Bartlett and John Holland Pty Ltd (Compensation)

Bartlett and John Holland Pty Ltd (Compensation) [2022] AATA 1329 (19 May 2022)
Division:GENERAL DIVISION
File Number(s): 2020/3088
Re:Mark Bartlett
APPLICANT

John Holland Pty Ltd And
RESPONDENT

Decision
Tribunal:Member A Durkin
Date:19 May 2022
Place:Adelaide

The Tribunal sets aside the Determination of the respondent of 30 April 2020, and in lieu thereof determines that the applicant has continued to be incapacitated for work by the ‘accepted condition’, whether described as ‘sinusitis with headache’ or simply as ‘headache’, since 1 November 2017 and is entitled to compensation pursuant to s.19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
The matter is remitted to the respondent decision maker to calculate the applicant’s entitlements under the Act in accordance with these Reasons for Decision.
..........................[Sgnd]..................................
Member A Durkin
Catchwords
COMPENSATION – claim for chronic sinusitis – proper classification of condition as “headache” or “migrainous headache” – liability for s 19 benefits under the SRC Act – does the applicant have a relevant incapacity pursuant to s 19 of the SRC Act – whether the applicant had properly made a claim under s 54 of the SRC Act – preferable medical evidence – decision set aside and remitted
Legislation
Evidence Act 1995 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Member A Durkin
19 May 2022

