Dirou and Comcare (Compensation)
[2019] AATA 2118
•19 July 2019
Dirou and Comcare (Compensation) [2019] AATA 2118 (19 July 2019)
Division:GENERAL DIVISION
File Number: 2015/6820
Re:Vera Dirou
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:Senior Member Theodore Tavoularis
Date:19 July 2019
Place:Brisbane
The decision under review is affirmed.
............................[SGD]............................................
Senior Member Theodore Tavoularis
Catchwords
COMPENSATION – claim for injury arising out of Applicant’s employment – where liability for compensable injury accepted by Respondent – whether the Applicant continues to suffer from conditions arising out of her compensable injury – whether Applicant entitled to compensation for reasonable medical treatment, incapacity to work, and household assistance as a result of her compensable injury – Applicant does not suffer from conditions arising out of her compensable injury – Decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Power (2015) 238 FCR 187
Martin and Australian Postal Corporation [1999] FCA 655
Prica and Comcare (1996) 44 ALD 46
The Darling Island Stevedoring and Lighterage Co. Limited v Hankinson (1067) 111 CLR 19
REAsONS FOR DECISION
Senior Member Theodore Tavoularis
19 July 2019
introduction and preliminary items
1. On 23 June 2011, Ms Vera Dirou (“the Applicant”) sustained an injury to her lumbar spine and left shoulder. She sought compensation with respect to a “soft tissue injury”. On 2 August 2011, Comcare (“the Respondent”) determined to accept liability for this injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). Specifically, the Respondent accepted liability for “sprain of shoulder (left) and lumbar sprain (right)”.
2. By way of subsequent determination made on 9 July 2015, the Respondent formed the view that there was no present liability to compensate the Applicant pursuant to ss 16, 19 and 29 of the SRC Act in respect of her injuries for which the Respondent originally accepted liability on 2 August 2011.The following then transpired:
1. on 29 September 2015, the Applicant requested a review of the Respondent’s determination made on 9 July 2015;
2. on 3 November 2015, the Respondent affirmed its determination of 9 July 2015;
3. on 11 January 2016, the Applicant sought review of the immediately preceding decision in this Tribunal. That application comprises matter number 2015/6820;
4. on 18 October 2016, the Respondent determined to deny a request from the Applicant that liability be extended to the secondary conditions of chronic pain and neuropathic pain;
5. on 26 October 2016, the Applicant sought review of the Respondent’s immediately preceding determination dated 18 October 2016;
6. on 23 November 2016, the Respondent affirmed its determination of 18 October 2016;
7. on 24 November 2016, the Applicant sought review of the Respondent’s immediately preceding decision in this Tribunal. That application comprises matter number 2016/6396;
8. at the hearing before me on 15 and 16 February 2018, the Applicant formally withdrew her application bearing number 2016/6396;
9. also at the hearing of this matter, the Applicant conceded that the component of the Respondent’s determination of 3 November 2015 confirming no present liability to compensate for the left shoulder condition was correct and should be affirmed by this Tribunal.
issues before this tribunal
3. The remaining issues before the Tribunal are these:
i.(i) Does the Applicant continue to suffer from any conditions in her lumbar spine?
1. If “no”, that is the end of the matter;
2. If “yes”, then:
i.(ii) Does her employment with the Commonwealth continue to contribute to those conditions to the requisite degree?; and
ii.(iii) Whether, from 9 July 2015 to the present date, the Applicant has a need for reasonable medical treatment, is incapacitated for work or has a need for household assistance as a result of her “sprain of lumbar spine (right)”?
4. Thus, there must firstly be found to be an “injury” under the SRC Act. Secondly, there must be a link between the “injury” and some demonstrated incapacity for the work or some need for medical treatment or household services. As relevantly noted by the Applicant:
“The Respondent has not contended that the Applicant did not in fact suffer an “injury”. Rather, the issue is whether the Applicant has ceased to suffer any level of incapacity, need for treatment or need for services as a result of that “injury”?”
5. There is no requirement to determine any level of incapacity nor (if applicable) the level of treatment or services necessary to address that incapacity. It is sufficient for the Tribunal to identify some level of incapacity arising from the claimed injury resulting from the accident on 23 June 2011.
the competing contentions
1. The Applicant
6. As I recall the evidence, there is no contest about the factual background. On 23 June 2011, the Applicant had an incident at work where she fell over while trying to move out of the way of a forklift. At the time of the incident, she was employed as an APS 3 Stocktake Manager for the Department of Defence. Her primary work modality was to be desk-bound, but her duties extended to attending warehouses for stocktake purposes.
7. The Applicant contends the Tribunal should be “comfortably satisfied” that the Applicant sustained a musculo-ligamentous injury as a result of her incident at work on 23 June 2011. The Applicant further contends that her lower back symptoms have not ceased, remain ongoing and manifest via the following effects:
“(a) For the purposes of s 16 of the Act, the symptoms require some ongoing medical treatment. The Applicant requires (at least) pain relief medication to alleviate her lower back pain. That is sufficient to qualify as medical treatment in respect of the lower back condition.
(b) For the purposes of s 19 of the Act, the symptoms cause some level of incapacity for work. Incapacity for work includes any ‘incapacity to engage in work at the same level at which he or she was engaged…immediately before the injury’: Act, s 4(9). In Prica and Comcare (1996) 44 ALD 46, the Tribunal said that the phrase “work at the same level” is “a reference to the nature of the work in the sense of its characteristics, which will include its degree of difficulty”. The Applicant’s previous work included warehouse stocktake duties, but she is now limited only to sedentary work – that is sufficient to qualify as an incapacity for work (the question of whether it results in any loss does not presently arise.
(c)For the purposes of s 29 of the Act, the symptoms cause some level of need for household services. For example, her lower back pain causes restrictions with bending and lifting that would affect household tasks.”
[emphasis in original]
1. The Respondent
8. The Respondent contends that the Applicant has ceased to suffer from the effects of her claimed “lumbar sprain (right)” condition. There is no contest from the Respondent that “lumbar sprain (right)” was correctly accepted as the compensable condition as a result of the work incident on 23 June 2011. However, the Respondent further contends that such sprains are temporary conditions “…that resolve within months of having been sustained. They are not chronic conditions that last beyond that period of time.”
