Erdstein and Comcare
[2004] AATA 798
•30 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 798
ADMINISTRATIVE APPEALS TRIBUNAL ) No V2000/405, V2001/367, V2001/862,
) V2003/1108, V2003/1305
GENERAL ADMINISTRATIVE DIVISION ) Re NOAH ERDSTEIN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Associate Professor J.H. Maynard, Member
Date 30 July 2004
PlaceMelbourne
Decisions Application V2000/405
1. The Tribunal sets aside the decision under review. In substitution the Tribunal remits the matter to Comcare for reconsideration in accordance with the direction that:
the amount of compensation payable to Dr Erdstein under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 be calculated on the basis that Dr Erdstein has a 45% impairment rating on Table 4.1 of the Guide, in respect of a significant worsening in his impairment after 1 December 1988, resulting from pathological change in the nature of his skin conditions.
Application V2001/862
1. The Tribunal sets aside the decision under review. In substitution the Tribunal varies the determination dated 10 May 2001 to provide that Comcare is liable to pay compensation in accordance with the Act, in respect of Dr Erdstein’s osteoporosis.
Application V2001/367
1. The Tribunal sets aside the decision under review. In substitution, the Tribunal varies the determination dated 4 January 2001 to provide that Comcare is liable to pay compensation in respect of Dr Erdstein’s osteoarthritis of the right knee, in accordance with the Act.
Application V2003/1305
1. The Tribunal reserves leave for the parties to bring this matter on for further hearing, on reasonable notice.
Application V2003/1108
1. The Tribunal sets aside the decision under review. The matter is remitted to Comcare for reconsideration in accordance with the direction that Comcare determine the amount payable as compensation under s 16(1) of the Act, in accordance with the Tribunal’s finding that Comcare is liable to pay compensation to Dr Erdstein under s 16(1) of the Act, in respect of the cost of nursing care in a nursing home (being treatment that it is reasonable for Dr Erdstein to obtain in the circumstances) in relation to the conditions of osteoarthritis of left and right knees and osteoporosis.
Costs
The Tribunal orders, pursuant to s 67(8) of the Act, that the costs of the proceedings be paid by Comcare.
[sgd] Joan Dwyer
Senior Member
WORKERS’ COMPENSATION – claim for compensation for permanent impairment in respect of solar keratoses, chronic solar dermatitis and skin cancer – whether there has been a further impairment since 1 December 1988 – whether development of skin cancers constitutes a change in the underlying “patho-physiological” condition – whether there has been a significant worsening of the impairment – development of skin cancer a pathological change – poultice treatment required partly due to skin cancer an interference with activities of daily living and a worsening of impairment – decision under review set aside – matter remitted for reconsideration on the basis of a 45% impairment rating on Table 4.1 of the Guide.
Claim for acceptance of osteoporosis – whether osteoporosis due to vitamin D deficiency caused by avoidance of sun due to accepted skin conditions – finding that low vitamin D and immobility due to left knee condition contributing factors – finding that osteoporosis was contributed to in a material degree by compensable conditions and therefore a disease and an injury – decision under review set aside.
Claim for acceptance of osteoarthritis of right knee – whether caused or aggravated by compensable left knee conditions – finding that left knee condition contributed to acceleration of right knee osteoarthritis – decision under review set aside.
Claim for lump sum compensation for permanent impairment in both knees – Tribunal asked to make findings on evidence relevant to claim but not to decide matter – lack of evidence as to when left and right knees developed impairment – leave to bring the matter on for further hearing.
Claim for compensation for nursing home treatment under s 16(1) of the Safety, Rehabilitation and Compensation Act 1988 – whether requirement for nursing home care due to compensable conditions or to non-compensable Parkinson’s disease and urinary tract ailment – not necessary for incapacity to result solely from compensable injury – finding that nursing home care reasonably required due to immobility – finding that immobility contributed to in a material sense by compensable conditions – decision under review set aside – matter remitted for reconsideration on basis that Comcare liable for compensation under s 16(1).
