Donohue and Comcare (Compensation)
[2019] AATA 101
•7 February 2019
Donohue and Comcare (Compensation) [2019] AATA 101 (7 February 2019)
Division:GENERAL DIVISION
File Number 2017/1417
Re:Paul Donohue
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:7 February 2019
Place:Canberra
The reviewable decision dated 21 December 2016 is affirmed.
……………………………………….
Senior Member Linda Kirk
Catchwords
WORKER’S COMPENSATION – whether the Applicant’s claimed condition is an injury or disease – distinction between ‘injury simpliciter’ and disease – whether claimed condition is a ‘sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ – whether the Applicant’s employment contributed to the disease to a significant degree – contribution of other factors to the claimed condition – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14
Cases
Australian Postal Corporation v Burch (1998) 156 ALR 483
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Comcare v Reardon [2015] FCA 1166
Comcare v Sahu-Kahn (2007) 156 FCR 536
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886
Reardon and Comcare [2015] AATA 360
May v Military Rehabilitation and Compensation Commission(2015) 233 FCR 397
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare [2016] AATA 459
Su v Comcare [2011] AATA 934REASONS FOR DECISION
Senior Member Linda Kirk
7 February 2019
INTRODUCTION
Mr Paul Donohue (‘the Applicant’) was born in 1951. He commenced employment with ACT Government Transport Canberra and City Services (‘the Agency’) in 1977. At all material times and until his retirement on 30 June 2017 he was employed as a GSO5/6 Ganger in the Road Patrol (Cold Mix).
On 5 July 2016, the Applicant lodged a workers’ compensation claim in respect of ‘stress fracture right distal tibia’ affecting his right foot (‘the Claimed Injury’).[1] The date of injury was claimed to be 12 November 2015. The Applicant claimed that his condition arose as a result of ‘excessive use of [his] right foot’ when ‘pressing road mix onto pavement’.[2]
[1] T20.
[2] T20.
On 21 October 2016, Comcare (‘the Respondent’) denied liability for the Claimed Injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) on the basis that the Applicant’s employment did not significantly contribute to the Claimed Injury.[3]
[3] T37.
In a decision dated 21 December 2016 the Respondent affirmed the determination denying liability (‘the Reviewable Decision’).[4]
[4] T41.
On 22 March 2017, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the Reviewable Decision.[5]
[5] T1.
The review application was heard by the Tribunal at a hearing in Canberra on 5 and 6 September 2018. The following witnesses gave oral evidence at the hearing:
·the Applicant;
·Mr Shane Holden;
·Dr Kylie Scott;
·Dr Anthony Menz; and
·Dr Sean Low.
The following documents were before the Tribunal:
·Applicant’s Statement of Facts, Issues and Contentions dated 10 July 2018;
·Undated statement of the Applicant filed 9 November 2017 with attachments (medical certificates);
·Document titled ‘Applicant’s Statement of Particulars’ with attachments dated 23 June 2017;
·Extracts from summonsed material files 20 July 2017;
·Document titled ‘Daily Work Log’ dated 10 August 2018;
·Report of Dr Kylie Scott dated 17 November 2017 and briefing letter dated 26 July 2017;
·Respondent’s Statement of Facts, Issues and Contentions dated 3 August 2018;
·Report of Dr Wayne Reid dated 1 May 2017;
·Supplementary Report of Dr Sean Low dated 10 August 2017 and briefing letter dated 31 July 2017 (Exhibit A1, A38);
·Supplementary Report of Dr Anthony Menz dated 3 August 2017 and briefing letter dated 28 July 2017 (Exhibit A1, A18-22);
·Statement of Shane Holden dated 3 September 2018 (Exhibit 1, A42-43);
·Respondent’s s 37 documents (T1-T46) filed 21 April 2017 (Exhibit A1);
·Respondent’s s 71 documents filed 22 November 2017 (Exhibit A2);
·Applicant’s Court book (four folders) (Exhibits A1-A4);
·Applicant’s green and black exercise book titled ‘Employment 6.5.2014>’ (Exhibit A5);
·Applicant’s Vitamin studies report dated 5 October 2016;
·Applicant’s Bone Densitometry Report dated 5 October 2016;
·Applicant’s Further Submissions and Reply dated 5 October 2018; and
·Respondent’s Submissions dated 18 September 2018.
LEGISLATIVE FRAMEWORK
SRC Act
An employee’s entitlement to compensation under the SRC Act is conferred by s 14(1) which provides that Comcare is:
… liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
‘Injury’ is defined in s 5A of the SRC Act:
(1)…
(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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
A ‘disease’ is defined in s 5B of the SRC Act to mean, so far as this case is concerned:
(1)…
(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.
An ‘ailment’ is defined in s 4 of the Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
ISSUES FOR DETERMINATION
The issues for determination in the review are:
Is the Claimed Injury an ‘injury’ or a ‘disease’ for the purposes of the SRC Act, and:
(a)if it is an ‘injury’, whether the injury arose out of or in the course of the Applicant’s employment;
(b)if the injury is a ‘disease’, whether the Applicant’s employment contributed to the injury to a significant degree.
BACKGROUND AND CLAIMS
Work history and prior medical conditions
After leaving school the Applicant worked as a labourer for a construction company and in 1974 he completed an apprenticeship as an electrical mechanic.[6] He commenced work with the Agency in 1977 and, after a period in the building section, he transferred to the roadways section.[7]
[6] Transcript of hearing proceedings, 5 September 2018 (‘Transcript’) at page 11, lines 1-12.
[7] Transcript at page 11, lines 20-23.
During his oral evidence at the hearing, the Applicant told the Tribunal that he commenced footpath repairs in 1998 and undertook this work until he retired in June 2017.
During the course of his employment, the Applicant had several work and non-work related medical conditions:
·Heart condition – 2013 – non-compensable;
·Left wrist osteoarthritis – 2009 – accepted compensable;
·Inguinal hernia – 2005 – compensable; and
·Lumbosacral strain – 1992 – compensable.[8]
[8] Exhibit A1, Applicant’s Statement of Particulars dated 23 June 2017[7].
Applicant’s work duties and roadwork tasks
An ACTSAFE Australia report dated 25 January 2010, prepared for the purposes of an assessment of the Applicant’s rehabilitation requirements and the suitability of his work duties with Roads Maintenance, described the Applicant’s work duties undertaken with the Roads Patrol:
Mr Donohue was working predominantly in the Cold Mix team and would spend the majority of his work days repairing potholes and footpaths. He reports that the gang would also be called to attend an accident site and clear the debris from the road surface. The frequency of this activity is variable, although generally may occur twice weekly.
·The employee is required to check for oncoming traffic and be sure to apply the correct Traffic Control Management Plans
·The shovel, broom or foot may be used to evenly spread the cold mix in the pothole
·Pressing down cold mix asphalt with a ‘rammer’. A mechanical rammer is used for large areas or the tyre of the work vehicle is run over the area in order to compress the material. The cold mix works on the chemical bonding of the material to make it strong and requires firm pressure applied with the rammer. Mr Donohue may walk over the filled pothole to use his body weight to compress the mix.[9]
[9] T5, 18-19.
