BORG And COMCARE
[2007] AATA 78
•28 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 78
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/153
) A2005/323
) A2005/380
GENERAL ADMINISTRATIVE DIVISION ) Re RAYMOND BORG Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Dr M.D. Miller AO, Member Date 28 February 2007
Place Canberra
Decision 1) In matter A2005/380 the decision of Comcare made 14 December 2005, which affirmed a decision denying liability to compensate Mr Borg for a thoracic spine condition, is affirmed.
2) In matter A2005/323 the decision of Comcare made 7 October 2005 is set aside and the matter is remitted to Comcare for reconsideration in accordance with the following directions:
I. that between September 2001 and April 2002 Mr Borg suffered a compensable injury, namely an aggravation of degenerative changes in his cervical spine, which arose out of his employment with Totalcare;
II. that the injury has resulted in a permanent impairment in accordance with subsection 24(1) of the Safety, Rehabilitation and Compensation Act 1988;
III. that Comcare determine the degree of permanent impairment of Mr Borg resulting from the injury.
3) The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay Mr Borg’s reasonable costs in application A2005/323.
4) In matter A2004/153 the application for review of decision made 30 April 2004 is dismissed. The application for an order for the payment of costs is refused.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – Brachial plexus injury – Thoracic outlet syndrome – Whether arose in the course of employment – Aggravation of degenerative spine condition – Permanent impairment – Degree of impairment – Whether Tribunal has power to make costs order where proceedings rendered abortive pursuant to Safety, Rehabilitation and Compensation Act 1988 s 67(2).
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 24, 67
Federal Broom Co v Semlitch (1964) 110 CLR 626; [1964] HCA 34
Casarotto v Australian Postal Commission (1989) 86 ALR 399; (1989) 17 ALD 321; (1989) 10 AAR 191
Comcare Australia v Amorbieta [1996] FCA 312
Martin v Australian Postal Corporation (1990) AAR 420; [1999] FCA 655
Re Greczanik and Australian Postal Corporation [1994] AATA 9520
Re West and Comcare [1992] AATA 7966
REASONS FOR DECISION
28 February 2007
J.W. Constance, Senior Member
Dr M.D. Miller AO, MemberINTRODUCTION
1. Since 1996 Mr Borg has been an employee of Totalcare in Canberra. In 1997 he injured his shoulder at work. Comcare accepted liability to compensate him in respect of this injury.
2. During the lawn-mowing season of 2001-2002 Mr Borg was employed driving a tractor mowing ovals and other large grassed areas. Whilst doing this work he experienced “pins and needles” in his left arm and hand and numbness in his left hand. In 2005 a new diagnosis of the cause of Mr Borg’s arm and hand symptoms was made, that of thoracic outlet syndrome caused by the 1997 injury.
3. In matter A2005/380 Mr Borg is seeking a review of a decision by Comcare rejecting liability to compensate him in respect of the claimed thoracic outlet syndrome.
4. We have decided that the decision not to accept liability for a thoracic outlet syndrome should be affirmed.
5. In matter A2005/323 Mr Borg is seeking a review of a decision refusing his claim for permanent impairment claimed to have resulted from an aggravation of a pre-existing degenerative spine condition. The aggravation is said to have been caused by Mr Borg’s mowing duties.
6. We have decided that Mr Borg has suffered a permanent impairment resulting from an aggravation of his degenerative spine condition and that the matter should be remitted to Comcare to determine the degree of that impairment.
7. Our reasons for these decisions follow.
EVIDENCE AND FINDINGS OF FACT
8. Unless otherwise stated the following findings of fact are based on the evidence of Mr Borg. We are satisfied of these facts on the balance of probabilities.
9. Mr Borg is 41 years old. In 1996 he started working for Totalcare as a casual driver. He later obtained a permanent position within the same organization.
10. On 25 March 1997 Mr Borg was pulling two trolleys full of dirty linen onto a truck when one became jammed causing him to jar his left shoulder. He continued working and did not seek immediate medical treatment. In mid-1997 he consulted his general practitioner, Dr Madew, complaining of intermittent pain in his left shoulder. Dr Madew referred Mr Borg to Dr Stubbs, an orthopaedic specialist. In September 1997 Mr Borg reported to Dr Stubbs that he was suffering intermittent pain in his shoulder.