LAW REFORM – apparent error in Table 4.1 of Comcare Guide to Assessment of Permanent Impairment.
PRACTICE AND PROCEDURE – Tribunal’s inquisitorial powers – practical problems.
Administrative Appeals Tribunal Act 1975, ss33(1)(c), 39.
Compensation (Commonwealth Government Employees) Act 1971Safety, Rehabilitation and Compensation Act 1988
Re Erdstein and Commonwealth of Australia (1988) 16 ALD 393
Re Erdstein and Comcare (1991) 24 ALD 382
Blackman v Australian Telecommunication Commission (1990) 12 AAR 11
Brennan v Comcare (1994) 19 AAR 542
Comcare v Levett (1995) 22 AAR 154
Department of Defence v West (1998) 27 AAR 550
Comcare (Department of Defence) v Maida (2002) 36 AAR 69
Rosillo v Telstra Corporation Limited [2003] FCA 1628
Re Krpan and Secretary, Department of Family and Community Services (1999) 57 ALD 663
Re Veness and Department of Family and Community Services [2000] AATA 6
Re Secretary, Community and Family Services and Dujmovic [2000] AATA 208
Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 43
Treloar v Australian Telecommunications Commission (1990) 12 AAR 535
Suters v Australian Postal Corporation (1992) 28 ALD 320Commonwealth of Australia v Smith (1989) 10 AAR 277
REASONS FOR DECISION
30 July 2004 Mrs Joan Dwyer, Senior Member
Associate Professor J.H. Maynard, Member
1. In this hearing the Tribunal was reviewing a number of reviewable decisions concerning Dr Erdstein’s entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). Dr Erdstein has accepted compensable conditions of chronic solar keratoses, chronic solar dermatitis and skin cancer. He also has an accepted claim for a torn medial meniscus of the left knee which occurred in 1973, and resulting osteoarthritis of that knee. The issues for determination relate to a permanent impairment claim for the accepted skin conditions, and whether osteoporosis and osteoarthritis of the right knee are compensable. One decision relates to a claim for compensation for the cost of nursing home care.
2. Mr J Ferwerda of Counsel appeared for Dr Erdstein. Dr Erdstein gave evidence. Evidence on his behalf was also given by his sister, Ms Clara Erdstein, by Dr Cosich, a specialist in endocrinology, by Mr Conroy, a surgeon, and by Dr Bitterfeld, a general practitioner.
3. Mr M Gorton of Counsel appeared for the respondent. The respondent called Dr Stevenson, a physician. The Tribunal had before it four separate sets of T documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and a reviewable decision and application for review in a fifth matter. The Tribunal also received in evidence the exhibits tendered during the hearing, including an exhibit produced by the Tribunal (“additional Tribunal exhibit 1”).
4. On the third day of hearing the Tribunal requested a copy of the Caulfield General Medical Centre (“Caulfield”) file concerning Dr Erdstein. That file was received after the conclusion of the hearing. It has been marked as exhibit A16. As required by s 39 of the AAT Act, the parties were given leave to make submissions concerning that exhibit. Those submissions have been considered by the Tribunal.
5. The Tribunal commented on the first day of hearing that it was surprised at the lack of medical evidence supporting Dr Erdstein’s case (see trans, pp2-4 and 7). Following discussion about the lack of evidence from an endocrinologist in respect of the claim for osteoporosis, that gap was filled at the resumed hearing in November 2003. There were however other gaps in the medical evidence called by both parties (see trans, pp91,219,227-230). No specialist orthopaedic evidence was given at the hearing, although three of the matters raise orthopaedic issues. As to one of those matters, V2003/1305, the parties requested that we not decide the matter. We agreed to give leave to bring the matter on for further hearing.