The applicant in the proceedings before the Tribunal, Mr Mark Bartlett (hereinafter referred to as “the worker” or “the applicant”) was employed by the respondent at the Shoal Bay Tip in the Northern Territory from 1 March 2013. Initially his employment was with a firm named McMahon’s but the management of the facility was subsequently taken over by John Holland Pty Ltd, the respondent to these proceedings.
The applicant was employed as a machine operator. He worked in a dirty and dusty environment. He worked long hours.
From April 2015 the applicant noted that he was suffering from sneezing fits, coughing, runny nose, headaches and lethargy. He was ultimately diagnosed with chronic sinusitis. He had found that his headaches could go on for many weeks. He had been referred to various medical specialists.
The treatment of his disorder included four episodes of surgery to the sinus, being on 5 August 2016, 23 November 2016, 20 April 2017 and 26 June 2017. The Tribunal notes that the surgeries were often complicated by post-operative infection. The symptoms the applicant was experiencing interfered with the performance of his workplace duties and ultimately prevented him continuing with same. In September 2016 he discussed with his supervisors the health problems that he was experiencing. He did not recall being advised at that time that he might make a worker’s compensation claim, but he was advised that the employer had taken out private income protection insurance in respect of its employees. In consequence, the worker was invited to make a claim upon Fullerton Health Corporate Services and in consequence he received benefits from 17 September 2016 to 1 November 2017.
Ultimately, the worker made a claim for worker’s compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) on 15 August 2017. When the worker submitted his claim for compensation, however, it was without a supporting medical certificate. The respondent informed him that he would need to provide one which he did albeit in the incorrect form.
The claims administrators of the employer then, through email communication, advised the worker that there was a prescribed form which was required to accompany any claim and they attached a template of such, a John Holland worker’s compensation medical certificate form, to that further communication.
By this stage the worker’s understanding appeared to be that a compensation claim required a supporting medical certificate and, when directed that this was so, he complied with that directive. The certificate provided by the worker exhibited the opinion of the treating ear, nose and throat surgeon, Dr Psaltis, which certified that the worker was unfit for work on account of that work being performed in a dusty and dirty work environment.
Before the determination of the worker’s compensation claim the worker was dismissed from his employment by letter of 12 October 2017. The dismissal was on the basis that the worker could not perform the inherent requirements of his position.
His income protection from Fullerton Health ceased when his employment was terminated.
The respondent had investigated the applicant’s claim for compensation, and, on 12 April 2018, a determination was made on the claim to reject the same, purportedly because the complained of condition “did not arise out of employment”. This decision was affirmed on 17 June 2018 and the Applicant sought review in this Tribunal.
That dispute raised before this Tribunal by the applicant was resolved by Consent Order of 19 December 2019 made by Deputy President Britten-Jones. The Deputy President recorded the acceptance by consent of a liability for “chronic sinus infection with headaches” (“the accepted condition”). The matter then appears to have been remitted to the claims administrators for a decision as to incapacity and any consequent entitlement under the Act.
The respondent, by further determination of 31 March 2020, denied liability for s.19 benefits beyond 2 November 2017. The liability for s.19 benefits was refused because the decision maker was “not satisfied” that the worker had made a claim properly under s.54 of the Act or that there was a relevant incapacity pursuant to s.19. This determination was confirmed on 30 April 2020. This is the determination under review by this Tribunal.
Evidence of the worker was provided to the Tribunal by two statements, or affidavits, of evidence including a brief one dated 22 October 2020 and a further statement of 18 March 2021. In that latter statement the worker confirmed that his condition had become chronic well before his employment was terminated. He further deposed that “in particular I continue to suffer from constant headaches which cause me to be incapacitated for work and these continue up to this day”. Further in that statement the worker reports that he continues to suffer “occasional bouts of severe sinusitis”. There was medical opinion before the Tribunal to say that this condition had remitted or resolved and, in general terms, that appears to be so according to the evidence of the written opinions of several of the ENT surgeons. On the worker’s own evidence, however, he continues to use a medical nasal wash to try and keep the condition “in check” and it appears, as a matter of fact, that the worker is not entirely rid of this condition and the Tribunal so finds. This Tribunal finds that since the termination of his employment the Applicant cannot work “in dirty and dusty environments” and, according to his evidence, after the onset of the “headache condition”, to use a neutral term, he has continued to suffer often disabling headaches from that date until the subject hearing before the Tribunal.
