Elliott and Comcare
[2001] AATA 305
•12 April 2001
CATCHWORDS – COMPENSATION – psoriatic arthritis – military service – whether employment aggravated medical conditions – whether injury suffered as an unintended consequence of medical treatment provided by employer – whether incapacity suffered – employment and treatment not contributing factors to aggravation or acceleration of disease – applicant did not suffer a compensable injury – "as a consequence of" – medical conditions not a consequence or unintended consequence of treatment provided – decision affirmed.
Commonwealth Employees' Compensation Act 1930
Commonwealth Workmen's compensation Act 1912
Compensation (Commonwealth Government Employees') Act 1971 – ss 5, 29, 124(1A)
Workers Compensation Act 1926 (NSW)
Safety, Rehabilitation and Compensation Act 1988 – ss – 4, 6A, 14, 124(1A)
Veterans' Entitlements Act 1986
American Home Assurance Co v Saunders (1987) 11 NSWLR 363; (1987) 4 ANZ Ins Cas 60-814
Australian Telecommunications Commission v Treloar (1989) 90 ALR 202; (1989) 11 AAR 69
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Behan v Australian Telecommunications Corporation (1990) 26 FCR 337; (1990) 99 ALR 79; (1990) 22 ALD 545; (1990) 12 AAR 466
Casarotto v Australian Postal Commission (1989) 86 ALR 399; (1989) 17 ALD 321; (1989) 10 AAR 191
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; [1964] ALR 1031; (1964) 38 ALJR 64
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537; (1967) 41 ALJR 146
O'Neill v Commonwealth Banking Corporation (1987) 75 ALR 154; (1987) 13 ALD 234
Repatriation Commission v Bendy (1989) 18 ALD 144; (1989) 10 AAR 323
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q 2000/430
GENERAL ADMINISTRATIVE DIVISION )
Re MALCOLM HAROLD ELLIOTT
Applicant
And COMCARE
Respondent
DECISION AND REASONS FOR DECISION [2001] AATA 305
Tribunal Miss S A Forgie (Deputy President)
Dr K P Kennedy (Member)
Miss A M Brennan (Member)
Date 12 April, 2001
Place Brisbane
DecisionThe Tribunal affirms the decision of the respondent dated 15 January, 1997.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 6 February, 1997, the applicant, Mr Malcolm Harold Elliott, applied for review of a reviewable decision made by a delegate of the respondent, Comcare. That decision, which was dated 15 January, 1997, revoked an earlier determination dated 21 November, 1996 that Comcare did not accept liability for compensation for Mr Elliott's left and right foot condition. In its place, it substituted a decision with two limbs. The first limb was that liability was accepted by Comcare for compensation in respect of temporary aggravation of psoriatic arthritis. The second was that its liability ceased upon Mr Elliott's discharge from the Australian Army on the basis that the aggravation ceased upon his discharge from the army. Comcare's decision was reviewed by a differently constituted Tribunal in a decision dated 26 August, 1999. Comcare lodged an appeal against that Tribunal's decision and, by consent, the Federal Court remitted the matter to be reconsidered.
At the hearing, Mr Elliott was represented by Mr Hume of counsel and Comcare was represented by Miss Ford of counsel. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence. Also admitted were a report from Dr O'Callaghan dated 18 November, 1999 and a document entitled "Management of spondyloarthropathies" by ML Cuellar and LR Espinoza. Oral evidence was given by Mr Elliott in support of his case together with Dr O'Callaghan. Written submissions were made with the last of those being received on 12 February, 2001.
THE ISSUES
The issues in this case concerned the conditions of psoriasis and psoriatic arthritis from which Mr Elliott suffers. The first issue was whether his employment with the Commonwealth aggravated his conditions (or either of them) in a material degree and the period of time for which they were so aggravated. The second arose in the context of s. 6A of the Safety, Rehabilitation and Compensation Act 1988 ("1988 Act"). That issue was whether Mr Elliott received medical treatment paid for by the Commonwealth and, if so, whether as an unintended consequence of that treatment, he suffered an injury. If either of these issues was answered in Mr Elliott's favour, the third issue was whether he is suffering from an incapacity.
BACKGROUND
A number of factual matters were not in dispute between the parties. In light of that and on the basis of the evidence, we have made a number of findings of fact that we will set out in the following paragraphs.
Mr Elliott, who was born on 13 November, 1951, was 49 years of age at the date of the hearing. He first suffered psoriasis when he was 18 years of age. Between January, 1972 and July, 1973, he undertook National Service in the Australian Army where he was posted in the Field Engineering Regiment. He was posted to a construction squadron and then undertook basic clerical training. His duties involved both construction and clerical duties. Following his discharge, Mr Elliott was employed in clerical duties. On 24 January, 1978, when he was 26 years of age, he re-enlisted and was posted again to the Field Engineering Regiment.
In February, 1980, Dr Corrigan, rheumatologist, diagnosed Mr Elliott as suffering from psoriatic arthritis after he complained of pains in his hands, feet and cervical and thoracic spine. A report of an X-ray taken on 20 November, 1979 of both of Mr Elliott's feet stated that no bone or joint abnormalities were evident at the time (T documents, page 13). In view of that, his medical classification was down graded to communication zone everywhere ("CZE") with restrictions that he was not fit for physical training, marching, drill or field force. At that time, Mr Elliott was suffering from pain in the ball and instep of his left foot. He was barely able to walk on that foot. Mr Elliott had first noticed the symptoms in his feet after he had undertaken two day route marches of some 40 miles in length.
On route marches, Mr Elliott was required to carry a full pack and to wear GP boots. Those boots were also required to be worn when running. GP boots were issued to soldiers and replaced when worn out. As the Q Store did not necessarily have his size in stock, he was not always issued with his correct size. The GP boots never fitted him very well. He would find that his feet were extremely sore after he returned from 40 mile route marches but so were those of the other soldiers. The difference was that his joints were sore in addition to problems such as blistered feet. They all put up with the pain and continued on.
For physical education, Mr Elliott and his fellow soldiers were issued with white tennis shoes. Mr Elliott found that, at the end of a physical training session, he was suffering from pain in the ball and instep of his left foot. It was a "dull, achey sort of pain that … sort of reduced over time and if … [he] took the anti-inflammatory drugs" (Exhibit 1, tab 13, transcript page 23).
In October, 1980, Mr Elliott was posted to the School of Military Engineering where he remained until September, 1983. He did not undertake any further route marches. Nor did he undertake any when he was posted to Lavarack Barracks. At the end of 1984, he was posted as the Chief Clerk of the Army Reserve Field Engineer Regiment in Sydney and remained there for the next two years.
