Berry and Comcare
[2006] AATA 352
•12 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 352
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos. S2004/227, S2004/283
GENERAL ADMINISTRATIVE DIVISION ) and S2004/288
Re JOHN REGINALD BERRY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date12 April 2006
PlaceAdelaide
Decision 1. The tribunal sets aside the first reviewable decision in respect of the applicant’s claim for hiatus hernia, oesophageal reflux with oesophagitis and duodenitis (being the subject of matter no. S2004/227 in this tribunal), and in place of that decision decides that the applicant’s employment did not contribute to the contraction of those conditions, and that in the period from 6 August 2003 to the date of this decision, the applicant’s employment was not contributing to the aggravation of those conditions, and that as at the date of this decision compensation is not payable to the applicant in consequence of any such contraction or aggravation.
2. The tribunal sets aside the second reviewable decision in respect of the applicant’s claim for non-ulcer dyspepsia and irritable bowel syndrome (being the subject of matter no. S2004/283 in this tribunal), and in place of that decision decides that Comcare is liable for compensation in respect of those conditions, and remits that matter to Comcare for assessment of his entitlement to compensation (if any) in accordance with these reasons.
3. The tribunal affirms the third reviewable decision (being the subject of matter no. S2004/288 in this tribunal) in respect of the applicant’s claim for:
(a) an assessment of permanent impairment for the conditions of hiatus hernia, oesophageal reflux, oesophagitis and duodenitis; and
(b) the applicant’s claim for compensation in respect of headaches.
4. The tribunal orders that the respondent pay the costs of the proceedings in matter no. S2004/283 in this tribunal.
5. The tribunal reserves liberty to apply within 21 days in relation to the costs of the proceedings in matter no. S2004/283 in this tribunal.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – Australian Federal Police officer – review of decision that employment had ceased to aggravate hiatus hernia, gastro-oesophageal reflux, oesophagitis and duodenitis – decision varied so as not to be a “cease liability” decision – decision that employment did not aggravate non-ulcer dyspepsia and irritable bowel syndrome set aside – enhanced susceptibility to recurrences of those conditions – decision in relation to claim for permanent impairment affirmed – decision that employment did not aggravate headaches affirmed.
PRACTICE AND PROCEDURE – jurisdiction – reviewable decision that employment was contributing factor to aggravation of applicant’s conditions – applicant’s claim for compensation embraced claim both for contraction and aggravation of conditions – held that tribunal has jurisdiction to determine whether employment was a contributing factor to contraction, as well as aggravation, of conditions.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 67(9) and 124
Compensation (Commonwealth Employees) Act 1971 (Cth), ss 5 and 29
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bowman v Comcare [2005] FCA 88
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1
Comcare v Canute [2005] FCAFC 262
Comcare Australia (Department of Defence) v Maida (2002) 36 AAR 69
Department of Defence as Delegate of Comcare v West (1998) 85 FCR 491
Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 2 ALD 711
Holt v Comcare (2003) 130 FCR 576
Lees v Comcare (1999) 56 ALD 84
Re Fuad and Telstra Corporation Limited (2004) 39 AAR 496
Re Liu and Comcare (2004) 79 ALD 119
Re Welsford and Commonwealth Banking Corporation (1984) 5 ALN N570
Secretary, Department of Social Security v Alvaro (1994)50 FCR 213
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
12 April 2006 Deputy President D G Jarvis 1. The applicant, John Reginald Berry, was employed by the Australian Federal Police (“AFP”) from 1975 until 14 November 1986. He has made three claims for compensation for certain medical conditions, which, he asserts, were contributed to by his employment.
The first claim for compensation
2. Mr Berry worked at Woomera with the AFP from 1976 until 1980. On 17 February 1986 Mr Berry lodged a claim for compensation (the “first claim for compensation”) under the Compensation (Australian Government Employees) Act 1971 (Cth) (the “1971 Compensation Act”) for “hiatus hernia, oesophageal reflux with oesophagitis and duodenitis” as a result of performing his duties at Woomera. Comcare also received from Mr Berry’s treating gastro-enterologist, Dr Andrew Paull, a letter dated 14 February 1986 in which Dr Paull said that Mr Berry’s symptoms had been aggravated by work stress. In response to a query from the tribunal, Comcare advised through its lawyers that there is no physical indication (such as staple or fold marks) on its file of what documents were attached to the claim form, but it was safe to assume that this letter accompanied the claim form, due to its nature and date. I will proceed on this basis, as the letter refers to Mr Berry’s intention to claim workers compensation, and includes a statement in support of that claim.
3. The claimed conditions had developed in 1978 during Mr Berry’s work at Woomera. Following representations from Dr Paull to the AFP Mr Berry’s duties at Woomera were changed. After that, in 1980, he was transferred by the AFP to Salisbury and then to Adelaide. In about 1984 he commenced doing surveillance work with the AFP in Adelaide, but he experienced a recurrence of his stomach pains. His condition became worse, and he went on sick leave in November 1985. He did not return to work, and after further assessments by Dr Paull he was retired from the AFP on 14 November 1986 on the grounds of invalidity.
4. In July 1986 liability was accepted for an “aggravation” of his claimed conditions of hiatus hernia, oesophageal reflux, oesophagitis and duodenitis. A further decision accepting liability for these conditions was made on 29 January 1987. He was paid weekly payments of compensation in respect of his incapacity from the aggravation of these conditions.
5. Mr Berry’s condition was periodically reviewed. On 4 August 2003, Comcare determined that it was no longer liable to pay compensation to Mr Berry on and from 6 August 2003. Mr Berry sought a review of that determination. On 3 June 2004 an independent review officer varied the determination and decided that “as at 6 August 2003 the employee’s employment is not contributing to a material degree to any incapacity or requirement for medical treatment and that from 6 August 2003 compensation is not payable to the employee pursuant to sections 16 and 131 of the Act” (the “first reviewable decision”).