After the termination of his employment the worker had found some casual employment in a non-dusty and dirty environment for Monsoon Aquatics which he was able to discharge from time to time, however, they have not offered him any work since September 2020.
ISSUES
The issues before the Tribunal are:
(a)Has there been compliance, or substantial compliance, with s.54 of the Act in the making of the claim?
(b)Does any failure to provide medical certification after the compensation claim was denied amount to a bar to compensation pursuant to s.19 of the Act?
(c)Is there an incapacity for work within the meaning of s.19 of the Act?
(d)Is any incapacity for work still on account of the accepted condition?
Compliance with section 54
Section 54 of the Act is as follows:
Claims for compensation
(1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2) A claim shall be made by giving the relevant authority:
(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b) except where the claim is for compensation under section 16 or 17--a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.
(3) Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.
(4) If a claim relating to an employee is given to Comcare, Comcare must cause a copy of the claim to be given to the principal officer of the Entity, Commonwealth authority or licensed corporation in which the employee was employed at that time.
(5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
It can be seen from the foregoing that when making a claim for compensation the applicant ultimately complied with s.54(2)(b) in that his claim was accompanied by a certification of incapacity for work by a legally qualified medical practitioner.
Before this Tribunal the applicant’s solicitors argued that when terminating the applicant’s employment the respondent did not advise him that he would thereafter need to provide continuing medical certification. Further, it is not clear from the terms of s.54 that the provision of ongoing medical certification is required by that section. It seems that the respondent, unknown to the applicant, was essentially treating the provision of ongoing medical certification as amounting to the ongoing making of new worker’s compensation claims. The applicant’s solicitors urged upon the Tribunal that the employer did not advise the applicant that it required medical certificates in order to make further determinations for incapacity payments in the period September 2016 until 31 March 2020.
They also asserted that the employer had failed to advise the applicant that it would require medical certificates in order to determine incapacity payments at the completion of the preceding AAT proceedings which had ended with the Consent Order of Deputy President Britten-Jones referred to hereabove. There is no evidence before this Tribunal that at any time has the worker been non-compliant with what he has been advised are his obligations in respect of the making and maintenance of his worker’s compensation claim. When he was told, after making the initial claim, that for it to be considered it needed to be accompanied by a certificate completed by a legally qualified medical practitioner in an approved form he then provided same.
There is no indication that he was advised that he needed to continue providing continuing medical certificates as the respondent did not make him aware that, in their apparent view, each medical certificate was, in effect, a new claim for compensation. In the determination of 30 April 2020, which is for review by this Tribunal, and which confirmed the rejection of the claim, it is stated in paragraph 45 that:
“The only medical certificates you have provided in the period 2 November 2017, 31 March 2020 were issued by Dr Ali on 10 July 2019, 29 July 2019, 16 August 2019 and 23 August 2019. They were in the form of general non-work-related medical certificates which indicate that you are unfit for work for various periods of time due to an unspecified medical condition. They do not refer to the compensable condition or provide a reason for the incapacity for work which are necessary to assess and determine whether incapacity for compensation is payable”.
This the worker is told as late as April 2020. The worker having made his initial claim, his provision subsequently of medical certificates even in a technically incorrect form were nonetheless notice to the respondent that the applicant was asserting a continuing incapacity for work. They did not, moreover, respond to the serving of the non-prescribed forms by way of identifying to the applicant that they required different forms or certificates.
In paragraph 54 of the confirmation of decision the decision maker states:
“I am not satisfied that the evidence supports the finding, on the balance of probabilities as opposed to possibilities, that you were incapacitated for work for the period 2 November 2017 to 31 March 2020 so as to entitle you to incapacity compensation under s,19 of the Safety and Rehabilitation Act for that period”.
The Tribunal now turns to the question of any incapacity for work.
Section 4 – Interpretation (the Act)
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
Section 19 – Compensation for injuries resulting in incapacity (the Act)
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
where:
“AE” is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
“NWE” is the amount of the employee’s normal weekly earnings.
(2A) For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to an employee to whom this section applies, if:
(a) it is a week during which the employee's incapacity prevents the employee working the employee's normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury; and
(b) the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee's normal weekly hours.
