] above. It did not refer to the statement of principle made by French and Stone JJ in Commonwealth v Canute in 2005, that I have set out at [48] above. Sahu-Khan was yet to be decided. As the Full Court was later to recognise in Dunstan v Comcare, Commonwealth v Canute had to be regarded as authority for the proposition that the intention of Parliament was to impose a more stringent test of the causal relationship between employment and disease than the Full Court in Treloar had thought but not so stringent that it became a ‘but for’ test.
Referring to the definition of “disease” in s 4(1) and the Second Reading Speech given in relation to the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (later renamed as the SRC Act), the Explanatory Memorandum noted:
“The initial legislative intent was to establish a test requiring a claimant to prove that his or her employment was ‘more than a mere contributing factor in the contraction of the disease’ …. The phrase ‘contributed to in a material degree’ was intended to ensure that the Commonwealth was not liable to pay compensation for diseases which have little, if any, connection with employment.
However, the courts have read down the expression ‘in a material degree’ to emphasise the causal connection between the employment and the condition complained of rather than the extent of the contribution. The purpose of the proposed amendment is to assist in reinstating the intended policy behind the Commonwealth workers’ compensation scheme by limiting access to compensation claims for diseases to which work has only made a very minor contribution.”
By referring only to Treloar and Suters and having regard to this passage from the Explanatory Memorandum, it is clear that Parliament understood the word “material” it had used in defining “disease” in s 4(1) in its legal sense i.e. as “pertinent” or “likely to influence”. It had not understood it in the sense in which it had been interpreted by the Full Court in Comcare v Canute or by Finn J in Sahu-Khan. That leads to the conclusion that when s 5B(3) provides that “significant degree means a degree that is substantially more than material”, it is providing that a significant degree is a degree that is substantially more than something likely to influence, or a mere contributing factor to, the onset of the ailment or its aggravation.
The relevant meaning of the word “substantial” in this context is that of “considerable in amount, extent, importance, etc …”[70] This is consistent with the meaning of “material” preferred in Sahu-Khan and the interpretation of s 4(1) adopted by the Full Court earlier in Commonwealth v Canute. Be that as it may, I have to interpret s 5B(3) as it is currently drafted. When I do that, I reach the conclusion that:
(1)it requires the contribution made by an employee’s employment to his or her ailment or to its aggravation to be substantially, in the sense of considerably, more than a “de minimis”, or minimal, contribution; and
(2)what amounts to “substantially more” is assessed by reference to every aspect affecting the ailment or its aggravation, the employment and the employee but with the understanding that those aspects vary from case to case as does the significance of one factor in relation to another:
(a)without limiting the matters to which regard may be had, s 5B(2) sets out five matters that may be taken into account: duration of the employment; nature of, and particular tasks involved in, the employment; any predisposition of the employee to the ailment or aggravation; any activities not related to the employment; and any other matters affecting the employee’s health; and
(b)other matters might include the nature of the ailment or its aggravation and causative factors relating to its onset or aggravation; and the environment in which tasks are performed as part of employment.
[70] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
B.Was Mrs Balacki’s disease contributed to, to a significant degree, by her employment?
B.1The nature of Mrs Balacki’s condition
I have not yet reached a conclusion as to the precise nature of the disease from which Mrs Balacki suffers. I am mindful that Dr Vagg diagnosed Mrs Balacki as suffering from myofascial pain from a thoracic outlet syndrome. In reaching that diagnosis, he has relied on the history he took from her and his examination. He supports his diagnosis by reference to the improvement that Mrs Balacki has experienced since he administered Botox injections.
Like Dr Kostos some nine years before him, Dr Fraser has diagnosed Mrs Balacki as suffering from fibromyalgia. He had also examined Mrs Balacki and taken her history. He conducted various tests which proved negative for tenosynovitis and for thoracic outlet syndrome. His ruling out thoracic outlet syndrome as a diagnosis is consistent with Dr James’ finding that there was no clear evidence indicating that she had “a true thoracic outlet obstruction”. Dr James did, however, allow for the possibility that there might be compression of the neurovascular bundle at the root of the neck/upper thoracic region that could produce symptoms of chronic upper limb pain, colour changes and sensory disturbance. The diagnosis of a chronic pain state such as fibromyalgia was made by Dr Jensen in 2003. That is consistent with that of fibromyalgia made by Dr James and Dr Kostos. He also allowed for some mechanical cervical spine dysfunction.
Dr Vagg regards Dr Fraser’s views as extraordinarily out dated and it would follow that he would regard those of Dr Jensen and Dr Kostos equally so. Dr Fraser regards Dr Vagg’s diagnosis as highly speculative. At one level, the disagreement could be seen as a disagreement between specialties with Dr Fraser and Dr Kostos being rheumatologists and Dr Vagg a specialist in rehabilitation and pain medicine. That does not allow for the fact that Dr Jensen is a specialist in Musculoskeletal Medicine and that Dr James is an Occupational Physician.
At another level, the disagreement can be seen as one between those who have been asked for their professional opinion as to Mrs Balacki’s condition but who have not treated it and those to whom Mrs Balacki has turned for treatment. Except for Dr Vagg, all fall within the former category. Dr Vagg himself has acknowledged that his diagnosis is partly based on the relief that Mrs Balacki has obtained from the Botox injections. The evidence about the relief that Mrs Balacki has obtained from those injections is that they were not as effective on the last occasion that they were administered. Dr Vagg said that this could have been caused by mishandling of the Botox in its transportation. In the absence of any subsequent injections, it is difficult to know whether that is the reason for their not providing the relief on the last occasion or whether they are simply no longer as effective. That may cast some doubt on the diagnosis of myofascial pain from a thoracic outlet syndrome.