9. There is prevailing evidentiary weight for this contention, says the Respondent, it being pressed on the Tribunal to prefer the evidence of Drs Khursandi (orthopaedic surgeon) and Saines (neurologist) to that of the similarly qualified Drs Shaw (orthopaedic surgeon) and Todman (neurologist). The Respondent further contends that the adverse effects of the incident that occurred on 23 June 2011 have ceased and that, on the balance of probabilities, any such symptoms referable to the previously accepted “lumbar sprain (right)” are “…more likely referable to:
i.(i) The degenerative changes in her spine;
ii.(ii) Her weight;
iii.(iii) Her smoking history; and
iv.(iv) Other incidents contemporaneous to the incident that may be of relevance.”
burden and level of proof
10. In cases such as the instant case, where the Respondent’s decision under review gives rise to a cessation of an Applicant’s entitlement, while there is no prescribed (legislated or otherwise) “onus of proof”, recourse should be had to the decision of Comcare v Power (“Power”), wherein the Full Federal Court thought it “…reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made.” For the intents and purposes of this decision, it suffices to say there is a practical onus on the Respondent to satisfy the Tribunal that the propounded effects of the Applicant’s condition(s) have ceased.
issue a: liability under section 16 of the act:
1. Does the Applicant continue to suffer from any conditions in her lumbar spine (right)?
11. The Applicant mentioned certain relevant legal tests in the context of incapacity and diseases (as defined under the SRC Act) that may be applied in determining this issue, over and above the test specified in Power. Further, the Applicant submits that (1) in certain circumstances, s 7(6) of the SRC Act “deems an employee’s incapacity to be a result of an injury consisting of a “disease or aggravation of a disease”” and (2) s 7(6) of the SRC Act “provides an employee with an alternative means of linking an incapacity with an “injury””.
12. I do not consider that the application of any of those additional tests nor the contention propounded by the Applicant is warranted for present purposes. The Respondent has accepted liability for “lumbar sprain (right)” pursuant to s 14 of the SRC Act. This much is clear in an early letter from the Applicant. On 2 August 2011, the Applicant is told “…I am satisfied that the evidence has established that your claimed condition arose out of or in the course of your employment.” The SRC Act creates a differentiation between an “injury” and a “disease”. The applicable test for present purposes for an “injury” is whether or not it arose out of, or in the course of, an Applicant’s employment. The relevant test for a “disease” under the SRC Act is “an ailment or aggravation of such ailment”. It is plain from the material before me that (1) the Respondent has accepted liability for “lumbar sprain (right)”; (2) a sprain is an injury and (3) the Respondent has not accepted liability for a disease.
13. Thus the Applicant’s submissions propounding the applicability of certain tests in s 7 of the SRC Act have no foundation. Section 7 of the SRC Act deals with “Provisions relating to diseases”. As a lumbar sprain (right) is not a disease, s 7 of the SRC Act has no application to the instant facts. Similarly, the Applicant’s further submissions about “aggravation” and “acceleration” of the Applicant’s condition do not have application because those terms fall under the chapeau of s 5B of the SRC Act, which deals with a “disease” – type condition. As a consequence, it is not open to the Applicant to argue that s 7(6) of the SRC Act provides an employee with an alternate means of linking incapacity with an “injury”.
14. I am attracted to the submission that the Applicant has ceased to suffer the effects of the accepted “lumbar sprain (right)” for several reasons. First, I agree with the Respondent’s submission that the correct diagnosis was made upon the initial receipt of the claim in 2011. As the medical evidence demonstrated, a sprain is not a chronic condition, but is rather a temporary condition that can reasonably be expected to resolve within months of being sustained. Second, I am of the view that the evidence of Drs Khursandi and Saines has correctly categorised the accepted condition as temporary and, for reasons that follow, their evidence should be preferred to that of Drs Shaw and Todman. Third, there are other factors that could be responsible for the Applicant’s reported ongoing symptoms. Those factors (as referred to earlier) comprise (1) the degenerative changes in her spine, (2) her weight, (3) her smoking history, and (4) other contemporaneous incidents – most notably an incident involving a motor vehicle – that occurred at or around the time of the propounded work incident on 23 June 2011.
15. I will now address each of these three reasons in turn:
7. The temporary nature of the “lumbar sprain (right)” condition
16. There seems to be a marked absence of any chronic element around the Applicant’s symptomatology in the contemporaneous medical reporting. In what is probably the most proximate medical report to the date of the injury, when completing the relevant workers’ compensation medical certificate, the Applicant’s local medical officer opined that in terms of a diagnosis, the Applicant suffered a “Soft tissue injury after a fall.” Six or seven months later, in January 2012, the occupational physician, Dr Nicholas Burke, was asked the following questions and answered thus:
“1. Please provide a diagnosis of the medical (or other) condition(s) impacting Ms Dirou’s work capacity. Please provide a basis for this decision.
Diagnosis: … soft tissue injury of the lumbar spine.
2. Please provide an estimate of the recovery period for the condition(s) impacting on Ms Dirou’s work capacity.
One would have expected a full recovery by this time. The duration of the recovery is somewhat extended. This probably relates to psychosocial factors.
[emphasis in original; my underlining].
17. This transient theme to the medical evidence has persisted in more recent medical opinion.
18. In the report of Dr Noel Saines, consultant neurologist, dated 11 April 2017, the following question/answer sequence appears:
“3.4 If the applicant no longer continues to suffer a diagnosable condition, did she suffer any condition as a result of her claimed condition?
The diagnosis of the initial condition is a musculo-ligamentous/soft tissue injury of the lumbar spine and probably the left shoulder. Such injury to the lumbar spine should have resolved by now. There is no evidence of neurological complication. Previous lumbar MRI scan showed no significant structural abnormality.”
[emphasis in original; my underlining]
19. The occupational physician, Dr Marcus Navin, examined the Applicant on 10 July 2014. His report is dated 16 July 2014. In terms of an overall “summary and assessment” and in response to specific questions put to him, Dr Navin said these things:
“Ms Dirou exhibits abnormal pain behaviour and abnormal illness behaviour...