During his oral evidence, the Applicant confirmed that the description of his duties contained in an Initial Needs and Workplace Assessment Report dated 17 January 2015 was an accurate summary of his duties at this time:[10]
When a footpath is damaged – resulting in a trip hazard for pedestrians, Mr Donohue is required to:
·Drive a small rigid truck to the site within the ACT …
·Barricades / witches hats are set up if required
·Using a sledge hammer (estimated to weigh 5.5kg) to break up the affected concrete into small pieces which can be easily handled
·Mr Donohue loads the broken concrete into a bucket. This is done picking up chunks of concrete piece by piece, or using a shovel. The bucket is then carried and emptied into the tray of the truck. The weight of this is determined by what Mr Donohue can manage. Estimated to vary between 5-10kg. Smaller loads can be used if required.
·Small shovels of ‘cold mix’ are taken from the truck tray using a small shovel and tipped onto the repaired area. This is ‘tamped’ using his foot to press down and smooth the cold mix into the affected area. Mr Donohue advised that he performed this task in ‘layers’.[11]
[10] Transcript at page 12-14.
[11] T31e, 124.
In his oral evidence, the Applicant described the manner in which he filled the holes in the footpath with the cold mix as ‘push it down’,[12] ‘pressing it down’,[13] and ‘compress it down’.[14] He agreed that he used his right foot as a ‘tool’.[15] He was asked by his counsel to demonstrate to the Tribunal the action he used on the cold mix. He performed an action that the Tribunal described as ‘sort of tapping the foot onto the cold mix to try and flatten it … compress it down.’[16] When the Applicant was asked by his counsel whether he would ‘tap it’ or ‘raise [his] foot off the ground … [in] a stomping motion’[17] the Applicant repeated the motion, which the Tribunal described as ‘somewhere between a stomping motion and a tapping one.’[18] He said he would repeat this process two or three times in layers to complete the task.[19]
[12] Transcript at page 14, line 21.
[13] Transcript at page 14, line 32.
[14] Transcript at page 15, line 29.
[15] Transcript at page15, line 17.
[16] Transcript at page 15, lines 28-29.
[17] Transcript at page 15, lines 33-34.
[18] Transcript at page 15, lines 37-38.
[19] Transcript at page 15, lines 45-46.
The Applicant told the Tribunal that he would use a rammer weighing approximately eight pounds to finish the job.[20] He was not allowed to use a mechanical rammer due to medical restrictions.[21]
[20] Transcript at page 30, line 25; page 31, line 17; page 35, line 20; page 38 line 10; page 39, line 7. In re-examination the Applicant contradicted this: Transcript at page 44, line 2.
[21] Transcript at page 30-31.
During cross-examination, the Applicant was asked whether he would lift his foot to ‘stamp’ or ‘stomp’ on the cold mix: [22]
Mr Guigni – What I wanted to ask you is there’s no suggestion … that you were lifting the foot and stamping or stomping on the cold mix?
Applicant – you mean like I’m just putting weight on? Like I’m not hitting it. There’s no hitting or …
Mr Guigni – how can you do it? Would you stand there and put your foot on?
Applicant – It doesn’t work, like, you’ve got to give it a bit or a – you’ve got to pound it.
Mr Guigni – You’ve got to pound it?
Applicant – Yes, you’ve got to pound it or you can – you can push it down a little bit like you say but then give it a bit of a push, you know. Hit it down with your foot.
Mr Guigni – Isn’t that what the ram is for? … For doing that? … That’s what you have the tool for isn’t it? The rammer?
Applicant – That’s right.
[22] Transcript at page 37, lines 45-48; page 38, lines 1-11.
Work hours and responsibilities prior to claimed injury
From 2 July 2014, Dr Kingston certified the Applicant fit to work 3 days per week half days and two days full days. A file note on 18 November 2014 recorded the Applicant working three days a week for four hours a day and two days a week for eight hours per day.[23]
[23] T6.
From February 2014 to November 2015, the Applicant ‘remained predominantly in the depot completing cleaning duties around the depot and workshop’ as road work crews are scheduled to be on the road for eight hour days. [24] During this period he was working three 4 hour days and taking two annual leave days per week in order to reduce his accrued leave.[25]
[24] Respondent’s Statement of Facts Issues and Contentions, para 49(c) (‘SFIC’); Statement of Steven Wright 28 September 2016, T31a, 93.
[25] Respondent’s SFIC, para 49(b).
Foot symptoms prior to claimed injury
On 27 August 2015, the Applicant was referred by Dr Kingston to see Mark Clayton, Podiatrist, in respect of ‘right midfoot pain suggestive of OA.’[26] The following day an x-ray was undertaken on the Applicant's right foot. This showed degeneration of the 2nd metatarsal consistent with a past history of Freiberg's infraction. No other abnormality was noted.[27]
[26] T11.
[27] T12.
The Applicant consulted Dr Kingston on 30 September 2015 who recorded that he suffered ‘midfoot pain right. lateral on walking. using shoe implants. PD OA midfoot Xray.’[28] She ordered another midfoot x-ray which was performed the next day. On 1 October 2015, the Applicant attended Dr Kingston who recorded ‘Freibergs disease midfoot pain no signif 2nd metatarsal joint tenderness. WC2/10 analgesia.’[29] On 3 November 2015 Dr Kingston recorded an attendance of the Applicant for right foot pain.[30]
[28] Exhibit A3,102.
[29] Exhibit A3,103.
[30] Exhibit A3,104.
Claimed Injury – 12 November 2015
On 9 and 10 November 2015, the Applicant worked 7am to 11am. He took recreation leave on 11 November 2015 and worked from 7am to 11am on 12 November 2015.[31]
[31] T13.
In his Statement filed on 9 November 2017, the Applicant described his work on 12 November 2015 as follows:
On 12 November 2015, the applicant was, amongst other things, working on a job that involved pressing road mix into the pavement. This required the use of the applicant’s right foot. As the applicant is left-handed he would use his left foot to steady himself while pressing and shaping the road mix with his right foot/work-boot in a pivoting motion. This task was regularly under taken by the applicant as part of his duties to fix potholes.
At the end of this shift the applicant noticed the pain was much worse than usual and he needed to take the next day off work as sick leave (it was meant to be a compulsory recreation leave day).
After seeing his doctor, the applicant was advised to take two weeks off. This time was then extended, initially on a month-by-month basis.
On 12 November 2015, Dr Stella Kingston, general practitioner, recorded an attendance of the Applicant for ‘right foot pain and swelling WC 13-20/11’.[32]
[32] Exhibit A3,105.
The Applicant was off work from 13 November 2015 until 7 September 2016 (inclusive) as a result of his injury.[33]
[33] Exhibit A1, Applicant’s Statement of Particulars dated 23 June 2017[6]; T31c and see also T23.
Medical treatment following claimed injury
On 17 November 2015 Dr Kingston recorded an attendance of the Applicant for ‘swollen right ankle. no sign of DVT refer Xray limping Freibergs syndrome’. On 18 November 2015, the Applicant had an x-ray of his right ankle. The report notes ‘there is non-specific soft tissue swelling’.
On 1 December 2015, the Applicant was referred by Dr Kingston to Outpatients Orthopaedics. The presenting problem was ‘right ankle synovitis. no evidence of OA. Freibergs disease right foot.’[34]
[34] T14.