The second claim for compensation
6. On 13 February 2004 the solicitors who were then acting for Mr Berry requested Comcare, inter alia, to “extend” his accepted claim to include the conditions of low abdomen pain, irritable bowel and diverticulosis symptoms (the “second claim for compensation”). On 6 May 2004, Comcare rejected this claim. Mr Berry requested a reconsideration of Comcare’s determination to reject his claim. On 10 August 2004 the determination was affirmed (the “second reviewable decision”).
The third claim for compensation
7. By the same letter of 13 February 2004 Mr Berry by his solicitors made a further claim (the “third claim for compensation”). He sought:
(a)an assessment of permanent impairment in respect of the conditions which were the subject of the first reviewable decision; and
(b)that liability be “extended” to include the condition of tension headaches.
8. On 10 June 2004, Comcare determined that:
(a)Mr Berry was not entitled to a lump sum payment for a permanent impairment for the conditions the subject of the first reviewable decision; and
(b)compensation was not payable for medical treatment or incapacity payments for Mr Berry’s headaches.
Mr Berry requested a review of Comcare’s determination. On 10 August 2004 an independent review officer affirmed the determination (the “third reviewable decision”).
Issues
9. Mr Berry subsequently applied to this tribunal for review of all three reviewable decisions. The applications for review were heard together. Mr Berry represented himself at the hearing. I gave him leave to lodge written submissions after the conclusion of the final address of Comcare’s counsel. I have carefully considered the submissions he lodged, together with counsel’s submissions in response.
10. The issues raised by the applications for review are as follows:
(a)whether Mr Berry’s employment by the AFP was a contributing factor to the contraction or aggravation of the conditions that were the subject of his first claim for compensation in the period from 6 August 2003 to date;
(b)whether Mr Berry’s employment by the AFP was a contributing factor to the contraction or aggravation of the conditions that were the subject of the second claim for compensation;
(c)whether I have jurisdiction to determine whether Mr Berry’s employment was a contributing factor to the contraction (as opposed to the aggravation) of the claimed conditions; and
(d)whether Mr Berry suffers from any permanent impairment in relation to the conditions which were the subject of the first claim for compensation; and if so when those conditions became permanent, what is the extent of the impairment and whether it is compensable.
Background
11. I make the following findings from the evidence of Mr Berry and from the documents tendered. I record at the outset that I found Mr Berry to be a matter-of-fact and honest witness, and I accept his evidence.
12. Mr Berry was born on 2 July 1950. He left school at the age of fifteen, and served in the Royal Australian Navy from 1967 to 1972. He then worked for a transport company as a labourer. He joined the AFP, then called the Commonwealth Police, in 1975, and worked in Canberra for a period.
13. He was transferred to Woomera in 1976 and given static and mobile patrol duties. His work entailed twelve hour shifts, from 6.00 a.m. to 6.00 p.m., a four-day break, an eight-hour shift from 2.00 p.m. to 10.00 p.m., and then a night shift from 6.00 p.m. to 6.00 a.m. The twelve-hour shifts were for seven consecutive days or nights.
14. In about 1978 Mr Berry started to experience what he described as deep-seated stomach pains, and felt discomfort from gastric juices. He consulted a general practitioner who referred him to Dr Paull. Dr Paull carried out an endoscopy and found a small sliding hiatus hernia with free reflux in keeping with the symptoms described. In a report of 23 June 1978 to the referring G.P., Dr Paull said that Mr Berry’s symptoms were referrable to gastro-oesophageal reflux, and that because of the persistent nature of his symptoms, he had become rather concerned and had developed cancerophobia, which had caused him a good deal of mental anguish.
15. In a letter of 30 January 1979 to the Officer-in-charge, Commonwealth Police, Dr Paull confirmed his findings as reported on 23 June 1978, and also confirmed that Mr Berry was complaining of lower abdominal pain which he diagnosed as being attributable to an irritable colon syndrome. He further said that that problem had been more persistently troublesome and that he had seen Mr Berry on several occasions for that condition since the previous June. The letter advised that in Dr Paull’s opinion, Mr Berry’s irregular working hours and his need to drive a four wheeled vehicle over rough terrain were aggravating his abdominal complaints. He therefore advised that Mr Berry be excused from such duties and instead be allowed to work regular day-time hours.
16. Mr Berry was then transferred to a day-time shift from 6.00 a.m. to 6.00 p.m., which he continued to work for about nine months, after which he was transferred to Salisbury. He also took certain medication which Dr Paull had suggested. He said that his health improved during the period before his transfer.
17. Towards the end of his time at Woomera, in 1979 to 1980, Mr Berry also suffered from different kinds of headaches. He described these as normal headaches, migraine headaches and cluster headaches, the latter being headaches that lasted for days on end. Dr Paull also recommended medication for his headaches. Mr Berry said that his headaches at Woomera were not too bad, and that he could not recall them following any pattern. He said he still suffers headaches, but to a much lesser extent. He added that it was not a problem in the police force, and if he does get a headache it is normally a migraine. He said that chiropractic treatment seems to have helped him with his headaches.
18. Mr Berry said that during his work with the Navy he was very fit, and that he had no problems with indigestion, his bowels or headaches prior to the onset of problems when he was with the AFP at Woomera.
19. As regards his irritable bowel syndrome, Mr Berry said that when he was on mobile patrol at Woomera he would need to suppress the urge to go to the toilet because he was out on the road, and he thinks that this created a problem.