I informed the department that I have spoken with her treating specialist Dr Watson. He describes her as being emotionally vulnerable and in this regard he does not consider that her social symptoms are relevant at this time. He considers, that his psychiatric, psychosocial matters predominant over any other aspect of her care.
…
1. 1. Please provide a diagnosis of the medical (or other) condition(s) impacting on Ms Dirou’s work capacity. Please provide a basis for this decision.
I consider that Ms Dirou is affected by a psychiatric mental health disorder unrelated to her employment. I do not consider she has evidence of any physical condition which can be reasonably ascertained.…
…
1. 2. In your opinion, please provide your an [sic] of the recovery period for the condition(s) impacting on Ms Dirou’s work capacity.
In my opinion I consider that Ms Dirou has no active condition. Any aggravation from pre-existing conditions would have now completely abated. Her presentation shows no structural or anatomical consistency.
1. 3. Is Ms Dirou undergoing appropriate treatment/medication for the condition(s) impacting on her work capacity?
Ms Dirou requires no active treatment or medication due to the lack of an intrinsically significant condition…No active treatment other than simple analgesia is necessary.”
…
15. Are there any other factors that you feel are relevant and have not been addressed in the list of questions, please provide additional comments.
…
As I have indicated, I have spoken to Dr Watson, and it is his opinion that Ms Dirou’s circumstances reflect a mental health state rather than any other condition.”
[emphasis in original; my underlining]
20. In terms of an actual diagnosis, the orthopaedic surgeon, Dr Mark Shaw, says the injuries sustained by the Applicant on 23 June 2011 comprised:
“(a) Cervical spine injury with probably disc protrusion C5/6;
(b) Left shoulder soft tissue injury; and
(c) Musculoligamentous lumbar spine injury.”
21. Interestingly, on three separate occasions in his abovementioned report, Dr Shaw says the Applicant suffered a “musculoligamentous lumbar spine injury”, but makes no finding or reference to a lumbar sprain.
22. Dr Donald Todman is a neurologist. Dr Todman examined the Applicant in approximately August 2017. His report is dated 8 August 2017. In terms of a concluded opinion, Dr Todman said these things:
“Conclusion
…The principal injuries were to the spine and left shoulder. The ongoing symptoms are directly related to this accident [i.e. the abovementioned work incident on 23 June 2011].
…
The current symptoms have stabilised and are likely to represent a permanent state of affairs. From AMA 5 Guidelines, Table 15.5, this is a DRE Category 2 injury; that is, clinical history and examination findings are compatible with a specific injury, namely chronic musculo-ligamentous strain to the cervical spine and cervical disc protrusions. This represents a seven percent whole person impairment which is the upper part of the range of five to eight percent based on the level of symptoms and effects on ADL’s as well as noting restricted movements and radicular complaints.”
23. In his later report of 29 August 2017, Dr Todman said:
“The question of “sensitisation of the central nervous system” was raised in Dr Watson’s report. This is a theoretical consideration in patients who have chronic pain when the original injury may have resolved. In my opinion the original injury has not resolved and the ongoing pain is the direct consequence of the trauma rather than a secondary effect of sensitisation.”
24. I have misgivings about the capacity of Drs Shaw and Todman’s evidence to successfully rebut a contention that (1) it is not probable that the Applicant’s reported symptoms are related to the “lumbar sprain (right)” condition and, rather, that this sprain was a temporary condition that resolved within months of being sustained; and (2) the Applicant’s ongoing lumbar pain is referable to a continuation of her degenerative condition, her weight and her smoking, rather than her compensable condition.
25. Dr Saines was asked about whether the degeneration present in the Applicant’s spine was capable of causing her to experience the pain she was now reporting. He thought that degenerative change in a person’s spine could be reflected in lumbar pain. He said that he understood Dr Todman’s diagnosis of a chronic musculoligamentous strain of the lumbar spine to be based on two things. He said, “Well, I guess he is saying two things. It’s not a term I use, but I guess he’s saying two things with that terminology, is that it’s been a strain injury and secondly, that the symptoms are chronic. That would be my interpretation.”
26. Dr Saines was also asked to define the nature of a strain – type injury. He said:
“Well, I guess we would talk about musculoligamentous strain, or soft tissue strain, indicating that, …supporting ligamentous and other soft tissues are stretched, or…traumatised, just as one might get from a sports injury or that like. And this is not an injury that involves the major scaffolding, let’s say, the vertebral bodies or the discs or the upper parts of the spine. So, I think he and I would agree that she had suffered a soft tissue injury. We have no real evidence, structurally, of any other damage and he’s applied the term ‘chronic’, I guess, because Ms Dirou continues to complain of symptoms and so, he’s called it chronic. That’s my only way of interpreting it.”
27. Dr Saines was then taken to the divergence in opinion between him and Dr Todman insofar as the Applicant’s lumbar sprain injury is concerned. He said:
“…Well, I think there’s probably a difference in interpretation of what a soft tissue or strain injury is and I think it’s conventional medical understanding that soft tissue injuries can be quite painful and I think we’ve all experienced these things and quite limiting in the early part of the condition, but they naturally trend towards recovery, almost completely, after a period of time. So, that’s my understanding of a soft tissue or a strain injury, one that doesn’t disturb that anatomy to any significant extent and has a recovering course.”
[my underlining]
28. Dr Saines thought that the concept of a “chronic strain” was a “contradictory term.” The Applicant sought to seize upon the evidence of Dr Saines by suggesting that:
“25. In cross-examination, Dr Saines made three significant concessions:
a. a) First, he conceded that a musculo-ligamentous injury may have ongoing symptoms, albeit he would usually expect those to be trivial.
b. b) Second, he conceded that he has no direct experience with musculo-ligamentous injuries that cause long term symptoms of a more serious nature.
c. c) Third, although he was adamant that the ongoing symptoms were not linked to the work accident, he conceded that he could not explain to the Tribunal what was causing the current lower back symptoms.”
[emphasis in original]
29. In my respectful view, this is to mis-contextualise Dr Saines’ evidence. As can be seen from what Dr Saines had to say about Dr Todman’s application of the AMA 5 Guidelines, the essence of Dr Saines’ evidence was that he did not accept that a lumbar sprain that occurred in mid-2011 could continue to give rise to ongoing pain symptomatology well beyond half a decade later.
