Davidge and Comcare (Compensation)
[2016] AATA 225
•8 April 2016
Davidge and Comcare (Compensation) [2016] AATA 225 (8 April 2016)
Division
GENERAL DIVISION
File Number
2015/0032
Re
Phillip Davidge
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 8 April 2016 Place Sydney The decision under review is set aside and in its place the Tribunal decides that Comcare is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 to compensate Mr Davidge for his injury.
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Senior Member J F Toohey
CATCHWORDS
COMPENSATION – varicose veins – applicant worked as meat inspector – long hours standing – whether employment contributed to a significant degree – expert opinions – decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
Senior Member J F Toohey
8 April 2016
BACKGROUND
Mr Phillip Davidge obtained his meat inspector’s certificate shortly after leaving high school. He is now 55 years old. From August 1978 to April 2011, he worked full-time as a meat inspector for the Department of Agriculture. In April 2011, he transferred to the role of full-time food safety auditor and worked in that position until he retired from full-time work in November 2014. Since January 2015, he has worked as a casual meat inspector for the Department. He usually works five days a fortnight, with occasional overtime and weekend work.
In about 2009, Mr Davidge noticed a large varicose vein in the back of his upper right leg. His wife reminded him several times that he should have it looked at, but it was not until 2014 that it caused him any pain, and he did nothing about it. By late July 2014, the pain was enough for him to see his doctor who referred him to Dr Justin Jedynak, a vascular surgeon, who recommended surgery.
On 31 July 2014, Mr Davidge lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). On 13 October 2014, Comcare determined that it was not liable to compensate Mr Davidge because it was not satisfied that his employment contributed, to a significant degree, to his condition. By a reviewable decision dated 15 December 2014, Comcare affirmed its determination.
THE LEGISLATION
Comcare is liable to compensate an employee for an injury suffered by the employee if the injury results in death, incapacity for work or impairment: s 14 of the SRC Act.
Injury is defined in s 5A to include a disease suffered by an employee: s 5a(a).
By s 5B, disease is defined to include an ailment or an aggravation of that ailment “that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth”: s 5B(1). Ailment is defined in s 4. It is common ground that Mr Davidge has varicose veins and that they are ailment within the meaning of the SRC Act.
Significant degree in s 5B(1) means a degree that is substantially more than material: s 5B(3).
In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment, matters that may be taken into account include: the duration of the employment; the nature of, and particular tasks involved in, the employment; any predisposition of the employee to the ailment or aggravation; any activities of the employee not related to the employment; and any other matters affecting the employee's health: s 5B(2).
MR DAVIDGE’S EVIDENCE
When working as a full-time meat inspector, Mr Davidge normally worked eight to ten shifts, five days a week, for most of which he was standing on cold, wet concrete floors. Depending on whether they were beef or lamb, carcasses moved at different speeds along a production line. Every carcass, including offal, had to be individually inspected from a station point on the line at which Mr Davidge would stand with workers on either side of him; he did not move from his position and had no opportunity to stretch his legs.
Mr Davidge gave evidence that he had a half-hour break for lunch and, depending on the plant he was at, “smoko” breaks for five minutes every hour, or ten minutes every two hours. He rarely took a five-minute break because the amenities room was usually too far away to make it worth the trip; he sometimes took the ten-minute break, for example if it was a hot day.
When working as a food safety auditor, Mr Davidge would spend around three hours each day driving between plants where he would spend approximately two hours inspecting the boning room, the chillers and the carcasses, and completing associated paperwork. Most of his time was spent at two plants with stop-over visits to other sites.
Around 2009, Mr Davidge noticed an “inflamed vein” on his upper right leg. His wife said a number of times that he should have it looked at but it did not cause him any discomfort. Giving evidence, Mr Davidge said he understood he would have to be off work for three or four weeks if he had surgery and “people” told him he would only have to have it done again at some point. He let it go until around April 2014 when he noticed tightness in the back of his leg and then increasing pain. He now has stiffness when walking or standing for long periods. His right leg is stiff at the end of the day and sore for a few hours after work.
In August 2014, Dr Jedynak arranged for Mr Davidge to have a duplex scan. The report of the scan shows “Lateral thigh perforating vein incompetence in relation to thigh and calf varicosities”. On 9 September 2014, Dr Jedynak reported to Mr Davidge’s general practitioner that he was confident of a good result with surgery. Comcare has denied liability for this treatment.
Dr Jedynak’s reports
As well as his report dated 9 September 2014, reports from Dr Jedynak dated 18 August 2014 and 4 September 2014, and a consultation record dated 13 August 2014, are before the Tribunal.
In his report dated 4 September 2014, Dr Jedynak said “the vast majority” of varicose veins are “idiopathic” (sic) (by which I understand him to mean “of unknown cause”). He stated:
There is a clear genetic association. Association with certain occupations are anecdontal (sic) - particularly work associated prolonged standing (ie. hairdressing) or sitting (office environment). I am unaware of any association between varicose veins and ambulatory occupations. Secondary causes of varicose veins include Deep vein thrombosis and previous thrombophlebitis.