Mr Elliott resumed physical training in 1983 or 1984. He felt that he needed to do that if he were to progress past the rank of Staff Sergeant that he had already achieved. In order to progress, he had to achieve and maintain a certain level of fitness. He was classified as CZE but, due to his psoriatic arthritis, was not classified as field everywhere ("FE"). Between 1983 and 1987, he was running regularly, participating in his unit's physical training and passing his physical training tests. He remained with a classification of CZE but without restrictions.
An X-ray taken on 8 May, 1986 showed:
" A destructive arthritis of the psomatic type affects the interphalangeal joints of both feet and the metarso-phalangeal joint of the right little toe.
Less marked changes are present in the distal interphalangeal joints of the right second, third and fifth fingers." (T documents, page 16)
In December, 1986, Mr Elliott was promoted to a Warrant Officer Class 2 and posted to the Corps Directorate in Canberra. During 1989, he coped with pain in his feet for some time but then found the curling of his toes to be quite severe and very painful. It was a problem for him to wear boots and shoes. On 4 August, 1989, Mr Elliott was referred to Dr Gillespie, an orthopaedic surgeon, who later that year carried out a surgical procedure involving "PIP joint fusions x 2. extensor tenotomies x 2. and flexor tenotomy x 1 on the L foot" (Exhibit 1, tab 4, page 1).
As he hoped to achieve the rank of Warrant Officer Class 1 and could not see that it would be possible if he remained in Canberra at the time, Mr Elliott obtained a posting at the end of 1989 to the 2/3 Field Engineer Regiment at Enoggera. He did that with a medical classification of CZE. Although not engaged in the physical activities of construction, Mr Elliott was required to do battle efficiency tests, physical training tests and physical training three days each week. He then noticed that the problems in his feet had returned but to a larger extent.
As Mr Elliott was unable to continue to undertake the physical requirements of the regiment, and the medical prognosis was that he would not be able to do so in the future, his medical classification was downgraded at the end of 1991 to base everywhere ("BE"). He could no longer hope for a promotion to Warrant Officer Class 1 as that level required him to be FE. He was posted at the end of 1991 to the headquarters of the First Military District at Victoria Barracks.
While posted to Victoria Barracks, Mr Elliott suffered from extreme pain in the middle toe of his left foot. The joint in that toe had broken down and as he could not bend the ball of his foot he could not step properly. In 1992 he was referred to Dr Fine who is an orthopaedic surgeon and Mr Elliott decided upon surgical intervention. Dr Fine conducted three operations on Mr Elliott at 1 Military Hospital. The first operation on 1 June, 1993 was a proximal hemi-phalangectomy of the third toe on Mr Elliott's left foot. Further pain developed in the fourth toe of Mr Elliott's left food and this was fused surgically in the second operation on 25 March, 1995. The third operation was conducted on 15 April, 1996 to perform PIP fusions on the second, third and fourth toes and associated extensor tenotomies on Mr Elliott's right foot. Prior to this third operation and on 9 February, 1996, Mr Elliott lodged a claim for compensation for "foot pain and hammer toes" in both of his feet (T documents, page 11).
On 11 November, 1996 and after completing just over 20 years' service, Mr Elliott was discharged from the Army. In that same month he became a project officer with the RSL where he set up a computer data base and supervised some of its youth programmes. His work does not require him to walk apart from around an office.
The three middle toes on both of Mr Elliott's feet are now rigid. None has a middle joint. He experiences pain when he walks or climbs up and down stairs. He has to use a handrail whenever he is required to flex the balls of his feet. With regard to his left foot in particular, he suffers from pain in the instep where he has a fusion. Walking on uneven ground is painful although walking on pavement or carpet is all right. Any lengthy physical activity is painful.
Mr Elliott has taken various anti-inflammatory drugs over the years. He now takes them when he is suffering pain such as that he may expect to experience when he has had to cut the lawns. In 1984, he first took "Tigason", which he found reduced both his psoriasis and his arthritic condition. He found that medical practitioners were loathe to prescribe it for him for any length of time as its long term effects were to thin his skin and his hair.
MEDICAL EVIDENCE
Dr Peter Boys
Dr Boys, who is an orthopaedic surgeon, wrote a report dated 16 October, 1996 regarding a number of conditions affecting Mr Elliott (T documents, pages 53-62). In so far as Mr Elliott's feet are concerned, Dr Boys noted that his psoriatic condition was diagnosed at 22 years of age. He suffered discomfort in the insteps of both feet in approximately 1979 and subsequently noted clawing in his toes. Fusion surgery was carried out on his toes. Dr Boys noted that Mr Elliott could not recall any specific service related injury to his feet.
In his report, Dr Boys stated that he did not consider that there was any link between the psoriatic arthritis, which Mr Elliott suffered in both of his feet, and his military employment. His opinion was that Mr Elliott's "… current condition reflects a constitutional condition unrelated to military employment" (T documents, page 61). In cross-examination, Dr Boys said that physical activity of the sort undertaken by Mr Elliott might induce symptoms associated with a pre-existing psoriatic arthritis but it would be a temporary aggravation. He did not consider that strenuous activity would accelerate or aggravate the condition.
Dr Susan Gould
Dr Gould, who is employed at the Defence Recruiting Centre and is a member of the Army Reserve, summarised Mr Elliott's military service and his treatment over the years. She expressed the view that Mr Elliott's military activities, including physical activities, have aggravated the psoriatic arthritis in his feet to a substantial degree. A further contribution was made by his having to wear ill-fitting boots. (Exhibit 1, tab 4) Dr Gould repeated this opinion in giving oral evidence at the previous hearing and added that the boots were not only ill-fitting but non-shock absorbing. Dr Gould explained the foundation for her opinion:
"… he did nine full arduous years of … route marches, of regular running, of … jumping from vehicles – a very arduous level of activity, and I've got no doubt that this has been activity which has been beyond the ability of his feet to cope with the amount of shock absorption required to leave him in a … pain free and normal state. We've just overloaded his feet." (Exhibit 1, tab 14, page 8)
She agreed with Professor Smithurst at the previous hearing that the load Mr Elliott placed on his feet during his service would have damaged the bone of the phalange so much that it would have aggravated the erosion (Exhibit 1, tab 14, page 12).
