Coulter and Comcare
[2005] AATA 874
•8 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 874
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/340
) A2005/117
GENERAL ADMINISTRATIVE DIVISION ) Re ARCHIBALD LAURENCE COULTER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr J.W. Constance, Senior Member Date8 September 2005
PlaceCanberra
Decision 1. In matter A2005/117 the decision under review is set aside and in substitution it is decided that the determination of Comcare made 18 July 2002, which accepted liability for divarication of the recti, is affirmed.
2. In matter A2004/340 the decision under review, which disallowed Mr Coulter’s claim for compensation for permanent impairment and non-economic loss, is affirmed.
3. The parties have liberty to apply for orders as to costs.
..............................................
CATCHWORDS
COMPENSATION – 2 decisions – whether injury of divarication of the recti is compensable and whether the injury has resulted in compensable permanent impairment – whether divarication materially contributed to by lifting boxes at work – whether pain is related to divarication – Tribunal not satisfied injury was materially contributed by employment – nature of decision under review affects Tribunal approach – Tribunal not satisfied pain caused by divarication – no Comcare or AMA tables relate to injury – Respondent’s decision on reconsideration that disallowed liability for injury is set aside and original determination affirmed – Respondent’s decision that it is not liable for permanent impairment is affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 4, 14, 24
Comcare v Nicholls [1999] FCA 209
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Pavic and Comcare (1996) 45 ALD 409
Re Halliday and Comcare (1994) AAR 431
REASONS FOR DECISION
8 September 2005 Mr J.W. Constance, Senior Member 1. In October 2004 Mr Coulter applied to the Tribunal for a review of a decision of Comcare disallowing his claim for permanent impairment and non-economic loss arising from an injury which occurred on 26 March 2002 (A2004/340). Comcare had accepted liability for the injury by a determination made 18 July 2002.
2. On 27 April 2005 Comcare reconsidered the original determination of 18 July 2002 and decided that the determination accepting liability should be revoked. This decision was made after an evaluation of all available evidence including evidence not available when the original determination accepting liability was made.
3. In addition to the application to review the refusal of the claim for permanent impairment and non-economic loss Mr Coulter also has before the Tribunal an application to review the decision of 27 April 2005 revoking the original acceptance of liability (A2005/117).
4. For the reasons set out I have decided that the decision made on the reconsideration should be set aside and the original decision accepting liability be affirmed. I have decided that the decision disallowing the claim for permanent impairment and non-economic loss should be affirmed.
FACTS
5. Unless otherwise stated the following findings of fact are based on the evidence of Mr Coulter. I am satisfied of these facts on the balance of probabilities.
6. Mr Coulter is 58 years of age. In 2002 he was employed by the Department of Communications, Information Technology and the Arts.
7. For approximately 2-3 months prior to 27 March 2002 Mr Coulter was engaged in preparing files for storage, placing the files in storage boxes and stacking the boxes of files in readiness for others to remove from the premises. The boxes were cardboard archive boxes measuring approximately 38 x 30 x 26 cm of the type commonly used for document storage.[1] Once filled they were of varying weights, some of which exceeded 20kg. On 26 March 2002 Mr Coulter was engaged in stacking the boxes, some up to his shoulder height. Some boxes were stacked on the floor, others on tables. At work that day Mr Coulter experienced pain in the area of his chest which he attributed to muscle strain. After finishing work Mr Coulter felt soreness around his chest and shoulders, which he described as being “just like an overworked muscle.”
[1] Exhibit R1.
8. The following morning, whilst Mr Coulter was engaged in his usual exercise routine of sit-ups, he noticed a swelling “half the size of a tennis ball” in the middle of his upper abdomen. At this time he did not experience pain in the area of the swelling. That same day Mr Coulter attended his General Practitioner, Dr Chan, who diagnosed “a small divarication of the recti in the midline of the epigastrum. There was no abdominal or inguinal hernia.”[2] Dr Chan gave evidence and confirmed this diagnosis.