On 11 December 2015, the Applicant was referred to Dr Gawal Kulisiewicz, Orthopaedic Surgeon, by Dr Kingston. The presenting problem was ‘right ankle swelling and pain. Freibergs disease identified on X-ray of foot.’[35]
[35] T15.
On 16 December 2015, Dr Kingston recorded an attendance for the Applicant ‘gross swelling of foot and ankle right synovitis’. He was referred to the following specialists:
·Dr Joe Lau, Lower Limb Orthopaedic Surgeon for ‘right ankle arthritis. previously midfoot pain. Freibergs disease right foot.’[36]
·Dr Liyanage Perera in respect of ‘right ankle swelling arthritis synovitis. history of midfoot pain Freibergs disease evident on Xray.’[37]
[36] T16.
[37] Exhibit A3,396.
On 19 January 2016, a bone scan regional with SPECT/CT was performed on the Applicant. The impression reported was ‘most likely represents a recent stress fracture’[38] in the right distal tibia. However, according to the radiologist’s report, infection could not be ruled out.
[38] T17.
On 20 January 2016, the Applicant was referred by Dr Kingston to the Orthopaedics Registrar Review Clinic. The presenting problem was ‘painful ankle with swelling since Nov 15 not improving. bone scan suggests stress fracture distal tibia’.[39] On 21 January 2016 an x-ray of the Applicant’s right ankle showed ‘subtle sclerosis in the subchondral bone in this region consistent with a stress reaction.’[40]
[39] T18.
[40] Exhibit A3, 407.
In a report to the Respondent dated 9 February 2016, Dr Kingston noted that the Applicant was currently ‘suffering from a stress fracture of distal tibia and is unfit to work.’[41]
[41] Exhibit A3, 408.
The Orthopaedic Clinic provided a report dated 12 February 2016 in relation to the Applicant’s right ankle. Dr Lau had requested repeat x-ray and that the Applicant be put in a boot and reviewed.
Dr Brian Ashman, orthopaedic surgeon, ‘felt that the findings on the MRI were most consistent with osteoarthritis of the subtalar joint and has recommended that if he is still significantly symptomatic that he should be reviewed by an orthopaedic surgeon.’[42]
[42] Exhibit A4, p 73..
Dr Kingston recorded on 18 February 2016, that the Applicant was ‘wearing leg brace right. WC 18/2-18/4 stress fracture right ankle’.[43]
[43] Exhibit A3, 117.
On 8 April 2016, the Applicant underwent an x-ray of his lower Extrem - Foot/Ankle - Right. The examination revealed a differential diagnosis ‘would include stress reaction and chronic infection. Further it was noted that the second metatarsal head reminiscent of Freiberg's’.[44]
[44] Applicant’s SFIC, 8-9 at [41].
Dr Kingston recorded on 11 May 2016 ‘to have MRI scan right lower tibia. reduced swelling right lower leg WC 18/416-18/6/16’.[45]
[45] Exhibit A3, 120.
In an attendance by the Applicant with Dr Kingston on 5 July 2016 it was recorded ‘right distal tibia stress fracture, wishes to make Comcare claim many years of packing potholes with material with his foot. awaiting MRI scan through TCH for clearance to remove walking boot initial cert written’.[46]
[46] Exhibit A3, 122.
On 4 August 2016, a MRI scan was performed in respect of the Applicant’s right ankle by Dr Ashman at Canberra Hospital. Dr Ashman having considered the investigation found:
Features of occult fractures involving the medial malleolus extending into the metaphysis, and in the central body of the talus which has united. Degenerative changes involving the tibiotalar joint and subtalar joint. Tendinopathy of the tibialis anterior tendon.[47]
[47] Exhibit A4, 154.
Dr Gurgo, neurosurgeon, assessed the Applicant under s 36 of the SRC Act and produced a report dated 11 August 2016. Dr Gurgo stated that the Applicant was a vague historian and that he had ‘recently sustained some sort of right ankle tibial fracture which is being treated by the orthopaedic surgeons in a cast.’ At the time of the assessment the right ankle pain was the main concern. The Applicant's right ankle was in a cast at the time of the assessment.[48]
[48] T23.
Claim for workers’ compensation
The Applicant completed a claim for workers’ compensation form on 17 August 2016. The Applicant claimed an injury affecting his right foot. The injury was stated to be a stress fracture right distal tibia. The cause of the injury was said to be ‘pressing road mix onto pavement.’[49]
[49] T20.
On 1 July 2016, the Applicant provided a handwritten statement in support of his claim. He described his work activities and the impact on his foot:
Every day (working) I would do footpath repairs and potholes. Since 2005 after the hernia operation was a landmark for when caution had to be taken about using the whackerpackers, and I would have to use other methods for packing the cold mix – a small job can easily be done by squashing it underfoot and then using the rammer (a handheld packing tool) to finish it off. A [indistinct] pot hole on the road or sometimes gravel temporary on the footpath - the truck wheels can do a good job if room forbids.
NOW I THINK that justification by Comcare considering the case if bring to it that I having thought about my present predicament, suddenly realized that a great amount of strain would have been placed on my right foot, because of the many years, and intermittent use of this part of my body to accomplish the days work [sic]. I did have a companion worker for help but quite often just myself.[50]
EVIDENCE BEFORE THE TRIBUNAL
[50] T19.
Shane Holden, Applicant’s Work Supervisor
Shane Holden provided a written statement dated 3 September 2018[51] and gave oral evidence at the hearing. He is employed as the Works Supervisor, Routine Maintenance for the Agency. He has held the position for seven years and currently manages a team of about 26 workers engaged in a variety of maintenance tasks. He was the Applicant’s supervisor from 2012 until when the Applicant retired. The Applicant was subject to medical restrictions for the entire time he was his supervisor.
[51] Exhibit A1, Statement of Shane Holden dated 3 September 2018 at A42.
Mr Holden stated that the Applicant ‘was assigned tasks such as footpath repairs, sign maintenance and light depot maintenance.’[52] Attached to his written statement he included the Activity sheets completed by the Applicant between 6 October 2015 and 12 November 2015.
[52] Exhibit A1, Statement of Shane Holden dated 3 September 2018 at A 42 [5].
In his oral evidence, Mr Holden agreed that from February 2014 to November 2015 the Applicant worked predominantly in the depot doing light maintenance and cleaning duties to work in with his leave reduction plan.[53] The majority of the Applicant’s outside work during this period was doing pavements, potholes and signs. He’d usually work with several people and sometimes he’d work by himself.[54] Mr Holden stated that he only worked on one occasion with the Applicant, but he would do random safety audits of his crews when he would observe their work practices and ensure they were working within safe work guidelines.[55] He did not at any stage see anything about the Applicant’s work practices that caused him concern. He never saw him stamping or stomping.[56]
[53] Transcript at pages 62-63.
[54] Transcript at page 51.
[55] Transcript at page 52, 68.
[56] Transcript at page 55, line 6; page 70, line 31
In his statement, Mr Holden described the Applicant’s work duties and accepted work practices:
Footpath repairs would involve cleaning the concrete, applying emulsion (adhesive) and shovelling on the cold mix. The cold mix should then be levelled out with a shovel and compacted with a square piece of steel equipment (100-150 mm in diameter and weighing around 5kg) called a tamper. In the case of a path being damaged to the point of being unsafe, the task would also involve the removal of concrete with a sledgehammer or a crowbar.