Dr Gould also linked Mr Elliott's psoriasis with his complaints of joint pain when she said:
"… what Mr Elliott always said, look, when the rash was bad the joints were bad. Right? That went together. And … if you review the documents in those first years when he was under a lot of stress, a lot of pressure, the rash was bad and his joints were very painful at that time. He – he was…in a very physically demanding job and it's… very difficult once you're in there to say, 'Hang on, guys' – you know – 'I'm not feeling up to this today', and a soldier can't do that. So he must have felt – in my opinion he must have felt quite trapped in that situation. He couldn't complain about his joints very readily; weren't allowed to go down to the RAP. …" (Exhibit 1, tab 14, page 8)
Dr Gould said that Mr Elliott's erythrocyte sedimentation rate ("ESR") was almost normal in the period from 1991 to 1996 whereas it had been much higher in the early 1980s when he appeared most to suffer from inflammation.
Dr John Pentis
In giving oral evidence, Dr Pentis, an orthopaedic surgeon, said that he is not involved in the medical treatment of most cases of psoriatic arthritis as most are seen by rheumatologists. In a report dated 18 June, 1997, Dr Pentis set out Mr Elliott's history. He noted that Mr Elliott had been treated conservatively with anti- inflammatories and medication and had undergone surgery. He concluded:
"His Army activities which were all stressful and quite strenuous would have caused problems with the affected joints. They would have made his arthritis worse. It has left him with a level much worse than having not carried out the activities that were required in field force, fitness and armed duties.
I believe he has an ongoing problem due to the effects of the armed service activities that he carried out and he has an incapacity in his feet due to the fact that they have been aggravated by his armed service activities.
It is difficult to say as to how much worse it has made it, I would assume that it would be in the vicinity of a 3% loss of the efficient function of the right and a 3% loss of the efficient function of the left lower limb." (Exhibit 1, tab 5, page 4)
Dr Pentis expressed his view further in giving oral evidence:
"… Whatever stress or stimulus you place on a joint that's injured you will tend to aggravate it further but you've got – well, let's face it, if you've got, say, a fracture of your knee and you've got irregularity of the articular surface and you come to me and say 'Should I become a marathon runner?' well, I'd say 'No' because you will wear away but it's up to you to decide whether you will do it or not. But if you have got some sort of condition there and then you do something strenuous on top of it you will wear it away. How quickly who knows but you would assume that it's at a quicker and greater rate than had you not applied that other stimulus to it." (Exhibit 1, tab 14, page 41)
Dr Joseph O'Callaghan
Dr O'Callaghan is a rheumatologist, who prepared a report dated 22 October, 1997 and concluded:
"There is no doubt regarding the diagnosis of psoriatic arthritis in this man. I think it is probable that his military service aggravated his psoriatic arthritis. I think it is possible that his military service increased the erosive changes in his feet but it is also possible these changes would have occurred regardless of his army service.
I do not believe it is possible to determine with any confidence whether the military service affected the long term natural history of his condition.
However, based on the information which is available to me this man does not appear to have recieved (sic) optimal medical treatment for his psoriatic arthritis. He does not appear to have been treated with any second line drugs such as Methotrexate or Salazopyrine which I believe should have been offered in the setting of progressive erosive disease of his feet.
I think it is probable that his army service increased his foot symptoms and it appears that the decision was made to treat these symptoms surgically rather than medically. It is possible that he would have required surgery anyway because of failed medical therapy and it is possible that he would have had significant difficulty walking at the present time if he hadn't recieved (sic) surgery. However, he has definite impairment and disability as a consequence of his surgery which I would estimate at approximately 6% for each foot and this is ongoing.
The pattern of his psoriatic arthritis is most suggestive of a spondylarthropathy and I think it is possible that his serious motor vehicle accident was an aggravating factor for his psoriatic arthritis in the neck which has resulted in significant loss of range of movement." (Exhibit 1, tab 6, page 2)
In a later report dated 18 November, 1999, Dr O'Callaghan said that he had first prescribed Sulphasalazine for Mr Elliott when he saw him on 15 April, 1999. At that time, Mr Elliott was complaining of pain particularly in his left midfoot. His full blood count and ESR were normal but his C reactive protein was increased to
Dr O'Callaghan considered that Mr Elliott had shown a good symptomatic response to the drug therapy with resolution of symptoms. Mr Elliott's subjective response had been confirmed objectively in that his C reactive protein fell from 20 to less than 4.
In response to a question whether failing to treat Mr Elliott with Methotrexate or Sulphasalzine between the onset of his condition and his discharge from the Army and failing to provide treatment by a rheumatologist has denied him optimal medical treatment for his psoriatic arthritis, Dr O'Callaghan said:
"Yes, I believe that this man should have been under the regular review of a rheumatologist and in my opinion he should have been commenced on Salazopyrine or possibly Methotrexate prior to his discharge from the Australian Regular Army in 1996." (Exhibit A)
Dr O'Callaghan then considered whether it is probable that, had Mr Elliott responded to optimal medical treatment in the nature of the administration of Methotrexate and Sulphasalazine, then surgical treatment might not have been necessary. Sulphasalazine was available in the 1940s but Methotrexate only became popular in the late 1970s and more widely available in the 1990s. Both are more commonly used in the treatment of rheumatoid arthritis, he said in giving oral evidence. He wrote in his report:
"This question is more difficult. Sulphasalazine and Methotrexate have both been shown to delay or limit the development of erosive bony damage in rheumatoid arthritis. To my knowledge there is no evidence to date (because studies have not been performed) to demonstrate that these drugs prevent or delay the onset of erosive disease in psoriatic arthritis.
Although rheumatoid and psoriatic arthritis are probably similar in the mechanisms of inducing erosive disease one could not be confident that Methotrexate or Salazopyrine would have the same effects on erosive disease as in psoriatic arthritis as they do in rheumatoid arthritis.
However it would be my opinion that if the patient had responded as well as Mr Elliott has on the Salazopyrine with resolution of symptoms and return of his C-reactive protein into the normal range that it would be unlikely he would develop erosive disease in those circumstances." (Exhibit A)
In giving oral evidence at the previous hearing in the Tribunal, Dr O'Callaghan said that:
"Psoriasis occurs in approximately 2 people in 100, and it's known that in that group – in that population, that 2 per cent, arthritis occurs at a much higher frequency than in the general population. The setting of an inflammatory arthritis in psoriasis is given the term psoriatic arthritis unless an alternative diagnosis is obvious, and we recognise different patterns of arthritis can occur as part of that psoriatic arthritis spectrum. We think there's a genetic predisposition to develop this condition and that certain triggers must occur to induce the arthritis but what those triggers are we really don't know. The natural history is one of remissions and exacerbations but usually there is a steady but slow progression in the disease in a significant proportion of patients." (Exhibit 1, tab 13, pages 29-30)
While some people may develop arthritis first and psoriasis subsequently, for most psoriasis and arthritis come together. In some, psoriatic arthritis develops years after they have begun to suffer from psoriasis. There are references in the text books to psoriatic arthritis being induced by trauma but there is not a lot of evidence to support this proposition and it is contentious, Dr O'Callaghan said. Psoriatic arthritis may take either an asymmetrical or symmetrical pattern. In Mr Elliott's case, it is symmetrical being evenly spread between both his feet. Dr O'Callaghan had noted some signs of tenderness in Mr Elliott's hands. This would be consistent with psoriatic arthritis but there were no other objective signs.