In a case such as this, I do not need to resolve the disagreement between specialists. I have already found that Mrs Balacki is suffering from an ailment or from a disorder or defect, or from an aggravation of such a condition. Therefore, she meets paragraphs (a) and (b) of the definition of “disease” in s 5B. The more important issue in this case is whether her ailment or any aggravation of that ailment was contributed to, to a significant degree, by her employment with Centrelink.
B.2Was Mrs Balacki’s ailment or any aggravation of that ailment contributed to, to a significant degree, by her employment?
When I have regard to Mrs Balacki’s pain, I find that, while she attributes her pain to her workplace activities and has done so for many years, she has also had a long history of experiencing it in relation to her life outside work. Dr Kostos, for example, noted in his report dated 9 March 2004 that she would get a flare up of pain and swelling if she did too much at home and that she had difficulty driving a car that did not have power steering. In his report a few months earlier in November 2003, Dr Jensen had reported on the difficulties that Mrs Balacki experienced in her activities, including household activities, outside work. This was consistent with the oral evidence that Mrs Balacki gave at the hearing regarding the difficulties that she had with chopping hard vegetables such as carrots and the care she had to take when carrying and hanging out the laundry and with cleaning. She has to pace herself in doing those jobs and is limited in the weight she can carry and the extent to which she can hang out the laundry to dry. Aids such as a laundry trolley and, in the kitchen, a Thermomix have assisted her.
In more recent times, Mrs Balacki has continued to experience pain even when she is on leave from her duties at Centrelink. I make particular reference to her complaint to Dr Milward on 16 August 2011 that her pain had persisted since she had previously seen her on 2 August 2011. In the fortnight between consultations, Mrs Balacki had taken a week away from work but had spent the time cleaning out either the pantry, as Dr Milward’s note states, or her clothes cupboard, as Mrs Balacki said in her oral evidence, and had done a lot of overhead work.
Mrs Balacki has attributed some of her pain to her duties associated with the increase in demand for services provided by Centrelink in relation to the Bali Bombing, the Victorian bushfires and the floods. Floods seem to be an annual feature and I have not included them in the Chronology but I have included the Bali Bombing and the Victorian bushfires in the time line. When I do that, there is no suggestion in her medical records or her work records that workload attributable to increased work arising from the Bali Bombing in October 2002 had an adverse effect on her. At the time, she was already suffering from wrist and arm pain and was undergoing a rehabilitation programme. That is not to say that the calls she had to deal with would not have been difficult for they no doubt would have been just as they would have been in February 2009 with the Victorian bushfires. Her work at the time was much appreciated by Centrelink. She was again undergoing a rehabilitation programme but there is no reference in either her medical or her work records of any further complaints of pain until 3 October 2009. That is some eight months after the bushfires although it is to be expected that calls arising from the bushfires would continue to have been made to Centrelink for at least some of that period.
Dr Vagg had assumed that Mrs Balacki’s condition was caused by her employment. He had taken it as read because he was more focused on getting her back to work. It follows that I can place very little weight on his evidence as to the cause of Mrs Balacki’s condition.
Dr Milward initially said in her report of 9 January 2012 that Mrs Balacki’s repetitive computer and desk top work is likely to contribute to her condition but so too are her home duties including cleaning out and painting of cupboards and overhead activities. She was unable to attribute percentages to the various causal factors. When she wrote her report on 5 June 2012, Dr Milward had changed her mind about the contribution made by Mrs Balacki’s life outside work. By that time, Mrs Balacki had been away from work for two months since 10 April 2012. Dr Milward decided that work has been the primary contributing factor because, after Dr Vagg’s treatment and a prolonged period of rest from her work duties, Mrs Balacki was much improved and able to undergo normal daily activities of being a mother and a housewife without aggravating her symptoms.
What Dr Milward does not address in reaching her conclusion is Mrs Balacki’s own evidence that she avoids any work at home that requires her to exert pressure or to lift loads. Therefore, she avoids cutting hard vegetables, reaching overhead or cleaning and carrying heavy loads. She paces herself on all of her tasks. The fact that she does not exhibit symptoms of pain in such a controlled environment does not mean that her condition is attributable to her duties at work where she does not have the same degree of control of her environment and of her tasks. She can control whether she sits or stands at her desk and she has been given aids such as a Gold mouse and Dragon Dictate to assist her to minimise the keyboard work but she cannot pace herself to the extent that she can do so at home. Dr Milward has not addressed this aspect in her report.
It has been addressed by Dr Jensen who expressed the view that there are no specific causes for flare ups of chronic pain states such as fibromyalgia. His view is supported by Dr Kostos who thought the condition was related to psychological and social factors and not by physical aspects of Mrs Balacki’s employment. Both had reviewed Mrs Balacki’s home and work activities in reaching their opinions. Their opinions are consistent with that of Dr James.[71] As is to be expected given her specialty as an Occupational Physician, Dr James addressed matters of treatment and rehabilitation rather than causation.
[71] At [56] of the submissions she made on behalf of Comcare, Ms Burchell said that “The views of Dr Fraser are supported by the medical witnesses in Cook v Comcare [2003] AATA 16 at [55], [59], [65]’ [71], [72], [73] and [78].” I have paid no regard to this submission for only one reason. That reason is that the evidence presented to Senior Member Bullock and Dr Campbell in Re Cook and Comcare (Cook) is not the evidence presented in this case. I must decide this case on the evidence that is given to me and in relation to which both parties have had the opportunity to make submissions. It might be said that both parties have had the opportunity to inspect the relevant passages from Cook and to make their submissions on them. If I were proposing to have regard to them, and I am not, that would meet my statutory requirement to give them “… a reasonable opportunity to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”: Administrative Appeals Tribunal Act 1975 (AAT Act); s 39(1). It would not, however, meet my statutory requirement to give each “… a reasonable opportunity to present his or her case …” as is also required by s 39(1) of the AAT Act. It would not do so for neither party would have the opportunity to cross-examine those giving medical evidence in Cook’s case or to put to them the particular factors relevant to Mrs Balacki’s case.
