DARYL HANNAN and JOHN HOLLAND GROUP PTY LTD - [2009] AATA 923

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 923
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3132

GENERAL ADMINISTRATIVE DIVISION )

Re DARYL HANNAN

Applicant

And

JOHN HOLLAND GROUP PTY LTD

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date30 November 2009
PlaceBrisbane (heard in Mackay)

Decision
The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable to pay compensation to the applicant in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the injury described as cervical disc prolapse.

...............Signed..................
Deputy President

CATCHWORDS
WORKERS’ COMPENSATION – injury – in the course of employment – worker’s evidence accepted generally – decision under review set aside – substitute decision that respondent is liable to pay compensation for the injury described as cervical disc prolapse.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 108A
Australian Postal Corporation v Burch (1998) 85 FCR 264
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
REASONS FOR DECISION

30 November 2009 Deputy President P E Hack SC

Introduction

The applicant, Mr Daryl Hannan, was employed by the respondent, John Holland Group Pty Ltd, on a construction project at Dalrymple Bay near Mackay. On 16 January 2009, in the course of that employment, Mr Hannan fell whilst attempting to climb over a steel beam called an I-beam.
Mr Hannan says that he injured his cervical spine in the fall and sought compensation for that injury. John Holland rejected Mr Hannan’s claim on the basis that the fall had aggravated a pre-existing degenerative disease of his cervical spine and that his employment had not contributed, “to a significant degree”, to that aggravation.
Mr Hannan seeks a review of the decision to reject his claim.
Legislative framework
John Holland is a corporation that is licensed under Part VIII of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and thus is a “licensee” as that term is used in that Act. By a combination of ss 14 and 108A of the SRC Act John Holland is liable to pay compensation, in accordance with the SRC Act, in respect of an injury suffered by an employee, if the injury results in death, incapacity or impairment. It is accepted that Mr Hannan was an employee.
So far as is presently relevant the term “injury” is defined in s 5A of the SRC Act in this way:
“(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
…”
There are exclusionary provisions but they are not relevant here. Thus in the case of an injury, as distinct from a disease, the injury, or an aggravation of it, must be one arising out of, or in the course of, the employee’s employment. Section 6 of the SRC Act sets out, in a non-exhaustive way, circumstances that may be treated as having arisen out of, or in the course of, employment. It will suffice to notice s 6(1)(b) which refers to an injury sustained “while the employee was at the employee’s place of work…for the purposes of that employment.”
Disease is defined in s 5B of the SRC Act as follows:
“(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.”
Thus, in the case of a disease, there must be a contribution, to a significant degree, by the employment. Ailment is defined in s 4 of the SRC Act as meaning:
“any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
Factual background
Mr Hannan was employed by John Holland as a storeman and forklift operator. It is material to observe that Mr Hannan is a large man. He is 189cm tall and weighs 139kg. He said that around noon or thereabouts on the day of his fall he was attempting to climb over a 10 metre I-beam which 700mm high and 300mm wide. It was part of a wall frame being constructed. It was supported at both ends and was some 1.3 metres off the ground. The area where Mr Hannan was working was enclosed by beams and there was insufficient room for Mr Hannan to go underneath the I-beam. He had to climb over it. The ground underneath was wet and muddy from recent heavy rains. Mr Hannan clambered onto the top of the I-beam using a “podgy bar”, a steel rod 450mm in length, placed vertically, for leverage to enable him to get to the top of the beam. He positioned himself so that he was sitting on the beam with both feet on the lower ledge of the I-beam. He was holding the podgy bar for balance and stability. He attempted to gradually lower himself in such a way that he did not fall into the mud but as he did so he lost his balance and fell. Because he had hold of the podgy bar he did not fall to the ground but rather pivoted such that his body was swung into the side of the I-beam. He described putting his right arm up and across his chest with the result that he took the force of the contact with the side of the beam across his arm and chest.
Mr Hannan says that he immediately felt pain to his right side, in his chest region and in his neck region. There is dispute, dealt with below, about his complaint of neck pain. Another worker, Mr Majid, who was about 50 metres away heard him cry out and came to Mr Hannan’s assistance. Mr Hannan was “clearly in distress” he said[1] and was holding his rib cage area on the right side.
[1] Mr Majid’s statement was contained in the s 37 documents. He was not required for cross-examination.
Mr Hannan continued to work that day, which was a Friday. He came to work the following day and again on Monday doing similar work. On Tuesday 20 January 2009 Mr Hannan was involved in sustained and heavy lifting. He found that that aggravated the pain in his right arm such that he was unable to use that arm.
On the following day, Wednesday, Mr Hannan reported the incident to the safety officer, Mr Jurd, and went with Mr Jurd to a medical practitioner at Sarina. This doctor was one for whom English was a second language and Mr Hannan reported having considerable difficulty in understanding what was being said to him and in making himself understood by the doctor. There is some corroboration of such difficulties in the clinical notes of that doctor which record that the incident occurred the preceding day rather than, as seems to be accepted, one week earlier. In any event that doctor diagnosed “musculoskeletal pain [right] chest” and suggested that Mr Hannan perform modified duties for the following week.