20. As mentioned above, Mr Berry started getting stomach pains again after he commenced surveillance duties in 1984. These duties also entailed shift work in motor vehicles over varying shifts. He said that sometimes, depending on his duties, he would have to stay on duty all night and might not go home for two or three nights. He was obliged to go on sick leave in November 1985, and was referred to Dr Paull in December 1985.
21. Dr Paull carried out a further endoscopy, and found a sliding hiatus hernia with moderately active oesophagitis, together with active duodenitis, which he thought was symptomatic.
22. In a report of 17 March 1986, Dr Paull referred to Mr Berry having had symptoms referable to a hiatus hernia with oesophagitis since 1978, and said that his symptoms had troubled him to a varying degree, although with intervals of freedom from symptoms for up to twelve months at a time. His report also said:
“Mr. Berry’s symptoms do seem to be related to stress and he does seem to be more troubled at times of increased tension at work. Obviously, stress is part and parcel of the work situation in the Federal Police. Therefore, I doubt that he can go back to this job without continued problems relating to his digestive tract.” (exhibit A1, T17, page 23)
The report related to the conditions of hiatus hernia and oesophagitis. There was no mention of irritable bowel syndrome. Dr Paull believes he was not asked about those conditions.
23. For about six months after he left the AFP, Mr Berry said he was very ill and became “reclusive”.
24. Dr Paull provided further reports on which Mr Berry relied in support of his claim for compensation, and as I have said, determinations were made accepting liability for incapacity payments in respect of aggravation of hiatus hernia, oesophageal reflux, oesophagitis and duodenitis.
25. Mr Berry recovered after about nine months to the point where he made inquiries about returning to work with the AFP. However, he said that the AFP was not prepared to take him back in view of the conditions from which he had suffered. Mr Berry later commenced training race horses on a part-time basis, as a hobby.
26. In February 2003 Comcare referred Mr Berry to another specialist, Dr Donald Reid, for assessment. He provided a report dated 21 February 2003 in which he concluded that Mr Berry had no incapacity to engage in any work, and that he could work full-time in some form of work with the AFP, although he advised against shift work.
27. After receiving Dr Reid’s report, Comcare determined, on 4 August 2003, that on and from 6 August 2003 it was no longer liable to pay compensation. This determination was later reviewed in the first reviewable decision.
28. After that, Mr Berry by his solicitors made the further claims to which I have referred above, and which gave rise to the second and third reviewable decisions.
Consideration
29. Mr Berry’s claims for compensation arise out of his employment with the AFP, which came to an end on 14 November 1986. The legislation then in force which made provision for compensation for employees of the Commonwealth was the 1971 Compensation Act. This Act was repealed by the Act now known as the Safety, Rehabilitation and Compensation Act 1988 (the “1988 Act”), which came into force on 1 December 1988. Section 124 of the 1988 Act contains transitional provisions dealing with the application of that Act to a pre-existing injury (which by definition would include “diseases” or conditions such as those the subject of Mr Berry’s claims). Section 124(2) of the 1988 Act provides relevantly that a person is not entitled to compensation under the 1988 Act in respect of an injury, loss or damage that occurred before the commencing date of that Act if compensation was not payable under the 1971 Compensation Act. It is accordingly necessary to consider the liability of Comcare under the 1971 Compensation Act.
30. Section 29 of the 1971 Compensation Act provides in effect that compensation is payable to an employee where his or her employment by the Commonwealth was a contributing factor to the contraction of a disease or to the aggravation, acceleration or recurrence of the disease. The word “disease” is given a wide meaning by the definition of that word in s 5, and it includes (relevantly) any physical or mental ailment or disorder, whether of sudden onset or gradual development.
31. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 the Full Federal Court, when considering what was meant by the requirement for employment to be a “contributing factor” to the contraction or aggravation of a disease under the 1971 Compensation Act, said (at 323):
“… once it is established that an employee in the doing of his work was exposed to “a state of affairs to which he would otherwise not have been exposed” or to “some characteristic of or condition in which the work was to be performed” and that such exposure was in truth a “contributing” factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree … 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”. … 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.”
First claim for compensation
32. There was a conflict of evidence between Dr Paull and Dr Reid as to the relationship of Mr Berry’s employment with the AFP to the conditions of hiatus hernia, oesophageal reflux, oesophagitis or duodenitis.
33. Both doctors have practised in the area of gastro-enterology for many years, and have extensive experience in treating patients with the conditions from which Mr Berry has suffered.
34. When Dr Paull said in his letter of 30 January 1979 that in his opinion, irregular working hours and the need to drive a four wheeled vehicle over rough terrain were aggravating Mr Berry’s abdominal complaints, the complaints to which Dr Paull was referring were upper abdominal pain and reflux symptoms, as well as lower abdominal pain which he diagnosed as attributable to an irritable colon syndrome. However, Dr Paull did not attribute particular symptoms or complaints to either or both of the work conditions to which he referred.
35. Dr Paull’s first report after Mr Berry had moved to Adelaide and experienced difficulties with his surveillance work was dated 13 December 1985, and was to Mr Berry’s former general practitioner, Dr Koehne. Dr Paull reported that he had carried out an endoscopy that day, and that this showed a small sliding hiatus hernia with free reflux, erosive oesophagitis and duodenitis. He further reported that Mr Berry’s then current work within the AFP involved episodes of sustained stress and had probably aggravated the problem. He prescribed medication, but raised the question of whether Mr Berry should resign from the AFP on medical grounds, if his symptoms did not settle down reasonably well with this medication.
36. In subsequent reports, Dr Paull recorded that Mr Berry’s reflux problems did not recover, that stress from Mr Berry’s work with the AFP had aggravated his reflux problems, and that he supported Mr Berry’s retirement from the AFP on medical grounds. In his evidence, Dr Paull acknowledged that there was a difference of opinion within the medical profession as to whether stress causes gastro-oesophageal reflux.
