Catton and Comcare
[2003] AATA 1237
•9 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1237
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/958, 967, 1116
GENERAL ADMINISTRATIVE DIVISION )
Re GARTH CATTON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr B J McCabe, Senior Member Date9 December 2003
PlaceBrisbane
Decision The Tribunal affirms the decisions under review. (Sgd) BJ McCabe
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – liability – back condition - whether applicant is permanently incapacitated – whether liability for the back condition has ceased – whether degenerative changes in back
WORKERS’ COMPENSATION – benefits and entitlements – compensation – depression and alcohol abuse/dependence – whether conditions are compensable
Compensation (Commonwealth Government Employees) Act 1971
Safety Rehabilitation and Compensation Act 1988
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Ilsley v Wattyl Australia Pty Ltd (1997) 144 ALR 510REASONS FOR DECISION
9 December 2003 Mr B J McCabe, Senior Member Introduction
1. Mr Garth Catton served in the Australian Army between 14 January 1980 and 28 January 1990. He worked for Australia Post after leaving the army. He has sought review of three different decisions. Comcare denies the applicant is permanently incapacitated as a result of a back injury sustained while he was in the army, for which Comcare accepts liability. (Comcare initially accepted it was liable to make incapacity payments but reconsidered its original decision). Comcare also refuses to accept liability for a claim in respect of depression and alcohol abuse or dependence. The applicant says both of those conditions are connected with the back condition. The applicant also claims to suffer from reflux-oesophagitis disease or aggravation of reflux–oesophagitis disease. He says that condition arose as a result of his treatment for his back injury.
2. Comcare says the applicant would have developed the back condition even without the injuries he sustained in the army. It should not therefore be liable for the condition that may have arisen out of the back condition.
3. The applicant has now approached the Tribunal seeking review of Comcare’s decisions.
The Material before the Tribunal
4. The Tribunal was provided with the T documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The T Documents relating to the applicant’s back condition (Q2001/967) were described as Exhibit B1. The T Documents in the file relating to the applicant’s alcohol abuse (Q2001/958) were described as Exhibit A1 and the documents relating to the applicant reflux condition (Q2001/1116) were described as Exhibit O1. The T Documents in relation to the claim for depression (which formed part of the file relating to alcohol abuse (Q2001/958)) were described as Exhibit D1. The following material was also tendered in evidence:
§Exhibit 1 Statement of Garth Catton, 16 January 2002
§Exhibit 2 Statement of Garth Catton, 28 March 2002
§Exhibit 3 Statement of Brett Catton, 26 May 2003
§Exhibit 4 Report of Dr Goode, 2 September 2002
§Exhibit 5 Conference notes of Dr Goode
§Exhibit 6 Report of Dr Tucker, 28 August 2002
§Exhibit 7 Letter from Mr Catton, 25 March 2002
§Exhibit 8 Sick leave details
§Exhibit 9 Letter from Mr Catton to Video Ezy, 20 October 2001
§Exhibit 10 Letter from Eastman Catton Solicitors, 4 September 2001
§Exhibit 11 Report by Dr McCombe, 7 March 2001
§Exhibit 12 Job applications and rejection letters
§Exhibit 13 Two letters from DVA to Dr Goode, dated 28 August 1997 and 8 May 1998
§Exhibit 14 Pathology Report
5. The hearing proceeded over three days, and several witnesses gave oral testimony. Those individuals were:
§Garth Catton
§Brett Catton
§Dr Roberts
§Dr McCombe
§Dr Goode
§Professor McPhee
§Anthony Brown
§Dr Tucker, and
§Dr Alcorn.
6. Mr Harding represented the applicant, and Mr Clark represented the respondent.
The Applicant’s Work and Medical History
7. Mr Catton has a history of back injuries. His army medical records, included in the T documents, say he pulled the para-vertebral muscles in his lumbar spine while playing squash in March 1984. He also reported back-pain in the left thoracic area in February and October 1985. On each occasion, he was placed on restricted duties.