11. In April 1998 Comcare accepted liability to compensate Mr Borg for an impingement of his left shoulder suffered in the incident on 25 March 1997.
12. In April 1998 Mr Borg consulted Dr Woods, a surgeon with particular expertise in treating shoulder conditions. In October 1998 and again in April 2000 Dr Woods operated on Mr Borg’s shoulder. After the 2000 operation the condition of the shoulder improved.
13. Following the injury to his shoulder, Mr Borg ceased his duties as a driver and undertook light duties (folding towels) in the laundry operated by his employer. It is not clear on the evidence just how long Mr Borg spent on light duties but in September 2001 he commenced driving a tractor doing lawn mowing. He was still employed by Totalcare. He continued his lawn mowing duties until April 2002 when the lawn mowing season came to an end.
14. Whilst on lawn mowing duties Mr Borg's normal hours were 7:30 a.m. until 4 p.m., Monday to Friday. Whilst driving the tractor he used a lever to adjust the level of the blades three or four times per day and from time to time he needed to turn his head to look in the side mirrors. Mr Borg experienced vibrations as the tractor travelled over roads and rough ground. He was also required to go under the tractor every day to carry out maintenance and adjust the blades.
15. One to two weeks after he commenced driving the tractor Mr Borg began to experience pain in his left hand and in the left-hand side of his neck. Mr Borg said that he had not experienced pain in his neck prior to this time.
16. On 20 November 2001 Mr Borg consulted his general practitioner, Dr Sukumar. By this time he was suffering constant pain in his neck. Dr Sukumar prescribed panadeine forte for pain relief. Mr Borg says he has suffered constant pain in his neck of varying intensity since he first consulted Dr Sukumar in relation to it. Whilst giving evidence Mr Borg indicated that he suffered the pain in his cervical spine. He also demonstrated the extent to which he said he could rotate and flex his neck. The movement demonstrated was less than normal movement in each case. He has not received any treatment for his neck condition other than medication.
17. Mr Borg also suffers from “pins and needles” in the whole of his left arm and hand. He gave evidence that he first experienced this sensation in his arm at the same time that he suffered a pain in his chest and which caused him to go to hospital, fearing that he may be suffering a heart attack. He said that this occurred while he was driving the tractor. He said he had experienced pins and needles in his hand whilst driving a truck for Totalcare, just before he started tractor driving. He continues to suffer “pins and needles” in his left arm and hand once or twice per week.
18. Mr Borg ceased work with Totalcare in April 2002.
Medical evidence in relation to thoracic outlet syndrome and/or brachial plexus injury (A2005/380)
19. Dr Sukumar gave evidence. He has been Mr Borg’s general practitioner since March 1998. Dr Sukumar was in the same practice as Dr Madew and had the notes of Mr Borg’s previous consultations available to him.
20. In the opinion of Dr Sukumar it was “quite possible” [1] that as he was pulling the trolleys Mr Borg wrenched his left shoulder to the left causing a traction injury to the left brachial plexus. He based this opinion on the development of the “pins and needles” sensation after the pain from the shoulder injury had subsided. Dr Sukumar referred Mr Borg to Dr Andrews, Neurologist, to investigate this further but Dr Andrews was unable to confirm the diagnosis of brachial plexus injury.
[1] Transcript of Proceedings, 13 November 2006, p. 62.
21. In November 2003 Mr Borg complained to Dr Sukumar of suffering pain on the top of the left shoulder, round the shoulder and in the outer aspect of the left upper arm and the outer aspect of the left forearm. Although Mr Borg did not complain of pain in his neck Dr Sukumar took this as a complaint of neck pain on the basis that the nerve roots responsible for the sensation of pain in the shoulder come from the neck. This was the first record Dr Sukumar had made of a complaint of neck pain by Mr Borg. A MRI scan performed on 27 March 2002 showed a minor neck injury.
22. In cross-examination Dr Sukumar agreed that there was no evidence in the medical records made at the time of the trolley incident which indicated Mr Borg had suffered a neck injury. He also agreed that an x-ray taken on 12 October 2005 [2] showed Mr Borg to have a left rib anomaly which could explain the numbness in the left arm. He also agreed that, as the pain in the neck suffered by Mr Borg did not occur until November 2003, it is “quite likely" that the neck pain was a result of age-related degeneration in the neck.