It was not the accepted practice to use feet to smooth out or compact the cold mix. I don’t expect my teams to use parts of their body in that way. We provide manual handling training. I recall directing Mr Donohue to use a shovel or the tamper for this task but I do not know if Mr Donohue followed this direction as I never saw him perform footpath/pothole repairs. In relation to the cold mix it becomes harder depending upon the temperature. In my experience in working with cold mix, using your feet instead of a tamper or shovel to press it into the affected area would involve applying body weight on the mix and moving your foot to spread it.
At the hearing, Mr Holden was asked about the tools that the Applicant used. He stated that the Applicant had lifting restrictions and he would not permit him to use tools, such as a clay compactor, that were heavy or which sent a vibration or shock through the hands.[57] He confirmed that the Applicant could use the manual tamper weighing 5 kilograms to compact the cold mix on the footpath repairs. He was not supplied with a vibrating plate because it would cause a shock to his hands.[58]
[57] Transcript at page 49.
[58] Transcript at page 53.
Mr Holden confirmed in his oral evidence that ‘stomping’ on the cold mix is ‘definitely not the way it’s done … you shouldn’t be using your body to spread anything or stamp anything and that’s the whole reason of having the compaction tools.’[59] He agreed that if he saw something in breach of what was best practice he would have identified it and done something about it. He acknowledged that the 2010 rehabilitation report that referred to walking over the filled pothole to compress the mix was not accepted practice. He agreed that the Applicant was the kind of worker who would want to get the job done as quickly as possible even if this meant ‘stomping’ on the cold mix.[60]
Medical Evidence
[59] Transcript at page 55, lines 11-14.
[60] Transcript at page 58, lines 11-13.
Dr Kylie Scott, Applicant’s General Practitioner
Dr Kylie Scott, general practitioner, first treated the Applicant on 9 August 2016 when she took over from Dr Stella Kingston. On 30 September 2016, she reported that the Applicant claimed his condition began ‘many’ years ago but ‘he was unable to be more specific and was unable to indicate any one event as contributing to his injury.’[61] She noted that the first reference in the clinical notes to injury in the region of the right leg, foot and ankle was 16 March 2012. The Applicant was ‘unable to furnish a coherent history to allow [her] to establish events surrounding [the Applicant’s] injury, other than to say it was caused by packing roads by stamping on potholes over many years in the course of his work.’[62] She reported that Dr Kingston’s notes did not ‘shed much further in the way of light on [the Applicant’s] relevant past medical history, history of presenting complaint, nor physical signs and symptoms at presentation.’[63] She noted that the Applicant appeared to have limited cognition and his ability to work safely and understand restrictions and modify his behaviour appear limited.’[64] Dr Scott reported that on 23 September 2016 she had recorded in relation to the Applicant ‘has multiple occult LL fractures on MRI; Needs follow up bone density testing and also blood tests’.[65]
[61] T32, 155.
[62] T32, 156.
[63] T32, 156.
[64] T32, 157.
[65] T32, 156.
In a further report dated 17 November 2017,[66] Dr Scott reported that the Applicant ‘is a very difficult historian and the injury occurred at a time when [she] was not his doctor.’[67] She noted that the ‘paucity of details in the notes from Dr Stella Kingston’ meant that she was reliant on sources that were difficult to interpret.[68] The Applicant reported to her that ‘he was tamping down road resurfacing material when he experienced pain in his shin and that he was subsequently diagnosed as having a stress fracture.’[69]
[66] Exhibit A1, Report of Dr Kylie Scott dated 17 November 2017.
[67] Exhibit A1, Report of Dr Kylie Scott dated 17 November 2017, 1.
[68] Exhibit A1, Report of Dr Kylie Scott dated 17 November 2017, 1.
[69] Exhibit A1, Report of Dr Kylie Scott dated 17 November 2017, 1.
In her report, Dr Scott concluded as follows:
In my opinion, Mr Donohue had osteoporosis related stress fractures of the right medial malleolus and talus. I am unable to say if the injury was definitely caused by his work nor attribute likely degree of contribution in this complicated case. It was in all probability a contributing factor. I can state that Mr Donohue reports his work caused his injury. He also has Friedbergs (sic) disease of the right foot … This may or may not have altered his gait and biomechanics such that it added further stress through the tibia. A specialist opinion would have to be sought in relation to this. His osteoporosis places him at risk of minimal trauma fractures.[70]
[70] Exhibit A1, Report of Dr Kylie Scott dated 17 November 2017, 2.
During her oral evidence at the hearing, Dr Scott accepted that if in the weeks preceding 12 November 2015 the Applicant during the course of his work was laying cold mix and stomping on it with his right foot and then went to see the doctor with pain and swelling in his ankle, it could have led to the trauma that was later reported in the MRI.[71]
[71] Transcript at pages 74-75.
Dr Scott confirmed that the bone densitometry report dated 5 October 2016 indicated that the Applicant had osteoporosis and a moderate risk of fracture. She told the Tribunal that
osteoporosis is a disruption in the build-up and break down cycle of the bone and it means that the trabecular bone or the cortical bone basically becomes weakened over time in a way that’s accelerated compared to the rest if the population when it’s corrected for age and sex.[72]
[72] Transcript at page 76.
Dr Scott confirmed that the Applicant’s Vitamin D test on 5 October 2016 was low. Vitamin D is necessary for adequate bone health and to assist in preventing osteoporosis although the two are not causally linked.[73] The Applicant was not treated for osteoporosis until this diagnosis was made.[74]
[73] Transcript at page 77.
[74] Transcript at page 83.
Dr Scott was asked whether in her opinion the Applicant’s osteoporosis was a significant contributing factor to the Applicant’s injury. She said she could not attribute percentage causality for any factor, including Vitamin D deficiency and Freiberg’s disease, although age was unlikely to be a causal factor.[75] The research shows that it is ‘indeterminate whether a talar fracture will arise as a result of osteoporosis.’[76]
[75] Transcript at pages 78-79.
[76] Transcript at page 78.
Dr Scott was of the opinion that even if osteoporosis were not present that the Applicant would still have sustained the injury because the MRI showed that he had a talar fracture as well as a malleolar fracture and the talus is one of the strongest bones in the body. It maintains its density reasonably well even in osteoporotic conditions. It does not fracture easily and usually requires some force or trauma. It is only one percent of all skeletal fractures.[77] A stress fracture is ‘a small fracture through the bone caused by stress or force applied through an axial load on the skeleton’. They can occur anywhere and healthy individuals have them if the trauma and force is sufficient.[78] A stress fracture is a ‘clinical diagnosis reinforced by a sensitive scan.’[79] The x-ray on 18 November 2015 was not sufficiently sensitive enough to show up an occult fracture or a stress fracture.[80] However the non-specific soft tissue swelling it showed is significant because an x-ray will not show up small amounts of swelling.[81]
[77] Transcript at page 78.
[78] Transcript at page 78.
[79] Transcript at page 82.
[80] Transcript at page 82.