It follows that I find that the weight of evidence is against the later view expressed by Dr Milward. I find instead that, on the balance of probabilities, Mrs Balacki’s condition is not contributed to any degree by her employment let alone to a significant degree. Certainly, she experiences symptoms at work and, understandably, she associates those symptoms with her duties but, on the evidence I have, I have also found that she experiences symptoms away from her work when she is performing household duties or duties such as driving. Factors in both her workplace and in her life and activities outside the workplace cause her to suffer pain but that pain is not indicative of an aggravation or acceleration of her condition. It is, instead, indicative of the condition from which she suffers. Like the worker to whom Evatt and Sheppard JJ referred in Beattie, and who fractured a leg in a non-work related incident and then put weight on it in the workplace, Mrs Balacki will suffer pain from time to time in her employment with Centrelink. That does not mean, though, that she has aggravated her condition. Her pain is a consequence of her condition and not an aggravation of it.
CONCLUSION
For the reasons I have given, I affirm the decision of a delegate of Comcare dated 1 June 2012 affirming a determination dated 27 January 2012 disallowing Mrs Balacki’s claim for subacromial bursitis (shoulder) (right), chronic pain syndrome (arm) (right) and tenosynovitis (bicep) (right) under s 14 of the SRC Act.
In this section of my reasons, I will summarise the medical reports which have been given to me but will not repeat material appearing in the Chronology in Attachment B.
Dr Steven Jensen: Specialist in Musculoskeletal Medicine
Dr Jensen first saw Mrs Balacki on 7 April 2003 on a referral by her general practitioner, Dr Nolan and saw her on several occasions after that. In his report dated 18 November 2003, he set out the history he had obtained from Mrs Balacki. It had not changed between his two examinations. In relation to the injury itself, he reported to Centrelink in response to its correspondence to him:
“She told me she had worked at a call centre full time for the last five years. She spent all her day on a telephone using a headset and working at a keyboard. She informed me that in July, 2002 during the course of her normal duties she was being monitored by her superiors and became quite nervous and tense. She kept making mistakes and told me she developed, first of all, pain in the left hand with an associated clicking sensation at the back of her wrist. She would have to shake her hand to get relief. She then noted the development of burning pain which started to creep up her arm towards her shoulder. She then started to use her right hand more and after a week or so noted she developed very similar symptoms in her right hand. Soon after that she noted the development of stiffness and soreness in her neck and across her shoulder girdles, as well as referring into the region of both scapulae. She told me she had a few periods of one to two weeks off work between August, 2002 and November, 2002 but otherwise had been employed on modified duties and hours.”[72]
[72] T documents; T54 at 182
He also referred to Mrs Balacki’s having:
“… described a past history of recurrent neck problems but had never had any pain referral to her arms before. She denied any other accidents or injuries. There was also a past history of endometriosis.”[73]
[73] T documents; T54 at 182
Dr Jensen set out the complaints that she had told him about:
“She presented with persistent pain at the base of her neck which she described as a pulling sensation and a feeling of neck stiffness. When tired she developed occipito-frontal and retro-orbital headaches. She claimed the volar aspect of both forearms was constantly swollen with a burning, aching sensation. This pain referred up to the dorsal aspect of the forearm. As a result of the swelling she had to remove her rings. She also expressed as pins and needles sensation involving particularly the middle and index fingers of both hands. She said her arms felt cold as though they were hot to touch. She described no colour differential.
She initially rated her pain level as 8-9/10 on a visual analogue pain scale. On a generic musculoskeletal disability questionnaire she rated a moderately severe level of disability. She stated she was unable to lift or carry heavy weights above 10kg or reach above shoulder height. She explained that it was very difficult for her to perform her normal work, including both work outside the house and the housework. For example, she had difficulty cutting harder vegetables or opening milk cartons. She had a great difficulty with repetitive manual tasks such as ironing. She found all the household chores tended to aggravate her symptoms.
She also reported a great deal of difficulty in prolonged walking, even on flat ground but this was worse when negotiating stairs. Bending forwards and stooping, turning her head to look over her shoulder, looking up and down, reaching up behind her back and opening tight jars or bottletops including milk cartons, were all very difficult for her to undertake. She had a moderate degree of difficulty with kneeling and squatting and rising from the seated position. She found prolonged travel tended to aggravate her symptoms.
She also displayed symptoms consistent with significant depressed mood and anxiety, such as feeling down hearted and sad, nervous and uptight and lacking in energy. She had trouble sleeping through the night.