30. Initially, Dr Saines expressed reservations about the appropriateness of even applying the AMA 5 Guidelines to a diagnosis of chronic pain in relation to a person who also suffers from a degenerative condition. The following question/answer exchange occurred between Dr Saines and Counsel for the Respondent:
“MS SLACK: Dr Todman also used the AMA 5 DRE criteria as a tool in assessing Ms Dirou’s condition. What do you say of the appropriateness of that tool to assess what she’s suffering from?
DR SAINES: Well, I guess we all use that tool. I suppose my category would have been not two but one, because I believe that’s where musculoligamentous strain injuries are assessed. One moves to other categories if one determines a more significant structural injury. I guess Dr Todman had a different view about the clinical examination. I didn’t find exactly the same things: maybe he was incorporating some of that. But in general terms, a strain injury, or musculoligamentous injury, is generally classified as Category I in that AMA 5 classification.
MS SLACK: I can give you some more information about that. Dr Todman said in his evidence that the two factors that he relied on to assess Ms Dirou’s injury as being Category II was the history of reported pain from the incident, and also his examination findings that she had a reduced range of motion, forward flexion and lateral flexion. Just knowing that, does that, to your mind, provide justification for it being Category II?
DR SAINES: Well, I don’t know what he – I guess, I didn’t hear it, so I don’t know what he meant by pain. I suppose what he’s saying is there is something different about this because the person continues to describe pain. But that’s putting a heavy weight on that sort of symptomatology. I guess that one could make a case, as I mentioned earlier, that if one’s examination findings found something, you know, particularly specific or atypical about the condition, then, that might represent a ground for a change of category. I must say, I found no asymmetry of movement. I said the lumbar movements were reasonable in range; she could flex forward to touch below the knees, probably that about as far as I can get. Extension and rotation caused some discomfort, but these weren’t limited in my examination, so there’s either, you know – we would each have to probably rely on our own examinations, but clearly, there’s significant variability.
MS SLACK: In a strain, if a person suffers a strain, would you expect that a person would experience the effects of that strain or pain immediately following it?
DR SAINES: Well, I think if you injure a part, I mean, we’ll [sic] all been aware of – you know, I go back to the analogy of the sports injury. We may all get an injury at a time and you know, later on, when one cools down or by the following day, the pain may be more uncomfortable. We see this in neck strain injuries, et cetera, but one wouldn’t expect a long period or an interval to the onset of symptomatology. It would be in a short time frame, you know, after the initiating incident.
MS SLACK: By a short time frame, do you mean, like, are you saying within a day?
DR SAINES: Within the day or something like that. Yes. Within – with either immediate or within the day, sure.”
[my underlining and emphasis]
31. There are two primary difficulties arising from the evidence of Dr Todman, particularly with regard to his application of the AMA 5 Guidelines to this Applicant. First, the testing methodology applied by Dr Todman is primarily used to examine how many impairment points result from a discrete injury. The methodology contains no provision for the measurement of degenerative pain and does not direct a medical practitioner as to how to differentiate between degenerative pain and pain from a discrete injury. Second, Dr Todman conceded that medical practitioners are unable to distinguish between pain reported from a sprain injury and pain arising from a degenerative condition(s). I thus agree with the Respondent’s contention: “…it’s entirely incongruous for him [Dr Todman] to base his opinion on a tool that is useless in circumstances where somebody is showing degenerative symptoms.”
32. In the course of their evidence, both Drs Shaw and Todman made reference to, and set some store by, a certain hydrotherapy consultation note dating from 24 August 2011. The consultation note relates to an apparent fresh injury or exacerbation of her reported symptoms arising from the subject work incident (23 June 2011). It reads as follows:
“Date: 24.8.11…Jerked back yesterday, slammed on brakes in car – has sharp pain. Pain in lower back. Pain with walking and sitting – very bad last night.
33. To my mind, any submission that this hydrotherapy note is somehow advantageous for the Applicant founders on two grounds. First, the contemporaneous medical history as recorded by her local medical officer records that her symptoms arising from the work incident (June 2011) were actually improving prior to this incident involving a motor vehicle (August 2011). The local medical officer’s notes in the week before the car incident (i.e. the medical notes dated 11 August 2011) say nothing about any report or complaint about back pain during this pre-car accident period. Likewise, the local medical officer’s notes dated 18 August 2011 make no mention of lower back pain (or any other bodily pain). Second, neither Dr Shaw nor Dr Todman could demonstrate in their evidence (in 2018) how it is possible to distinguish between how the pain now propounded by the Applicant may have arisen from her work incident (June 2011) and pain that may be resulting from the car incident two months later in August 2011.
34. As conceded by Dr Todman in cross-examination, it is possible to draw an inference that the Applicant may have recovered from her lower back strain prior to the car accident:
“MS SLACK: …Before that hydrotherapy note on 24 August 2011, Ms Dirou reported to her general practitioner in July that she was experiencing lower back pain. But when she attended on 11 August 2011, there was no report of back pain at all and that the note refers only to left shoulder pain. The note of 25 August 2011, which is the day – sorry, 18 August, which is prior to the car accident, again, there’s no reference to experiencing any low back pain. So it seems like there is a period of about a month, or at least three or so weeks, where Ms Dirou isn’t reporting experiencing lower back pain at all, and then on the day after the car incident she attends and reports that her lower back pain has resumed – has returned. Sorry, I should clarify that. She doesn’t say it’s returned, she recommences reporting back pain. There is, isn’t there, some indication there that she may have been recovering from the lower back pain or the strain prior to this car incident.
DR TODMAN: Well there are some inferences there which are right to draw on, but there’s more than one explanation, you know, for those GP recordings and it does seem like the shoulder complaint was her dominant issue…I think you’d have to ask the patient herself in evidence that she’ll give whether it was there or not…But I think that what you say is an inference that could be drawn, but whether it’s the correct one or not, there may be other explanations.