8. The applicant says he injured his back in early August 1986 while carrying a full pack on a navigational exercise. He did not seek medical help immediately after he returned from the hike; he said his back became increasingly stiff over the following three days. The medical records included in the T documents say he sought assistance two weeks after returning. He was placed on restricted duties with specific instructions not to engage in PT (physical training) exercises or heavy lifting. He received physiotherapy. He continued to complain of pain in his lower back until at least November 1986. In his testimony, he suggested he experienced stiffness and discomfort in his back for the remainder of his army service.
9. He complained of a further injury to his thoracic disc on or about 7 July 1988. Mr Catton was repairing a puncture in a tyre at work. He was placed on light duties again for 21 days. He slipped and fell on wet grass while playing touch football on 19 December 1989, and was again placed on light duties. He had physiotherapy and x-rays, but the x-rays did not disclose any problems (see document T5 at p32). He said in his oral testimony that he had difficulty walking after that incident.
10. The applicant said he was in more or less constant pain after the incident in 1986. However, there is limited evidence of him complaining to medical personnel apart from the incidents referred to above. There is no record in particular in the Medical Board documentation dated 16 November 1989 of any ongoing back problems, although there are references to problems with his ankles. In the accompanying documents, dated 20 November 1989, the applicant’s back is assessed as normal. The applicant said he only received a cursory examination, but the reference in the notes to other problems suggests reasonably careful scrutiny. Dr Scott was satisfied in 1996 that the applicant “made a large measure of recovery” from the August 1986 incident (document T11 at p59). Dr Scott concluded the incidents in 1987 and 1989 were merely temporary aggravations of an underlying problem that existed prior to 1986. That conclusion is consistent with the diagnosis of Professor McPhee, and the evidence of the applicant’s back troubles in 1984 and 1985.
11. The applicant was discharged from the army on 28 January 1990. It was not a medical discharge, although he said he was in pain at the time. He said the pain persisted after he left the army, although he obtained employment as a groundsman on a golf course for several months soon after his discharge. He conceded the groundsman’s job was physical work. He denied it was onerous. It involved standing and walking, bending over and picking up papers, and carrying out other small tasks about the golf links. It is an odd choice of job for someone who has back problems like those described by the applicant. He suggested in his oral testimony that his level of physical fitness declined during this period, which made his back problems worse. He said his condition continued to deteriorate into 1991.
12. Mr Catton commenced employment with Australia Post in May 1990. He was responsible for repairing sorting machines and the electrical equipment. He was stationed at a mail-sorting centre. He worked shifts where he would be on call to deal with problems as they arose. He said he disclosed he had back problems, but did not suggest in the course of the medical interview he was required to take before commencing work that the pain could be “crippling”.
13. The applicant consulted Dr Khan in August 1991. Dr Khan recommended physiotherapy. The applicant said he saw a physiotherapist for at least six months. He also saw an acupuncturist, a chiropractor and tried herbal remedies and hydrotherapy. In spite of these treatments, the applicant said: “I was sore all the time. I would get up in the morning and be stiff and then during the day it would just get gradually worse”.
14. Mr Catton took six sick days in 1991. He suggested the leave was in respect of his back, which he claimed was worsening while he was at Australia Post. However Mr Clark in cross-examination put it to the applicant that most of the sick days were attributable to other factors, like the flu. I note that some of the certificates Mr Clark referred to cited “influenza” and “respiratory illness” as the problem. The applicant conceded he could not be certain the leave was in respect of his back after all. I was troubled by these discrepancies.
15. In the years that followed, Mr Catton took a number of sick days: for example, the records indicate he took 22 days off in the first six months of 1996. He said all that leave was because of his back. The medical certificates and other records were not specific, however. He did not take as many days off in other years, although he claimed he was always in pain. It was impossible to conclude from the records that his back was the source of so much trouble that he was forced to take lots of leave.
16. During his time at Australia Post, the applicant said he would experience “flare ups” where the pain in his back would become so intense that he would be bedridden for two to three days at a time. When that occurred, he said he would:
“crawl to the toilet. I had to crawl to the fridge to get something to eat. This would go – it would happen for maybe a couple of days and then the condition would gradually get better and I would go back to work.”