6. The Tribunal, under s 33(1)(c) of the AAT Act, has inquisitorial powers. Section 33(1)(c) states:
(1) In a proceeding before the Tribunal:
…
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
7. The Tribunal thus may call for further evidence subject to the requirement in s 39 of the AAT Act, which provides:
(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
8. However, although the Tribunal has power to call for further medical evidence, there are always practical problems to overcome such as who pays for the time of the specialist medical witnesses. There are also, of course, legal costs for any extra days of hearing. This matter had four hearing days, 7 April and 25-27 November 2003. We were reluctant to extend the hearing time further. We have therefore decided the matters on the written and oral evidence before us.
9. There are five applications before the Tribunal. We propose to consider the two as to skin disorder and osteoporosis first, and then to consider the claims in respect of the right knee condition and the cost of nursing home care.
APPLICATION V2000/405
10. The issue in this matter is whether Dr Erdstein is entitled to compensation for permanent impairment under ss 24 and 27 of the Act, or under the earlier legislation, the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”), in respect of chronic solar keratoses with resultant skin cancer. The condition “solar keratoses” was found to be compensable by the Tribunal on 29 November 1988. (Re Erdstein and Commonwealth of Australia (1988) 16 ALD 393). By letter dated 15 November 1991 (A6), Comcare advised Dr Erdstein that liability in respect of solar keratoses and chronic solar dermatitis had been “extended to include skin cancer”.
11. Severe facial disfigurement was the only form of loss recognised under the 1971 Act (s 41), as giving an entitlement to lump sum compensation in respect of a skin disorder. On 1 November 1991, the Tribunal, in a second matter (Re Erdstein and Comcare (1991) 24 ALD 382), decided that Dr Erdstein did not suffer severe facial disfigurement as a result of his then accepted skin conditions of solar keratoses and chronic solar dermatitis. The skin cancer was not yet accepted as compensable. The Tribunal therefore found that Dr Erdstein was not entitled to lump sum compensation under the 1971 Act. The Tribunal also considered Dr Erdstein’s claim for compensation for permanent impairment under the Act. It did not explain how Dr Erdstein might have been entitled to compensation for permanent impairment under the Act, which commenced on 1 December 1988. The Tribunal found that Dr Erdstein’s level of impairment, assessed using the Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”) as required by the Act was nil. Thus the Tribunal found, in 1991, that Dr Erdstein had no entitlement to lump sum compensation in respect of his solar keratoses and chronic solar dermatitis under either the 1971 Act or the Act.
12. Dr Erdstein did not appeal the Tribunal decision of 1 November 1991. On 15 November 1991 (A6), as set out above, he was advised that liability had been extended to include skin cancer. On 27 March 1999, Dr Erdstein wrote to Comcare stating that his condition had worsened and had required “frequent excisions for malignancy with pathological confirmations”. He asked if it was possible to re-open the question of his compensation on the ground of his “current unfair assessment”. He referred to a letter from Dr Grogan of the Peter McCallum Cancer Institute (“Peter MacCallum”), in which Dr Grogan wrote that it was most likely that Dr Erdstein would continue to develop skin cancers (T5 p22). Dr Grogan also wrote that an estimate of 30% disability made by Dr Minty in 1989 (T3 p11) “was still correct”. Dr Minty’s report had been referred to by the Tribunal in its decision of 1991.
13. Comcare rejected Dr Erdstein’s claim for compensation for permanent impairment on 14 July 1999 (T9 pp26-29). That decision was affirmed by a reviewable decision of 14 February 2000 (T13 pp33-36). That is the decision under review in this application V200/405.
THE LAW
14. Difficult legal issues arise in considering a claim for permanent impairment in respect of an injury suffered before 1 December 1988, the commencement date of the Act. Section 124 of the Act, so far as relevant, provides:
(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
….
(c)…. —under the 1971 Act as in force when the injury, loss or damage was suffered.
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
….
(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
….
(iii) …. —under the 1971 Act as in force when the impairment or death occurred.
….