37. In 1994 the Australian Government Health Service referred Mr Berry to another gastro-enterologist, Dr Richard Willing, for review of his upper gut problems. He provided a report dated 9 May 1994. In this report, Dr Willing accepted the history outlined in the documentation provided to him for the purpose of preparing his report. In particular, he accepted that it had been found that Mr Berry’s employment had aggravated his hiatus hernia, oesophageal reflux, oesophagitis and duodenitis in 1978 and that he had suffered incapacity from those conditions ever since. He described Mr Berry’s symptoms, and said that he had more good days than bad days, and was able to work as a part-time horse trainer. He carried out an endoscopy and found that Mr Berry was then suffering from moderate erosive oesophagitis and erosive gastritis. He did not observe a hiatus hernia, but said that this was not unusual as such hernias slide in and out through the hiatus and the diaphragm.
38. Dr Willing thought that the then existing oesophagitis had been ongoing since 1978. He said:
“There can be little doubt that the stress was aggravating his symptoms at the time that the claim was accepted. This does not seem to be playing a major role now. There has been free gastro-oesophageal reflux previously identified. This is a major consideration in the production of oesophagitis.” (exhibit A2, page 336)
39. In answer to further questions, Dr Willing also said:
“The effects of the employment aggravation on the oesophagitis are permanent. It is possible that he may have eventually reached the current level of incapacity without the aggravation, but there is no way of assessing this.” (exhibit A2, page 336)
40. Dr Willing then recommended treatment with a new acid suppressing drug, which he said had a remarkable healing effect. It appears that after that Mr Berry was prescribed Losec, and that this indeed led to the healing of his oesophagitis.
41. Dr Willing further said in his report that at that stage there was a good chance that with the newer medication, Mr Berry would be capable of undertaking normal Federal Police duties. However, he added:
“The only doubt about this is his reported symptomatic exacerbation by stress. If it were possible to find less stressful duties there should be no problem in resuming similar employment.” (exhibit A2, page 337)
42. Dr Paull continued to treat Mr Berry for his gastro-oesophageal reflux disease. The treatment with the medication which had later become available, namely Losec, has been successful. It appears that Mr Berry no longer suffers from symptoms of gastro-oesophageal reflux disease, and that his oesophagitis has healed.
43. Dr Reid, who was called by Comcare, said that from his research and in his clinical experience, stress was not causative of gastro-oesophageal reflux disease. He explained the mechanical malfunction which caused reflux, and said further that stress would not affect the bodily mechanism which would give rise to reflux. He added that in his opinion, the only relevance of stress was that it could play a role in how a patient assessed the severity of his or her symptoms, and so the patient’s reaction to reflux; however, stress would not cause or alter the reflux itself. He further disputed that driving over rough terrain could have caused or aggravated Mr Berry’s oesophagitis. It follows from his opinion that the conditions which were the subject of the first claim for compensation were not aggravated by Mr Berry’s employment with the AFP, although Mr Berry’s perception of the severity of those symptoms might have been exacerbated by stress.
44. On the face of it, it is difficult to see how Mr Berry’s work with the AFP could now be aggravating the conditions which were the subject of his first claim for compensation. He last worked for the AFP more than twenty years ago, so that he would not now be subjected to the stress which Dr Paull thinks had aggravated his conditions. Further, there is no evidence that he has driven over rough terrain in the course of his work with the AFP since he transferred from Woomera in 1980. Dr Paull agreed in cross-examination that the only present relevance of Mr Berry’s former work with the AFP is that in his opinion, Mr Berry is now more prone to future attacks of gastro-oesophageal reflux as a result of his former employment with the AFP. In expressing this opinion he referred to his experience that once a patient has had gastro-oesophageal reflux, he or she is prone to have a recurrence of that condition. Dr Paull further considered that stress could produce such a recurrence. He added that as far as Mr Berry was concerned, if he were to seek future employment, he should avoid work which might entail stress.
45. As regards the conditions which were the subject of the first claim for compensation, I prefer the evidence of Dr Reid to that of Dr Paull. Dr Paull did not explain in his reports how Mr Berry’s hiatus hernia and the associated oesophagitis would have been aggravated by stress (or by his earlier work at Woomera which involved the driving of vehicles over rough terrain). As I understand it, the hiatus hernia would permit stomach acids to pass into the oesophagus, and would thereby cause reflux. It would seem that this was a mechanical defect in the digestive system, and Dr Paull did not explain how this mechanical defect would be aggravated by stress, or by the driving of a vehicle over rough terrain.
46. I further note that there appears to have been some inconsistency in Dr Paull’s assessment of the relevance of Mr Berry’s employment to his condition in the various reports he has provided over the years. I refer in particular to Dr Paull’s report of 17 June 1986 to a delegate of the Commissioner for Employees’ Compensation, in which Dr Paull referred to the driving of vehicles over rough terrain at Woomera and the work stress as matters that “might have … aggravated” Mr Berry’s hiatus hernia and reflux symptoms (emphasis added). In the same report, he said that the tendency to progression of reflux oesophagitis and hiatus hernia “may have been aggravated” by Mr Berry’s employment (emphasis added). He went on to say that he was “unable to say whether this (aggravating) effect will be of a permanent or temporary nature” (exhibit A1, T25, page 40).
47. I also note that in a later letter to Mr Berry of 3 November 1987, Dr Paull explained that he had thought that his reference in previous reports to aggravation by employment being “possible” might have been sufficient for his compensation claim to be accepted, and that he had seen such statements accepted in the affirmative in other situations. He went on to say:
“On thinking further about your condition, I would now be prepared to say that on the balance of probabilities your hiatus hernia and the associated oesophagitis were aggrevated (sic) by your work conditions and the stressors that were associated.” (exhibit A1, T30, page 48).