17. He said this occurred three to six times a year. He was unsure what brought on the attacks: he surmised they sometimes occurred as a result of straining himself while dressing.
18. I note Dr Khan did not speak of acute symptoms in his report of 21 September 1991. Dr Khan’s evidence is not consistent with the applicant’s claims about the extent of his suffering. Dr Khan did note the applicant’s claims about “flare ups” in his subsequent report of 10 September 1996.
19. The applicant said he would often lie down in his office at the mail centre while on call because of his back pain. He claimed he would spend his days off in bed, in agony. He tried to avoid taking sick days because of his back condition, but he assured the Tribunal the pain could be dreadful. He did take sick days in respect of other ailments.
20. Mr Anthony Brown gave evidence on behalf of the applicant. Mr Brown worked alongside Mr Catton at Australia Post. He confirmed the applicant would often complain of pain and stiffness in his back.
21. I was not convinced by the applicant’s account of the seriousness of his back condition and the extent of the suffering and incapacity he faced on a daily basis, and when his back “flared up”.. I do not doubt he suffered from occasional bouts of pain. I even accept he experienced constant low level pain. But I do not accept his condition was such as to prevent him from working given the limited number of days off that can be verifiably attributed to his back condition.
22. I am fortified in this conclusion by the evidence of Professor McPhee. Professor McPhee is an orthopaedic surgeon. He testified the applicant suffered from an underlying degenerative disease that would have limited the applicant’s lumber spinal movement regardless of the incident in 1986, or any other incident. He said those incidents would have only temporarily aggravated the condition. He conceded in the course of cross-examination that carrying a heavy pack in 1986 might have made a minor contribution to the worsening of a disease that was already progressing – but it was more likely to have merely caused the disease to become symptomatic, rather than having a substantive effect on its progress. He added the applicant’s experiences at Australia Post were likely to have made more of a contribution than his experiences in the army in any event.
23. I note Professor McPhee said in his report of 6 May 1998 that he conducted a number of tests on the applicant’s back. He concluded the radiological evidence was consistent with degeneration brought on by constitutional changes. He also concluded the applicant was exaggerating the extent to which his movement was restricted. That observation accords with my own observation of the witness.
24. The applicant was made voluntarily redundant by Australia Post in June 1996. He said he wanted to leave because of his back. He said the whole situation was starting to have an effect on his mental state, and he was becoming depressed. He said he was starting to have difficulty doing his job as an electronics technician. There was no evidence that he was unable to do his job, or that his superiors were unhappy with this his performance. Indeed, as Dr Alcorn observed, there is evidence he was functioning well: he commenced a course of study in electrical engineering in 1990 that he completed in 1992. He was also promoted during his time at Australia Post.
25. Mr Catton said he started looking for work almost immediately after his redundancy, although he had an operation for haemorrhoids during this period. One of his first applications was for an electronic technician’s job. That is surprising, given his stated reasons for taking redundancy from Australia Post. He sought to down-play the significance of this application, but I am satisfied it tends to confirm he was not having difficulty with the work he was performing at Australia Post.
26. His doctor told him he was fit to do light work, and copies of letters of application to various prospective employers were provided to the Tribunal. Most of the applications were for jobs in sales, customer service and similar activities. During his oral evidence, the applicant referred to a letter sent to Video Ezy at Morayfield. That letter included a reference to his back condition. Mr Catton said he wanted to be up-front with prospective employers about his condition and his physical limitations. He said the letter to Video Ezy was typical of the letters of application he sent out during this period. He claimed he was unable to get work: as soon as he mentioned the back condition, he was rejected. He agreed few if any of the prospective employers cited his back condition as a reason for rejecting his application.
27. Drs McCombe and Goode agreed it was unlikely the applicant would be able to secure employment as a result of his condition.