MS SLACK: Well, that other explanation that you did address I raised with Ms Dirou in her evidence, the quality of these notes, and she agreed that her recollection is not as good as what is recorded in these notes and that the notes are the best material the Tribunal has of the evidence that is available from time to time and Ms Dirou agreed that if it didn’t appear in the notes, it’s unlikely she reported back pain at that time. Does that cause you to change what you’ve just said about other reasons, other explanations?
DR TODMAN: Well, I think – I think it is probably more what the Tribunal has to decided, you know, was she recovering then and it’s only after the incident where she quickly put her foot on the brakes that’s the cause of all her complaints since, or does it date back to this incident on 26 – in June 2011, with some fluctuation in that early time.”
[my underlining and emphasis]
35. I am attracted to the Respondent’s submission that “[t]he sole examination finding that both Dr Shaw and Dr Todman rely upon – the reduced range of motion exhibited in their examination of the Applicant is a weak foundation upon which to support their opinions…” I think this contention is correct for several reasons. First, as noted by Dr Saines in his evidence:
“I must say, I found no asymmetry of movement. I said the lumbar movements were reasonable in range; she could flex forward to touch below the knees, probably that about as far as I can get. Extension and rotation caused some discomfort, but these weren’t limited in my examination, so there’s either, you know – we would each have to probably rely on our own examinations, but clearly, there’s significant variability.”
36. Second, Dr Khursandi, Consultant Orthopaedic Surgeon, directly challenged the findings of Drs Shaw and Todman regarding the reduced range of motion of the Applicant. Dr Khursandi thought that the Applicant’s reduced range of motion was more likely to be the result of degenerative changes in her spine, with the result that the joints are not sufficiently resilient to allow the Applicant to complete a full range of motion. The following exchange ensued between Dr Khursandi and Counsel for the Respondent:
“MS SLACK: …The degeneration that is present in Ms Dirou’s lumbar spine, is that capable of causing her to experience the pain she reports?
DR KHURSANDI: Yes. Degeneration is quite significant pathology in the spine and is the main cause of back pain in most people.
…
MS SLACK: Dr Todman and Dr Shaw rely on the fact that Ms Dirou did not complain of experiencing back pain prior to this incident in June 2011, but has complained of back pain ever since. What do you say that that demonstrates in terms of the ongoing nature of the strain condition?
DR KHURSANDI: Well, the strain may have coincided with the onset of symptoms of degeneration. There is no way one can look back and say that it has not. If there was no degeneration, or multi-level degeneration, or extensive degeneration, then one would say that, perhaps, that question of degeneration causing back pain or ongoing back pain is questionable. But if there is this underlying pathology, one cannot ignore it. It always supersedes any form of soft tissue injury of the spine. That means the symptoms from degeneration, that case of…
MS SLACK: Is application of the AMA 5 DRE Criteria an appropriate tool to use in assessing a lumbar sprain?
DR KHURSANDI: A lumbar sprain, yes, and that depends on the range of movement of the lumbar spine and…
MS SLACK: What about --- ? --- Yes - Sorry, I didn’t mean to cut you off, I thought you had finished. Please continue?
DR KHURSANDI: Range of movement and if there is degeneration present there, then, it does influence or restricts the range of movement rather than the soft tissue injury or sprain.
MS SLACK: If there is degeneration present, is the DRE Criteria able to distinguish between the degenerative condition and then, the sprain condition?
DR KHURSANDI: No. Because what the DRE is telling you is that there is decreased range of movement of the lumbosacral spine, or cervical spine, coming to that or thoracic spine. So, range, loss of range of movement in the presence of degeneration is usually attributed to the degeneration rather than any other condition.”
[my underlining and emphasis]
37. Third, both Drs Shaw and Todman conceded in their evidence that a patient’s range of motion as tested upon examination has a subjective element. The following exchange ensued between Dr Shaw and Counsel for the Respondent:
“MS SLACK: Examination of forward flexion is within a patient’s control, isn’t it?
DR SHAW: Yes.
MS SLACK: And so it is dependent on how a patient performs that particular manoeuvre, isn’t it?
DR SHAW: Yes.
MS SLACK: It’s not possible for you to be able to distinguish between pain that may be the result of degenerative changes in the spine and pain that may be resulting from a ligamentous lumbar spine, is it? There’s no test that can be performed to say precisely what area or what issue is causing the pain?
DR SHAW: That’s right, yes.”
[my emphasis]
38. Similarly, Dr Todman said the following things in his evidence:
“MS SLACK: And that is, the forward leaning and the tilting to the side, that’s within a patient’s control, isn’t it?
DR TODMAN: It is, yes.
MS SLACK: So it’s a subjective test that is dependent on how the patient performs?
DR TODMAN: It has some subjectivity and some objectivity in it, I would say.
MS SLACK: Well what part of it is objective?
DR TODMAN: Well there are – when someone can bend forward and not touch their toes, for example, it’s generally evident that their spine is stiff and not capable of anything further. So I think there’s a measure of objectivity there; can someone feign that? You know, can they put it on to fool a doctor? Well, it’s possible that they could, but by and large it has some objective and some subjective characteristics...
MS SLACK: But just so I understand that. It’s an objective test unless a person feigns not being able to bend as far and then it becomes a subjective test?
DR TODMAN: No, I didn’t say that.
MS SLACK: That’s the subjective element of the test?
DR TODMAN: ...I believe that there are some features which make it fairly sure or fairly objective, but there are some subjective elements as well. That is, patients may, you know, feign restriction in movement or they may appear to have a greater degree of movement because they have taken a strong analgesic at that time.”
[my underlining and emphasis]
39. Fourth, each of Drs Shaw, Todman, Saines and Khursandi have spoken of evident degeneration of the Applicant’s spine. Dr Todman noted: “The MRI scan of the lumbar spine shows moderate degenerative changes throughout.” Dr Shaw noted: “MRI of the lumbar spine performed on 16 August 2013 reported “…mild degenerative disc changes…”.” Dr Saines noted: “Underlying constitutional degenerative disease” as one of the other reasons that may be the cause of the Applicant’s presently reported back pain. Dr Khursandi noted: “…a report on the MRI scan examination of the [Applicant’s] lumbosacral spine performed on 16 August 2013, which reveals multilevel disc degeneration at all levels between L1 and S1 with significant desiccation.”