48. Whilst it was apparent from Dr Paull’s evidence that he had difficulty in being definitive about notions of causation in the context of diseases, as opposed to injuries, it seems to me that his report of 17 June 1986 indicates a degree of diffidence on his part about whether Mr Berry’s employment had in fact aggravated the conditions he was referring to, being the conditions which were the subject of the first claim for compensation.
49. I also note that there are some references in Dr Paull’s reports that might be consistent with Dr Reid’s thesis that stress merely affects how a patient assesses the severity of his or her symptoms and resulting reaction to reflux. I refer to the comment in Dr Paull’s report of 23 June 1978 that Mr Berry had become rather concerned about his symptoms and had developed “quite a deal of cancerophobia”. I also refer to Dr Paull’s comment in his report of 6 November 1980 that Mr Berry was somewhat introspective, and that that exaggerated his response to his symptoms.
50. As regards Dr Willing’s report of 9 May 1994, he did not explain what the “effects of the employment aggravation” were, or how it was that that aggravation could still be affecting Mr Berry when he saw him in 1994, which was some eight years after Mr Berry had last worked with the AFP. Dr Willing was not called as a witness, and in the absence of further explanation from him as to the reason for his opinion, I attach little weight to it.
51. For the above reasons, I am not satisfied on the balance of probabilities that Mr Berry’s employment with the AFP was a contributing factor to any aggravation of the conditions referred to in the first claim for compensation during the period from the time when compensation payments were stopped until the date of this decision.
Was the applicant’s employment a contributing factor to the contraction of the conditions that were the subject of the first claim for compensation, and does the tribunal have jurisdiction to consider this issue?
52. Mr Berry submitted that he did not have the relevant conditions or symptoms before he joined the Federal Police. It is clear from his evidence that they developed in the period after he commenced his duties at Woomera, and that he has had episodes of the symptoms, of varying severity, ever since then. It further appears that he has never been completely free of the symptoms. The question arises from Mr Berry’s submissions, as well as his evidence, of whether his employment was a contributing factor to the contraction of the conditions, as opposed to a contributing factor to the aggravation of the conditions.
53. Counsel for Comcare, Mr Roder, pointed out that it appeared from Dr Paull’s reports that he considered that Mr Berry’s employment had aggravated, rather than caused, his hiatus hernia and reflux symptoms. Counsel further pointed out that liability had been accepted for an aggravation of the conditions which were the subject of Mr Berry’s first claim, and that the first reviewable decision amounted to a determination that Comcare had not been liable, since the effective date of the primary decision, for compensation in respect of the aggravation of those conditions. He observed that Comcare had not made any reviewable decision in relation to whether Mr Berry’s employment was a contributing factor to the contraction of those conditions, as opposed to the aggravation of the conditions, and questioned whether I had jurisdiction to determine that question.
54. Whilst Mr Berry’s claim was initially accepted on the basis of aggravation, Comcare later determined that Mr Berry was not entitled to compensation for the relevant conditions from 6 August 2003. Not surprisingly, having regard to Dr Paull’s reports, Comcare did not consider the question of whether Mr Berry’s employment had been a contributing factor to the contraction of the disease. However, the claim for compensation was not confined to a claim for aggravation; the claim was expressed in general terms as a claim for compensation for the conditions in question.
55. It is established that this tribunal has jurisdiction notwithstanding that:
· the reviewable decision was invalid or a nullity because it had been made without authority (see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213); and
· notwithstanding the decision-maker had declined or refused to act on the basis that there was no jurisdiction to do so (see Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 2 ALD 711).
56. In Re Fuad and Telstra Corporation Limited (2004) 39 AAR 496 the effect of the reviewable decision was that the employer purported to cease liability to pay compensation in respect of a previously accepted injury on and from a stipulated date, and so the decision-maker did not deal with the applicant’s claims for particular heads of compensation. Justice Garry Downes, President, said at [5]:
“It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.”
57. Cases such as those referred to above are distinguishable from the present matter because in those cases the decision-maker who made the reviewable decision addressed the relevant issue and made a purported or conscious decision, whereas in the present matter the decision-maker did not address the specific issue that has been raised in the course of the proceedings before me. Nevertheless, the claim for compensation was made in terms wide enough to include a claim that employment was a contributing factor to the contraction, rather than the aggravation, of the conditions in question. The decision-maker considered the claim made by the applicant, and made a decision resolving that claim. The evidence before this tribunal raises a specific factual issue which arises out of the claim originally made by the applicant, and it would be procedurally inefficient and inappropriate for the tribunal to be unable to deal with it. In my view, the fact that the specific issue in question was not dealt with in the reviewable decision should not deprive this tribunal of jurisdiction to review the decision arrived at.
58. My above conclusion is consistent with the judgment of Wilcox J in Bowman v Comcare [2000] FCA 88, where it was decided that it was incumbent on the tribunal to examine and determine the issue of incapacity stemming from the applicant’s temporary work-related aggravation, because there was medical evidence to support such a claim and it was mentioned (albeit briefly) in counsel’s final address. His Honour said this was the position notwithstanding that the claim for temporary aggravation was only an alternative claim that received little attention at the hearing. He did not suggest that it was necessary to consider whether the reviewable decision had dealt with the question of temporary aggravation.