28. Drs McCombe and Morgan said the applicant suffered from a degenerative disc condition that was either caused by the incident in 1986, or was an underlying condition aggravated by that event. Dr McCombe, who gave evidence at the hearing, conceded he relied on the history provided by the applicant in order to reach his diagnosis. That is understandable, but troubling as Mr Catton was shown in the course of cross-examination to be an unreliable historian.
29. Mr Catton also suffers from reflux. He said he started experiencing reflux shortly after he commenced taking Voltaren, an anti-inflammatory medication prescribed for his back condition. Dr Roberts, a gastroenterologist, said Voltaren did not cause reflux, but it might aggravate the condition. The applicant also tried Celebrex, which should be gentler on the stomach – but it was not. In any event, the reflux has been brought under control since he started taking Losec. Dr Roberts says Losec cuts down on the acid in the stomach. The applicant says he still gets small attacks of reflux “every now and again”. He has adjusted his diet: he avoids dairy and spicy foods, which exacerbate his condition.
30. Dr Roberts noted there were a number of risk factors associated with the development of reflux, including smoking and drinking. Mr Catton is a smoker and – by his own admission – a heavy drinker.
31. The applicant is also taking anti-depressants because of his mental state. His treating psychiatrist, Dr Tucker, says Mr Catton suffers from major depression with chronic adjustment disorder as an alternative diagnosis. Mr Catton said in his evidence in chief that he started to notice the depression in 1996, although in his claim form filed with Comcare he suggested it started in 1998 when he first sought treatment for the condition. Mr Harding said nothing should be made of this discrepancy. In any event, Mr Catton has been seeing Dr Tucker every two to three months since 1998 when he was diagnosed. He sees a psychologist every few weeks. He also says he consumes a lot of alcohol. Mr Catton claimed in his oral evidence:
“I get pretty rotten about five to seven days a week, probably about three-quarters of a bottle of scotch. I start off with a few beers and three-quarters to a whole bottle of scotch.”
32. Mr Catton says he has been to meetings of Alcoholics Anonymous, but he was too shy to discuss his problem in front of people. He says he was embarrassed although he has not been nearly so reticent when describing his other afflictions, including erectile dysfunction, which might have generated more angst. His general practitioner prescribed an anti-alcohol addiction medication that was unsuccessful. He says he has tried “detox” as an outpatient on five or six occasions, but he has not been able to stay off the drink for than a few days. Dr Goode’s report of 2 September 2002 suggests the applicant was drinking alcohol socially on the weekends in 1997, although he began to drink more heavily after 1998. Dr Goode also refers to two convictions for driving under the influence in 1994 and 1998.
33. The applicant’s brother, Brett Catton, also gave evidence. Brett was living with his brother at the time of the hearing, and had lived with him on and off over the years. He said the applicant was a heavy drinker in 1988-1989, and he had become a heavier drinker by 1996. He would routinely pass out in a chair in the lounge room at night in front of the television, and stay there until morning – which could not have been good for his back. Brett asked his brother why he drank so heavily, and he claims the applicant said “because of the pain in my back”.. He continues to drink heavily, although Brett says the applicant is attempting to master his problem.
34. Dr Tucker noted there was no evidence of liver damage that would normally be associated with alcohol abuse on the scale described by the applicant. Dr Alcorn, who was called by the respondent, doubted whether the applicant suffered from major depression given the treatment regime. He said the applicant abused alcohol and that his misuse might mimic the symptoms of major depression. Psychiatric conditions and alcohol abuse can both cause mood disturbance. He added the liver tests do not always confirm alcohol abuse: he said he was satisfied from other tests he carried out that the applicant was abusing alcohol increasingly after he left the army during the 1990s, but saw no evidence of it occurring before that time. He noted in particular that Mr Catton was apparently functioning normally when he was in the army, which would be unusual for an alcohol abuser.
35. Dr Alcorn also disagreed with Dr Tucker’s conclusion that Mr Catton was permanently incapacitated by his mental state. Dr Alcorn conceded that major depression could permanently incapacitate in some cases, but he said one would only reach that conclusion after the full range of accepted treatment strategies had been tried, and that has not occurred here.