In response to Mr Hume, Dr O'Callaghan said that, once damage is established, there is usually a slow progression of psoriatic arthritis. Even when the feet are rested, there is likely to be a slow deterioration. In response to Miss Ford, he said that he was "…not aware of any data showing that people who are on their feet all the time get more erosive disease than people who aren't on their feet all the time" (Exhibit 1, tab 13, page 36). Although he was not aware of any studies on the subject, Dr O'Callaghan's feeling was that high impact activities on inflamed joints would increase the inflammation on those joints. He agreed with Miss Ford that it is not the inflammation that has a corrosive effect and added that not every person who suffers from inflammation gets erosion. Dr O'Callaghan also agreed that there is no evidence that physical exertion gives rise to the chemical make up of the fluid that has that corrosive effect. He had seen people who are of a similar age to Mr Elliott and with similarly eroded joints but who have never been in the Army.
Careful selection of footwear would need to be made by a person suffering from psoriatic arthritis but, while appropriate footwear was important in controlling the symptoms, Dr O'Callaghan did not know whether it controlled the progression of the disease.
Dr O'Callaghan said that it would be usual to treat psoriatic arthritis first with anti-inflammatory drugs. Whether second line drugs such as Methotrexate were then used would require a person's medical practitioner to weigh up the benefit of the treatment against the risks of that treatment. He said in giving oral evidence that he did not expect second line drugs to have any effect upon a person's psoriasis for they were not directed to that.
Dr Stephen Fine
In a report dated 2 September, 1997, Dr Fine wrote:
"Mr Elliott has psoriatic arthritis affecting his feet. This is an aggressive type of arthritis and is known as 'arthritis mutilans'. It is my opinion that the deterioration in the joints of Mr. Elliott's feet, while he served in the Australian Regular Army, is a result of the natural history and progression of the disease process. The surgeries that were performed to his toes were to correct deformities and were successful in this respect. The surgery involved fusion and stiffening of joints. If the surgery had not been performed he would have had stiff and deformed joints rather than stiff and straight joints. I do not believe that the deformities were service related but rather a result of his disease process, that being psoriatic arthritis." (Exhibit 1, tab 7)
Dr Martin Devereaux
Dr Devereaux is a rheumatologist. In his report dated 19 January, 1998, he expressed the following conclusions:
"CONCLUSIONS
1.Diagnosis – this man has severe progressive small joint psoriatic arthritis with probable spinal involvement. He also has cervical stiffness but this appears to be due to a congenital fusion at C3/4.
2.I would not consider that his employment has contributed to the development of the psoriatic arthritis. He may have had a flare up of the soft tissue swelling and pain during his Army service in the period 1978 to 1980 when he was involved in an active exercise program of running, marching and drill duties. The normal foot xrays from 1980 show that he had no significant foot damage at this time. His exercise activity was dramatically cut after his review with Dr B Corrigan. I would have considered the progressive erosions that have occurred in his feet are due to the natural progression of his psoriatic arthritis. The involvement of the small joints of the feet is often associated with toe-nail involvement from psoriasis. This would have increased the risk of these joints being affected by his psoriatic arthritis.
IN CONCLUSION
If this man's military service played any part in the progression of his erosive changes in the feet I would have expected well established erosive disease to have occurred by 1980 as it was prior to this time that he was performing a more active physical program on his feet. The surgical approach to his foot problem has given a good result although he still has discomfort from active psoriatic arthritis." (Exhibit 1, tab 9)
In giving evidence at the previous hearing, Dr Devereaux elaborated upon his views:
"I see patients with psoriatic arthritis all the time and my opinion is that trauma does not cause psoriatic arthritis or cause progression of pre-existing erosive disease or cause the development of erosive disease. I reviewed the literature on psoriatic arthritis and trauma and there's five or six cases in the literature where they describe mono arthritis associated with trauma and the development of psoriatic arthritis and in the whole of the world's literature, there's only two cases where they describe olego arthritis and the relationship of trauma and usually that's a severe sprain or a break around the joint, and olego arthritis is defined as several joints involved. This man has poly arthritis and, to my knowledge and the world's literature up until this date, there's no evidence that any trauma can cause the development or the progression of psoriatic arthritis. This man's simple walking around wearing shoes, even wearing bare feet is probably even worse, may have caused pain and discomfort and possibly even swelling, but certainly it would not have caused his severe destructive arthritis. That's classic for psoriatic arthritis without trauma." (Exhibit 1, tab 14, page 14)
Even if Mr Elliott's boots were uncomfortable or caused discomfort and pain, Dr Devereaux went on to say, that would not have been a cause of his severe destructive arthritis.
If trauma were to blame for Mr Elliott's psoriatic arthritis, Dr Devereaux explained in cross-examination, it should have happened while he was doing a lot of exercise initially at the start of his disease. That is to say, it should have revealed itself by 1980 after Mr Elliott had undergone two periods of service in the Army. As it was, it did not show itself in 1980. The disease took its time and slowly naturally progressed and caused the erosive disease. There is no literature that exercise will exacerbate erosions. Exercise of a limited nature, though, is good for the joints. If a person were to exercise excessively and repetitively day by day, it is possible to accelerate erosion as erosion is caused by joint swelling. Dr Devereaux said that ESR is used as a measure of general body inflammation but it is only a crude measure. An ESR reading will go up with pneumonia or a variety of infections.
As to the cause of psoriatic arthritis, Dr Devereaux said:
"We're still not quite sure what causes the arthritis in psoriasis. Certainly in rheumatoid arthritis, we know that there's a whole immunological cascade that causes the lining of the joint, the synovium to swell and then destroy the joints. In psoriatic arthritis, there is evidence that the skin rash of psoriasis sets off a similar sort of immunological cascade. So, it's an immunological process set off by the fact that you're unfortunate enough to have the skin rash." (Exhibit 1, tab 14, page 15)
A person must have psoriasis to develop psoriatic arthritis.