I note that subsequent to her initial injury she also developed some lower back pain radiating to both buttocks. She also reported a Baker’s cyst behind the left knee.”[74]
[74] T documents; T54 at 183
| 1 November 2011 | Recreation Leave with a rostered non-working day each week | |
| 21 November 2011 to 16 December 2011 | Part personal leave with a rostered non-working day each week | |
| 7 December 2011 | Dr Milward | “… had taken three weeks of and by the end of this time she had the appt with Mr Page – he felt shoulder had normal ROM and not pathology causing issues. Felt it was all neck related whilst on holidays – a lot of symptoms improved – discolouration, swelling, pain and movement has now returned to work – burning at back of neck, feels right arm has gone hard again, shoulder ROM still remains ok at this stage … long discussion about work the major cause of her symptoms and likely no cure without avoiding the role this job requires. Last year took 4 months off and travelled and again was much improved. …”[174] |
| 7 December 2011 | Dr Narelle Milward (General Medical Practitioner) | Dr Milward certified that Mrs Balacki was fit for alternative duties from 7 to 21 December 2011. She noted that Mrs Balacki was unable to tolerate sitting at a desk for extended periods of typing. Even though she was using Dragon, she could not avoid typing.[175] |
| 9 December 2011 | Claim for compensation | Mrs Balacki submitted a claim for “Regional Pain syndrome Right arm, Right Shoulder Bursitis and Bicep Tendonitis”.[176] She was injured on 22 August 2011 at 10:25am. At the time, she was “Taking a call”. When asked what started the chain of events that led to her injury, Mrs Balacki wrote “Ongoing repetitive duties – typing, mousing”. The action or event that occurred to cause her injury was “Keying correction whilst using Dragon Dictation, arm/hand ‘seized up’. No circulation, pain to move hand.” When asked what actually injured her, Mrs Balacki wrote “Computer Keyboard”.[177] |
| 12 December 2011 | Lake Imaging | MRI of Mrs Balacki’s cervical spine. After setting out his findings, Dr Don Barrie concluded: “Minor anular disc bulge at the C5/6 level with no evidence of neural compression either at the disc space or foramina level. No features of cervical myelopathy. It would be unusual for a disc protrusion to account for pain and swelling discolouration of the right arm and other aetiologies such as possible outlet syndrome should be considered.”[178] |
| 21 December 2011 | Dr Milward | “… symptoms appear very like thoracic outlet syndrome – discussed treatment and management options at length … really struggles with any jobs at work – often requires sitting at a desk …”[179] |
| 2012 | ||
| 9 January 2012 | Dr Milward | “Possible thoracic outlet syndrome with history of:- ® shoulder showing supraspinatus tendinosis subacrapnal bursal thickening. MRI cervical spine – minor annular disc bulge at C5/C6 Pathology on both imaging investigation don’t seem to be enough to account for all symptoms. We are awaiting review with the pain management consultant, Dr Michael Vagg.”[180] When asked how Mrs Balacki’s condition developed, Dr Milward wrote: “Repetitive computer/desk top work likely contributes. Home duties including cleaning out and cupboards painting, over head activities likely to also contribute. Unable to advise contributing percentages”[181] |
| 17 January 2012 | Dr Milward | “… has returned to work after holidays to 23-24 hours each week and struggling to cope is performing alt duties and can often manage with 20 hours a week …”[182] |
| 17 January 2012 | Certificate of Capacity (Dr Milward) | Dr Milward certified Mrs Balacki fit for alternative duties for the period from 17 January to 14 February 2012 noting that she was “not to perform duties that require extension and over head usage of right arm Needs regular rest breaks Work max 20 hours each week. 4 days of 5 hour shifts.”[183] Since the beginning of 2012, Mrs Balacki has not taken incoming calls at the Centrelink Call Centre. She has been undertaking income and asset reviews and making outgoing calls at her time of choosing. Her work is undertaken at her usual desk in the Centre. In addition to her review work, she will assist other staff with tasks from time to time and also undertakes training. Her hours are 16 hours each week spread over four days.[184] |
| 27 January 2012 | Determination | A delegate of Comcare disallowed Mrs Balacki’s claim.[185] |
| 31 January 2012 | Dr Milward | “… finding without maintenance treatment ends up in significant pain – right neck, shoulder, axilla and forearm tight returned to myotherapist and keen to explore doppler USS and ensure no forearm tendonitis discussed plans for rehab medical review and waiting for pain management review been advised of alternate treatment of manipulating atlas – advise to hold off on seeking this treatment at this stage …”[186] |
| 15 February 2012 | Mr Nick Jarman, Occupational Physiotherapist | Mrs Balacki consulted Mr Jarman between 19 September 2011 and 28 November 2011. She consulted him about a sharp pain in her right shoulder. Mr Jarman’s initial assessment led him to the view that Mrs Balacki “… had some SA bursal impingement with some associated muscle spasm. In addition to this her scapulohumreal rhythym was restricted at approx. 80-90 degrees which was also causing her some impingement type symptoms. However, there was some significant signs of Thoracic outlet syndrome.”[187] |
| 15 February 2012 | Dr Andrea James, Specialist Occupational Therapist | Dr James examined Mrs Balacki for the purposes of preparing a report requested by Centrelink. She reported on 4 May 2012. |
| 15 February 2012 | Dr James | Date Dr James saw Mrs Balacki before reporting to Centrelink – see [89] above.[188] In summary, Dr James agreed with Dr Milward that Mrs Balacki would benefit from additional leave until 25 May 2012. That would take her to a date six weeks after her pain injection treatment and would optimise that treatment before she starts a RTW plan. |
| 24 February 2012 | Dr Milward | “… has had review with occupational doctor – long discussion about pain medication – is reluctant to take anything regularly … feels remedial therapies assist with maintenance, rather than cure …”[189] |
| 9 March 2012 | Dr James | Report to Centrelink – see [89] above.[190] In summary, Dr James reported on Mrs Balacki’s capacity for work as well as the nature of her condition. In her opinion, Mrs Balacki had been “… diagnosed with fibromyalgia, complex regional pain syndrome and now more recently possibly thoracic outlet syndrome.”[191] Mrs Balacki was then “… medically incapacitated for the full duties of a Customer Service Advisor and is medically restricted from duties that require sustained or repetitive right hand and arm movements including computer keyboard and mouse use. Mrs Balacki has been attending work and performing light tasks for 20 hours per week over the last two months. She reports being able to perform these tasks without significant aggravation of her symptoms. …”[192] |