[2] Exhibit R6.
23. Dr Griffith, Consultant Surgeon, examined Mr Borg at the request of his solicitors on 19 July 2005. He provided a report of 8 August 2005 [3] and gave evidence.
[3] Exhibit A5.
24. Dr Griffith took a very detailed history from Mr Borg. He concluded that Mr Borg had suffered a number of injuries including “a significant traction injury to the left upper limb, and shoulder in particular,” [4] and a traction injury to the brachial plexus, from which he had recovered. He was of the opinion that the thoracic syndrome, by which he meant the rib anomaly detected in 1995, could be contributing to the left arm numbness and pins and needles being experienced by Mr Borg.[5]
[4] Exhibit A5, p. 10.
[5] Transcript of Proceedings, 13 November 2006, p. 85.
25. Dr Griffith appeared to equate an injury to the brachial plexus with thoracic outlet syndrome. At page 77 of the transcript of 13 November 2006 the following exchange took place between Dr Griffith and Counsel for Mr Borg:
Counsel: “So as I understand it from a lay person's point of view, he has this underlying rib condition which makes him susceptible to a thoracic outlet injury, he has a traction injury in 1997 and that in fact then causes damage to his brachial plexus?”
Dr Griffith: “Symbolic trunks of the brachial plexus."
Counsel: “Yes?”
Dr Griffith: “And which may be called a thoracic outlet syndrome insofar as that is where the site of the potential pathology is, which is aggravated or brought to light or rendered symptomatic by this, what must be considered a fairly unusual mechanism of injury, but one which is nonetheless quite forceful."
Counsel: “So when you say thoracic outlet syndrome or injury, somebody else may say injury to brachial plexus but it still means the same thing?”
Dr Griffith: “They may, yes, indeed, but I do not believe that he is suffering from a frank thoracic outlet syndrome as set out very clearly by Dr Billett; I have never been under that impression, that is a florid condition which -- and I agree with his description of it and its characteristics. Mr Borg does not exhibit those characteristics and I do not claim for one minute that he is suffering pathology of that magnitude or nature, this is much more subtle."
26. Dr Billett, Consultant Orthopaedic Surgeon, gave evidence. He examined Mr Borg on behalf of Comcare on 30 September 2003 and 22 March 2005 and provided reports of 3 October 2003, 22 January 2004, 24 March 2005 and 16 May 2005.[6] In his opinion Mr Borg did not suffer an injury to his brachial plexus as, had he done so, he would have shown symptoms of such an injury at the time or shortly afterwards. The symptoms would have been further down the arm than the shoulder and would have included colour changes and a reduction in pulse and reflex. Dr Billet attributed the pins and needles sensation to problems being experienced by Mr Borg in his neck.
[6] Exhibits R16, R17, R22 and R23 respectively.
27. Having considered all of the medical evidence we are not satisfied on the balance of probabilities that Mr Borg suffered either thoracic outlet syndrome or a brachial plexus injury as a result of the incident on 25 March 1997. Whilst Dr Sukumar was of the view that it was "quite possible" that Mr Borg suffered a brachial plexus injury, this could not be confirmed by Dr Andrews. In any event, Dr Sukumar agreed that the left rib anomaly could be an explanation for the pins and needles sensation. It was the development of the numbness and pins and needles which was the basis for Dr Sukumar’s initial diagnosis of brachial plexus injury.
28. Dr Griffith agreed that Mr Borg does not suffer from a thoracic outlet syndrome of the nature described by Dr Billet. He agreed with the reasoning of Dr Billett in this regard. Dr Griffith maintained that Mr Borg suffers a more “subtle” form of the condition. However Dr Griffith agreed that it is reasonable to conclude that Mr Borg is suffering the effects of age-related degeneration of the spine and the rib anomaly (which he also described as a thoracic syndrome). Clearly the thoracic syndrome described by Dr Griffith (i.e. the rib anomaly) is not related to the incident involving the trolleys. The reasoning behind Dr Griffith’s diagnosis of a more “subtle” form of thoracic syndrome is unclear. Further, neither Dr Sukumar nor Dr Griffith explained why the symptoms of the brachial plexus injury diagnosed by them did not appear until 2001, four years after the injury involving the trolleys.