[81] Transcript at page 82.
She expressed the view that looking closely at the MRI it is probable that the Applicant’s work caused the injury given that the Applicant sustained both a malleolar and a talar fracture as the latter is less likely to occur including in an osteoporotic person. In her view, it was ‘pretty clear’ that the Applicant’s ‘repetitive actions on the road … could cause the trauma that led to his fractures.’[82] She confirmed that this view was based on what the Applicant wrote in his diary and what he had reported. She does not believe that the Applicant is ‘capable of fabrication.’ Her assumption is that the Applicant ‘was stomping on potholes when he’d filled them.’ She believes he ‘would use his foot like a ram’ as he ‘is not capable of limiting himself or necessarily applying more restraint where he feels he needs to get a task done.’[83] She agreed that if the Applicant had not been ‘stomping’ his foot, that her view would change, but she cannot imagine he ‘would use a word that didn’t reflect what he was doing.’[84]
[82] Transcript at page 79.
[83] Transcript at page 80.
[84] Transcript at page 81.
Dr Scott was asked whether it would be likely the Applicant would be ‘stomping’ his foot given he had been diagnosed with Freiberg’s disease. She said she could only base her view on what is in the clinical notes of Dr Kingston and what the Applicant had told her.[85]
[85] Transcript at page 81.
Dr Anthony Menz, Orthopaedic Surgeon
Dr Anthony Menz, Orthopaedic Surgeon, assessed the Applicant on 13 October 2016 and provided a report to Comcare dated 19 October 2016.[86] He noted that the Applicant was a ‘poor historian and was unable to give accurate dates and seemed confused about what treatments and when he had them’. The Applicant ‘stated that he noticed the onset of pain in his right foot in November 2015.’ There had been ‘no specific injury but there was a gradual onset of pain in his foot.’[87] He wore a moon boot from February 2016 for about 9 months for the pain. Dr Menz found:
Moderately intense focal increased uptake in the right distal tibia with associated increased vascularity and hyperaemia most likely represents a recent stress fracture. However infection at this site cannot be completely excluded.[88]
[86] T36.
[87] T36, 166.
[88] T36, 166.
Dr Menz diagnosed ‘stress fracture of the talus and the medial malleolous of the right ankle’ and expressed the view that the Applicant was suffering from the stress fractures at the date of injury on 12 November 2015 although these had now resolved. He found ‘no significant pre-existing or underlying condition associated with [the Applicant’s] stress fracture.’[89]
[89] T36, 169
Dr Menz described the nature of stress fractures:
Stress fractures are usually related to an overuse condition and are not related to any acute conditions. I believe Mr Donohue's employment most likely was responsible for the onset of his stress fractures.[90]
[90] T36, 170.
During his oral evidence at the hearing, Dr Menz confirmed that at the date of this report, he did not have any evidence that the Applicant had osteoporosis.
Dr Menz provided a supplementary report to Comcare on 3 August 2017. He had been provided with additional information, specifically the Applicant’s vitamin D deficiency and osteoporosis. In his report, he expressed the view that ‘there is a direct relationship between osteoporosis and vitamin D deficiency and the development of stress fractures.’[91] In his opinion, the Applicant’s age was a contributing factor to his injury and he ‘could certainly have sustained a stress fracture regardless of his employment.’[92] The ‘mere fact that he was walking, particularly as he has osteoporosis, could in itself cause a stress fracture.’ He did not believe ‘that working with cold mix asphalt during the course of [the Applicant’s] normal work duties specifically caused the stress fracture.’[93]
[91] Report of Dr Menz dated 3 August 2017, 1.
[92] Report of Dr Menz dated 3 August 2017, 2.
[93] Report of Dr Menz dated 3 August 2017, 3.
In his oral evidence, Dr Menz explained he had more information when he prepared his second report. He expressed the view that even if the Applicant had not been working at the time and had been walking around the streets ‘he probably would have developed the stress fracture anyway.’ The Applicant ‘is more likely to develop a stress fracture because of osteoporosis and not necessarily because he had a job.’[94]
[94] Transcript at pages 89-90.
Dr Menz stated in his August 2017 report that it was ‘almost impossible with the history given to state when [the Applicant’s] stress fractures were sustained … because he was complaining of ankle pain for many months.’[95] The bone scan in January 2016 indicated the stress fracture was present at the time and could have been there for several weeks. These usually heal over a 6-12 week timeframe. The MRI in August 2016 showing some occult fractures were most likely the stress fractures which had healed.
[95] Report of Dr Menz dated 3 August 2017, 4.
Dr Menz expressed the view that it was ‘more likely that [the Applicant’s] complaints of foot and ankle pain in the latter half of 2015 were related to the arthritis of his ankle, subtalar joint and the degeneration which occurred with the Freiberg’s disease of his second metatarsal head.’[96]
[96] Report of Dr Menz dated 3 August 2017, 3.
Dr Menz was asked whether the talus bone is harder to break than other bones. He said that it is a protected bone within the ankle joint and is therefore harder to break. However, in this case it is not a traumatic fracture but a stress fracture that the Applicant sustained.[97] He was asked if it would be the same if the Applicant were ‘stomping’ on the cold mix instead of stepping on it to flatten it and he said that it would change.[98] He agreed that if a person weighing 93 to 100 kilograms were to stomp with their heel it would render a force that could fracture a talus.[99]
[97] Transcript at page 90, lines 10-13.
[98] Transcript at page 94, lines 32-34.
[99] Transcript at page 94.
Dr Menz expressed the view that a person with Freiberg’s disease ‘definitely would not want to stomp on anything because it would be giving acute, sharp, more intense pains with every stomp.’[100]
[100] Transcript at page 91, lines 26-28.
In his opinion, ‘there is a direct relationship between osteoporosis and stress fractures … because the bones are weaker, they’ve lost calcium, so it’s a weaker bone, so the stress that’s required to cause a stress fracture are (sic) going to be far less.’[101]
[101] Transcript at page 92, lines 4-7.
In relation to what was the significant contributor to the Applicant’s injury, Dr Menz stated ‘[t]he mere fact that he is bipedal, meaning he stands on his feet and walks on his feet, and he has osteoporosis so he’s more prone to developing stress fractures merely by the fact that he walks.’ [102]
[102] Transcript at page 92, lines 24-26.
Dr Sean Low, Consultant Occupational Physician
Dr Sean Low examined the Applicant on 10 January 2017 and provided a report on 31 January 2017 for the purposes of a fitness for duty assessment. He found that the Applicant was not a candidate for medical retirement.
Dr Low provided a supplementary report dated 10 August 2017 to Comcare. In his opinion, the Applicant ‘could have sustained this injury regardless of his employment.’ He was of the view that there was ‘not enough evidence to suggest that [the Applicant’s] injury was significantly contributed to by his employment.’[103]
[103] Exhibit A1, Dr Low Supplementary report dated 10 August 2017, A38.
In his opinion, the Applicant’s injury occurred sometime between November 2015 and January 2016. The bone scan on 19 November 2016 first detected signs suggestive of a recent stress fracture. The x-ray of the right ankle on 18 November 2015 did not show any evidence of a fracture.[104]
[104] Exhibit A1, Dr Low Supplementary report dated 10 August 2017, A38.