Mr Hannan lodged a claim for compensation after the visit to the doctor at Sarina. The claim is dated 21 January 2009. The diagnosed condition for which the claim was lodged was described as “musculo-skeletal pain [right] chest” and the right chest was said to be the part of the body affected. On 23 January 2009 John Holland accepted liability to pay compensation for a condition described as “musculo-skeletal right side chest pain”.
Mr Hannan continued to experience pain. He eventually saw his local medical practitioner, Dr Chris Anderson, on 28 January 2009, some 12 days after the fall. He was complaining of numbness down his left[2] arm with numbness of his fingers. Dr Anderson reported that on examination,
“he was very tender in the right chest wall. He had restricted movements of the cervical spine with loss of extension, loss of rotation to the right or left and loss of lateral flexion to the right and left.”
Mr Hannan was sent for MRI scan and x-ray. Dr Anderson reported those results in these terms:
“The xray revealed a fractured right 2^nd rib. An MRI showed an oesteophyte/disc complex with disc protrusion at C6/7 level extending into the intervertebral foramen at C7 causing foraminal stenosis and probable mass effect on the existing left C7 nerve root.”
[2] The report by Dr Anderson, Exhibit 3, refers to the right arm however this appears to be an error.
Mr Hannan was subsequently seen by Dr Peter Steadman, an orthopaedic surgeon, on 11 March 2009. Dr Steadman described his cervical condition as “an aggravation of cervical degenerative disease irritating his left C7 nerve.”
At some stage the solicitors acting for Mr Hannan asked John Holland to extend the earlier acceptance of liability to include “cervical disc prolapse”. No point is made about the apparent informality of the claim for acceptance of that liability however by letter dated 12 March 2009 John Holland determined that it was not liable to pay Mr Hannan compensation in respect of that condition. That decision was affirmed on re-consideration on 7 May 2009.
The parties’ contentions
Ms Heyworth-Smith, counsel for Mr Hannan, put his case on the basis that he suffered an injury, properly so-called, when he fell on 16 January 2009. That injury was a cervical disc prolapse.
For John Holland, Mr Clark of counsel contended that I could not be satisfied that the incident on 16 January 2009 caused any harm to Mr Hannan’s cervical spine. That was so, he submitted, because there was no contemporaneous complaint by Mr Hannan of pain in the cervical spine region. In the alternative, it was contended that Mr Hannan’s condition was not an injury properly so-called but amounted to an aggravation of a disease, and that the aggravation had not been contributed to, to a significant degree, by his employment.
The issues
Given the way in which the parties have put their cases the issues that fall to be determined seem to me to be as follows:
(1)is Mr Hannan’s condition an injury or a disease;
(2)if an injury, did the injury arise out of, or in the course of, Mr Hannan’s employment with John Holland;
(3)if a disease, was the disease an ailment that was contributed to, to a significant degree, by Mr Hannan’s employment with John Holland.
An injury or a disease?
The expression “injury” when used within s 5A(1)(b) of the SRC Act is not defined beyond the requirement that it be “a physical or mental injury”. It is thus to be understood according to its ordinary concepts. There is considerable learning on the distinction between an injury, properly so called, and a disease for the purposes of the SRC Act and similar statutes in other jurisdictions. A useful starting point is the decision of the High Court in Zickar v MGH Plastic Industries Pty Ltd[3] where the majority said this:
“In Accident Compensation Commission v McIntosh … the Appeal Division of the Supreme Court of Victoria held that it was open to the Accident Compensation Tribunal to find that the sudden rupture of blood vessels and consequent cerebral haemorrhage, arising from an arteriovenous malformation, was a ‘physical injury’ under the relevant Victorian statute. Murphy J, with whom Crockett and Cummins JJ agreed, pointed out that there was general agreement that if some external agency precipitates a rupture, it is a physical injury. But, as his Honour observed:
‘If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture -- something quite distinct from the defect, disorder or morbid condition, which enables it to occur.’
We respectfully agree with this observation and, in our view, nothing in Hockey v Yelland or in any other decision of this Court precludes its acceptance.”
[3] (1996) 187 CLR 310, 335-6
The distinction between injury and disease in the SRC Act[4] was the subject of the decision of the Full Court in Australian Postal Corporation v Burch[5] where the Court said:
[4] The statutory definition has since altered but not in any way that in presently relevant. What was s 4(1) is now s 5A(1).
[5] (1998) 85 FCR 264, 268-9
“The matter can be approached in this way. In lay terms injury and disease are different concepts, notwithstanding that there may be some instances where the appropriate categorisation is problematic. But one would unhesitatingly speak of cancer or influenza as a disease and a broken leg or concussion as an injury.
Since both injury and disease are misfortunes which may have a relationship to employment, workers' compensation legislation has long provided for compensation in each case. But the necessary relationship to employment may be, generally speaking, less readily susceptible to proof of work connection for disease than injury.
The policy manifest in the drafting of the Act is to require a higher level of work connection in the case of disease. In the case of disease there has to be a contribution in a material degree by the employment. In the case of injury, it is sufficient to show that the injury arose out of or in the course of the employment -- there need not be a causal connection.
…