29. On the other hand Dr Billett was clear in his diagnosis and the reasons for it. We prefer and accept the evidence of Dr Billett that Mr Borg has not suffered an injury to his brachial plexus nor has he suffered a thoracic outlet syndrome.
30. With the consent of Comcare Mr Borg tendered reports of Dr Woods, Orthopaedic Surgeon, who examined Mr Borg in April 2001 and again in November 2002.[7] Dr Woods performed surgery on Mr Borg's left shoulder in July 1998. In his reports Dr Woods did not relate Mr Borg’s pins and needles sensation to his shoulder injury.
[7] Exhibits A3 and A4.
31. For the reasons stated above we are not satisfied that the diagnosis of either brachial plexus injury or thoracic outlet syndrome is correct and therefore we are not satisfied Mr Borg suffered either of these injuries arising out of, or in the course of, his employment.
Medical evidence in relation to the neck condition (A2005/323)
32. In his reports and his evidence-in-chief Dr Sukumar maintained his opinion that Mr Borg suffered a neck injury in the 1997 trolley incident. However, in view of Dr Sukumar’s agreement that the neck pain is quite likely to be a result of age-related degeneration we are not satisfied, on the balance of probabilities, that Dr Sukumar’s diagnosis is correct. In any event, this diagnosis does not support the claim of Mr Borg that his neck condition is a result of an aggravation occasioned by his driving of the tractor in 2001 - 2002.
33. In the opinion of Dr Griffith (based on the MRI study of 11 March 2005) Mr Borg has disc lesions at the C3/4 level and "even if it did not actually precipitate the disc lesions the nature and conditions of employment [as a tractor driver] would almost certainly aggravate them and not only made them symptomatic but maintained them in a symptomatic manner for as long as he was performing that activity." [8] Dr Griffith was under the mistaken understanding that Mr Borg was driving a tractor between September 2001 and April 2004 but this did not appear to have influenced his opinion that the activity aggravated the condition of Mr Borg’s neck.
[8] Transcript of Proceedings, 13 November 2006, p. 78.
34. On the question of loss of movement Dr Griffith measured a 24% loss of movement in Mr Borg’s cervical spine when he examined him on 19 July 2005. This was a precise measurement and Dr Griffith was clear that it amounted to a loss of less than one half of the normal range.
35. In his report of 16 May 2005 Dr Billet expressed the opinion that Mr Borg had pre-existing constitutional age-related degenerative changes in the cervical spine. He based his opinion on the MRI study and his own clinical examinations. He concluded:
"...... mowing the lawn aggravated the underlying degenerative changes, making them symptomatic. Mowing the lawn did not result in the actual disc bulge as noted on the MRI study of the cervical spine, but made the degenerative changes further symptomatic." [9]
[9] Exhibit R22.
In evidence Dr Billet said that if Mr Borg had experienced pins and needles in his arm before working on the tractor he would be of the opinion that the pins and needles emanated from his neck condition rather than having simply been rendered symptomatic by this activity. In his opinion any aggravation would cease within eight to ten weeks of Mr Borg ceasing the activity, but he agreed with Counsel for Mr Borg that the aggravation could last for as long as nine months.
36. In his report of 14 November 2002 Dr Woods stated that “Mr Borg had evidence of stiffness of the cervical spine and on MRI examination has been shown to have a mid-cervical disc protrusion." [10] Dr Woods further reported that he had been unable to attribute Mr Borg's cervical spine condition to work-related factors.
[10] Exhibit A4.
37. On the basis of the evidence of Dr Griffith and Dr Billet we are satisfied that Mr Borg suffered an aggravation of a degenerative condition in his cervical spine as a result of his work as a tractor driver in 2001-2002. We are satisfied also that this aggravation continued for a period of up to nine months after he ceased working on the tractor. We prefer this evidence to that of Dr Sukumar on the basis that both Dr Griffith and Dr Billet have greater relevant specialist knowledge and expertise than Dr Sukumar and provided more detailed reasons for their opinions. Dr Woods, Mr Borg’s treating surgeon, did not support the diagnosis made by Dr Sukumar. We have also taken into account that Mr Borg did not experience problems with his neck, as distinct from his shoulder, until approximately six years after the trolley incident. Our finding that there was an aggravation of the degenerative neck condition rather than a traumatic neck injury is in accordance with the submissions of Counsel for Mr Borg.