Dr Devereaux said that he would consider prescribing second line drugs such as Methotrexate and Sulphasalazine but the optimum time would be at the first sign of erosion. He would leave it until then as there is a morbidity rate associated with those drugs. Matters such as the number of joints involved and the appropriateness of surgical intervention would need to be weighed up before such drugs would be prescribed. Dr Devereaux understood that the small joints in Mr Elliott's feet were easily corrected surgically. He understood that the surgery Mr Elliott underwent was an attempt to release tendons and to straighten things out. Had he not been surgically treated, Mr Elliott would be worse off in that his toes would have more flexion deformities. Mr Elliott is better off after having had the surgery than if he had not had it.
Article: Management of spondyloarthropathies
The article "Management of spondyloarthropathies" was written by ML Cuellar and LR Espinoza of the Section of Rheumatology, Department of Medicine, Louisiana State University School of Medicine. The authors noted that the traditional approach to the therapeutic management of members of the spondyloarthropathy group of arthritides, including psoriatic arthritis, was based on the use of nosteroidal anti-inflammatory drugs and physical therapy measurements. That traditional approach is changing as a more aggressive therapeutic regimen is being advocated in a manner not dissimilar to that used in rheumatoid arthritis.
Under the heading of "Psoriatic arthritis", the article said that its management is also evolving. It said that:
"Methotrexate has become the drug of choice for the treatment of PsA. A series of uncontrolled and controlled studies with large numbers of PsA patients have clearly established its efficacy for both skin and joint involvement …. Whether methotrexate is able to prevent the development of joint erosions has yet to be demonstrated. During the past year, three new studies on methotrexate and PsA were published. In one study from Toronto, the effect of methotrexate given over a period of 24 months on radiographic progression of damage was evaluated …. Thirty-eight patients with a mean disease duration of 11.4 years were evaluated and compared with a group of PsA patients not receiving methotrexate. The dose of methotrexate was 5 to 7.5 mg/wk, for a maximum weekly dose of 15 to 20 mg. Radiographic peripheral joint damage was used as a measure of the success of therapy. Seventeen patients had at least 40% improvement in inflamed joint count at 6 and 24 months, but there was no significant difference in improvement between patients and control subjects at 24 months. Radiographic damage scores at 24 months showed an increase in 63% of patients and in 47% of controls. There was no significant difference, however. This is an important study but with serious limitations, particularly the relatively long disease duration in most patients. It would be interesting to perform a similar study in PsA patients with early disease (less than 2 to 3 years)." (Exhibit 2, page 291)
LEGISLATIVE FRAMEWORK
Interaction between 1988 Act and repealed legislation
Although it did not commence operation until 1 December, 1988, an employee's entitlement to compensation is determined according to the 1988 Act, whether that employee suffered an injury, loss or damage before or after its commencement (s. 124(1)). Section 124(1A) provides that a person is entitled to compensation under that legislation in respect of an injury, loss or damage suffered before 1 December, 1988 if compensation was, or would have been, payable to the person in respect of the injury, loss or damage under the Commonwealth Workmen's Compensation Act 1912 ("1912 Act"), the Commonwealth Employees' Compensation Act 1930 ("1930 Act") or the Compensation (Commonwealth Government Employees') Act 1971 ("1971 Act"). The proposition is re-stated in effect in s. 124(2) of the 1988 Act.This is consistent with the approach adopted by Lockhart J in Behan v Australian Telecommunications Corporation (1990) 26 FCR 337.
1971 Act
The 1930 Act came into operation on 10 November, 1930 and the 1971 Act on 1 September, 1971. As Mr Elliott suffered from psoriasis and psoriatic arthritis while in the Army and so after 1 September, 1971, but before 1 December, 1988, we should have regard to the 1971 Act.
There is no dispute between the parties that Mr Elliott suffers from a "disease" within the meaning of s. 5(1) of the 1971 Act i.e. it is a:
"... physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development"
Section 29 of the 1971 Act provides for compensation in respect of a disease in certain circumstances. Those circumstances apply where:
"(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
..." (s. 29(1))
Sub-section 29(2) provides, in so far as it is relevant in this case, that:
"If -
...
(e)the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears -
(f)the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; …
(g)..."
In view of our earlier finding that Mr Elliott suffered from psoriasis before he joined the Army, we find that his employment did not contribute to his contracting that disease in the first place. Was his employment a contributing factor to the aggravation, acceleration or recurrence of his disease?
The leading case in this area is Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (McTiernan, Kitto, Taylor, Windeyer and Owen JJ) in which the High Court considered the provisions of the New South Wales Workers' Compensation Act 1926. In considering the words "aggravation" and "acceleration", Windeyer J said:
"The next question then is, was there in December 1960 'an aggravation, acceleration, exacerbation or deterioration' of the disease? The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated." (page 639)
The concept that the words are not mutually exclusive was taken up by Hill J in Casarotto v Australian Postal Commission (1989) 86 ALR 399 when he said at page 405:
"... the ordinary English meaning of the words 'aggravation and acceleration', namely that 'aggravation' connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which, if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease."
In Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 (Barwick CJ, Kitto, Taylor, Windeyer and Owen JJ), Windeyer J had emphasised that the mere fact that the disease had become worse during a person's employment was not sufficient for it to be said that disease had been "aggravated". It had to have been made worse and his or her employment had to be a contributing factor to its being made worse.
This aspect had also been addressed by the High Court in the earlier FederalBroom case. Windeyer J said at pages 641-642:
"I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. In this case it was said that the employment was a contributing factor in the worsening of the disease, because the applicant focussed her delusions of pain and discomfort upon her right side which she believed she had hurt when lifting a tea chest in the course of her work. A minor physical strain she magnified in her irrational imagination into a serious and continuing derangement of her internal organs. The incident directed, or re-directed, her hypochondriacal attention to her abdominal muscles. But said the appellant, all that it did was to focus her existing delusional tendencies in a particular way: it was a cause of her condition only in the sense that it acted as a precipitant. That may be true: nevertheless, Doctor Ellard agreed that 'something obviously happened in December to her to cause a change in her way of life'.
The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so."
In Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 (Smithers, Sweeney and Woodward JJ), the Full Court of the Federal Court considered whether Mrs Tzikas' employment had contributed to the aggravation or acceleration of her mental disease. Sweeney and Woodward JJ said:
"... In our opinion, the resentment of a sick mind, directed towards former conditions of employment, if it aggravates or accelerates the disease, and thus contributes to incapacity, is capable of leading to a finding under s 29(1) of the Act that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are as remote from the employment as the other factors, such as relief at not having to work, dealt with earlier.