59. My above conclusion is, I think, further reinforced by the approach of the tribunal to claims arising under the Veterans’ Entitlements Act 1986 (Cth). In cases such as Benjamin v Repatriation Commission (2001) 70 ALD 622, the Federal Court has referred to the Tribunal’s inquisitorial function, and to its obligation to determine the substantive issues raised by the material and evidence advanced before it, and its obligation not to limit its determination to the case articulated by an applicant, if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant. Once again, the Court did not suggest that this obligation was affected by whether the relevant issue had been considered in the decision under review.
60. For the sake of completeness, I add that the present matter is distinguishable from Lees v Comcare (1999) 56 ALD 84, where the Full Federal Court decided that this tribunal had no jurisdiction to determine a claim for permanent impairment under the 1988 Act. The reviewable decision before the tribunal related to whether the employee was entitled to other benefits under the Act, but the claim for permanent impairment had not been the subject of a reviewable decision. However, in the present matter, there has been a reviewable decision in relation to the claim for compensation made by the applicant, but the decision-maker omitted to address an issue raised by the claim.
61. I think that my conclusion on the issue of jurisdiction is consistent with the tribunal’s objective of providing a mechanism of review that is fair, just, economical, informal and quick, as required by s 2A of the Administrative Appeals Tribunal Act 1975.
62. I have referred above to Mr Berry’s evidence and to the medical evidence before me. As mentioned, I prefer the evidence of Dr Reid in relation to the conditions which were associated with Mr Berry’s reflux symptoms and which constituted the first claim for compensation. It follows from Dr Reid’s evidence that Mr Berry’s employment was not a contributing factor to the contraction of those conditions. As I have said, Dr Paull in his various reports referred to employment as an aggravating factor, but not a causative factor.
63. For the above reasons I am not satisfied on the balance of probabilities that Mr Berry’s employment with the AFP was a contributing factor to the contraction of the conditions referred to in his first claim for compensation, namely hiatus hernia, oesophageal reflux disease, oesophagitis and duodenitis, or to the aggravation of those conditions in the period after compensation payments were stopped and up to the date of this decision.
Second claim for compensation – claim for non-ulcer dyspepsia and irritable bowel syndrome
64. It was accepted by both Dr Paull and Dr Reid that stress is a contributing factor to irritable bowel syndrome, and that Mr Berry is currently suffering from that condition.
65. In his evidence, Dr Paull confirmed that Mr Berry had complained of irritable bowel syndrome in 1978, and he thought that the shiftwork at Woomera would have caused this condition. As I have said above, the shiftwork involved long twelve hour shifts, alternating from night shifts to day shifts on a rotating basis. Mr Berry found that working such long shifts usually made him irritable (exhibit A1, T16, pages 21 – 22). There were occasions when he was unable to relieve his bowel when he needed to.
66. Dr Paull further explained that Mr Berry’s non-ulcer dyspepsia and irritable colon syndrome were functional disorders, in the sense that they were disorders of the functioning of the gut. He said that Mr Berry’s working conditions at Woomera had predisposed him to a recurrence of the symptoms of those functional disorders if the same disturbances, or precipitants (such as shift hours, irregular meals and problems of attending to his toilet) occurred again. He added that some fields of employment might reactivate his symptoms, and there would be some fields of employment he could not undertake. When asked whether the stress of his work with the AFP played any part in his current functional disorders, Dr Paull said:
“I’m just saying that the scene was set and he (Mr Berry) now is at risk, given certain circumstances, of the whole thing starting again. (transcript 16.2.06, page 55, line 35)
67. In answer to a question from the tribunal, Dr Reid acknowledged that it was “certainly” possible that the conditions of his work at Woomera had an effect on the development of Mr Berry’s irritable bowel syndrome, although he added that he was not sure to “what degree” that was probable. Dr Reid said that some people find that shiftwork interferes with their biological clock, and that it can upset the bowel function. He said that it was that aspect of Mr Berry’s working conditions that was the more significant in considering the effect on the development of irritable bowel syndrome.
68. There is no further reference in the material tendered by the parties to irritable bowel syndrome in the period after Mr Berry was transferred to Adelaide and prior to his resigning from the AFP. The symptoms he experienced after he assumed surveillance duties and which led to his going on sick leave in November 1985 were, according to the medical reports, due to problems of his hiatus hernia and reflux. It appears that the medico-legal investigations that were carried out then focussed on the reflux disorder, and none of the reports was directed to irritable bowel syndrome.
69. In evidence, Mr Berry said that in the period since he has been taking Losec he still has flare-ups of his symptoms, but his symptoms are still there, and it is a “constant thing” (transcript 15.2.06, page 60, line 24). I should add that it appeared from his evidence that he had not fully understood the various disorders from which he had been suffering over the years, and that he had not sought a full explanation of his disorders from his doctors. It was therefore not clear whether in the above evidence of continuing symptoms Mr Berry was referring to all of his symptoms, or merely to his reflux disorder.
70. The continuing presence of irritable bowel syndrome was, however, confirmed in a report dated 7 April 1998 of another gastro-enterologist, Dr Mark Arens. He reported to Mr Berry’s general practitioner that whilst Mr Berry’s reflux condition was well controlled on the medication he was then taking, he had lower abdominal symptoms which were in keeping with an irritable bowel syndrome. Dr Arens reported that Mr Berry had been troubled by his “bad gut pain” over many years, and that the symptoms had been intermittent with good and bad periods. Dr Arens saw Mr Berry again on 14 July 1998 and reported back to the referring general practitioner that it was likely that Mr Berry had irritable bowel syndrome. He arranged to perform a colonoscopy, and this was normal. Dr Arens was not asked to express any opinion on whether this condition was related to his former employment, and did not do so.