STATUTORY BACKGROUND
38. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in
accordance with this Act in respect of an injury suffered by an
employee if the injury results in death, incapacity for work, or
impairment.
(2) Compensation is not payable in respect of an injury that is
intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused
by the serious and wilful misconduct of the employee but is not
intentionally self-inflicted, unless the injury results in death, or
serious and permanent impairment.
39. Section 24 of the Act relevantly provides:
24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment,
Comcare is liable to pay compensation to the employee in respect
of the injury.
(2) For the purpose of determining whether an impairment is
permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable
rehabilitative treatment for the impairment; and
(d) any other relevant matters.
………………
(5) Comcare shall determine the degree of permanent impairment of
the employee resulting from an injury under the provisions of the
approved Guide.
(6) The degree of permanent impairment shall be expressed as a
percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a
hearing loss; and
(b) Comcare determines that the degree of permanent
impairment is less than 10%;
an amount of compensation is not payable to the employee under
this section.
ISSUES FOR DETERMINATION
40. In matter A2005/380 the issues for determination are:
1)has Mr Borg suffered an injury or injuries being either or both of an injury to his left brachial plexus or a thoracic outlet syndrome;
2)if so, did either or both of these injuries arise out of, or in the course of, Mr Borg’s employment with Totalcare?
41. In matter A2005/323 the following issues require determination:
1)has Mr Borg suffered an injury to his neck which has resulted in an “impairment” within the meaning of subsection 24(1) of the Act;
2)if so, is the impairment “permanent”; and
3)if there is a permanent impairment what is the “degree of permanent impairment” ?
RESOLUTION OF THE ISSUES IN A2005/380
42. As we have not been satisfied on the balance of probabilities that Mr Borg suffered either or both of a brachial plexus injury or thoracic outlet syndrome, Mr Borg has failed to establish Comcare is liable under section 14 as he has failed to persuade us he has suffered an injury within the meaning of the Act as required by subsection 14(1). The second issue referred to above does not arise for determination.
RESOLUTION OF THE ISSUES IN A2005/323
Has Mr Borg suffered an injury to his neck which has resulted in an “impairment” within the meaning of subsection 24(1) of the Act?
43. We have determined that as a result of his work as a tractor driver with Totalcare in 2001-2002, Mr Borg suffered an aggravation of a degenerative condition in his cervical spine. We have also found that this aggravation may have continued for up to nine months after he ceased working on the tractor and that since he ceased this work Mr Borg has continued to suffer from pain in his neck. We are satisfied that this continuing pain has been caused by the underlying degenerative condition of the cervical spine which was first made symptomatic by the tractor driving.
44. There is no dispute that the degenerative condition of Mr Borg’s cervical spine is an “ailment” as defined. Provided the aggravation of this condition was contributed to in a material degree by his employment, the aggravation of the ailment is a “disease” within the meaning of the Act. Once these requirements are met the disease satisfies the definition of “injury”.
45. There is no evidence that the tractor driving brought about pathological change in the condition of Mr Borg’s spine. However the Act is concerned more with “the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism. Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.” Federal Broom Co v Semlitch (1964) 110 CLR 626. We are satisfied that Mr Borg’s condition worsened in that prior to the tractor driving the condition was asymptomatic but was made symptomatic by this activity. We are satisfied therefore that the symptomatic spinal condition which causes Mr Borg pain is a malfunction of the spine and thus is an “impairment”. “Impairment” is defined in section 4 to mean “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
46. Counsel for Mr Borg argued that there has been an acceleration of Mr Borg’s underlying condition and therefore it follows that there has been an aggravation. In Casarotto v Australian Postal Commission (1989) 86 ALR 399 the Federal Court considered the distinction between "aggravation" and “acceleration” within the meaning of the Compensation (Australian Government Employees) Act 1971 (Cth). After considering a number of authorities Hill J said:
“These quotations illustrate what appears in any event from the ordinary English meaning of the words "aggravation and acceleration", namely that "aggravation" connotes the disease becoming more severe and “acceleration” connotes the hastening of the normal underlying disease, which if not invariably, will usually in any event be a progressive one."