At the hearing, Dr Low was given further information about the Applicant’s duties that was not available to him when he prepared his August 2017 report. He was asked whether his opinion would change if the Applicant were ‘stomping’ on the cold mix and he said that it would not. He agreed it would take some force to fracture the talus bone and this is consistent with ‘stomping’. He also agreed that osteoporosis created a risk of stress fractures but not from everyday activities. However, ‘stomping’ would increase the risk of the occurrence of a stress fracture.
SUBMISSIONS
The parties presented closing submissions at the hearing and following the hearing they provided written submissions to the Tribunal.
Applicant
The Applicant’s stress fracture was an ‘injury’ as defined by s 4 of the SRC Act and not a ‘disease’ under s 5A(1) of the SRC Act.
The evidence is that the Applicant suffered a sustained and ascertainable dramatic physiological change or disturbance of his normal physiological state on 12 November 2015. It was more than just an experience of the onset of dysfunction. This is supported by the contemporaneous x-rays, scans and investigations and the Applicant’s evidence.[105]
[105] Applicant’s Further Submissions and Reply dated 5 October 2018, para 5.
The change in the nature of the Applicant’s duties in early November 2015 resulted in him suffering an injury. This change was the performance of heavier pavement work and repeated stomping rather than predominantly being in the depot performing light duties. This led to the stress fractures in his ankle which were an ‘injury’ rather than a ‘disease’.[106]
[106] Applicant’s Further Submissions and Reply dated 5 October 2018 para 6.
The case revolves around acceptance that, on the balance of probabilities, the stomping activity occurred.[107] This evidence is found in the Applicant’s demonstration to the Tribunal and his oral evidence he would use his right foot as a tool. The evidence of Shane Holden, Dr Scott and the clinical notes from the Campbell Medical Practice provide corroboration of the Applicant’s evidence that he would ‘stomp’ on the cold mix.[108]
[107] Applicant’s Further Submissions and Reply dated 5 October 2018, para 8.
[108] Applicant’s Further Submissions and Reply dated 5 October 2018, para 10-11.
There is no reason not to accept the Applicant’s evidence. His presentation of the action was clear and consistent under cross examination and supported by the medical evidence as to the way the fracture to the talus would have occurred, particularly with the change to the Applicant’s workplace duties. The causal link between the stomping and axil force onto the talus, which is a difficult bone to break without significant force as it is well-protected, is supported by the medical witnesses.[109]
[109] Applicant’s Further Submissions and Reply dated 5 October 2018, para 12.
Respondent
The Applicant’s stress fracture is not an ‘injury’ in the primary sense. The evidence of Dr Menz is to be preferred over the opinions of Dr Low and Dr Scott although they largely agreed as to the general principles around stress fractures. The Applicant’s fracture developed over a period of weeks or months and there is no identifiable point in time when it occurred.[110]
[110] Respondent’s Submissions dated 18 September 2018, para 11.
The Tribunal needs to be satisfied that the injury was an ‘ailment’ contributed to, to a significant degree, by the Applicant’s employment. Whether the Tribunal is satisfied depends on the facts the Tribunal finds, on the balance of probabilities, in relation to the nature, scope and frequency of the Applicant’s work duties that could reasonably be said to have impacted on his right ankle. In particular, the Tribunal is asked to make a finding of any propensity of the Applicant to repeatedly stomp on cold mix.[111]
[111] Respondent’s Submissions dated 18 September 2018, para 3.
The findings of medical fact that can be made in this case are binary:
·if repetitive stomping in fact occurred, the doctors who gave evidence take the view that there is likely to be significant contribution from the workplace for the injury;
·if not, those doctors are unable to reach that conclusion.[112]
[112] Respondent’s Submissions dated 18 September 2018, para 4.
The Tribunal could not be satisfied on the balance of probabilities that the reported stomping activity in fact occurred. This leaves only a finding on the medical evidence that significant contribution from work was not present.[113]
[113] Respondent’s Submissions dated 18 September 2018, para 5.
CONSIDERATION AND REASONS
The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.
(1) Was the Claimed Injury ‘an injury (other than a disease)’? - s5A(1)(b) SRC Act
The first issue for the Tribunal’s consideration is whether the Claimed Injury for which the Applicant seeks compensation can be considered a ‘disease’ or an ‘injury other than a disease’ for the purposes of the SRC Act.
Distinction between an ‘injury simpliciter’ and a ‘disease’
The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is an important one for an applicant because, for an injury that is not a disease (often referred to as an ‘injury simpliciter’ – see Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (‘May’), French CJ, Kiefel, Nettle and Gordon JJ at [42]), the injury must arise out of, or in the course of, the employment (s 5A(1)(b) of the SRC Act). That is, ‘… the physical or mental injury has to have a causal or temporal connection with the employee’s employment’: May per French CJ, Kiefel, Nettle and Gordon JJ at [44].
An injury simpliciter is contrasted with a disease, which must be contributed to, to a significant degree, by the employee’s employment (s 5B(1) of the SRC Act). The latter requires a stronger causal connection between the employment and the ailment: Australian Postal Corporation v Burch (1998) 156 ALR 483 at 486 (‘Burch’); Prain v Comcare [2016] AATA 459 at [7]-[8].
Whether a claimed condition is an injury simplicter or a disease must be determined on a case-by-case basis. As Gleeson CJ and Kirby J observed in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (‘Kennedy Cleaning’), ‘Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case’ at [22]. Therefore, the question of whether an applicant has a disease or injury must be determined with reference to ‘… precise evidence … concerning the nature and incidents of the physiological change…’: Kennedy Cleaning per Gleeson CJ and Kirby J at [39].
What is an ‘injury simplicter’?
In May French CJ, Kiefel, Nettle and Gordon JJ observed that whether there is an ‘injury’ in the primary sense ‘will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ at [52]. Similarly, in Kennedy Cleaning, Gleeson CJ and Kirby J stated that ‘… a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state … may qualify for characterisation as an ‘injury’…’ at [39]. In Burch, the Full Court of the Federal Court of Australia found a stroke to be an injury because, in the circumstances, it was ‘…a disturbance of the normal physiological state … or an ascertainable lesion or dramatic physiological change’ at 488.
French CJ, Kiefel, Nettle and Gordon JJ in May emphasised that ‘suddenness’ will not always be necessary for there to be an ‘injury (other than a disease)’. Their Honours stated that suddenness may nevertheless be ‘useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease’ at [47]. Their Honours cited the following passage from May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 with approval:
The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was, instead, “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind.”[114]
[114] May at [34] citing (2015) 233 FCR 397 at 444 [205]-[207].
Their Honours went on to state, ‘subjectively experienced symptoms, without an accompanying physiological or psychiatric change’ are not sufficient to be a disease or an injury at [57]. That is, merely ‘feeling unwell’, or experiencing symptoms, will not be sufficient to establish an injury. What is also needed is ‘physiological evidence, pathology or a known diagnosis to explain the symptoms’: Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886 at [63] quoted in May per Gageler J at [82].