15. The primary determination of 14 July 1999 rejected Dr Erdstein’s claim for permanent impairment for his compensable skin conditions, including skin cancer, on the basis of the decision of the Full Court in Blackman v Australian Telecommunication Commission (1990) 12 AAR 11. In that case the Full Court held that Mr Blackman was not entitled to compensation for permanent impairment under s 24(1) of the Act in respect of mesothelioma, because his permanent impairment occurred before 1 December 1988, the commencing date of the Act, and there was no entitlement to compensation for permanent impairment in respect of mesothelioma under the 1971 Act. The Full Court rejected an argument that there was further impairment since the Act came into force, because Mr Blackman’s impairment had worsened since 1988. The Full Court in Blackman said at paragraphs 17-19, p 14:
17. If the contention of [sic] behalf of the applicant is correct, then each time an impairment worsens significantly, there is a new impairment within the meaning of the 1988 Act. We cannot read the relevant provisions in this way. The scheme of the Act, in particular of ss.24 and 25, is not that as a disease progresses, the aggravation of its consequences constitutes a series of new impairments, each giving rise to a separate liability to pay compensation. If that were so, then small increments of aggravation of the impairment would not be compensable at all; for under sub-s.24(7) there is no right to compensation if the degree of permanent impairment is determined to be less than 10%. As an impairment worsens, further rights to compensation may accrue under s.25, but not because there is another distinct impairment.
18. To achieve the result that a variation (substantial or otherwise) of the degree of impairment should be treated as a new impairment for the purposes of sub-s.124(3), different language would have been necessary. The natural reading of "impairment ... that occurred before the commencing date" is such as to cover the case in which there is but a single impairment, which came into existence before the commencing date and thereafter fluctuated in intensity but generally worsened.
19. The consequence is that the applicant is not entitled to compensation under ss.24 and 25 of the 1988 Act in respect of his permanent impairment, because it occurred, i.e. came into existence, before the commencing date.
16. In rejecting Dr Erdstein’s claim of 27 March 1999, the primary decision maker wrote (T9 p28):
Any worsening of your condition is due to the natural progression of your disease, as you noted in 1988, could happen. I am also not satisfied that your impairment is now so different, from that suffered prior to 1 December, as to be regarded as a new or different impairment.
On the basis that your impairment of solar keratoses and chronic solar dermatitis (skin dryness) with resultant skin cancer, was permanent well prior to 1 December 1988, the commencement date of the Safety Rehabilitation Act 1988, the transitional provisions of the Act, section 124 are applicable. Sub-section 124(3), excluded payment where there was no provision for such payment under the repealed Compensation (Commonwealth Government Employees) Act 1971.
17. The decision maker concluded on the basis of those findings that, applying Blackman, Dr Erdstein had no entitlement to compensation for permanent impairment under the Act.
18. The delegate who made the reviewable decision on 14 February 2000 made his decision on the same grounds, again by reference to the decision in Blackman.
19. The decision makers did not refer to a number of subsequent decisions of the Full Court of the Federal Court which have given the decision in Blackman a narrow application. In Brennan v Comcare (1994) 19 AAR 542, Burchett and Gummow JJ, warned against giving the comments of the Full Court in Blackman too wide an application. Burchett J, at 547, suggested that the view of the Full Court that a worsening impairment could not be treated as a series of separate impairments were obiter dicta. Gummow J, at 558, recommended that paragraph 18 of the reasons in Blackman, quoted at paragraph 15 above, “be treated with some caution”. Their Honours explained that there may be a number of different impairments arising at different times out of the same injury, and that the exclusionary provisions of s 124(3) of the Act only apply when the relevant impairment occurred before 1 December 1988. Ryan J agreed with Burchett and Gummow JJ. The Full Court also held that permanent impairment only occurs when an impairment is likely to continue indefinitely.
20. In Comcare v Levett (1995) 22 AAR 154, the Full Court, Lockhart, Beazley and Moore JJ upheld the Tribunal decision which had emphasised the distinction between an impairment and a permanent impairment. The Tribunal in Levett had found that there was an entitlement to compensation because the impairment suffered before 1 December 1988 did not become permanent until after that date.