[2] Exhibit A1, report 8/6/05.
9. Initially the swelling remained static but from about 6 months after it first appeared it has gradually increased in size. The increase has been mainly in the length of the swelling. As the swelling became bigger Mr Coulter began to experience pain in the area of his lower chest/upper abdomen. This pain started as “a bit of an ache” but Mr Coulter began to experience a sharp pain if he twisted his torso. This situation is ongoing and he presently experiences pain at least once per day. The pain ceases if he stops the twisting movement but there is an ache or dull pain which is present most of the time. Mr Coulter takes 2-3 panadol tablets per day.
10. Mr Coulter has been an active sportsman for many years and has engaged in an active fitness program. He continues to play golf, to swim, to ride his bike and to undertake his fitness programme. As a result of his condition he no longer plays tennis or football and avoids heavy lifting and twisting as much as possible. He is not restricted in his self-care.
11. Mrs Christine Coulter, Mr Coulter’s wife, gave evidence. She confirmed the appearance of the swelling on 27 March 2002 and the evidence given by Mr Coulter as to the changes in his lifestyle and the apparent discomfort suffered by him since the swelling appeared.
12. Both Mr and Mrs Coulter impressed me as honest and reliable witnesses who were not exaggerating and I accept their evidence.
MEDICAL EVIDENCE
13. Dr Chan gave evidence and confirmed his views set out in his report of 8 June 2005.[3] Dr Chan reported that “Mr Coulter has had recurrent epigastric and lower chest pain after heavy lifting and twisting the body……His pain is directly related to the divarication of recti and is directly related to the accident at work on 26 March 2002.” In giving evidence Dr Chan agreed that the condition is commonly a result of degeneration rather than trauma. He said that the pain experienced by Mr Coulter was probably caused by tissue being trapped in the area of the swelling.
[3] Exhibit A1.
14. Dr Chan was of the view that the only tables in the Comcare and American Medical Association (AMA) Guides which are applicable are those relating to herniation, although he agreed that the injury suffered by Mr Coulter was not a hernia.
15. On 7 July 2005 Mr Coulter was assessed by Dr Griffith, Consultant Surgeon, at the request of Mr Coulter’s solicitors. Dr Griffith gave evidence and confirmed the contents of his report of 8 July 2005.[4] He reported “a fusiform divarication of the recti, approximately 15 x 5cm extending to the level of the umbilicus currently.” Dr Griffith is of the opinion that a divarication usually gradually becomes larger.
[4] Exhibit A2.
16. Dr Griffith described the condition as a stretching of the linea alba, a tendon structure which joins the 2 rectus abdominal muscles. Intra-abdominal pressure then pushes the tendon outwards. The protrusion is not a hernia as no part of the abdomen is protruding and there is no separation of the linea alba and the rectis muscles.
17. On the question of the relationship between the divarication and Mr Coulter’s employment Dr Griffith said that:
“It would appear, on a temporal basis, there is a causal relationship between the activities performed in the workplace and the onset of the condition and its continuance”[5].
[5] Exhibit A2.
In giving evidence Dr Griffith expressed the opinion that the work Mr Coulter had been doing prior to 26 March 2002, which involved stooping and lifting, together with the timing of the appearance of the swelling made it more likely than not that the condition was work-related. He agreed that the condition may have been developing slowly and was made symptomatic by the stooping and lifting.
18. Dr Griffith is of the opinion that the divarication of the recti is not the cause of the pain described by Mr Coulter. At his request an ultrasound of the anterior of Mr Coulter’s abdominal wall was conducted. This indicated nothing to explain the pain being suffered. Dr Griffith is of the opinion that this pain may be referred pain from the thoracic spine, unrelated to the divarication, and suggested radiology to determine if there is any pathology present in this area. At the time of the hearing this radiology had not been carried out.