The definition of ‘injury’ in s 4(1) is consistent with this analysis, although some confusion is caused because the alternative meanings of ‘injury’ are set out in a somewhat illogical sequence. It would make more sense if the first possible meaning of ‘injury’ was injury (in the ordinary sense) arising out of or in the course of employment. If an employee satisfied this lower test of work connection there would be no need to go any further. However, it is we think reasonably clear that the expression ‘(other than a disease)’ is inserted to make it clear that par (b) of the definition, which requires only the lower level of work connection, is referring to something different from disease (in the statutory sense) referred to in par (a) which requires the higher level of work connection (contribution to a material degree).
As to the second argument, counsel for the appellant accepted that an injury in the ordinary sense did not necessarily require something external to the body. Such a concession was obviously correct. In Kavanagh v Commonwealth (1960) 103 CLR 547 at 553 Dixon CJ said a rupture of the gullet was an ‘injury by accident’. Such an episode was
‘ ... a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection’.
However the appellant's counsel in the present case argued that there could not be an injury in this sense without some ‘rupture’ or ‘breaking’ of some tissue. Here, counsel said, there was merely an occlusion, that is to say a blocking.
However the fact that cases such Kavanagh have accepted that an incident involving an internal rupture or breaking was an injury does not mean that, as a matter of law, rupture or breaking is an essential prerequisite to a finding of injury (in the ordinary sense) of an internal nature.”
In the present case there is unanimity in the medical evidence that Mr Hannan has suffered from a disc prolapse. And both Dr Scott Campbell, a neurosurgeon called by Mr Hannan, and Dr Peter Steadman, an orthopaedic surgeon called by John Holland, agreed that the mechanism of a disc prolapse, expressing the matter in lay terms, involves the application of pressure on the spine such that the inner soft core of the disc was forced through a tear or crack in the outer gristle of the disc causing compression on the adjacent nerves with resulting pain, numbness and weakness.
There is, as well, agreement that Mr Hannan suffered from a pre-existing condition of degenerative disc disease. Without more, that condition would be aptly described as a disease but here there was something more. On the account given by Mr Hannan there was external pressure which, on the medical evidence, precipitated the disc prolapse. I should also say that Dr Steadman’s report suggested that Mr Hannan’s condition was a disease and that employment had not made a “significant contribution” to the disease. The first conclusion was informed by a particular perception of the mechanism of Mr Hannan’s fall. He accepted, as I understood him, that if the mechanism was as Mr Hannan described in his evidence then there likely to have been a disc prolapse caused by the fall. That concession renders Dr Steadman’s second conclusion otiose however I observe in passing that I would not have placed any reliance upon that conclusion. Dr Steadman appears, with respect, to have gone well past the province of medicine and offered a view on what is a matter of law.
It follows that, in my view, the disc prolapse suffered by Mr Hannan was a s 5A(1)(b) injury provided it arose out of, or in the course of, his employment. It is that question to which I now turn.
Out of, or in the course of, employment
If I were to accept Mr Hannan’s account of the fall and its aftermath as being accurate there is no doubt that the disc prolapse arose out of, or in the course of, his employment with John Holland. But, Mr Clark submitted, the absence of contemporaneous complaint meant that I ought not be satisfied that Mr Hannan suffered a disc prolapse in the fall on 16 January 2009. Mr Clark relied, in particular, upon,
·the absence of immediate complaint to Mr Majid about his neck;
·the absence of any recorded complaint to Dr Pandit (Sarina Medical Centre) on 21 January 2009;
·the absence of any reference in the claim made on 21 January 2009 to neck pain;
·the absence of any recorded complaint of pain to Dr Anderson on 28 January 2009.
There is some force in the argument but ultimately I am satisfied that I am able to rely generally on Mr Hannan’s account of events.
I start by observing that Mr Hannan is not particularly articulate. He left school after Grade 10 and appears to have pursued jobs involving manual labour for all of his working life. I intend no disrespect to him by saying that he struck me as somewhat obtuse. Moreover, as he said, the particular project was coming to an end and he wanted to continue his employment with John Holland’s next project. It was not in his interests to complain too greatly about neck pain as that might, at least as he saw it, make him less likely to be offered employment in the next project.
Next, it is the case, confirmed by the MR scan on 2 February 2009, that Mr Hannan has suffered a left C6/7 disc protrusion. Dr Steadman was unable to review the scan however Dr Campbell, who could, described it as showing “a significant C6/7 disc protrusion to the left and right”. There was no evidence, nor was it suggested to Mr Hannan, that any other event had occurred that might have caused that disc protrusion.
I do, however, proceed on the basis that Mr Hannan did not complain to Mr Majid of neck pain immediately after the fall. To that extent I do not accept Mr Hannan’s evidence and consider that that part of his evidence is affected by understandable reconstruction after the event. However I accept that the fall occurred in the manner described by Mr Hannan. That involved the upper part of his body impacting a steel beam with sufficient force to fracture a rib. It would be natural for Mr Hannan to be more focussed, at that time, on the area of immediate impact and to complain to Mr Majid of pain in that area. The absence of a particularised complaint of neck pain is not surprising. I do, however, accept that Mr Hannan at least attempted to complain of neck pain to Dr Pandit. It seems plain that there were some difficulties in communication. That is evident from Dr Pandit’s record of the fall having occurred the previous day. I am satisfied by Mr Hannan’s evidence that he was, at that time, experiencing neck pain and that he complained of it to Dr Pandit.