21. In Department of Defence v West (1998) 27 AAR 550, Merkel and O’Connor JJ, Heerey J dissenting, held that where a change in permanent impairment, which was quantitatively and qualitatively to be characterised as a further or new impairment, occurred after the commencement date, it was compensable by payment of a lump sum under ss 24 and 27 of the Act. Merkel J, in speaking of a deterioration of a condition, in his conclusion, at 571, used the term “the underlying patho-physiological condition”, which has been subsequently adopted in other decisions. We will consider that term later in these reasons.
22. The issue arose again in Comcare (Department of Defence) vMaida [2002] FCA 1284 (2002) 36 AAR 69. Mr Maida suffered from schizophrenia. He was admitted to hospital for psychiatric treatment in 1988 and was medically discharged from the Army on 23 September 1988. Under the 1971 Act, which was still in force on 23 September 1988, there was no entitlement to compensation for permanent psychological impairment. The Tribunal had found that Mr Maida suffered from schizophrenia prior to 1 December 1988, and that it was then permanent, but it found further that since 1 December 1988 the condition had deteriorated so significantly that Mr Maida’s impairment “noting both the qualitative and quantitative aspects” was properly characterised as a “further impairment” to that he suffered prior to 1 December 1988.
23. On appeal, Mansfield J discussed Blackman, Brennan, Levett and West. His Honour held that it was appropriate for the Tribunal to follow the approach of Merkel J in West. He pointed out that to do so it was necessary to ascertain whether the change in permanent impairment occurring after 1 December 1988 was such that, “qualitatively and quantitatively”, it was properly to be characterised as a new impairment.
24. Mansfield J, at 79-80, paragraph 28, of his reasons, adopted the propositions advanced by Counsel for the applicant, which he said, in his view, correctly summarised the law:
20.1 The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.
20.2 If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.
20.3 A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment - that is, the development of a new impairment.
25. Mansfield J explained, at 80, paragraph 29, when a pre-existing back condition could give rise to a new impairment. He said:
29. It was explained in contentions, by way of example, that if an underlying back condition produced back pain which gradually worsened there would on the applicant's argument be no new impairment, but if that underlying back condition produced symptoms and therefore disability in the leg or legs which did not previously exist, there would be in respect of the disability in the leg or legs a new impairment which would attract the operation of s 24 and associated sections. If, in addition, it could be demonstrated that a significant worsening in the disability in the back occurred, and that there was some underlying patho-physiological condition which changed so as to produce that significant worsening of symptoms, in that event there may well be a further new impairment. It was not fully explored whether that would be a new impairment per se, or a consequence of a further injury flowing as a natural and probable consequence from the initial injury.
26. Mansfield J found that the Tribunal had not considered the critical question, namely, whether the evidence indicated a qualitative and quantitative change in Mr Maida’s condition, so as to give rise to a new impairment. He explained that evidence as to an increase in the level of symptoms did not satisfy the requirement that there must be “a qualitative change… that is some fresh or additional patho –physiological change in the condition.”
THE EVIDENCE
27. The issue requires consideration of the quality of any change in the nature of Dr Erdstein’s accepted skin condition since 1 December 1988. We find that the primary decision maker made an error in concluding that Dr Erdstein’s impairment from solar keratoses and chronic solar dermatitis “with resultant skin cancer” was permanent “well prior to 1 December 1988.” There is no evidence that Dr Erdstein was diagnosed with skin cancer prior to 1 December 1988. Nor is there is any evidence that solar keratoses necessarily result in skin cancer. Dr Minty (T3), on 7 February 1989, raised the possibility that treatment for skin cancer may become necessary.
28. The evidence is that Dr Erdstein was first diagnosed as suffering a form of skin cancer when he had a basal cell carcinoma excised from the neck in January of 1991 (A5). In December 1998 and February 1999 he had skin cancers excised from the dorsum of the left hand (A5). Those excisions were performed by Mr Jenner at Peter MacCallum. At the second day of hearing, Dr Erdstein said that he had had a further squamous cell carcinoma excised on 16 April 2003 (A12) on the left forehead.