19. In his report of 8 July 2005[6] Dr Griffith indicated that treatment of the condition is not usually necessary. On the question of the degree of employment he assessed this at 10% under the American Medical Association Table relating solely to herniation.[7]
[6] Exhibit A2.
[7] AMA Guide 6.6a Criteria for Evaluating Permanent Impairment due to Herniation.
20. Mr Coulter was examined by Dr Sharp, Consultant Surgeon, at the request of Comcare. The assessment took place on 26 February 2004. In his report[8] Dr Sharp expressed the opinion that the divarication of the recti “conceivably could have been aggravated by the lifting he had done of 100 boxes of files the previous day.” In a later report[9] he said that “[o]n the balance of probabilities, as opposed to possibilities, the diagnosed condition has not been caused, contributed or aggravated by the Applicant’s Commonwealth employment.”
[8] Exhibit R2.
[9] 20 April 2005, exhibit R6.
21. Dr Sharp gave evidence and confirmed the above opinions. He explained that by “conceivably” he meant “less than likely, a small chance.” He also said that in his the view it was most unlikely that the divarication was the cause of any pain and that the condition did not normally require treatment.
22. In a report of 9 March 2005[10] Dr Sharp said that the divarication was not a true hernia as it did not involve the protrusion of the abdominal viscera. He provided references in support of this view. In giving evidence he said that as the divarication was not a hernia there was nothing in either the Comcare Guide or the AMA Guides which permitted an assessment of a degree of impairment.
[10] Exhibit R5.
FINDINGS AS TO THE MEDICAL CONDITION
23. I am satisfied that Mr Coulter suffers from a divarication of the recti which first became symptomatic on 27 March 2002.
24. Whilst I accept Mr Coulter suffers the pain he describes I am not satisfied that Mr Coulter suffers any pain as a result of this condition. I note that Mr Coulter did not begin to experience pain until about 6 months after he noticed the swelling. I prefer the views of Dr Griffith and Dr Sharp to that of Dr Chan. Dr Griffith and Dr Sharp have specialist qualifications and have provided more detailed and considered reports and evidence than did Dr Chan. In addition Dr Chan did not appear to have the degree of understanding of the true nature of diversification of the recti as was shown by the specialists.
STATUTORY FRAMEWORK
25. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
26. The following definitions appear in section 4:
“injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment”
“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
27. Section 24 of the Act provides for the payment of compensation if an injury results in a permanent impairment. Impairment means:
“….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”[11].
[11] Section 4.
Sub-section 24(2) sets out matters to which regard shall be had in determining whether an impairment is permanent.
28. If an impairment is determined to be permanent its degree shall be expressed as a percentage: sub-section 24(6). The percentage is determined by applying the Tables set out in the approved Guide (sub-section 24(5)) and compensation is not payable if the degree of permanent impairment is less than 10%: sub-section 24(7).
THE ISSUES
29. The issues I have to decide are:
(1) has Mr Coulter suffered an injury within the meaning of sub‑section 14(1) the Act;
(2) if so, has that injury resulted in a permanent impairment within the meaning of section 24 of the Act;
(3) if there is a permanent impairment, what is the degree of that impairment?
REASONING
Has Mr Coulter suffered an injury within the meaning of sub-section 14(1) of the Act?
30. Whilst I am satisfied that Mr Coulter has suffered a stretching of the linea alba (divarication of the recti) I am not satisfied that this condition arose out of his employment. For the reasons already stated I prefer the view of Dr Sharp to that of Dr Chan. The evidence of Dr Sharp that the condition was only possibly caused by the work with the boxes is to be considered along with the evidence of Dr Griffith that on a temporal basis there was a causal relationship. In cross‑examination Dr Griffith agreed that divarication of the recti is usually of gradual onset and that exercising doing sit-ups “significantly increases abdominal pressure.”