An injury can include a ‘sudden physiological change resulting from a disease’: Kennedy Cleaning, per Gaudron J at [50]. Similarly, Gleeson CJ and Kirby J stated, ‘the mere fact that a sudden physiological change is in some way connected with an underlying ‘disease’ process does not, of itself, prevent the classification of such a change as an ‘injury’ within the primary statutory provisions that apply to such a case.” Kennedy Cleaning at [36].
Was the Claimed Injury an ‘injury simplicter’?
The Applicant argues that he suffered an ‘injury’ at work on or around 12 November 2015. According to the High Court in May and the authorities outlined above, for it to be an ‘injury’ under s 5A(1)(b) there must have been ‘some definite or distinct physiological change or physiological disturbance for the worse which, if not sudden, is at least identifiable.’[115] If this is so, then the condition may be treated as an injury simpliciter under s 5A(1)(b).
[115] May at [75] per Gageler J.
On the basis of the evidence before it, and for the reasons outlined in the following paragraphs, the Tribunal is not satisfied that the Applicant suffered an “injury (other than a disease)” under s 5A(1)(b) of the SRC Act.
The nature of stress fractures
The parties agree that the Applicant suffered a stress fracture in his right ankle as identified in the bone scan performed on 19 January 2016. The medical specialists were in broad agreement as to the general principles around stress fractures:
·they are commonly associated with overuse and repetitive activity[116] or a gradual progression of activity;[117]
·they develop slowly;[118]
·they usually come on when people change their exercise regime;[119]
·the timeframe between their development and onset of symptoms is unknown;[120] and
·there is a direct relationship between stress fracture and osteoporosis and vitamin D deficiency.[121]
[116] Dr Menz, at T36, 170 (Report of 19 October 2016) and Exhibit A1, A21 (Report of 3 August 2017).
[117] Dr Low, Report of 10 August 2017 Exhibit A1, A40.
[118] Dr Menz, Report of 3 August 2017) Exhibit A1, A21.
[119] Ibid.
[120] Ibid.
[121] Dr Menz, (Report of 3 August 2017) Exhibit A1, A18; Dr Low, (Report of 19 August 2017) Exhibit A1, A37; Dr Scott, (Report of 17 November 2017)Exhibit A1, 112.
The medical specialists also agreed that it was difficult to identify a date on which the Claimed Injury occurred. They were only able to express a temporal range within which it might be expected to have developed. Dr Low opined that the condition developed between November 2015 and January 2016[122] whereas Dr Menz considered it ‘almost impossible’ to identify when the stress fractures were sustained.[123]
[122] Dr Low, (Report of 10 August 2017) Exhibit A1, A39.
[123] Dr Menz, Exhibit A1, A21; Dr Low, Exhibit A1, A39.
The Tribunal finds, on the basis of the medical and other evidence before it, that the Applicant did not sustain an ‘injury’ under s 5A(1)(b) of the SRC Act. There is inadequate evidence to support a finding, as required in the words of the High Court in May, that the Applicant suffered ‘something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’.[124]
[124] May at [75].
The medical evidence before the Tribunal is that stress fractures develop over a period of time, often over weeks or months. Unlike acute fractures that are generally sustained by trauma, stress fractures are not characterised by ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state…’. In the Applicant’s case, it is not possible to identify a specific date of onset of the dysfunction affecting the Applicant’s rights ankle. Accordingly, the Tribunal finds that the Applicant did not sustain an ‘injury simpliciter’ as described by the High Court in May.
(2) Was the Claimed Injury a ‘disease’? – s 5A(1)(a) and s 5B(1)(a) SRC Act
The second issue for consideration in determining whether the Applicant suffered an ‘injury’ as defined under s 5A(1) of the SRC Act is whether he suffered from a ‘disease’ for the purposes of s 5A(1)(a) of the SRC Act and specifically whether this was, under s 5B(1)(a) of the SRC Act, ‘an ailment … that was contributed to, to a significant degree, by [his] employment’.
What is a ‘disease’?
In contrast to an injury simpliciter, a disease can be described as a change in underlying pathology. In Kennedy Cleaning, Gleeson CJ and Kirby J said at [40]:
The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an “injury” in the primary sense.
The meaning of disease was considered by the Federal Court in Comcare v Mooi (1996) 69 FCR 439. At the time of the decision, s 5B had not been enacted and the definitions of ‘disease’ and ‘ailment’ were found in s 4(1) of the SRC Act. Those definitions were in terms consistent with their current definitions. Drummond J began by noting at [10]:
By s 4, the term ‘injury’ means physical or mental injury other than disease, while the term ‘disease’ means any physical or mental ailment, disorder, defect or morbid condition. The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition: a slight ailment (The Macquarie Dictionary) – that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.
Referring to the ordinary meanings of the word ‘disease’ as well as the meanings given in medical dictionaries, Drummond J concluded at [16]:
Only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus ‘injuries’ for the purposes of s 14(1) of the Act.Did the Applicant suffer a disease?
The Respondent contends and the Tribunal finds on the basis of the evidence before it, specifically the medical evidence, that the Applicant suffered from a stress fracture and this satisfies the definition of an ‘ailment’ in s 4(1) of the SRC Act in that is a ‘defect’ or ‘disorder’ of ‘gradual development’.
For the ‘ailment’ to be a ‘disease’ for the purposes of s 5B(1) of the SRC Act it must have been ‘contributed to, to a significant degree by the employee’s employment.’
‘Contributed to, to a significant degree, by the employee’s employment’
As Mortimer J noted in Comcare v Reardon [2015] FCA 1166 at [75] ‘… the question of causation, contribution or aggravation by employment for the purposes of the definition of ‘disease’ is … a determination for the merits reviewer on the evidence and material before it’.
In Comcare v Power (2015) 238 FCR 187 (‘Power’), Katzmann J discussed the meaning of ‘to a significant degree’ in s 5B(2) of the SRC Act, which is defined in s 5B(3) of the SRC Act as ‘a degree that is substantially more than material’. Her Honour stated, ‘[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial’, and further at [82] that, ‘… a material contribution is one which is greater than minimal or, one might say, trivial’ at [78].
Katzmann J considered the previous Compensation (Commonwealth Government Employees) Act 1971 (Cth) which required employment to be ‘a contributing factor to the disease’. The current definition in s 5B of the SRC Act which requires the employment to have contributed “to a significant degree” was inserted by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth). After discussing this amendment, Her Honour stated at [93]:
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial.
In Reardon and Comcare [2015] AATA 360 at [37] Member Taglieri summarised the meaning of ‘contribution to a significant degree’ as follows:
I must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.
Member Taglieri also outlined the matters which must be taken into account by the Tribunal when undertaking this evaluation, as well as determining causation when there are several contributing factors to the disease at [36]:
In Su v Comcare [2011] AATA 934 at [5] Member Webb expressed the requirement of ‘contribution to a significant degree’ as follows, when approving of Justice Finn’s approach to interpretation in Comcare v Sahu-Kahn (2007) 156 FCR 536:
When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury. (Footnotes omitted).
Was the ailment ‘contributed to, to a significant degree’, by the Applicant’s employment?
The Tribunal has had regard to the evidence before it, particularly the expert medical evidence, and finds for the reasons detailed in the following paragraphs that the Applicant did not suffer a ‘disease’, defined as an ‘ailment’ that was ‘contributed to, to a significant degree’, by the Applicant’s employment.