For those reasons the matter should, in our view, go back to the Tribunal to determine whether the continuing resentment of the respondent about the first aggravation and acceleration of her disease is in fact causally related to her former employment, and, if so, whether it is playing such a part in her present state of health that it can properly and fairly be said to be contributing to a current aggravation or acceleration of her disease and not merely providing a focus for that disease." (page 195)
In the same case, Smithers J said:
"If by his finding that the four specified sequelae played a part in the respondent's mental illness the Tribunal meant no more than that in the course of the respondent's natural illness the mind noted the situations described in the sequelae and, according to its naturally impaired mental process, developed a desire that the situation in items two and three should continue definitely or a desire to punish Telecom for the situations described in items one and four, then it could not be said that any of the sequelae were factors which contributed to cause an aggravation of the natural illness. They constituted a reason for action by the impaired mind but did not cause it." (page 186)
Provided that it is a person's employment, or some aspect of it, that has aggravated or accelerated his or her disease, there is no need to establish that the employment or any aspect of it was in any way out of the ordinary. That is to say, the person does not need to establish that the employer was at fault in some way. As Pincus J said in O'Neill v Commonwealth Banking Corporation (1987) 75 ALR 154 (Pincus J):
"It is, of course, not the law that mental conditions caused by employment are compensable only if there is unusual stress or extra stimulus, although no doubt the absence of such stress would make it more difficult to show a causal connection between a mental condition and the employment. Nor is it the law that only neurotic conditions arising in circumstances in which an ordinary man of normal personality would become neurotic (if there are such circumstances) are compensable." (page 159)
1988 Act
Section 14(1) of the 1988 Act provides that:
"Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."
Unless the contrary intention appears, the word "injury" is defined in s. 4(1) to mean:
"(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."
The word "disease" is, in turn, defined to mean:
"(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation." (s. 4(1))
What is meant by its being "contributed to in a material degree by the employee's employment by the Commonwealth"? Davies J considered what was required to establish a contribution in a material degree in Australian Telecommunications Commission v Treloar (1989) 90 ALR 202 (Davies J). A similar concept appears in the Veterans' Entitlements Act 1986 and Davies J had considered that in Repatriation Commission v Bendy (1989) 18 ALD 144 (Davies J). He said in Treloar:
"… The test propounded by the 1971 Act, like the test propounded by the 1988 Act, requires that there be a contribution of a causal nature and therefore that the contribution be causally significant or, to use another term, material. A number of statutes are in this respect similar. In Bendy's case, I said:
'In Repatriation Commission v Law (1988) 36 ALR 411, 147 CLR 635 at 648, Aickin J, with whom Gibbs CJ, Stephen and Mason JJ agreed, when considering provisions of the Repatriation Act 1920 (Cth) accepted that it was sufficient if war service was one of a number of causes of a disease provided that it was a contributing cause. I have myself, on occasions, used the term "material contribution" in this context. The adjective "material" is not necessary but its use is familiar: see eg, Clover, Clayton & Co Ltd v Hughes [1910] AC 242, per Lord Loreburn at 247; Hetherington v Amalgamated Collieries of WA Ltd (1939) 62 CLR 317 per Latham CJ at 328; Adelaide Stevedoring Co Ltd v Forst; (1940) 64 CLR 538, per Rich ACJ, at 564; Dixon J at 567, 568; McTiernan J at 571, 572. The expression "contributed in any material degree" was used in the Workers' Compensation Act 1958 (Vic) and is used in s 9(1)(e) of the Veterans Entitlements Act and in s 7(3) of the Commonwealth Employees'Rehabilitation and Compensation Act1988 (Cth). In each case, the reference to materiality serves to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. The term "material" is here used not in the loose sense set out in definition 12 of the Macquarie Dictionary, namely, "of substantial import or much consequence" but rather in its legal sense of "pertinent" or "likely to influence".'
I remarked in Bendy's case, and have said on other occasions, eg Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 at 240; that it is sufficient that the employment contribute to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. When several separate factors together cause the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker's employment. The tribunal was, however, in error holding that a contribution brought about by the employment, however small, was sufficient. A contribution which is so small as to be immaterial, which has no causal significance, is not sufficient. A disease or an aggravation, acceleration or recurrence thereof is not attributable to employment unless it is causally connected therewith. As s 29 states, employment must be a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence thereof." (pages 204-205)
Section 6A of the 1988 Act is also relevant regardless of when Mr Elliott's conditions arose. Among others, it applies to members of the Defence Force (s. 6A(1)(a)). As a member of the Australian Army, Mr Elliott was a member of the Defence Force. Section 6A(2) provides that:
"If, at any time, whether before, on, or after, 1 December 1988:
(a)an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and
(b)as an unintended consequence of that treatment the person suffered or suffers an injury;
the injury to the employee is taken to have arisen out of, or in the course of, the person's employment, whether or not the person has remained an employee to whom this section applies."
Section 6A(2) applies whether or not the original condition that was being treated was compensable under the 1988 Act (s. 6A(3)).
The expression "medical treatment" is defined in s. 4(1) to mean:
"(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner;
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner;
(c)dental treatment by, or under the supervision of, a legally qualified dentist;
(c)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be;
(d)an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis;
(e)the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance;
(f)treatment and maintenance as a patient at a hospital; or
(g)nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise".
CONSIDERATION
The psoriasis and psoriatic arthritis, from which Mr Elliott suffers, are physical ailments, disorders or morbid conditions, and so diseases, within the meaning of the 1971 Act. Neither party suggested that his employment with the Army contributed to his contracting psoriasis and we are satisfied that it did not. We have reached that conclusion on Mr Elliott's evidence that he suffered psoriasis before he enlisted. The focus of the evidence has been upon his psoriatic arthritis and not upon his psoriasis. There has been no evidence suggesting that Mr Elliott's employment in the Army aggravated his psoriasis and, in view of that, we find that it did not.
His psoriatic arthritis is a different matter. There is no evidence that he suffered from it prior to his National Service. Dr Latt's notes of 19 February, 1982 record that Mr Elliott had described symptoms of arthritis extending over the previous five years and psoriasis for the previous twelve (Exhibit 1, tab 10). That would mean that Mr Elliott was suffering from psoriatic arthritis before he re-enlisted in the Army in 1987. We accept that this diagnosis pre-dates that of Dr Corrigan in February, 1980. By that time, he had undergone basic training while on National Service, been engaged in construction work for the Field Engineering Regiment and undertaken route marches. We accept that there was no evidence of any erosion or change in his joints or bones at that time and base that finding on the X-ray evidence of 20 November, 1979 (see paragraph 5 above). That X-ray revealed no bone or joint abnormalities. By that time, Mr Elliott had undergone rigorous training in his National Service and, both during National Service and his subsequent re-enlistment, had engaged in construction work. Despite that lack of change, we do find on the basis of Mr Elliott's evidence that his psoriatic arthritis was causing him to suffer inflammation of his joints and so pain.