40. The Respondent also contends that the findings of Drs Shaw and Todman are open to valid criticism because of their respective failures to conduct testing for Waddell signs or to otherwise comment on the genuineness of the Applicant’s examination results. I think this contention does have weight when one has regard to the significant misgivings expressed by previous medical practitioners about the nature and veracity of the Applicant’s symptoms. For example:
1. In his report of 24 January 2012, the consultant occupational physician, Dr Nicholas Burke, said: “The impression I gained was that there is a mismatch between the levels of symptoms she described and the degree of underlying impairment. There was a number of non-organic signs present throughout the assessment. There was a number of positive Waddell’s signs. Overall in my opinion it would be my opinion that other factors, most probably psychosocial, are significantly contributory to her ongoing symptoms and disability.”;
2. In her report of 26 April 2012, the orthopaedic surgeon, Dr Gale M Curtis, in response to a question about whether the Applicant may be voluntarily exaggerating her symptoms, said: “She did demonstrate features of illness behaviour on more than one occasion throughout the examination.”;
3. In his report of 18 March 2013, the consultant orthopaedic surgeon, Dr V.S. Pai, in response to a question about whether any aspects of his clinical examination tended to suggest the Applicant was voluntarily exaggerating her symptoms, said: “During my assessment, as well as my observation, it was clear that her clinical symptoms were more than clinical signs. She had various atypical clinical signs which cannot be explained on the basis of standard musculoskeletal conditions.”;
4. In his report of 16 July 2014, the consultant occupational physician, Dr Marcus Navin said that in terms of his summary and assessment of the Applicant, “Ms Dirou exhibits abnormal pain behaviour and abnormal illness behaviour.”
5. [my underlining]
41. Significantly, to my mind, each of the abovementioned four reports of Drs Burke, Curtis, Pai and Navin, were squarely before Drs Shaw and Todman at the time they examined the Applicant and furnished their respective reports. In terms of conducting testing for Waddell signs or otherwise commenting on the genuineness of the Applicant’s examination results, their evidence was as follows. First, for Dr Shaw:
“MS SLACK: I understand that you are aware that Ms Dirou has been examined by a number of specialists in this matter?
DR SHAW: Yes.
MS SLACK: There is a list of material that appears on page 4 of your report. I take it that you’ve read those reports in preparing your report?
DR SHAW: Yes, a long time ago.
MS SLACK: I understand that, but did you read them in the course of preparing your report?
DR SHAW: Yes.
MS SLACK: You will have noted the comments that were made in a number of those reports that appear in that list that Ms Dirou was displaying some abnormal illness behaviour in examinations that were conducted by other specialists, do you recall that?
DR SHAW: Yes.
MS SLACK: You didn’t comment on those conclusions in your report, did you?
DR SHAW: No, no.
MS SLACK: Given how many doctors make this comment, wouldn’t it have been a relevant matter for you to comment on, even if it was just in the context of your examination?
DR SHAW: I chose not to because I didn’t agree with their opinion.
MS SLACK: You didn’t say anywhere on your report that you don’t agree with their opinion, do you?
DR SHAW: No, no, no. It’s obvious to me that I did not agree with their opinion.
MS SLACK: It doesn’t appear from your report that you conducted testing for Waddell signs.
DR SHAW: No, no.
MS SLACK: Is that because you didn’t?
DR SHAW: No, I wouldn’t have, no.”
[my emphasis]
42. Second, for Dr Todman:
“MS SLACK: … I take [sic] you’ve read what’s contained in the T documents?
DR TODMAN: I can, although I can’t remember what they were. Hang on. There’s a lot of them. Yes I have.
MS SLACK: Yes. You will have noted that comments were made by a number of specialists that appear in those T documents about Ms Dirou displaying abnormal illness behaviour in examinations? Do you recall that?
DR TODMAN: No, I don’t recall that off-hand, but this was about seven months – six months ago.
MS SLACK: Do you accept that if you read all of the documents in the T documents and that some of those reports refer to that, you would have read it at the time of preparing your report?
DR TODMAN: Would you say that again, please?
MS SLACK: Do you accept that if some of the documents contained in the T documents refer to Ms Dirou displaying abnormal illness behaviour, you would have read all the T documents, that you read those aspects of those reports at the time of preparing your report?
DR TODMAN: Yes.
MS SLACK: You didn’t comment on any of those conclusions reached by those other doctors, in your report, did you?
DR TODMAN: Well, I found no factual evidence of abnormal illness behaviour. That’s something which is hard to define anyway, but I found no evidence in my examination.
MS SLACK: You didn’t think, though, that it was a relevant factor to comment on when so many other doctors had found that and you didn’t?
DR TODMAN: Well, I did a supplementary report on a Dr Watson’s report in which he raised issues to do with sensitisation of the central nervous system, and I addressed it in part, there. But other than that, no, I haven’t.…
MS SLACK: Sorry, I’m just having a look at that report that you did in response to Dr Watson. What aspect of it in particular do you say you commented on abnormal illness behaviour?
DR TODMAN: No, I didn’t, I said it was something related which was what Dr Watson referred to as sensitisation of the central nervous system and I gave a response to what I thought he was implying there.
MS SLACK: You didn’t conduct any testing for Waddell signs, did you?
DR TODMAN: Well, I had no reason to suspect any. No I didn’t. But – no, I didn’t.”
[my emphasis]
43. It seems clear that there are significant evidentiary issues with the evidence of Drs Shaw and Todman. This, combined with the Respondent’s capacity to point to other factors that explain the Applicant’s symptoms, does, on the balance of probabilities, satisfy me that the Applicant has ceased to suffer the effects of the compensable condition. Those other factors comprise (1) the evidence of degeneration in the Applicant’s spine, (2) the level of her weight and (3) her history of smoking. I have already addressed the degenerative factor. I will now discuss the two additional factors (weight and smoking) that, on the balance of the evidence, convincingly point to the Applicant’s now propounded symptoms no longer being attributable to the work incident that occurred on 23 June 2011.