I am unable to confidently contribute (sic) Mr Davidge’s occupational tasks to development of his varicose veins. It is possible that these activities may have exacerbated an underlying predisposition to the development of venous disease, however I cannot quantify this with any reliable figure. I also cannot provide an opinion on any non-occupational activities that may have contributed to his presentation.
Mr White’s report
In September 2014, Mr Davidge saw Mr Roger White, consultant surgeon, for assessment. Mr White’s report of 18 September 2014 is before the Tribunal. He stated that varicose veins are a condition “with a hereditary predisposition” which can “also occur after venous thrombosis.” Asked to comment on whether Mr Davidge was genetically predisposed to developing varicose veins, Mr White wrote: “The understanding of the current literature is that individuals develop varicose veins as a consequence of a genetic or hereditary disposition”.
Asked to comment on whether Mr Davidge’s work tasks were “significant to the development” of his condition, Mr White wrote:
Spending extended periods of time standing or walking can exacerbate discomfort and accelerate the development of varicose veins in an individual who has the hereditary predisposition, but are not considered to be causal. Such individuals may be also be (sic) expected to develop varicose veins in the course of activities of daily living. Walking on a concrete surface or getting out of the car I consider to have no relevance.
Mr White concluded that he did not believe there was “any employment or non-employment related incidents that have caused Mr Davidge’s condition”.
Dr Tomlinson’s and Associate Professor Myers’ reports
On 12 May 2015, Mr Davidge saw Dr Peter Tomlinson for assessment at the request of his solicitors. On 19 June 2015, he saw Associate Professor Myers for assessment at Comcare’s request. Both are vascular and general surgeons with many years’ experience. Both have provided written reports. They gave oral evidence concurrently.
Dr Tomlinson provided a report dated 14 May 2015 in which he stated:
I believe that his occupation of 32 years of standing in a production line at an abattoir as a meat inspector with minimal movement is the cause of his varicosities and the so called injury. There is no evidence of an inherent predisposition to varicosities and he has had no previous history to suggest deep venous thrombosis. There is no obesity.
Associate Professor Myers provided a report dated 19 June 2015 in which he stated:
This is a constitutional matter.
Often there is a family history, often in females, but it also occurs in males without a definitive family history.
In Mr Davidge’s case, it is caused by failure of the valves at a perforating vein, i.e., the connection between the deep and superficial venous systems in the leg feeding into a superficial varicosity and then into the distal long saphenous vein.
Associate Professor Myers wrote that there was no evidence that Mr Davidge had varicose veins prior to his employment. In his view, Mr Davidge’s varicose veins are not related to his employment. He said:
Although it is often stated that standing aggravates and accelerates varicose veins, I know of no scientific support for this perception.
Varicose veins, once present, will become worse over time regardless of one’s occupation.
Associate Professor Myers concluded his report by stating that Dr Tomlinson had advanced an opinion but gave no reasons for his “assertions”, and nothing in Dr Tomlinson’s report gave him reason to change his opinion.
In a report dated 9 September 2015 after seeing Associate Professor Myers’ report, Dr Tomlinson wrote that the histories they took were “a little different”; whereas Associate Professor Myers took a history that Mr Davidge’s duties “had been at abattoirs overseeing animals, ensuring they were disease free” and as a food safety auditor “driving up to 350 km per day”, he took a history that Mr Davidge worked in a confined space standing for long periods when he would have had “a good deal of musculature contraction of his legs”.
Dr Tomlinson stated:
… it is well-known that work related conditions where people are required to stand for great periods of time can lead to an increase in the incidence of varicose veins, requiring surgery. This is due to the fact that with standing, the natural “muscular pump” of contraction of leg muscles is not efficient and venous return from the lower part of the body is poor and venous pooling can occur, leading to venous distension and valvular distruction (sic) and incompetence leading to varicosities.
In support of his opinion, Dr Tomlinson cited “numerous studies” and the website of the Australian College of Phlebology (ACP) which, he said, recognises this association, and to “numerous studies” which he said were attached (an abstract of one study, referred to below, was attached).
The website of the ACP states:
A definitive cause [of varicose and spider veins] is not known; however, a strong family history is a common indication, suggesting that some patients inherit veins that are more likely to deteriorate. Women are more likely to suffer from varicose veins at an earlier age than men. Up to 30% of men and women are affected. In women, varicose veins may worsen with fluctuations of hormones, such as during puberty, pregnancy and menopause, and with the use of birth control pills. [….] Other predisposing factors include ageing, standing occupations, obesity, lack of mobility, previous venous thrombosis and leg injury.(emphasis added)
Dr Tomlinson attached an extract from the website of Illinois Vein Specialists (IVS) which states that “some of the most common occupations that may contribute to [the development of] varicose veins include: Teachers; Flight Attendants; Barbers/Hairstylists; Medical Doctors/Techs; Retail”. The information from the IVS website has to be treated with caution because it appears to be a commercial medical service rather than a source of independent scientific opinion.