In 1980, we find, Mr Elliott's fitness classification was reduced to CZE. He did not undertake any further route marches after 1980 and did not resume physical training such as running until 1983, or perhaps, 1984. By mid 1986, we find, bone changes were apparent in the X-rays. Dr Gould and Dr Pentis have both attributed Mr Elliott's psoriatic arthritis to his employment and particularly to the physical activities he undertook as part of that employment.
Dr Pentis has acknowledged that rheumatologists would see and treat most cases of psoriatic arthritis rather than orthopaedic surgeons. Having carefully considered his evidence and that of Dr Gould, who treated Mr Elliott for some years, we prefer the evidence of the rheumatologists, Dr O'Callaghan and Dr Devereaux, which is consistent with that given by another orthopaedic surgeon, Dr Boys. Based on their evidence, we find that a diagnosis of psoriatic arthritis can only be made where a person has already been diagnosed as having psoriasis. Studies have not yet revealed the cause of psoriatic arthritis but, equally, studies have not yet linked trauma with the onset, aggravation or acceleration of psoriatic arthritis. Nor have Dr O'Callaghan, Dr Devereaux or Dr Boys found that link in their clinical work with other patients suffering from psoriatic arthritis. Dr Devereaux did acknowledge that repetitive and constant daily exercise could increase inflammation and so corrosive disease. That, however, does not lead us to conclude that there is a link between Mr Elliott's exercise and the Army activities. By 1980, he had undergone some three and a half years of the training and activities we have described. They were arduous and no doubt regular but there was no indication that exercise in the presence of any inflammation had by then caused any corrosive effect on Mr Elliott's joints. Having regard to the evidence, we have concluded that Mr Elliott's psoriatic arthritis was a natural progression of his psoriasis. The onset of psoriatic arthritis was neither accelerated nor worsened by his activities.
In view of this evidence, and while we are satisfied that Mr Elliott has, at various times, engaged in arduous and repeated physical training and activity in the Army, we are also satisfied that any such physical training or activity has not been a contributing factor to the contraction, aggravation, acceleration or recurrence of his psoriatic arthritis within the meaning of s. 29 of the 1971 Act. Further, we find that any such physical training or activity has not contributed in a material degree to its aggravation within the meaning of s. 4(1) of the 1988 Act.
We find that Mr Elliott has undergone various forms of therapeutic and surgical treatment over the years. Having regard to the evidence, we find that Mr Elliott was treated conservatively with anti-inflammatory drugs. There was no debate amongst the medical practitioners that such drugs were an appropriate first line of treatment. It was in relation to the second line of treatment that there was some debate. That centred on whether Mr Elliott should have been treated with Methotrexate or Sulphasalazine. We find that there were acknowledged side effects of those drugs and whether their prescription is appropriate depends upon the circumstances of each patient. There is no evidence from any studies that shows that either drug delays or limits the development of erosive bone damage in psoriatic arthritis although there is such evidence in relation to rheumatoid arthritis. On the evidence of Dr O'Callaghan, however, we find that it is possible that Mr Elliott might not have developed erosive disease had he been prescribed those drugs. We can not go beyond a finding of "possibility" on the evidence.
Even if "possibility" were enough, and we do not think that it is, that would not mean that Mr Elliott has suffered an injury to which he is entitled to compensation under the 1988 Act. Even if it can be said that medical treatment is an element of his "employment" for the purposes of the 1988 Act (and we express no view on that subject), we do not consider that his treatment has been a contributing factor to any contraction, aggravation, acceleration or recurrence of his psoriasis or psoriatic arthritis or that it can be said to have contributed in a material degree to those conditions or their aggravation. The anti-inflammatory drugs and surgical treatment he received may not have halted the natural progression of the conditions or may not have halted them as much as would have been hoped but, on the evidence, we find that neither did they contribute to their progression.
That brings us to s. 6A of the 1988 Act. Mr Hume submitted that the concept inherent in s. 6A is that an employee of the Defence Force should be entitled to compensation if there is a failure by the Commonwealth to provide optimum treatment. He referred to similar concept's being found in the Veterans' Entitlements Act 1986 ("VE Act") and the Statements of Principle ("SoPs") made by the Repatriation Medical Authority under that legislation. In the case of Mr Elliott, he submitted, had he been prescribed Methotrexate or Sulphasalazine at a time when the erosive changes in his joints became manifest, he would have responded well to the treatment. The rate of erosive change would have been diminished as would his level of pain.
Whether or not the VE Act and the SoPs base the Commonwealth's liability on a basis that it provide optimum treatment is a matter for consideration on another occasion. In this case, we are limited to the words of s. 6A and to the concepts inherent within them. There is no question in this case that the expression "medical treatment" includes both the surgical and therapeutic treatment received by Mr Elliott. The surgical treatment, we find, has been undertaken on four occasions. It comprises an operation on his left foot in 1989 to straighten two toes that were curling, an operation on the third toe of his left foot in 1993, a surgical fusion of his fourth toe on his left foot in 1995 and fusions of the second, third and fourth toes and associated extensor tenotomies on his right foot in 1996. Therapeutic treatment over a number of years has included the prescription of anti-inflammatory drugs such as Indocid.
On the basis of the evidence, we find that the Commonwealth has paid for that medical treatment on most occasions while he was a member of the Army. Only in relation to the drug "Tigason" when it was prescribed by a medical practitioner in Sydney has the Commonwealth not paid for his treatment.
It follows from these findings that we are satisfied that Mr Elliott comes within s. 6A(2)(a) of the 1988 Act. Does he come within s. 6A(2)(b)? That depends upon whether or not he suffered, or suffers, an injury as an unintended consequence of the treatment paid for by the Commonwealth. To answer that question requires first a consideration of the word "consequence".
That word was considered by the New South Wales Court of Appeal in American Home Assurance v Saunders (1987) 11 NSWLR 363 (Mahoney and McHugh JJA; Kirby P dissenting). A Personal Protection Plan Group Policy of Insurance ("the Policy") defined an "injury" in terms of a bodily injury, which occurs anywhere in the world during the Period of Insurance, which is caused solely and directly by violent, accidental, external and visible means and which solely and independently of any other cause (except sickness directly resulting from medical or surgical treatment rendered necessary by such an injury) results in specified losses. The policy excluded any event "which … is a consequence of any kind of sickness or disease" (Mahoney JA at 375 and Kirby P at 366; 372).