44. The first of those remaining two factors relates to the Applicant’s weight. When the incident occurred, the Applicant weighed between 95-100 kg. At the time of the hearing of this matter (February 2018), she weighed approximately 114-116 kg. There is no contest that her body mass index rating places her in the obese range. Dr Marcus Navin observed that “Given her morbid obesity over many years, back pain, and, with the physical anatomical changes, shoulder pain would be congruent with her longstanding morbid obesity.” During his examination in chief, Dr Saines was asked whether the Applicant’s weight was relevant to her experience of lower back pain. The following exchange occurred:
“MS SLACK: Is her weight relevant to her experience of lower back pain?
DR SAINES: I think people who – I mean, it’s simply a mechanical – just common sense, mechanically, that, of course, if one has greater weight and there’s greater weight pushing down on the lumbar spine. So, you know, it’s a factor in lower back pain and it certainly can, I guess, exaggerate or prolong symptomatology. So, I would see it as a factor. It’s certainly something that we would advise people with lower back pain to address actively.
MS SLACK: Noting the degenerative changes on the lumbar spine and her weight, there are other reasons that might be the cause of her reported back pain at the present time. Is that right?
DR SAINES: That’s correct. I mean, these are potential factors in lower back pain, yes, underlying constitutional degenerative disease, the mechanical effects of being overweight, et cetera, these do contribute. Certainly.”
[my emphasis]
45. Dr Todman, in both his evidence in chief and cross-examination, accepted that the Applicant’s weight was a risk factor directly influencing her experience of back pain. In his evidence in chief, the following exchange ensued between him and Counsel for the Applicant:
“MR BLACK: Could I just ask you again to comment on the relevance, if any, to those sort of body weight measurements in respect of a lower back condition?
DR TODMAN: Well, being overweight is a risk factor for back complaints and also being overweight can inhibit recovery after back injuries. It can be one of the factors that can prolong symptoms after an injury has occurred…”
[my emphasis]
46. In cross-examination, the following exchange ensued between Dr Todman and Counsel for the Respondent:
“MS SLACK: If a person is obese, might that weight cause them to experience strain on their lower back?
DR TODMAN: Yes, people who are overweight are more likely to get episodes of back pain than people who are of normal weight.
MS SLACK: And people who are overweight and also suffer from a degenerative, age-related spinal condition, those two factors can work together to create pain, can’t they?
DR TODMAN: …being overweight and of a certain age – which she is, which is associated with the expected changes on MRI – do put her at a more vulnerable status to getting a back complaint, especially after an injury or an accident that’s happened here. So, I don’t know whether that answers your question, but her weight certainly is a factor.”
[my emphasis]
47. During his evidence in chief, the following exchange ensued between Dr Shaw and Counsel for the Applicant:
“MR BLACK: …Again in relation to the lower back pain, are you able to comment on the relevance, if any, of that body weight history?
DR SHAW: Similar - similar to what I gave for smoking. It [weight] does increase your risk of developing chronic back pain or recurrent back pain and it reduces your chance or, sorry, let me restate that, it increases the risk once the condition has commenced of suffering, or more likely to suffer chronic back pain or recurrent back pain.”
[my emphasis]
48. During cross-examination, the following exchange ensued between Dr Shaw and Counsel for the Respondent:
“MS SLACK: …Her weight does increase the risk of developing chronic back pain and that it increases the risk once the condition has commenced of it becoming chronic but that would apply equally, wouldn’t it, if the symptoms that she’s experiencing are the result of a degenerative condition, i.e. it could contribute to the degenerative condition and the effects of that continuing, couldn’t it?
DR SHAW: Generally speaking what you’re saying is correct but I’m not sure the relevance in this particular case because the MR [sic] degenerative changes were mild.”
[my emphasis]
49. Thus while it may be contended on behalf of the Applicant that her weight has increased the chronicity of the symptomatology of her sprain, the totality of the evidence (in my view) leads to a conclusion that, on the balance of probabilities, it is equally likely that her weight has worsened the impact of her degenerative condition. Such a conclusion squares with the “common sense” remark by Dr Saines when he said that it is “…just common sense, mechanically, that, of course, if one has greater weight and there’s greater weight pushing down on the lumbar spine.”
50. The second of those remaining two factors relates to the Applicant’s smoking history. Her evidence was that she smoked one packet of cigarettes per day between 1989 and 2010. She said there were periods when she ceased smoking but that none of them lasted for more than six months. In his evidence in chief, Dr Khursandi said “…long-term smoking is associated with effect of decreased nourishment to the disc which dries up and loses its water and that leads on to degeneration and chronic back ache.” In his evidence in chief, Dr Shaw said:
“Smoking does increase your risk of developing back pain. It’s not a major cause but it contributes usually with other factors as well, but more importantly, it increases your chance of suffering chronic back pain or recurrent back pain once you have the condition.”
51. In his evidence in chief, Dr Todman was asked about smoking as a risk factor and the following exchange ensued between him and Counsel for the Applicant:
“MR BLACK: …Could you just comment, Doctor, on the relevance – if any – of that smoking history to Ms Dirou’s lower back condition?
DR TODMAN: Well, there are some studies that show smoking is a risk factor for injuries to the spine or for back complaints, generally, and also patients who have surgery for the lumbar spine are generally advised to stop smoking because the outcomes for a good recovery are better in non-smokers. But I note that the dates you gave me there, there was almost a year of not smoking prior to the accident and I think that would mitigate any risk factor there is in smoking in terms of her condition.”
[my emphasis]
52. In the light of the other medical evidence about smoking as a risk factor for this Applicant, I have difficulty accepting, on the balance of probabilities, Dr Todman’s evidence that the Applicant’s abstinence from smoking for a period of between seven-twelve months could “mitigate any risk factor there is in smoking in terms of her condition”.
53. Thus, the evidence is, to my mind, clearly supportive of a finding that on the balance of probabilities, the effects of the originally compensable injury have now ceased and that any current symptomatology does not arise out of, or derive from, the course of the Applicant’s employment with the Commonwealth. The primary bases upon which I make that finding are: (1) that, for reasons outlined above, I prefer the evidence of Drs Khursandi and Saines to that of Drs Shaw and Todman; and (2) the reality that the Respondent is able to point to additional factors that relevantly explain the Applicant’s symptoms and thus convince the Tribunal that, on the balance of probabilities, the Applicant has ceased to suffer the effects of the compensable injury.