The Relevant Law
36. The applicant is seeking to demonstrate he has been permanently incapacitated as a result of events occurring during his army service.
37. The applicant’s back condition must be considered under the provisions of the Compensation (Commonwealth Government Employees) Act 1971.
38. Mr Harding argued the applicant was incapacitated. He said it was enough for the purposes of the legislation if I were satisfied that the injuries sustained in the army at least contributed to the applicant’s incapacity. Mr Harding argued the applicant’s injury in 1986 gave rise to a latent incapacity that did not manifest itself until sometime later, after other events had made their contribution. Mr Harding relied in particular on the decision in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
39. Mr Harding went onto say that if the link between the applicant’s injuries in the army and his chronic back-pain can be established, the link is necessarily established with his psychiatric condition and his alcohol abuse since they were triggered by the back condition. In the same way, the reflux was aggravated by the treatment he was taking for his back.
40. Mr Clark said the applicant was not incapacitated as a result of his injury. He said Treloar was only useful for the purposes of interpreting s 29(1) of the 1971 Act, which referred to employment being a “contributing factor…to the aggravation…” of the disease. Section 29(2), in contrast, which creates a liability to compensate for incapacity – the equivalent of s 19 of the Safety, Rehabilitation and Compensation Act 1988 – refers to incapacity that “results from” the disease or its aggravation. He relied on the decision of Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452. His Honour said the words “results from” are not terms of art. They had to be interpreted generously, as they are found in a compensation statute, but not so widely as to “stretch unreasonably the burdens placed on employers and their insurers” (at 461). In those circumstances, it was necessary to make “a common sense evaluation of the causal chain” in order to decide whether the incapacity results from or is caused by the injury in question (at 463-464).
41. I agree with Mr Clark. Does the applicant’s incapacity – such as it is – result from the injuries he sustained during his army service? I think not. I prefer the evidence of Professor McPhee who says the applicant is suffering from a degenerative condition that would probably produce the symptoms he is suffering from now regardless of the injuries he sustained during his army service.
42. Professor McPhee conceded the injuries might have made - at most - a minor contribution to the development of the condition that was in fact the product of a variety of factors that were present in any event. But that is not the test. As the Full Federal Court explained in Ilsley v Wattyl Australia Pty Ltd (1997) 144 ALR 510, the language of the statute requires that one examine the facts and determine whether, as a matter of fact, the incapacity results from the injuries in question. I do not accept that a minor aggravation that is probably temporary in nature could be said to result in the incapacity claimed here. To adopt the approach of Kirby P in Kooragang, that would impose an unreasonable burden on the employer and its insurers.
43. In those circumstances, the respondent’s decision to deny compensation for incapacity arising out of the back condition must be affirmed. That leaves the decisions to deny liability for depression and alcohol abuse and dependence and for reflux.
44. Comcare’s liability for these injuries is covered under the Safety, Rehabilitation and Compensation Act 1988.. Part II of the Act imposes liability for injuries to employees that result in death, incapacity for work or impairment. I am satisfied that his back-pain contributes to his psychiatric condition and his alcohol abuse, although even Dr Tucker indicated the applicant was a sad person with a negative outlook on life. In other words, his condition is at least partly – perhaps largely - attributable to constitutional factors. The reflux condition is also aggravated to some extent by the medication Mr Catton takes for his back. But is the back condition related to his service?
45. I have already concluded that his incapacity does not result from the injuries he sustained while in the army. His ongoing back-pain results from other factors, especially constitutional ones. It follows the injuries in the army have not resulted in incapacity or impairment in the form of the psychiatric condition, the alcohol abuse or the reflux condition. There is no causal link between the incidents in the army and the subsequent conditions.
Conclusion
46. The decisions under review are affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Senior Member
Signed: Sarah Oliver
AssociateDates of Hearing 2, 3, 4 June 2003
Date of Decision 9 December 2003Counsel for the Applicant Mr Harding
Solicitor for the Applicant Gilshenan & Luton
Counsel for the Respondent Mr Clark
Solicitor for the Respondent Dibbs Barker Gosling
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