| 13 March 2012 | Dr Milward | “review of right arm – certainly not in acute flare at the moment, not yet at maintenance level most of duties designated are repetative [sic] for several hours. The actual task prob ok but repetition creates a problem haven’t heard anything from formal review”[193] |
| 21 March 2012 | Dr Milward | “… Phone discussion with Dr Andrea James – OT physician – believes Tania is not fit for work, has chronic regional pain some syndrome – some features of thoracic outlet syndrome, fibromyalgia suggested review with sports physician and perhaps tailored active exercise program to address some of the postural loading issues not fit for work for next couple of months and review after this time. …”[194] |
| 2 April 2012 | Leave | As recommended by Dr James and Dr Milward, Mrs Balacki took leave from work. She remained on leave until 21 June 2012. |
| 13 April 2012 | Mrs Balacki | Mrs Balacki responded to Dr Milward’s comment regarding the contribution that Mrs Balacki’s home duties, including cleaning out cupboards and painting, are likely to make to her condition: “This is not a regular occurance [sic], something I do not always do, so is not repetitive. I was on leave and reflecting back on the course I undertook with the Pain Management Clinic, was to pace tasks. To continue living and working in this fashion. So when I was cleaning out cupboards (clothing) I noted how I couldn’t undertake the task for more than 4-6 minutes without discomfort. So you then stop and begin again later, this time allowing a longer period of time, then you work out your starting time and slowly increase tasks each time. It was mentioned to my Dr how I found even home duties causing pain. The same applied to the painting. (something I used to enjoy casually) on small canvas pictures. These activities are a one of [sic], not daily activities. … In response to your letter dated 27.01.2012 page 5 and 8, of my ‘condition’ is aggravated and contributed by work as my posture is affected from the prolonged static position. When I leave work, even with breaks taken, I find coming home then to prepare meals or any other tasks extremely painfull [sic], it affects my daily personal care, grooming. Sleeping, driving. I am grateful for all the assistance provided to me at work, dragon dictate. The Dragon Dictate software doesn’t eliminate repetitive keyboard or mouse work it only reduces it. Please find a fact sheet regarding Dragon Naturally Speaking. I find that the work environment in our office is a major factor in the variation of temperature. I have developed over the last couple of years a persistent cough which aggravates my voice therefor resulting in dragon not understanding me and ultimately using my hands more.”[195] |
| 20 April 2012 | Dr Michael Vagg, Rehabilitation & Pain Medicine | Dr Vagg reported to Dr Milward.[196] In summary, Dr Vagg was of the opinion that Mrs Balacki “… probably has thoracic outlet syndrome and I would expand upon that to say that the thoracic outlet syndrome is due to dynamic compression likely caused by anterior scalene over-activity secondary to myofascial pain.”[197] |
| 23 April 2012 | RTW Management | The recent reports of Dr Vagg and his recommendations were reviewed as well as those of Dr Milward and Dr James. Mrs Balacki was to be reviewed by Dr Christopher Bradshaw, who is a Sports Physician. Dr James had recommended that Mrs Balacki have three or four months away from work but she did not have enough leave to take other than unpaid leave. RTW Management would monitor and support Mrs Balacki.[198] |
| 23 April 2012 | Long Service Leave/personal leave | One month[199] |
| 24 April 2012 | Dr Milward | “… seen by Dr Vagg – early cancellation reports he was excited about diagnosis and keen to manage as thoracic outlet syndrome given what sounds like LA and pred injections and ideal to have up to 6 weeks off has some long service leave avail and keen to take may need Dr James to review direction following Pain Management consult and if need to return to work …”[200] |
| 1 May 2012 | Dr Matthew Chamberlain, Olympic Park Sports Medicine | CT guided R C5/6 + C6/7 facet joint corticosteroid injections for a long standing cervico-thoracic dysfunction.[201] |
| 4 May 2012 | Dr James | In summary, Dr James recommended that Mrs Balacki would safely resume a graded return to work to telephony and keyboard duties if her treating doctor provided a history of her performing tasks for periods of at least 20 minutes without aggravation of her symptoms. She set out a graduated RTW plan with the goal of Mrs Balacki’s returning to her pre-injury duties being predominantly telephony/keyboard tasks that can be performed sitting or standing at a desk using a telephone headset, a keyboard and a mouse.[202] |
| 8 May 2012 | Dr Milward | “… has been seen by sports physician reg – has considered CT guided cortison to cerviccal [sic] facet joints – will hold off on this until collaborates with chris bradshaw and michael vagg some relief – certainly shouldn’t be returned to work at this stage … Continue with exercises and taking care using arm”[203] |
| 11 May 2012 | Mrs Balacki | Mrs Balacki wrote to Centrelink enclosing a copy of Dr Vagg’s report. She noted that she was delaying corticosteroid injection until a reasonable amount of time had passed to give Dr Vagg’s other recommended treatments a chance to work. At the time, she could not afford the cost of the injections.[204] |
| 21 May 2012 | Recreation Leave/Personal Leave | One month[205] |
| 23 May 2012 | Dr Milward | “… discussed plan with Dr Vagg – not recommending the facet joint injections, feels that she has had good response to trigger point injections and feels best approach will include exercise program, postural strengthening and possibly ?? consider botox scalene. has starting attending gym and has been recommended rehab program – letter to discuss issues of diagnosis and cautions not to aggravate symptoms has return to work plan and currently unfit for duties til 05/06/2012”[206] |