John Holland’s reliance upon the contents of the claim form needs to be considered in the context in which the question was being answered. Mr Hannan had seen Dr Pandit who had provided him with a medical certificate giving a diagnosis of “musculo skeletal pain R chest”. Those were the words written by Mr Hannan on the claim form in answer to this question:
“What injury/illness are you claiming for?
Please provide the diagnosis from your Doctor not the symptom. For example, a diagnosis is disc prolapse, strained cruciate ligament; the following are not a diagnosis: sore knee, back pain.”
In circumstances where Mr Hannan was explicitly told that it was the doctor’s diagnosis and not the symptoms it seems decidedly odd for John Holland to criticize him for not making reference to neck pain in his claim.
It is true that Dr Anderson’s report makes no explicit reference to neck pain. But, as appears from the extract from his report set out above, Dr Anderson detected restricted movements in the cervical spine, caused, no doubt, because of the onset of pain with extension, rotation and flexion to the extent noted by Dr Anderson.
The matters relied upon by John Holland do not, either individually or collectively, cause me to doubt the general reliability of the account of events given by Mr Hannan. I accept that the fall occurred in the manner described by him. The consequence is that I am satisfied that Mr Hannan suffered a physical injury in the course of his employment with John Holland.
Contribution to a significant degree
In light of my earlier conclusions it is not strictly necessary to determine the final issue. I would, however, note that had I concluded that Mr Hannan’s condition was a disease then I would have been equally satisfied that his employment had contributed to it to a significant degree. That is so regardless of whether the disc prolapse was regarded as the disease or an aggravation of an underlying disc disease.
Conclusion
It follows that I would set aside the decision under review and substitute a decision that John Holland is liable to pay compensation to Mr Hannan in accordance with the SRC Act for the injury described as cervical disc prolapse.
At the request of the parties I invite submissions on costs. They should liaise with my Associate to determine whether that can be done most conveniently in writing or by a short telephone hearing.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         ................Signed...…............................................
  Associate
Dates of Hearing  16 – 17 November 2009
Date of Decision  30 November 2009
Counsel for the Applicant         Ms C Heyward-Smith
Solicitors for the Applicant        Macrossan & Amiet
Counsel for the Respondent     Mr CJ Clark
Solicitor for the Respondent     Sparke Helmore

30 November 2009	Deputy President P E Hack SC
Introduction