A worker was exposed to the inhalation of asbestos fibres during the course of his employment with two separate employers between 1950 and 1960. The Policy was issued to his second employer in mid 1985. In late 1985, the worker first experienced symptoms of fatigue and he ceased work with the second employer on 22 December, 1985. He was unemployed when his symptoms were diagnosed as those of mesothelioma. In resisting liability, the insurer relied on the exclusion clause in the Policy. It argued that the event in question was the worker's permanent total disablement. As that disablement was a consequence of his mesothelioma, it was a consequence of a disease and so excluded.
Mahoney JA, with whom McHugh JA agreed, said that the answer to the argument turned on the meaning of the expression "a consequence of" and continued:
"… In a literal and general sense, the consequences of a physical act may extend interminably. If I shoot a bullet into the lungs of X, his respiration may be affected, pneumonia may develop, and he may die. In the literal and general understanding of this, his death is equally a consequence of my shooting him, of the bullet damaging his lung, and of the pneumonia. When it is necessary, in the context of a document or a statute, to determine whether Y is a consequence of X, there will ordinarily be involved two questions: a causality and a limitation question. And there may be, in addition, a classification question. In the example I have given, the death will be a consequence of each of these matters if, in the relevant sense of 'cause', it was caused by the shooting, the damage to the lung, or the pneumonia, as the case may be. In particular circumstances, it may be necessary to determine whether each of these causes falls within the particular description: whether, for example, the shooting is a 'violent accidental external and visible' cause and whether the pneumonia is relevantly a 'disease'. And, in a particular context, the limitation question may arise: it may be necessary to determine of which of the causes the death is, for the purposes then relevant, a consequence." (page 383)
In the case before him, Mahoney JA found that:
"… the sequence of events leading to the plaintiff's disablement was: the plaintiff inhaled the relevant asbestos fibres; the fibres penetrated the surface of his lung; because of that penetration a malignancy of mesothelioma formed on the outer covering of the lung and the chest wall; that resulted in fluid accumulation and shortness of breath; and that disabled the plaintiff.
In the literal and general sense of 'consequence' the plaintiff's disablement was a consequence of each of the inhaling of the fibres, the penetration of the lung, the malignancy which formed on the lung and the chest wall, and the accumulation of fluid and shortness of breath. The question which this part of the insurer's submissions raises is whether, as I have described it, a limitation question arises: and, if it does, of which of the several conditions of which the disablement is a consequence is it, for the purposes of exclusion 5, to be treated as relevantly 'a consequence'.
I do not think that the operation of exclusion 5 is as wide as the insurer's submission suggests. In my opinion, the exclusion contemplated that there would be, for the purposes of determining the operation of the exclusion, a selection made. In the example that I have taken, if the person shot had been permanently disabled, that disablement would have been a consequence of the shooting and also of the pneumonia. But I do not think that, if disablement as a consequence of shooting was within the policy, it would be excluded because the shooting produced the sickness or disease of pneumonia which had as its consequence the disablement.
In the present case, the disease, viz, the malignancy of mesothelioma, was caused by injury, viz, the inhalation of the fibres and the penetration by them of the surface of the lung. It is, in my opinion, proper to see the disablement as a consequence of that which produced the disease of mesothelioma and not of the disease itself." (pages 384-385)
Returning to s. 6A(2)(b), there is an initial question whether the word "injury" bears its meaning as defined in s. 4(1). If that is so, it includes both an injury and a disease but not any injury or any disease. The injury must be one that arises out of, or in the course of, the employee's employment. The disease must be an ailment, or an aggravation of an ailment, that was contributed to in a material degree by the employee's employment by the Commonwealth. Section 6A(2), however, only refers to the injury's being taken to have arisen out of, or in the course of, the person's employment. It makes no reference to an ailment's or an aggravation of an ailment's being taken to have been contributed to in a material degree by the employee's employment with the Commonwealth. That is to say, it refers to the link that must exist for an injury to be an "injury" for which compensation is payable under the Act but makes no reference to the link that must exist if a disease is to be regarded as such an "injury" for which compensation is payable. The reference to a link is consistent with only one limb of the definition of "injury" in s. 4(1) and not with the other, indicates an intention that the full definition of "injury" is not applicable in s. 6A(2). Instead, it indicates an intention that the word "injury" refers only to "an injury (other than a disease) … being a physical or mental injury …" of the type referred to in paragraph (b) of the definition of "injury" in s. 4(1). We have not taken this matter any further for, in our view on the facts of this case, it is not necessary to decide whether the word "injury" used in s. 6A(2) does or not include both an injury and a disease.
What followed the surgical and therapeutic treatment paid for by the Commonwealth? Taking first the surgical treatment, we find on the basis of Dr Fine's report, that Mr Elliott's toes were straightened (rather than remaining clawed as they would otherwise have been) and certain joints were fused. If these are properly described as injuries (and we express no view), they were consequences of the surgical treatment but were intended consequences. The operations achieved what they set out to do. That finding is consistent not only with Dr Fine's report but also with the evidence of Dr Devereaux who addressed the issue of Mr Elliott's surgical treatment. The operations did not cure Mr Elliott's psoriasis or his psoriatic arthritis, or halt their course, but there is no evidence that they were intended to do that.
Turning to the therapeutic treatment provided by the Commonwealth, we find that it did not halt the course of Mr Elliott's psoriasis or psoriatic arthritis or the erosion of his joints. That, however, is a different matter from saying that Mr Elliott's psoriasis, psoriatic arthritis and erosion of his joints, or the progress of those conditions was an unintended consequence of the treatment Mr Elliott received. His psoriasis pre-dated his employment with the Army and we are satisfied that his psoriatic arthritis was a consequence of that psoriasis. It was a consequence of the natural progression of psoriasis. The erosion of his joints was a consequence, in turn, of his psoriatic arthritis and again was part of the natural progression of the disease. None of his conditions was a consequence of his therapeutic treatment let alone an unintended consequence.
It follows that we have concluded that Mr Elliott did not suffer an injury that was an unintended consequence of medical treatment that he received and that was paid for by the Commonwealth.
For the reasons we have given, we affirm the decision of the respondent dated 15 January, 1997.
I certify that the eighty preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President), Dr K P Kennedy and Miss A M Brennan (Members)
Signed: ..............................................
A R Horne AssociateDate of Hearing 16 October, 2000
Date of Decision 12 April, 2001
Counsel for the Applicant Mr R Hume
Solicitor for the Applicant Gregor McCarthy & Company
Counsel for the Respondent Miss E Ford
Solicitor for the Respondent Australian Government Solicitor
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