| 24 May 2012 | RTW Management | After reviewing recent reports and noting that Mrs Balacki was keen to return to work after 5 June 2012, RTW Management recommended that Mrs Balacki would safely resume a graded return to work to telephony and keyboard duties if her treating doctor provided a history of her performing tasks for periods of at least 20 minutes without aggravation of her symptoms. She was to continue her regular reviews by Dr Milward, follow her gym program regularly and perform the exercises recommended by Dr Vagg. The programme began with 20 minutes of keyboard duties alternating with 20 minutes of non-keyboard duties for three hours on each of two days for the first week beginning on 18 June 2012 and on each of three days in the second week. By August 2012, it was intended that Mrs Balacki would be performing keyboard and telephony duties for 40 minutes followed by non-keyboard duties for 20 minutes for four of five days each week.[207] |
| 1 June 2012 | Reviewable decision | A delegate of Comcare affirmed the determination made on 21 January 2012.[208] |
| 5 June 2012 | Dr Milward | “… has been off work from 10th April reviewed and treated with DR vagg 20th april has been attending gym program since 26th May feeling much improved – almost back to normal able to manage home duties well – definate [sic] improvement with time off work …”[209] |
| 5 June 2012 | Dr Milward | Dr Milward referred to Dr Vagg’s diagnosis of Thoracic Outlet Syndrome which is likely to have been caused by aneterior scalene over activity secondary to myofascial pain. She continued: “Watching her progression over this last 9 months it is quite definate [sic] that her duties at work are the primary aggravating factors contributing to her pain. I have witnessed that during periods of rest from work she is much improved – and this has occurred several times. It then that she has been able to tolerate a reconditioning exercise program. After treatment with Dr Vagg and a prolonged period of rest from her work duties she is much improved and seems able to undergo normal daily activities of being a mother and housewife without aggravating symptoms. … Hence I support that her work has been the primary contributing factor.”[210] |
| 19 June 2012 | Dr Dalgleish (in place of Dr Milward) | “… is able to use upper limbs for sustained activities for 20 min at home without aggravation of her symptoms. Provided these are not computer based activities attending exercise program, swimming 4 times a week. plans to return to graduation work program on Thursday of 3 hours Mon, Tues, Thurs and Fri …”[211] Dr Milward added: “… has been attending the gym – 2 hours each session, some exercises may aggravate symptoms but modifies these so as not to create pain. Managed to vaccum [sic] last week – felt it was for 20-30 min without aggravation of symptoms. There are some isolated activities that cause some problems – screwing attachments onto vaccum [sic], opening jars”[212] |
| 21 June 2012 | Leave | Mrs Balacki returned to work on the RTW plan developed by RTW Management.[213] |
| 28 June 2012 | Rehabilitation Review Meeting | Meeting attended by Mrs Balacki, Centrelink’s Attendance Manager, RTW Management and the Rehabilitation Case Manager to discuss Dr James’ report and recommendations and the RTW plan.[214] |
| 25 July 2012 | Dr Milward | “… has returned to work – coping with graduated program but whilst at work wasn’t really having many calls. Have realised this in last 2 days and work call have increased, longer calls and more typing required and now has exacerbation of symptoms – pain in acros [sic] upper back and in right trap, arms aching and feels stiff, hand tends to become engorged with little movement – changes color and feels like filling with fluid. S/B Mr Vagg – feels RTW plan to [sic] fast. Seems to manage time ok but it all depends on the work load in those times. Needs to continue at work capacity that she felt ok – at 4 hours/day with Wed off and reduced call load”[215] |
| 25 July 2012 | Dr Milward | Dr Milward certified Mrs Balacki fit for alternative duties for the period from 17 July 2012 to 14 August 2012 noting “Unable to get appt til 25/07/2012 – has been following RTW plan but in last few days exacerbation of symptoms. Need to slow RTW plan for now continue with 4 hour days with Wed off and return to 20 min on phone and keyboard and 20 alt duties. Need to modify recent trial of increased call load.”[216] That meant that Mrs Balacki was then working on four days each week for 20 minutes on telephony and keyboard work alternating with 20 minutes of non-keyboard work. That was a 16 hour week.[217] |
| 31 July 2012 | Mrs Balacki | Mrs Balacki sends Dr Milward’s lettter dated 5 June 2012 to Comcare .[218] |
| 3 August 2012 | Dr Vagg | Dr Vagg administered Botulinum toxin injections to Mrs Balacki. He reported that she tolerated the injections quite well and that there was a significant reproduction of her usual referred pains with each injection. He was hopeful that this would result in a sustained improvement for the next couple of months.[219] |
| August 2012 | Mrs Balacki | Mrs Balacki no longer performing telephony duties with regard to incoming calls. As part of her other duties, she may make outgoing calls at times of her own choosing. She is working 16 hours each week made up of four hours on each of four days. |
| 14 August 2012 | Dr Milward | “… 10 days ago – botox injection to trigger points around sternocleidomastoid and trap right shoulder and neck region. after injection has 3 days off work then returned to alt duties only for one week, then back to RTW plan yesterday. Quite sore returning last week and then required panadol osteo twice during shift yesterday. Feels her neck is more free, but around the shoulder feels tight. is continuing with exercise program although feels the indicators may push a little beyond her limits …”[220] |
| 11 September 2012 | Dr James | Dr James examined Mrs Balacki. Her report is dated 3 October 2012. |
| 12 September 2012 | Dr Milward | “… seems to be managing 4 hours each day with alternate duties constant keyboarding causes symptoms – noticed after 10min of keyboard work that hand goes blue, pain in arm and needs rest can manage if it’s not constant and some phone work for 20 min”[221] |
| 3 October 2012 | Dr James | Dr James summarised Mrs Balacki’s most recent treatment. Although she had asked for advice from her treating pain specialist on alternative treatment options, it was Dr James’ opinion that, given the long standing nature of Mrs Balacki’s condition and her response to treatment, that he myofascial pain syndrome was most likely to be permanent and unlikely to improve in the foreseeable future.[222] |
| 10 October 2012 | Dr Milward | “… has noticed occasion of blue haze to dorsum of right hand with straining writs ?? carpal tunnel ?? vasospasm”[223] |
| 7 November 2012 | Dr Milward | “… Botox injection to right and left side neck and back of left shoulder 5 days ago some bruising yet to settle due for meeting with Work and HR – following report from Occupational Health Physician – suggesting unable to return to pre injury duties …”[224] |