31. In my view the temporal relationship between the work with the boxes and the onset of the symptoms of the divarication is of only limited assistance in deciding whether the condition arose out of Mr Coulter’s employment. This is particularly so as Mr Coulter had been doing sit-ups for a long time and this is an activity which increases abdominal pressure. In view of the conflicting views of the 2 specialists I cannot reach the degree of satisfaction necessary to find either that the condition did, or that it did not, arise out of the employment.
32. This means that it is necessary to look carefully at the decision which is the subject of review. Woodward J in the Federal Court put it this way:
“If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work.” [12]
[12] McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356, quoted and applied by Heerey J in Comcare v Nichols [1999] FCA 209 at para 18.
33. The decision under review in A2005/117 is a decision made pursuant to sub‑section 62(1) which provides that a determining authority (in this case Comcare) may “reconsider a determination made by it”. Acting under this power the delegate of Comcare decided that “after having evaluated all the evidence I consider that the determination of 18 July 2002 can no longer be sustained.”[13] This is one of the decisions I am reviewing and in so doing I have to stand in place of the decision maker and make the correct and preferable decision.
[13] Section 37 document T41 in matter A2005/217.
34. On first reading it may appear that, in the terms of what was said in McDonald v Director-General of Social Security and Comcare v Nichols, that the decision I have to make is a decision, to be made in the light of fresh evidence, whether or not liability should ever have been accepted. However looking carefully at the decision to be reviewed I am of the view that I am required to make a decision, to be made in the light of fresh evidence, whether or not an earlier decision should be changed.
35. This interpretation is consistent with the Oxford English Dictionary Online definition of “reconsideration” :
“to consider (a decision, etc.) a second time, with a view to changing or amending it if now disapproved of”.
It also appears to be a fair interpretation of the rights of the injured employee. If the reconsideration of a decision, which can be undertaken by a determining authority of its own motion at any time, involved the decision maker being required to be satisfied each time that the original decision should have been made in the first place, it would place the employee in the situation of having to ensure that there was evidence available each time to show that the decision was correct.
36. On the basis that the question I have to decide is whether the original decision accepting liability should be changed, I have decided that it should not. This follows from the fact that on the evidence now available (which includes the new evidence) I am not able to be satisfied either that the injury did, or that it did not, arise out of Mr Coulter’s employment.
Has the injury resulted in a permanent impairment within the meaning of section 24 of the Act?
37. In Re Halliday and Comcare (1994) AAR 431 at 441 the Tribunal considered the definition of “impairment” :
“[t]here does not appear to be any significant discrepancy between the
various dictionaries as to the meanings of the words "damage" and
"malfunction". In the context of the definition of "impairment" in which
those words are used and in the context of the whole Act, there seems to be no reason why we should not adopt the ordinary meaning of those words.
Consequently, there will be an impairment of a part of the body or a bodily
system or function if it has been damaged in the sense that its usefulness or
value has been diminished or if it malfunctions in the sense that it fails to
perform normally or properly. We do not consider that we should "read down"
the definition of an impairment so that it refers only to those limitations
set out in the Guide.”
38. I am satisfied that the divarication of the recti to the extent that a lump is formed is a malfunction of the linea alba in that it has failed to retain abdominal pressure in the manner it had previously. To this extent it has failed to perform properly and is therefore an impairment as defined.
39. I am also satisfied that the impairment is permanent having regard to the factors set out in sub-section 24(2). On the basis of the evidence of Dr Griffith and Dr Sharp I am satisfied that the condition is likely to remain with Mr Coulter for the rest of his life and will not improve. I am also satisfied on the same basis that there is no reasonable rehabilitative treatment which Mr Coulter should undertake, even though there is some surgical repair available. As this surgery would not benefit Mr Coulter greatly in my opinion it is reasonable for him to choose not to undergo that surgery.
What is the degree of impairment?
40. In considering the degree of impairment it is necessary to recall that the injury I have determined to have occurred is the divarication of the recti without being satisfied that the injury is the cause of the pain which Mr Coulter suffers. I have also decided that the injury is not a hernia.