(2B) If, before the end of a particular week, the total of the hours that the employee has been prevented from working, or working at that level, in that week and in previous weeks, will exceed the total number of hours worked out in accordance with paragraph (2A)(b), then:
(a) subsection (2) applies in respect of the part of the week before that total number of hours is exceeded in accordance with subsection (2C); and
(b) subsection (3) applies in respect of the remainder of the week in accordance with subsection (2D).
(2C) For the purposes of paragraph (2B)(a), the compensation payable in respect of the part of the week to which that paragraph refers is an amount worked out using the formula:
where:
“AE” applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
“NWE” is the amount of the employee’s normal weekly earnings.
“NWH” means the number of normal weekly hours worked by the employee before his or her injury.
“X” is the total of the hours in that particular week:
(a) that would have counted towards the employee’s normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly hours.
(2D) For the purposes of paragraph (2B)(b), the compensation payable in respect of the part of the week to which that paragraph refers is worked out using the formula:
where:
“NWH” means the number of normal weekly hours worked by the employee before his or her incapacity.
“reduced rate compensation entitlement” is the rate of compensation that would have been applicable for the whole week had subsection (3) applied throughout the whole week.
“X” is the total of the hours in that particular week:
(a) that would have counted towards the employee's normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee's normal weekly hours.
(3) Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
where:
“adjustment percentage” is a percentage equal to:
(a) if the employee is not employed during that week--75%; or
(b) if the employee is employed for 25% or less of his or her normal weekly hours during that week--80%; or
(c) if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week--85%; or
(d) if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week--90%; or
(e) if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week--95%; or
(f) if the employee is employed for 100% of his or her normal weekly hours during that week--100%.
“AE” applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
“NWE” is the amount of the employee's normal weekly earnings.
(3A) If, as a result of the incapacity:
(a) the amount per week payable to the employee in respect of his or her continued employment is reduced; and
(b) a pension under a superannuation scheme is payable to the employee;
subsection (3) applies in relation to the employee in relation to a week during which the employee is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the employee in respect of that week.
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self-employment)--the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition--the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment--the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee--whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
(5) Where an amount of compensation calculated under subsection (3) exceeds 150% of the amount called the Average Weekly Ordinary Time Earnings of Full-time Adults, as published from time to time by the Australian Statistician, the amount so calculated shall be reduced by an amount equal to the excess.
(6) Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings.
(7) For the purposes of subsection (6), the minimum earnings of an employee shall be taken to be:
(a) $202, or, if subsection (8) or (9) applies in relation to the employee, the sum of $202 and the amount or amounts required to be added under whichever of those subsections applies; or
(b) an amount equal to 90% of the employee's normal weekly earnings;
whichever is less.
(8) If there are prescribed persons wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $50.
(9) If there are prescribed children in relation to whom this Act applies (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $25 for each of those children, but an amount shall not be so added for a child in relation to any period before the date of birth of that child.
(10) If a prescribed child is:
(a) a prescribed person in relation to the employee; and
(b) the only prescribed person who is wholly or mainly dependent on the employee;
subsection (9) does not apply in relation to that child.
(11) If 2 or more prescribed children are each:
(a) a prescribed person in relation to the employee; and
(b) wholly or mainly dependent on the employee;
subsection (8) applies in relation to one of those children and subsection (9) applies in relation to the remainder of those children.
(12) In this section, prescribed person , in relation to an employee, means:
(a) the spouse of the employee; or
(b) any of the following persons, being a person who is 16 or more:
(i) the parent, step-parent, father-in-law, mother-in-law, grandparent, child, stepchild, grandchild, sibling or half-sibling of the employee;
(ii) a person in relation to whom the employee stands in the position of a parent or who stands in the position of a parent to the employee;
(iii) a person (other than the spouse of the employee or a person referred to in subparagraph (i) or (ii)) who is wholly or mainly maintained by the employee and has the care of a prescribed child, being a child who is wholly or mainly dependent on the employee.
Note: In relation to subparagraph (12)(b)(i), see also subsection 4(2).
(14) For the purposes of the definition of prescribed person in subsection (12), a person who has the care of a child referred to in subparagraph (12)(b)(iii) shall not be taken not to be wholly or mainly maintained by an employee merely because the employee pays remuneration to the person for caring for that child.