71. In July 2003, Mr Berry’s general practitioner referred him back to Dr Paull, who carried out a further endoscopy and colonoscopy. The colonoscopy showed mild diverticulosis. Dr Paull reported that Mr Berry had “a degree of so called non-ulcer dyspepsia and irritable bowel syndrome”. He further reported that the endoscopy showed no active abnormality and that his oesophagitis was controlled with Losec medication. Dr Paull concluded:
“I see that it would be very difficult for him to return to any stressful work although some pressure has been put on him in that respect recently. Stressful situations on a continued basis would undoubtedly exacerbate his previous symptoms.” (exhibit A4, page 2)
72. In a further report of 19 December 2003 to Mr Berry’s then solicitors, Dr Paull said that he was unable to say whether the irritable bowel syndrome, non-ulcer dyspepsia and colonic diverticulosis were caused by his employment with the AFP, but he added that stressful situations that were associated with that work would aggravate conditions such as the irritable bowel syndrome and the non-ulcer dyspepsia. He went on to say that the thought of Mr Berry returning to the AFP and the anxiety that this would produce in him might well exacerbate symptoms associated with “an irritable bowel syndrome etc.” (exhibit A1, T68, page 135). He concluded that the oesophageal reflux could remain under satisfactory control with Losec or similar medication, but the other symptoms which were more stress sensitive were likely to continue in the longer term and increased stress would accentuate them.
73. Dr Paull has been treating Mr Berry for a period approaching thirty years. He first observed symptoms of irritable bowel syndrome very early in this period, and related it to the stress of his then work with the AFP. In the case of this condition, I find that stress is a relevant factor. I am satisfied on the evidence before me that Mr Berry’s employment was a contributing factor to the contraction of his irritable bowel syndrome and non-ulcer dyspepsia and that he has continued to suffer from this condition intermittently since his work with the AFP at Woomera.
74. In the case of the second reviewable decision, the decision-maker expressly considered whether Mr Berry’s employment with the Commonwealth caused or aggravated the conditions that were the subject of his further claim (see exhibit A2, T85, at pages 124-9). No question of jurisdiction therefore arises in connection with the second claim for compensation.
75. It follows from my findings that Comcare is liable to Mr Berry for compensation in respect of the contraction of his irritable bowel syndrome and non-ulcer dyspepsia. Comcare should accordingly assess the amount (if any) to which Mr Berry is entitled as a result of this finding. It appears from Holt v Comcare (2003) 130 FCR 576 that once the relevant facts are established, an enhanced susceptibility to recurrences of a work-caused condition can give rise to an entitlement to compensation. I find from Dr Paull’s evidence that Mr Berry is more susceptible to experiencing recurrences of symptoms as a result of the above two conditions. Whether Mr Berry will be entitled to compensation for his second claim for compensation (being his claim for the two conditions concerned) will depend on whether he has suffered any incapacity from work or medical expenses as a result of those conditions since 6 August 2003.
76. My decision in relation to the second claim for compensation will entail making an order setting aside the second reviewable decision and remitting the case for re-determination by Comcare. Accordingly, under s 66(9) of the 1988 Act, I am required to order that the costs of the proceedings in relation to the second claim for compensation must be paid by Comcare. Although Mr Berry was self-represented at the hearing, he presumably incurred legal fees in the earlier stages of this matter when solicitors were acting for him, and in addition, he presumably had to pay witness fees to Dr Paull, whom he called. Any assessment of the amount of costs payable pursuant to my proposed order for costs should, however, take into account that the second claim for compensation was made relatively late in the piece, and was dealt with as part of the first and third claims for compensation, and all three matters were heard together. The large majority of time and documentation related to the first claim for compensation, and it appears that the preparatory legal work in respect of the second claim for compensation (as well as the time spent by the expert witnesses on that claim) was relatively insignificant compared with the other two claims for compensation. These matters should be taken into account when the parties consider the effect of the costs order which I propose to make. In case there are difficulties in implementing this order, I further propose to give the parties liberty to apply in relation to the issue of costs.
Third claim for compensation
77. The third claim for compensation was a claim for an assessment of permanent impairment in respect of the conditions of hiatus hernia, oesophageal reflux, oesophagitis and duodenitis. I have already decided that Mr Berry’s employment with the AFP did not contribute to the contraction of those conditions, or to the aggravation of those conditions in the period after his incapacity payments were stopped and up to the present time.
78. Under the 1971 Compensation Act, Mr Berry had no entitlement to an assessment of permanent impairment in respect of the conditions in question. In Department of Defence as Delegate of Comcare v West (1998) 85 FCR 491, the Full Federal Court decided that where a change in a permanent impairment which occurred after the commencement date of the 1988 Act was such that, quantitatively and qualitatively, it was properly to be characterised as a further or a new impairment occurring after the commencement date, it was compensable by a lump sum payment under ss 24 and 25 of the 1988 Act.
79. In a later case of Comcare Australia (Department of Defence) v Maida (2002) 36 AAR 69, Mansfield J reviewed a number of earlier cases including West (supra). He endorsed, at [28], the following propositions as correctly summarising the state of the law:
“20.1The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.
20.2If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.
20.3A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment — that is, the development of a new impairment.”
80. In the present matter, there is no evidence that there has been a significant worsening of the conditions which were the subject of the first claim for compensation. On the contrary, the evidence before me suggests that those conditions have been significantly improved by the use of the Losec medication. I am not satisfied that Mr Berry has any entitlement to a permanent impairment assessment in respect of the conditions in question.
81. No claim for compensation for permanent impairment has been made in respect of the conditions which were the subject of the second claim for compensation, namely irritable bowel syndrome and non-ulcer dyspepsia. If Mr Berry lodges a claim for permanent impairment in respect of those conditions, then Comcare should assess that claim by reference to any medical evidence that might be presented in support of the claim, and by reference to these reasons.