41. Counsel for Mr Coulter has reminded me that the compensation legislation is beneficial legislation and that it should be interpreted with this purpose in mind. I agree, but this does not mean that the plain meaning of the words used should be ignored.
42. Neither Table 8.1 nor 8.3 relate to the condition. Counsel for Mr Coulter has argued that Table 13.1 applies but I do not agree. Table 13.1 is headed “Intermittent Disorders” and is noted as being for use in the assessment of “disorders of the Haemopoetic (sic) System” and intermittent disorders. Clearly divarication of the recti is not a disorder of the Haematopoietic system and it is certainly not intermittent in any sense. In fact, it is quite the opposite in that it is present all the time and is extremely unlikely to improve.
43. As there is no other Table in the Guide which is applicable it is necessary to consider whether an assessment can be made under the current American Medical Association’s Guides.[14] In Re Pavic and Comcare (1996) 45 ALD 409 the Tribunal was faced with the situation, as here, of the Comcare Guide not providing a means of assessing the degree of impairment. The Tribunal held that while the AMA Guides were not to be resorted to as a matter of course the discretion may be used in appropriate circumstances. The Tribunal rejected the argument of Comcare that because the applicant could not bring himself within one of the categories in the Comcare Guide then his condition was not compensable. I agree with the approach adopted previously adopted by the Tribunal.
[14] See p.5 of the Comcare Guide.
44. The result in the Pavic case was that the matter was remitted to Comcare with a direction that the applicant’s degree of permanent impairment was to be assessed using the AMA Guide. The parties appeared to have agreed that assessment was possible under the AMA Guides.
45. The difficulty which arises for Mr Coulter is that on careful consideration of the American Medical Association Guide to the Evaluation of Permanent Impairment there is no table which is applicable to his condition. Counsel for Mr Coulter was unable to refer me to such a table. Both Dr Griffith and Dr Sharp supported the view that neither Guide was applicable. Dr Chan agreed that there were no applicable tables other than those relating to hernia.
46. When one considers the various tables in the Comcare Guide it is apparent that the author of the Guide envisaged that there would be many impairments which would attract a zero degree of impairment or a degree of impairment which would not result in compensation being paid. Such impairments may nevertheless cause varying degrees of discomfort and/or inconvenience to the injured employee. Table 7.2 is an example of the former, Table 1.2 an example of the latter. The compensation scheme established by the Act is not a scheme which compensates all employees who suffer work-related injuries. In my view, even though an employee suffers an injury which results in a permanent impairment, unless the impairment can be assessed under one of the Guides there can be no degree of impairment assigned to it. There is no difference between an impairment which is referred to and given a zero rating and one which is not referred to at all. The Guides should not be applied in such a way as to do violence to the ordinary meaning of the English language in an effort to make the tables “fit” a particular fact situation. If in the future the situation arises in which a serious impairment is determined not to be within the Guides it will be a reason to amend the Comcare Guide, not a reason to place an unrealistic interpretation upon the existing provisions.
47. I can only conclude that Mr Coulter, although suffering a permanent impairment, has, when the Guides are applied, a degree of permanent impairment which is zero. In that circumstance an amount of compensation is not payable: sub‑section 24(7).
DECISION
48. In matter A2005/117 the decision under review is set aside and in substitution it is decided that the determination of Comcare made 18 July 2002, which accepted liability for divarication of the recti, is affirmed.
49. In matter A2004/340 the decision under review, which disallowed Mr Coulter’s claim for compensation for permanent impairment and non-economic loss, is affirmed.
50. The parties have liberty to apply for orders as to costs.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 20-21 July & 15 August 2005
Date of Decision 8 September 2005
Counsel for the Applicant Mr W. Sharwood
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Ms L. Walker
Solicitor for the Respondent Dibbs Abbott Stillman
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