| 8 November 2012 | Rehabilitation Review Meeting | Meeting attended by Mrs Balacki, Centrelink’s Attendance Manager, RTW Management, Mrs Balacki’s Team Leader and the Rehabilitation Case Manager to discuss Dr James’ report and recommendations and the RTW plan. This led to a decision regarding her RTW on 3 December 2012.[225] |
| 29 November 2012 | Dr Kevin Fraser Consultant Rheumatologist | Report to Comcare’s solicitors – see [90]-[93] above.[226] In summary, Dr Fraser was of the view that Mrs Balacki suffers from longstanding fibromyalgia that is unrelated to her employment. |
| 3 December 2012 | Comcare | The delegate decided that Mrs Balacki should continue to attend work and perform duties as recommended by Dr James.[227] |
| 4 December 2012 | Dr Milward | “… botox has kicked in and working well – is working 4 hours daily, 4 days each week – in processing (alt duties) rather than calls taken and short calls if needing to. …”[228] |
| 2013 | ||
| 11 January 2013 | Dr Vagg | Report to Dr James – see [95] above. In summary, Dr Vagg was of the opinion that Mrs Balacki’s myofascial pain was likely to be a long term condition. He set his treatment plan expressing the view that it had the potential to improve her function but not so much that she could avoid any pain related disability in the future.[229] |
| January 2013 | Mrs Balacki’s father in law died.[230] She kept working during this period but was able to care for him as well.[231] | |
| 6 February 2013 | Dr B Trifiletti Occupational Physician | Dr Trifiletti did not examine Mrs Balacki but responded to Comcare in place of Dr James, who had left Medibank Health Solutions. He reviewed the reports of Dr James dated 3 October 2012 and Dr Vagg dated 11 January 2013 and concluded: “I The attached report of Dr Vagg confirms Mrs Balacki’s condition and partial work incapacity with [sic] is long term stable and not expected to change. II The recommendations of Dr James in her report of 3 October 2012 for permanent partial work incapacity restricted to 16 hours per week ie. 4 hours X 4 days per week is realistic and reasonable and is consistent with the findings of the treating specialist in his report; III She is permanently and partially incapacitated for all work and the incapacity is solely due to her diagnosed myofascial pain disorder; IV All other recommendations of Dr James are confirmed.”[232] |
| 8 February 2013 | Dr Vagg | Report to Dr James – see [96] above.[233] In summary, Dr Vagg reported on Mrs Balacki’s response to his treatment. He also responded to a report of Dr Fraser. With regard to his treatment, Dr Vagg reported: “When I saw her today her relief from the last injection had begun reducing approximately 3-weeks ago. In the last 3-weeks she has noticed reduced find motor skills in her right arm, including dropping a knife in the kitchen. She has also dropped crockery. She has noticed paresthesiae in the right fingers and hand, which has become more prolonged over the last three-weeks and increased pain in her neck and shoulders. During this time she also has gone through diagnosis and palliative care with her father-in-law who was diagnosed towards the end of last year with advanced metastatic lung cancer. He died 2-weeks ago. During this time she was able to provide some hands on physical care for her father-in-law, which she would not normally have been able to do. She has also continued on her restricted hours at work without interruption during this difficult time.”[234] |
| 25 February 2013 | Recreation Leave | One month[235] |
| 23 May 2013 | Dr Vagg | Report to Comcare’s solicitors – see [97] above.[236] In summary, Dr Vagg expressed a view about the correlation between the type of work undertaken by Mrs Balacki and her condition. |
| 15 July 2013 | Leave Without Pay | One month[237] |
| 12 August 2013 | Leave Without Pay | One month[238] |
[85] T documents; T30 at 96-101
[86] T documents; T5 at 7 Information obtained from report of Lapeyre Consulting Service Pty Ltd (LCS/The Rehab Factor) dated 11 March 2005.
[87] T documents; T49 at 170
[88] T documents; T49 at 170
[89] T documents; T54 at 182 and see [77]-[84] above
[90] T documents; T52 at 176 and T33 at 106
[91] T documents; T52 at 176
[92] T documents; T54 at 182-185
[93] T documents; T54 at 187-190
[94] T documents; T7 at 17
[95] T documents; T4 at 5
[96] T documents; T68 at 255-256
[97] T documents; T5 at 8
[98] T documents; T5 at 7
[99] T documents; T7 at 15
[100] T documents; T8 at 26
[101] T documents; T68 at 257-258
[102] T documents; T9 at 27
[103] T documents; T10 at 29
[104] T documents; T12 at 40
[105] T documents; T67 at 246-247
[106] T documents; T68 at 259-260
[107] T documents; T68 at 261-262
[108] T documents; T68 at 263-264
[109] T documents; T12 at 42-44
[110] T documents; T18 at 52
[111] T documents; T68 at 265-266
[112] T documents; T15 at 45-46
[113] T documents; T68 at 267-268
[114] Report of Dr Ross Nolan dated 3 May 2006: T documents; T18 at 52
[115] T documents; T68 at 269
[116] Report of Dr Ross Nolan dated 3 May 2006: T documents; T18 at 52
[117] T documents; T50 at 172
[118] T documents; T68 at 271
[119] T documents; T68 at 277
[120] T documents; T67 at 248
[121] T documents; T68 at 272
[122] T documents; T17 at 50
[123] T documents; T18 at 53 and repeated at T53 at 179-180
[124] T documents; T67 at 250
[125] T documents; T68 at 273
[126] T documents; T67 at 251-252
[127] T documents; T68 at 278
[128] T documents; T67 at 253-254
[129] T documents; T20 at 59-63
[130] T documents; T44 at 151
[131] T documents; T68 at 274 and repeated at 279
[132] T documents; T68 at 276
[133] T documents T68 at 278
[134] T documents; T21 at 64-68
[135] T documents; T22 at 69-70
[136] T documents; T23 at 71-72
[137] T documents; T24 at 73-74
[138] Exhibit J at 7/32
[139] T documents; T51 at 174
[140] T documents; T47 at 162
[141] T documents; T47 at 164
[142] Exhibit J at 12/32
[143] T documents; T27 at 81-82 and repeated at T48 at 167-168
[144] Exhibit J at 14/32
[145] Exhibit J at 15/32
[146] Exhibit J at 16/32
[147] Exhibit J at 17/32
[148] Exhibit J at 18/32
[149] Exhibit J at 21/32
[150] “Centrelink Coaching Definition: ‘Coaching is a series of structured conversations that are designed to help employees improve their learning and performance, and enhance their job satisfaction and quality of life.’”: Exhibit J at 23/32
[151] Exhibit J at 24/32
[152] Exhibit J at 26/32
[153] Bundle of documents presented by Mrs Balacki in final submissions (Bundle of documents) at 9/48
[154] Exhibit J at 27/32
[155] Exhibit J at 30/32
[156] Bundle of documents at 9/48
[157] Exhibit 1 Details of working times and leave are taken from Exhibit 1 and the colour spread sheet of Mrs Balacki’s leave and rostered hours.