His Honour went on to say that “it would be necessary in each case, be it one of aggravation or acceleration, to have regard to the medical evidence in determining whether the compensable period will be finite or whether it should be taken to continue.”
47. It should be noted that in the present Act ‘aggravation” includes “acceleration”.
48. As Mr Borg’s neck was asymptomatic prior to his tractor-driving we agree with his Counsel that his underlying condition has been accelerated and therefore aggravated. As we have accepted Mr Borg’s evidence that he has continued to suffer neck pain since undertaking the tractor-driving we are satisfied that the aggravation has continued since 2001-2002 up to the date of this decision. It matters not that the effect of the initial aggravation caused by the driving of the tractor over rough surfaces may have ceased some months after the tractor driving ceased (as was Dr Billet’s opinion). The acceleration of an underlying disease (not itself work-caused) is an injury under the Act if the aggravation arose out of the employment. Having considered Dr Billet’s view that the now aggravated underlying condition can continue to cause pain even though the effect of the initial aggravation would have ceased within a period of some months, we are satisfied that in this case the aggravation of the spinal condition has “resulted in” the impairment:Comcare Australia v Amorbieta [1996] FCA 312.
Is the impairment “permanent”?
49. The provisions of subsection 24(2) have already been set out. We have had regard to the fact that Mr Borg has suffered neck pain since 2002 and that his condition has not improved in that time. We also take into account that although the only treatment undertaken by Mr Borg is medication for pain relief, he has sought medical advice and no other treatment has been suggested by his advisers nor has any other treatment been suggested on behalf of Comcare.
50. The evidence before us does not enable us to determine whether or not the natural progression of the underlying condition itself may have produced similar pain. It is still open to us to conclude that the impairment is permanent. In Martin v Australian Postal Corporation [1999] FCA 655 the Federal Court said:
“As there were no symptoms prior to the work-related injuries; those injuries aggravated or accelerated the condition so as to produce symptoms; it cannot be known when the condition itself might have produced similar symptoms in the absence of any such aggravation or acceleration; and the contribution of the aggravation or acceleration has been held to be still continuing, it was open to the Tribunal to find that the aggravation or acceleration which constituted the injury within the meaning of s24 had resulted in the impairment, which was likely to continue indefinitely and therefore fell within the statutory notion of permanence." [11]
[11] At paragraph 34.
51. We are satisfied, on the evidence, that the pain which Mr Borg experiences from his underlying neck condition, first made symptomatic by his work, is likely to continue indefinitely. We have made findings as to the other matters to be considered under section 24. We are satisfied that his impairment is permanent.
What is the “degree” of permanent impairment?
52. The evidence on this issue is most unsatisfactory and more attention should have been given to this issue in the preparation of the application for hearing.
53. Table 9.6 of the Guide provides for a 10% Whole Person Impairment where there has been a loss of half normal range of movement of the cervical spine. The only accurate assessment of the loss of movement to Mr Borg’s cervical spine was carried out by Dr Griffith in July 2005. This application was heard in November 2006. Dr Griffith’s measurements indicated a 24% loss, substantially less than what is required to give a 10% Whole Person Impairment, the minimum requirement for compensation to be payable. Notwithstanding the assessment by Dr Griffith, no further detailed assessment has been made.
54. At the hearing Counsel for Mr Borg endeavoured to overcome this lack of up-to-date evidence by having Mr Borg demonstrate to the members of the Tribunal the extent to which he could move his head in various directions and to have Dr Miller, the Tribunal’s only medically qualified member, record his observations of the extent of the movements. While it is appropriate to describe a demonstration for the purposes of the transcript, in our view it is not appropriate to endeavour to have a member of the Tribunal undertake an assessment for the purpose of providing factual evidence to enable the Tribunal to make an assessment under the Guide. This should be done by a suitably qualified practitioner in a clinical setting availed of the necessary equipment.