The Applicant’s workplace duties
The evidence before the Tribunal, including the documentary evidence of the Applicant’s duties and the written and oral evidence provided by him and his supervisor, is that the Applicant’s duties were primarily road maintenance work, specifically the repair of footpaths and potholes using ‘cold mix’. In the 12 month period prior to the Claimed Injury the Applicant worked four hours per day, three days a week to meet a variety of medical restrictions and a program of annual leave reduction. He worked predominantly in the depot performing light duties and smaller jobs, however he continued to undertake road maintenance work when required, including on the days prior to the date of the Claimed Injury on 12 November 2015.
The Applicant’s compensation claim was based on the injury he said he sustained as a result of ‘excessive use of [his] right foot’ when performing the task of ‘pressing road mix onto pavement.’
The Tribunal has carefully considered the Applicant’s written and oral evidence in relation to the manner in which he performed the task of compressing ‘cold mix’ in the course of his duties repairing potholes and footpaths.
The Applicant’s two written statements, being his handwritten statement dated 1 July 2016 and the undated statement filed on 9 November 2017, both describe the manner in which he compressed the cold mix. The handwritten statement states that the method he used for a small job was ‘squashing it underfoot and then using the rammer … to finish it off.’ Another method was to use the truck wheels which would ‘do a good job’. The Applicant’s statement filed on 9 November 2017 describes the Applicant ‘pressing and shaping the road mix which his right foot/work-boot in a pivoting motion.’
In his oral evidence the Applicant described the manner in which he filled the holes in the footpath with the cold mix as ‘push it down’,[125] ‘pressing it down’,[126] and ‘compress it down’.[127] He agreed that he used his right foot as a ‘tool’.[128]
[125] Transcript at page 14, line 21.
[126] Transcript at page 14, line 32.
[127] Transcript at page 15, line 29.
[128] Transcript at page 15, line 17.
This evidence is consistent with the Initial Needs and Workplace Assessment Report dated 17 January 2015 prepared for the Applicant which describes the task of compacting the cold mix: ‘this is ‘tamped’ using his foot to press down and smooth the cold mix into the affected area.’ The written statement of Mr Holden describes the task as the ‘cold mix should … be levelled out with a shovel and compacted with a square piece of steel equipment … called a tamper.’
Evidence of ‘stomping’ or ‘stamping’ on the cold mix
The medical evidence supports a finding that if the Applicant’s used a stomping or stamping action to compress the cold mix there would be a significant contribution to the ailment suffered.[129]
[129] Dr Menz, Transcript page 91, line 20, page 94, line 25; Dr Scott, page 75, line 1, page 79, line 12.
In his oral evidence, the Applicant demonstrated a ‘tapping’ action when asked to show the Tribunal the action he used on the cold mix. It was only after the suggestion was made by counsel that he would ‘lift’ his foot to ‘stomp’ on the cold mix that the Applicant agreed that this was the motion he used. During cross-examination he accepted that hitting down the cold mix was what the rammer tool was to be used for, and he testified that he habitually used the rammer for this purpose.
The written and oral evidence of Mr Holden supports a finding that the Applicant’s duties did not involve ‘stomping’ or ‘stamping’ on the cold mix to compress it. Mr Holden’s evidence was that it was not accepted practice for employees to use parts of their body to compress cold mix, and during his regular safety audits he did not see the Applicant stamping or stomping or otherwise using unsafe work methods. Whereas he agreed the Applicant is the kind of person who would ‘stomp’ on the cold mix to get the job done quickly, he had never observed him doing so.
The only reference in the documentary evidence to ‘stamping’ is in Dr Scott’s report dated 30 September 2016 in which she reports that the Applicant was unable to describe his injury ‘other than to say it was caused by packing roads by stamping on potholes over many years in the course of his work’. The Tribunal finds that this evidence can only be given limited weight as Dr Scott was relying on a description given to her by the Applicant which was not consistent with what he provided in his written statements and oral evidence to the Tribunal.
Based on the evidence before it, the Tribunal finds that the best description of the Applicant’s work duties in compressing cold mix to repair potholes and footpaths is that he used actions such as spreading, pressing, squashing, shaping, tapping and pivoting on the cold mix with his foot/workboot followed by the use of the rammer to finish it off. Accordingly, the Tribunal finds that the Applicant did not use a heavy or vigorous stamping or stomping motion to compress the cold mix as suggested to him by counsel at the hearing.
This finding that the Applicant did not ‘stomp’ or ‘stamp’ his foot to compress the cold mix is further supported by the uncontested evidence of the existence of Freiberg’s disease in his right foot. The Applicant’s evidence to the Tribunal was that this was a painful condition at the front of his foot in the second and third toes.[130] In his evidence, Dr Menz confirmed that Freiberg’s disease is very painful and that a person with this condition ‘definitely would not want to stomp on anything because it would be giving acute, sharp, more intense pains with every stomp.’[131]
[130] Transcript page 20, lines 6-19.
[131] Transcript page 91, line 26.
Based on the evidence before it, the Tribunal finds that the Applicant did not use a heavy stamping or stomping action to compress the cold mix during the course of his workplace duties. In the absence of such actions, the medical specialists were unable to say that the Applicant’s employment was any more a contributing factor to his ailment than activities of daily living such as walking.
Accordingly, the Tribunal is not satisfied on the balance of probabilities that the Applicant’s workplace duties contributed to, to a significant degree, to his ailment in order to satisfy the definition of ‘disease’ in s 5B(1) of the SRC Act.
Contribution of other factors to the ailment suffered
The medical evidence supports a finding that the Applicant had an established pre-disposition to bone fracture as a consequence of moderate osteoporosis and vitamin D deficiency. This is a factor to be considered in determining whether an ailment was contributed to, to a significant degree, by the Applicant’s employment: s 5B(2)(c).
However, this factor and the other factors in s 5B(2) of the SRC Act need not be further considered as the Tribunal has found that the Applicant’s workplace duties in compressing cold mix was not a contributing factor to the ailment in his right ankle.
The Tribunal finds that the Applicant’s ailment does not satisfy the definition of a ‘disease’ under the section 5B(1) of the SRC Act as it is not satisfied on the balance of probabilities it is an ailment that was contributed to, to a significant degree, by the Applicant’s employment.
As the Tribunal is not satisfied that the Claimed Injury is a ‘disease’, it is not an ‘injury’ as defined by s 5A(1)(a) of the SRC Act read with s 5B(1)(a) of the SRC Act.
CONCLUSION
The Tribunal finds, for the reasons outlined above, that the Applicant did not suffer an injury within the meaning of s 14 of the SRC Act. The Respondent is therefore not liable to pay compensation to the Applicant for the Claimed Injury.
DECISION
The Reviewable Decision is affirmed.
………………………………………
Associate
I certify that the preceding 135 (one hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
Dated: 7 February 2019
Date of hearing: 5-6 September 2018
Counsel for the Applicant: Mr Ian Bradfield
Solicitor for the Applicant: Mr Dean Prail, Prail Lawyers
Counsel for the Respondent: Mr Tony Guigni
Solicitor for the Respondent: Ms Cassie Davis, McInnes Wilson Lawyers
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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Statutory Construction
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Judicial Review
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