[158] Mrs Balacki’s oral evidence
[159] Bundle of documents submitted by Mrs Balacki at resumed hearing on 11 October 2013 (Bundle of documents) at 8/48
[160] Bundle of documents at 8/48
[161] T documents; T28 at 83
[162] T documents; T30 at 89
[163] T documents; T59 at 215
[164] T documents; T37 at 131
[165] T documents; T28 at 83
[166] Bundle of documents at 8/48
[167] T documents; T29at 85
[168] T documents; T58 at 204-205
[169] Bundle of documents at 8/48
[170] Bundle of documents at 7/48
[171] Bundle of documents at 7/48
[172] Bundle of documents at 7/48
[173] Exhibit J at 32/32
[174] Bundle of documents at 7/48
[175] T documents; T38 at 134 and repeated at T68 at 280
[176] T documents; T30 at 89
[177] T documents; T30 at 91
[178] T documents; T31 at 102
[179] Bundle of documents at 7/48
[180] T documents; T32 at 103
[181] T documents; T32 at 104
[182] Bundle of documents at 6/48
[183] T documents; T68 at 281-282
[184] Mrs Balacki’s oral evidence
[185] T documents; T56 at 191-198
[186] Bundle of documents at 6/48
[187] T documents; T57 at 199
[188] T documents; T58 at 200-209
[189] Bundle of documents at6/48
[190] T documents; T58 at 200-209
[191] T documents; T58 at 211
[192] T documents; T58 at 214
[193] Bundle of documents at 6/48
[194] Bundle of documents at 5/48
[195] T documents; T59 at 215
[196] T documents; T60 at 222
[197] T documents; T60 at 222
[198] T documents; T63 at 229
[199] Exhibit 1
[200] Bundle of documents at 5/48
[201] T documents; T61 at 223
[202] Exhibit A
[203] Bundle of documents at 5/48
[204] T documents; T62 at 224
[205] Exhibit 1
[206] Bundle of documents at 5/48
[207] T documents; T64 a 228-236
[208] T documents; T65 at 237-242
[209] Bundle of documents at 5/48
[210] T documents; T66 at 244 and repeated at Exhibit I
[211] Bundle of documents at 4/48
[212] Bundle of documents at 4/48
[213] Exhibit D
[214] Exhibit D
[215] Bundle of documents at 4/48
[216] T documents; T68 at 283-284
[217] T documents; T64 at 235
[218] T documents; T66 at 243
[219] Exhibit 3
[220] Bundle of documents at 4/48
[221] Bundle of documents at 3/48
[222] Exhibit B at 8
[223] Bundle of documents at 3/48
[224] Bundle of documents at 3/48
[225] Exhibit E
[226] Exhibit 4
[227] Exhibit E
[228] Bundle of documents at 3/48
[229] Exhibit F
[230] Exhibit G at 1
[231] Exhibit G and 1
[232] Exhibit C
[233] Exhibit G
[234] Exhibit G at 1
[235] Exhibit 1
[236] Exhibit H
[237] Exhibit 1
[238] Exhibit 1
I certify that the one hundred and twelve preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ......(sgd)....................................................
Leah Berardi Associate
Dates of Hearing 1, 2 and 11 October 2013
Date of Decision 28 October 2013
Self-represented Applicant Mrs Tania Balacki
Counsel for the Respondent Ms Sharon Burchell
Solicitor for the Respondent Ms Kellie Latta
Sparke Helmore
Consistency in administrative decision-making is not achieved by attempting to match evidence from case to case. It is achieved by applying the relevant law in a consistent way to circumstances that inevitably vary one to another. It is achieved by gathering evidentiary material that is relevant to the particular circumstances in each case and assessing that material by reference to those laws.
Parliament may decide that certain factual matters are to be decided in the same way from case to case and are not to the decision-maker to decide according to the particular evidence given in the matter before him or her. If it decides to do that, it will embody those matters in legislation or in delegated legislation. An example of that sort arises in the context of the Statements of Principle made under
s 196B(2) of the Veterans’ Entitlements Act 1986 (VE Act). They are made when the Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury or disease can be related to certain types of service including operational service. They apply consistently from case to case and cannot be set aside by leading other evidence in a particular case. Other evidence will be required to determine other aspects of a veteran’s entitlements under the VE Act.
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