54. I therefore determine that the Applicant is not entitled to compensation under ss 16 and 19 of the SRC Act for the ‘lumbar sprain (right) condition’ during the period from 9 July 2015 to present.
issue b: is the applicant entitled to compensation for:
- Quantifiable loss arising from an incapacity for work (s19 SRC Act);
- The cost of medical treatment (s16 of the SRC Act); and
- The cost of household assistance (s29 of the SRC Act)?
55. As I have mentioned in my Reasons above, I am satisfied that the Applicant has ceased to suffer the effects of the “lumbar sprain (right)” condition. There is thus no strict technical requirement to address any compensable elements pursuant to ss 19, 16 and 29 of the SRC Act. Out of an abundance of caution, and for the completeness of these Reasons (and for no other reason), I will briefly discuss these elements.
2. Incapacity for work: financial deficit
56. Pursuant to s 19 of the SRC Act, if the Applicant’s symptoms can be demonstrated to cause some level of incapacity for work such that the Applicant is no longer able to engage in work at the same level at which she was engaged immediately before the injury, then any such loss may be compensable. For present purposes, the cessation of entitlements determination in this matter is dated 9 July 2015. At the time of this hearing (February 2018), the Applicant had been engaged in full-time employment since January 2018. In cross-examination, Dr Todman noted that the Applicant was capable of working full time: “More or less. I don’t have exact hours that she was working, but I understood she was working in a role that may have been up to full time in a sedentary role.”
57. There is a similar theme arising from the cross-examination of Dr Shaw:
“MS SLACK: Well, would you accept that she was capable at the time you saw her of working seven and a half hours a day for five days a week in a clerical sedentary role?
DR SHAW: That would depend on her tolerance for pain but, yes, she certainly could’ve been capable definitely, yes.
MS SLACK: And given that this condition is chronic and seems to have remained in this state, it’s equally probable that she could have worked at that rate from a year prior to your assessment…since…May or June 2015, is that right?
DR SHAW: She could have, yes, once again, depending on her tolerance for pain.
MS SLACK: And she has been managing her pain by taking pain medication, is that correct?
DR SHAW: Taking Tramal and Panadine Forte at the time I saw her, so she was taking narcotic medication, yes.”
[my emphasis]
58. Dr Shaw examined the Applicant in April 2016. His evidence was that for the period of a year before he saw her, she could have been capable of working full time. Thus neither of the medical practitioners reporting on the Applicant’s symptomatology say that she was incapacitated for work. There is no evidence that her return to full time employment resulted in some measurable financial deficit or shortfall. In those circumstances, one is hard-pressed to define and/or quantify any compensatory payment to the Applicant on the basis of incapacity for work. The submission put on behalf of the Applicant about her working at a different level goes nowhere because there is no evidence before the Tribunal that while she may be performing different duties, she is not working at the same APS level. As noted by the Respondent, there is no discernible financial deficit or gap in terms of the money now being received by the Applicant “in her pocket” as a result of her full time work compared to her pre-incident income.
2. The cost of medical treatment
59. Any claim by the Applicant for the cost of medical treatment seems restricted to pain medication. She says: “I am currently take [sic] Panadine Forte and Tramal as required…” The Respondent does not take issue with the contention that the Applicant experiences pain. The difficulty with the Applicant maintaining any claim for the cost of medical treatment arises because of a marked absence of support or consensus in the medical opinion about whether she takes this medication to relieve pain from her (1) compensable condition or (2) from pain arising due to the degenerative effects on her lumbar spine.
4. The cost of household assistance
60. Section 4(1) of the SRC Act defines “household services” as follows:
‘household services’, in relation to an employee, means services of a domestic nature (including cooking, house leaning, laundry and gardening services) that are required for the proper running and maintenance of the employee’s household.
61. Section 29(2) of the SRC Act provides:
Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) The extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b) The number of persons living with the employee as members of his or her household, their ages and their needs for household services;
(c) The extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d) The extent to which the persons referred to in paragraph (b), or any other members of the employee’s family, might reasonably be expected to provide household services for themselves and the employee after the injury;
(e) The need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
62. During cross-examination, the Applicant mentioned that she required assistance with carrying groceries, washing her dog, washing and cleaning her vehicle, stacking the dishwasher, cleaning the pool and cleaning the bathroom. She lives with her 22 year old son who is unemployed and not involved in any course of study or vocational training. The Applicant agreed with the suggestion that her son spends his time at home. Her additional evidence was that her son suffers from “severe anxiety and depression”, but from no physical condition.
63. While it is noted that the son does experience symptoms of anxiety and depression, there is no evidence that he is physically incapacitated to any extent such that he is prevented from assisting the Applicant in the running of the household by performing the tasks she says she cannot do. In these circumstances, one is hard-pressed to be satisfied that, on the balance of probabilities, the Applicant has a need for household assistance pursuant to s29 of the SRC Act.
conclusion
64. I refer back to the stated issues necessary to be addressed in this matter and find as follows:
2. Issue A
a.(a) Does the Applicant continue to suffer from the “lumbar sprain (right)” which condition is said to constitute the “injury” pursuant to s 16 of the Act? Answer: No
2.Issue B
a.(b) If the answer to (a) is “yes”, the next two questions become:
i.(i) Does her employment with the Commonwealth continue to contribute to these conditions, to the requisite degree?; Unnecessary to answer; and
2.(ii) Whether, from 9 July 2015 to the present date, the Applicant is entitled to compensation for:
3. -quantifiable loss arising from an incapacity for work (pursuant to s19 SRC Act): Unnecessary to answer
4. -the cost of medical treatment (pursuant to s16 SRC Act): Unnecessary to answer
5. -The cost of household assistance (pursuant to s29 SRC Act): Unnecessary to answer
decision
65. In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), I affirm the reviewable decision dated 3 November 2015.
I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
...........................[SGD].............................................
Associate
Dated: 19 July 2019
Date of hearing: 15 and 16 February 2018
Counsel for Applicant: Mr Matt Black
Solicitors for Applicant: Slater and Gordon
Counsel for Respondent: Ms Kate Slack
Solicitors for the Respondent: 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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