At T127 is the claim for compensation of 16 August 2017. In the respondent’s “Information for Claimants” in respect of the completing of the claim form it is provided at page 2 that “you will need to provide an original medical certificate stating you have had a work-related injury or illness”. There is no mention of any continuing need to provide such certificates.
THE HEARING
Evidence was heard before the Tribunal on 20 September 2021 and 21 September 2021.
At the outset of the hearing there was a dispute between the parties as to the admissibility before the Tribunal of certain documents that the applicant’s solicitors wished to have admitted into evidence and which the respondent’s solicitors were resisting.
The respondent argued that leave would have to be given pursuant to s.66 of the Act for the admission of those documents and that certain of the disputed documents were precluded from being accepted into evidence on account of s.122 of the Evidence Act 1995 (Cth). These documents, which the Tribunal perused for the purposes of determining this dispute between the parties, amounted to various medical certificates and certain “without prejudice” communications between the parties.
The Tribunal accepts the respondent’s position that these without prejudice communications ought not to be admitted and acknowledges the authority of Bruse v The Commissioner of Taxation[1] in this respect. The Tribunal having considered those documents, has had no regard to them in determining the essential issues joined between the parties. Consequently, the Tribunal does not need to decide that aspect of the within dispute and does not decide it.
[1] (2010) AATA 404.
The reports of many medical practitioners were to hand at the hearing before the Tribunal as contained in the T-Documents. It was the submission of the parties that the assessment by the Tribunal would be primarily guided by the view the Tribunal took of two competing neurological opinions being that of Dr Rosen for the applicant and Dr DuPlessis for the respondent.
The Tribunal accepts the opinion of Dr Rosen and prefers it to the opinion of Dr DuPlessis. Part of the reason for that is that the Tribunal has accepted the applicant’s evidence of uninterrupted symptoms and incapacity since the onset of the accepted condition. It is to be noted that he was not substantially challenged as to that evidence in his cross-examination. There was debate between the two doctors before the Tribunal as to the correct characterisation of the type of headache that the applicant has continued to suffer from.
The Tribunal accepts the evidence of Dr Rosen that whether it be classified as “headache” or “migrainous headache”, there is no other convincing explanation for the Applicant’s present condition and incapacity for work other than the chronic sinusitis as the prompt and driver of the accepted condition.
DR ROSEN’S EVIDENCE
Before the Tribunal was a lengthy report of some 39 pages prepared by Dr Rosen. Dr Rosen is a neurologist and a member of the Australian and New Zealand Headache Society. At page 61 of the Transcript the doctor diagnoses the Applicant as suffering:
“... chronic daily headache consistent with chronic migraine, triggered by chronic rhinosinusitis between 2015 and 2017”.
He goes on to say that:
“The headline diagnosis in its most non-specific form is chronic daily headache consistent with a chronic form of migraine”.
In Dr Rosen’s report and in his oral evidence he made reference to the International Classification of Headache Disorders (3rd Ed). The Tribunal accepts that this is an authoritative text and notes that Dr DuPlessis, too, submitted to its authority.
Dr Rosen took the Tribunal’s particular attention to para 15 of that document under the heading of “How to use this Classification” which provides:
“In a few secondary headaches, 5.2 Persistent headache attribute to traumatic injury of the head being a good example,persistent headache types or sub-types are recognised to occur; that is, headache that was caused initially by another disorder fails to remit after that disorder has resolved”.
At page 66 of the Transcript Dr Rosen gave the following evidence:
“No I am not sure that there is much to be gained by getting into a detailed discussion of Dr DePlessis’ diagnosis of tension type headaches vs migraines, because, ultimately, the trigger or the initiating factor comes back to the same cause or the same trigger, because chronic tension headaches in this case triggered by the chronic pain of the sinus condition he had, leads to the same conclusion ... In practice, in clinical practice, it can sometimes be difficult to differentiate between tension type headache and migraines”.
Dr Rosen further described to the Tribunal the medical phenomena of “central sensitisation” which he discussed in the hearing and further cites in a footnote at page 31 of his report. This extract includes that:
“Central sensitisation describes changes that occur in the brain in response to repeated nerve stimulation. These changes can occur after repeated experiences with pain. Following repeated stimulation neurons developed by “memory” for responding to those stimulii. Frequent stimulation results in a stronger brain “memory,” so that the brain will respond more rapidly and effectively when experiencing the same stimulation in the future”
Dr Rosen also referred in that report, also on page 31 thereof, to two academic studies which the solicitors for the applicant provided to the solicitors for the respondent, upon their request, in or around August 2021. These two reports, in the Tribunal’s view, fortified Dr Rosen’s evidence, including his reference to the International Classification of Headache Disorders.
Dr Rosen conceded in evidence that this phenomena of a chronic sinusitis prompting ongoing chronic headaches is not a frequent medical occurrence but that he had concluded that, in all of the circumstances this is what has happened to Mr Bartlett. His workplace working conditions were such that they induced or triggered rhinosinusitis accompanied by debilitating headaches which have not remitted including to the time of the within hearing. This key evidence the Tribunal accepts.
At the time of preparing his report of 29 September 2020 Dr Rosen had before him a number of medical reports of other medical practitioners who had treated the worker or opined as to his medical condition. These included Dr Psaltis, Dr Ha, Dr D’Onise, Dr Tomich and Dr Anning. Those same reports were before the Tribunal as part of the T-Documents.
Dr Rosen canvassed the GP consultations throughout 2018 and 2019 which evidenced continuing disabling headache symptomatology. He had earlier believed that an earlier 2010 Darwin Hospital presentation was one of migraine but accepted in the witness box that it was likely a post coital cephalgia. The doctor notes that prior to the subject employment the applicant had no history of migraine or regular headaches.
The doctor gave evidence that he had also considered an alternative explanation, also entertained by Dr DuPlessis, that medication overuse was the cause of the continuing headaches but he did not, on balance and after consideration, believe that it was an operating factor in Mr Bartlett’s case. The Tribunal accepts this evidence and so finds. He expresses his conclusions in his report from paragraph 175:
“Based upon the current ICHD and recent literature on the subject of sinus headaches and on my own clinical experience in diagnosis and management of chronic headache conditions and particular chronic migraine, on the balance of probabilities, Mr Bartlett’s accepted condition of work-related sinusitis with headaches have significantly contributed to his ongoing incapacity for employment after November 2017”.
At 176:
“This conclusion is based on the nature of chronic pain conditions in particular in patients with migraine where there is a well-recognised tendency in a minority of patients for pain, once initiated and established to become chronic. In a small but significant proportion of patients with episodic migraine, headaches progress to chronic daily headaches/chronic migraine and this results in substantial disability”.
The evidence of the applicant, which the Tribunal accepts, is of continuing persisting headaches of the kind initiated by the work-related condition of chronic rhinosinusitis to this day. The medical explanation for this as provided by Dr Rosen and as described above, leads him to state at para 185 of his written report that:
“I am unable to account for Mr Bartlett’s ongoing headaches by reference to a cause unrelated to the work-related condition”.
EVIDENCE OF DR DUPLESSIS
Dr DuPlessis, a neurologist and rehabilitation physician, reported to the respondent’s solicitors on 27 November 2020. He, too, canvassed the history and the records of medical treatment and opinion.
He states at page 31 of his report that:
“I do not consider that his ongoing headache is related to what happened earlier when he was diagnosed with chronic rhinosinusitis and this is also confirmed by the otolaryngologists indicating that there is no pathology in the nasal cavities that result in an ongoing headache and another cause of the headache must be sought ... I believe that the best diagnosis for the description he gives of the headaches is that Mr Bartlett has developed a chronic tension type headache or muscular spasm-type headache”.
This obviously leaves the question as to what is the cause of that continuing condition.
At page 33 of his report Dr DuPlessis states:
“I do not agree with Dr Rosen for the simple reason that the otolaryngologists agree that his headaches are no longer sinus related. The ongoing headache thereafter, as indicated in the reports, should be considered to have a different cause that was not employment related”.
In his evidence Dr DuPlessis conjectured as to possible other causes including, as noted above, overuse of medication.
The explanation for the worker’s continuing illness and incapacity offered by Dr Rosen is persuasive to this Tribunal in the context of it having accepted the evidence of the worker that from the time of his termination of employment to the date of his giving evidence, there had been no relent in his experience of the accepted condition’s symptoms.
In the Tribunal’s analysis, it was also telling when, in his cross-examination, Dr DuPlessis was asked:
“So at what micro second or hour or day since 2017 did his headache no longer relate to the sinusitis and relate to something else? I mean where is the break in chain and causation (sic)?”
What was essentially being asked of the doctor is that at what stage did the accepted condition stop producing the headaches and when and by what mechanism did another cause intervene to propel the ongoing symptomatology and disability. This Tribunal did not find Dr DuPlessis’ response to these matters satisfactory or persuasive.
The transcript of Dr DuPlessis’ evidence was incomplete as the examination-in-chief of the doctor is not recorded and it is not clear how much of the cross-examination had been recorded. On page 103 of the transcript there is a reference to “audio malfunction to 1.19 pm”. The Tribunal, though, retained the benefits of its own notes taken at the hearing in respect of the evidence of Dr DuPlessis.
Dr DuPlessis’ evidence also included that he doubted whether the 2010 post-coital cephalgia presentation at the Darwin Hospital was a “migraine episode”. That distinction has not been material to the Tribunal’s consideration in the disposing of the dispute before the Tribunal.
CONCLUSION
In consideration of the issues raised in this review, the Tribunal has concluded that:
(a)The worker complied with the requirements of s.54 in making the subject claim for compensation.
(b)Any failure to provide medical certification after the claim was denied did not amount to a bar to compensation pursuant to s.19. This Tribunal is confident that the material before it by way of medical reporting, general practice and other medical notes, confirms the worker’s continuing symptomatology since the original making of the claim.
(c)This Tribunal finds that the applicant has, at all material times up to and including the time of the hearing, an incapacity for work within the meaning of s.4(9) and s.19 of the Act and finds specifically that the applicant has a physical disability for actually doing work in dusty and dirty environments as a result of the accepted condition. He is unable to work as a machine operator as he was trained to do in his occupation of choice. This Tribunal accepts that the applicant has not been able to work as a machine operator since 2 November 2017 and that he has suffered incapacity to engage in work at the same level at which he was engaged by the respondent.
(d)As can be seen from the foregoing, this Tribunal finds that the applicant’s incapacity for work is still on account of the accepted condition. In this respect the Tribunal’s conclusions have been guided by the accepted evidence of the applicant that there has been no relent in his condition since its onset and that it continues to incapacitate him in circumstances where the Tribunal accepts the evidence of Dr Rosen as to causation, including causation of incapacity.
DECISION
The Tribunal sets aside the Determination of the respondent of 30 April 2020, and in lieu thereof determines that the applicant has continued to be incapacitated for work by the accepted condition, whether described as ‘sinusitis with headache’ or simply as ‘headache’, since 1 November 2017 and is entitled to compensation pursuant to s.19 of the Act.
The matter is remitted to the respondent decision maker to calculate the applicant’s entitlements under the Act in accordance with these Reasons for Decision.
……………[Sgnd].………………
Legal Administrative Assistant
Dated: 19 May 2022

Date of hearing:
20 & 21 September 2021

Advocate for the Applicant: Mr David Richards OAM, Blackburn Chambers

Advocate for the Respondent: Mr Anthony Harding, Queensland Bar

[2022] AATA 1329

19 May 2022

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Statutory Construction

Remedies

Appeal

Date of hearing:	20 & 21 September 2021
Advocate for the Applicant:	Mr David Richards OAM, Blackburn Chambers
Advocate for the Respondent:	Mr Anthony Harding, Queensland Bar