55. In this case we are left with the evidence of Dr Griffith (which Counsel for Mr Borg says we should not rely upon because it is out-dated) together with such observations as the Tribunal members have been able to make of Mr Borg’s untested demonstration of the extent to which he could move his head whilst sitting in the witness box. This leaves us unable to make an assessment under Table 9.6 of the Guide. One option open to us is to determine that the degree of impairment is less than 10% based on the evidence of Dr Griffith and affirm the decision under review. This is the decision urged on us by Comcare and one to which we have given serious consideration. However, in fairness to Mr Borg, and in order to give him the opportunity to put forward up-to-date evidence of the degree of his impairment, we have decided to remit the matter to Comcare with appropriate directions to enable sufficient evidence to be obtained. If Mr Borg disagrees with Comcare’s determination of the degree of impairment under subsection 24(7) he will need to take the necessary steps to have that decision reviewed.
MATTER 2004/153: APPLICATION FOR COSTS ORDER
56. At the commencement of the hearing the parties agreed that matter A2004/153 was not proceeding.
57. The reviewable decision was a decision of Comcare made 2 March 2004 in which Comcare accepted liability to compensate Mr Borg for “‘temporary aggravation – cervical spine condition’ for a closed period only from 20 November 2001 to 30 September 2003.” On 30 April 2004 Mr Borg filed an application seeking a review of this decision by the Tribunal.
58. The application proceeded until 7 June 2006 when Comcare notified Mr Borg of a decision of its own motion setting aside the decision under review and accepting liability for temporary aggravation pursuant to section 14. The effect of this reconsideration was to remove the reference to “a closed period only”.
59. Counsel for Mr Borg sought an order for costs in favour of Mr Borg pursuant to subsection 67(2) of the Safety, Rehabilitation and Compensation Act 1988 which provides:
“Subject to this section, where a proceeding instituted under this Part in respect of a reviewable decision relating to a determination is rendered abortive because a decision has been made, following a reconsideration under subsection 62(1), varying or revoking that determination, the responsible authority is liable to reimburse the claimant for costs reasonably incurred by the claimant in connection with that proceeding.”
This subsection is in contrast to subsections 67(8), (8A), (8B) and (9) which give the Tribunal power to order the payment of costs.
60. Counsel for Comcare opposed the order sought on the ground that the proceeding had not been rendered abortive as the real issue between the parties had always been whether Mr Borg had suffered a permanent impairment resulting from the cervical spine condition and that this was still the issue in the other applications which were proceeding.
61. We are satisfied that the decision of Comcare removing the restriction of the closed period did render this application abortive. Once the restriction was removed there was no reason for Mr Borg to continue to challenge a decision which accepted liability for a temporary aggravation of his cervical spine condition. The fact that the issue of whether Mr Borg had suffered permanent impairment remained to be determined in other proceedings is irrelevant to our decision in this matter. It may, of course, affect the amount of costs that are payable.
62. The Tribunal has previously held that it has no jurisdiction to order costs under subsection 67(2): Re Greczanik and Australian Postal Corporation [1994] AATA 9520; Re West and Comcare [1992] AATA 7966. As set out in these decisions the entitlement to costs is provided by the subsection itself. There is no power granted to the Tribunal by the subsection. We agree with the reasoning set out in these decisions.
63. The Tribunal does not have jurisdiction to make an order for costs in matter A2004/153. The application will be dismissed.
DECISION
64. In matter A2005/380 the decision of Comcare made 14 December 2005, which affirmed a decision denying liability to compensate Mr Borg for a thoracic spine condition, is affirmed.
65. In matter A2005/323 the decision of Comcare made 7 October 2005 is set aside and the matter is remitted to Comcare for reconsideration in accordance with the following directions:
1)that between September 2001 and April 2002 Mr Borg suffered a compensable injury, being an aggravation of degenerative changes in his cervical spine, which arose out of his employment with Totalcare;
2)that the injury has resulted in a permanent impairment in accordance with subsection 24(1) of the Safety, Rehabilitation and Compensation Act 1988;
3)that Comcare determine the degree of permanent impairment of Mr Borg resulting from the injury.
66. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay Mr Borg’s reasonable costs in application A2005/323.
67. In matter A2004/153 the application for review of decision made 30 April 2004 is dismissed. The application for an order for the payment of costs is refused.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M. Miller AO, Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 13 & 14 November 2006
Date of Decision 28 February 2007
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant KJB Law
Counsel for the Respondent Miss E Ford
Solicitor for the Respondent DLA Phillips Fox
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