Third claim for compensation - headaches
82. I have referred above to Mr Berry’s evidence regarding headaches. There was no mention of headaches in Dr Paull’s various reports, but in evidence he confirmed that Mr Berry was suffering from headaches when he treated him in the late 1970’s. He further confirmed that he then suggested medication for the headaches. He also said that he still gets headaches but to a much lesser extent, and if he now does get a headache it is normally a migraine. His headaches have been assisted by chiropractic treatment.
83. The only reference to headaches during the period of Mr Berry’s employment by the AFP is in an entry dated 12 July 1981 in the record of sick leave taken by Mr Berry when he was with the AFP. This record covers the period from 29 June 1976 to 10 January 1986, and is contained in exhibit A1, T4, at pages 6 to 7. The entry on 12 July 1981 refers to “migraine”. There are some other entries in the record which refer to “M/C”, an abbreviation for “medical certificate”. However, the record does not indicate what condition might have been referred to on the relevant medical certificates.
84. A copy of the notes of the general practitioners whom Mr Berry was consulting from 1980 onwards was tendered. This appears to contain no entries in respect of headaches from 1980 until Mr Berry went on sick leave from the AFP in November 1985. The earliest reference to headaches is an entry of 30 July 1986. The next entry is dated 29 March 1989. This records a history of headaches for three years. There are then a number of references to headaches during the years 1989 to 1999, and later. Exhibit A2 also has in it a copy of certain reports in relation to headaches, including a report dated 15 June 1989 from Dr Paul Carney, and reports from Dr D Burrow dated 15 August 1989 and 21 July 1997.
85. Whilst there is evidence that Mr Berry’s headaches developed during his work with the AFP, it is clear that they continued on afterwards for many years. The evidence before me does not satisfy me that Mr Berry’s employment by the AFP contributed to the contraction of headaches or the aggravation, acceleration or recurrence of headaches.
Conclusion
86. Subject to the two aspects to which I will refer below, it follows from my above reasons that the first reviewable decision was correct and should be affirmed in substance, that I should affirm the third reviewable decision, but that I should set aside the second reviewable decision and remit the second claim for compensation back to Comcare to assess its liability for the conditions that were the subject of that claim.
87. I recounted the terms of the reviewable decision in respect of the first claim for compensation in paragraph 5 above. I think that the reviewable decision is not appropriately expressed for two reasons. First, it states that the employment is not “contributing to a material degree” to any incapacity or requirement for medical treatment (emphasis added). The question before me is whether compensation is payable to Mr Berry under the 1971 Compensation Act. The word “material” does not appear in s 29 of the 1971 Compensation Act. It appears from the judgment of the majority (French and Stone JJ) in Comcare v Canute [2005] FCAFC 262, at [68], that the word “material” in the definition of “disease” in the 1988 Act must be given some meaning, and that the inclusion of that term in the 1988 Act “imposes an evaluative threshold below which a causal connection may be disregarded”. The 1971 Compensation Act does not require the employment contribution to be “material”; and as mentioned above, on the authority of Treloar (supra) the test of whether employment is a “contributing” factor merely entails deciding whether the employment is part of the cause, in the sense that it adds to the creation of the relevant condition or its aggravation, and it does not matter whether the contribution is of any particular size or degree.
88. The second difficulty with the formulation of the reviewable decision is that it might suggest that Comcare will not be liable for the relevant conditions at any future time after 6 August 2003. It was not competent for the independent review officer to make a determination to that effect when reviewing the primary decision: Re Liu and Comcare (2004) 79 ALD 119, at [2] and [3]. In this matter, the tribunal (which was constituted by President Garry Downes J, Deputy President Handley and Senior Member Allen) said, at [12] that the criteria for valid determinations are that they:
“(a) should not suggest that liability has ceased;
(b) should not suggest that no future liability can exist; and
(c) should speak only as to present liability.”
89. I have therefore reformulated my decision in relation to the first claim for compensation to accord with the above criteria, and to avoid the difficulties which I think arise from the wording of the first reviewable decision.
Decision
90. I set aside the first reviewable decision in respect of the applicant’s claim for hiatus hernia, oesophageal reflux with oesophagitis and duodenitis, (being the subject of matter no. S2004/227 in this tribunal), and in place of that decision decide that the applicant’s employment did not contribute to the contraction of those conditions, and that in the period from 6 August 2003 to the date of this decision, the applicant’s employment was not contributing to the aggravation of those conditions, and that as at the date of this decision compensation is not payable to the applicant in consequence of any such contraction or aggravation.
91. I set aside the second reviewable decision in respect of the applicant’s claim for non-ulcer dyspepsia and irritable bowel syndrome (being the subject of matter no. S2004/283 in this tribunal), and in place of that decision decide that Comcare is liable for compensation in respect of those conditions, and I remit the matter to Comcare for assessment of his entitlement to compensation (if any) in accordance with these reasons.
92. I affirm the third reviewable decision (being the subject of matter no. S2004/288 in this tribunal) in respect of the applicant’s claim for:
(a)an assessment of permanent impairment for the conditions of hiatus hernia, oesophageal reflux, oesophagitis and duodenitis; and
(b)the applicant’s claim for compensation in respect of headaches.
93. I order that the respondent pay the costs of the proceedings in matter no. S2004/283 in this tribunal.
94. I reserve liberty to apply within 21 days in relation to the costs of the proceedings in matter no. S2004/283 in this tribunal.
I certify that the 94 preceding paragraphs are
a true copy of the reasons for the decision
herein of Deputy President D G JarvisSigned: .....................................................................................
J. MacIntyre AssociateDate/s of Hearing 15 and 16 February 2006
Date of Decision 12 April 2006
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr M Roder
Solicitor for the Respondent Phillips Fox
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