Dr Tomlinson also attached an abstract from a Danish study in 1991 of 1.6 million people over three years to determine whether or not prolonged standing at work involves an excess risk for the occurrence of varicose veins. It concluded that “[w]orking in a standing position is associated with subsequent hospitalization due to varicose veins for both men and women.”
Concurrent oral evidence
Giving oral evidence concurrently, Dr Tomlinson and Associate Professor Myers agreed there is no evidence that standing on cold concrete causes varicose veins. Mr White expressed the same view. Mr Davidge does not challenge their opinion. Given the doctors’ unanimous view, I am satisfied there is no causal connection between Mr Davidge having worked on cold concrete floors and his varicose veins.
Dr Tomlinson and Associate Professor Myers agreed there are no tests to determine whether a person has a hereditary disposition to developing varicose veins, and they are reliant on the history as given by the patient. They agreed there is no significance in the fact that Mr Davidge developed varicose veins in one leg only, or that he previously had abdominal and inguinal hernias. They agreed that many (Dr Tomlinson was not prepared to agree with Associate Professor Myers that it is “the vast majority”) varicose veins are “idiopathic”. However, their views on the relevance of standing for long periods were directly opposed.
Dr Tomlinson and Associate Professor Myers each explained in detail the mechanism by which they said varicose veins develop. There was much common ground between them but Associate Professor Myers said he was not aware of any scientific evidence to support aspects of the mechanism described by Dr Tomlinson. On this point their views remained firmly opposed.
As I understand his evidence, Associate Professor Myers’ principal difficulty with the proposition that standing for longer periods can cause or aggravate varicose veins is what he says is the absence of any scientific evidence to that effect. He said he did not suggest it was “not possible”, but he did not know of any evidence to that effect, although he agreed there is “lots of stuff out there” that makes that association.
Associate Professor Myers agreed with the view expressed by Dr Jedynak that he was “unable to confidently say” that Mr Davidge’s duties contributed to the development of his varicose veins. Dr Tomlinson, on the other hand, said he was “very confident” of the contribution.
CONSIDERATION
Comcare contends that the Tribunal should prefer the opinion of Associate Professor Myers for reasons including that he was prepared to make some concessions whereas Dr Tomlinson was not, and he gave a detailed explanation in support of his view of the mechanism by which varicose veins develop. Further, that his opinion was consistent with that of Mr White, who was the treating specialist.
I am not persuaded that being prepared to make concessions of itself lends weight to an opinion; and Dr Tomlinson and Associate Professor Myers both gave detailed explanations of the relevant mechanism. It is not clear to me that Associate Professor Myers and Mr White were as consistent as Comcare suggests.
Mr White was not called to give evidence. It is difficult to know what to make of his opinion that “spending extended periods of time standing or walking can exacerbate discomfort and accelerate the development of varicose veins in an individual who has the hereditary predisposition but are not considered to be causal”. Given agreement between the doctors that there is no way of determining whether an individual has a hereditary disposition, I read his opinion as supporting the possibility that the long periods Mr Davidge spent standing could have accelerated the development of his varicose veins.
I accept Associate Professor Myers’ statement that there is no scientific evidence proving the link between long periods standing and the development of varicose veins but proof to that standard is not required. It is sufficient that the Tribunal be reasonably satisfied of the causal connection. There is evidence of “an association” between certain occupations which involve long hours of long hours of standing and the development of varicose veins. Associate Professor Myers did not discount that possibility. There is no evidence that Mr Davidge has family history of varicose veins.
Given that the majority of varicose veins are of unknown cause, it remains possible there is a cause unrelated to his employment. However, given that Mr Davidge had worked full-time for approximately 30 years as a meat inspector, most of that time standing in confined spaces, before he developed varicose veins, and given that an association with such an occupation appears to be accepted by the ACP of which Dr Tomlinson and Associate Professor Myers are both members, I am satisfied reasonably satisfied that his employment contributed, to a significant degree, to his ailment.
CONCLUSION
For these reasons, I set aside the decision under review and decide instead that Comcare is liable under s 14 of the SRC Act to compensate Mr Davidge. As I understand it, Mr Davidge has not claimed incapacity by reason of his varicose veins but he has claimed compensation for medical treatment. That will be a matter for Comcare to determine.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey .............................[sgd]...........................................
Associate
Dated 8 April 2016
Date of hearing 4 March 2016 Counsel for the Applicant Mr J Mrsic Solicitors for the Applicant Mr J Clarke, T D Kelly & Co Solicitors Counsel for the Respondent Mr M Hawker Solicitors for the Respondent Ms M Scriva, Sparke Helmore
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Causation
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Expert Evidence
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Remedies
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Statutory Construction
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