29. Dr Erdstein said that during the 1990’s he also had cryotherapy treatments. The report of Dr Grogan, the Medical Administrator at Peter MacCallum (A5), shows that Dr Erdstein first had liquid nitrogen treatment, cryotherapy, in February 1991, and between then and 29 June 2000 he had undergone that treatment in May and August 1991, and in April 1992, August 1993, November 1994 and February 1997. Dr Erdstein said that he was still having cryotherapy treatment up until the hearing, although Mr Jenner had told him there was a problem with cryotherapy because “it thins the skin and too thin a skin is not good for you” (trans, p32).
30. Dr Erdstein explained that in about 1992 Mr Jenner suggested that the best way to get rid of keratoses on the scalp was to apply poultices. He described the procedure as follows (trans, p33-34):
Mr Jenner suggested that the best way to get rid of the keratosis on the scalp in particular was poultices made of baking powder in a towel, in a hot towel, applied to the head and face where the keratosis were, and leaving the poultices for about half an hour, then to take a hot, a long, hot shower.
How frequent? --- For about 20 minutes. The importance of these poultices is that they uncover – they get rid of the pus and infection which forms under the keratosis and temporarily get rid of the keratoses ---
--- They get rid of the keratosis for a short while, and they return. About – when they return, which may be the second day, I have to do it again. It is not a treatment for the keratoses, it is to remove the pus and the infection and the hard patches which form and may [be] a skin malignancy.
Did you commence that form of treatment in about ’92? --- Yes.
And do you still carry out that treatment? --- Yes. Yes, the evening …. I did it.
And is that about every second day that you apply the poultices ? --- Every second day, sometimes every day.”
31. Ms Erdstein also described how she assisted Dr Erdstein with that treatment (trans, p167-168):
There's new tea towels that are warmed up every day and baking powder is put in and it's - - -
[Do you put that in?] --- Yes, with Noah supervising, and - - -
[How do you warm the tea towels?] --- You have warm water in a basin, a special sterile basin, and - like a dish, a special dish.
[So they are wet tea towels that are - - -?] --- They have to be warm.
[Warm and wet?] --- Yes, and then - wet, not soaking - sopping wet, but squeezed out so that they're filled with the baking powder and made into poultices. Because the Keratosis forms at - you don't see any now because they've been removed but they appear again very quickly. But they form like a thick crust of maybe a centimetre thick and they're like a dirty brown sand and they're not only horrible to see but they hide things. Many of them have pus oozing out when they fall off and when they're burned off at the Peter MacCallum Clinic they - the doctor said - or they stretch the skin and it makes it so fragile that it was found that that is the best treatment that works for Noah.
[How often are you personally involved in treating?] ---It's done every day.
32. In Dr McCormack’s report of 15 January 2003 (A3), the history given is that the poultice treatment “takes hours out of his day” and is designed not only to remove the solar keratoses but also to “unmask any potential skin cancers”. It must be noted that Dr McCormack did add that he was not commenting on the adequacy or appropriateness of that treatment.
33. We indicated during the hearing that we would have been assisted by evidence from Mr Jenner, who was said to have prescribed that treatment. When Mr Ferwerda said that the applicant’s solicitor was having difficulty contacting Mr Jenner, Mr Gorton said that he thought it was unnecessary. He explained (trans, p229):
I wouldn't have thought it important at all myself. Either he did advise it and that is what is being done or he didn't but it is still being done and it seems to be effective if what the applicant says is correct.
34. Dr Erdstein, in giving the history of his skin conditions, said that as well as requiring cryotherapy treatment, excisions and the application of hot poultices, his condition since 1999, because of his concern about skin cancers, had also caused significant interference with his daily life. He said he used sunscreen and covered his hands and face when he was outside. He also avoids going outside altogether between 11am and 3pm. He said he also takes care to stay in the shade. Dr Erdstein said that he attends Peter MacCallum every three or six months for review to check if there has been any local or distant recurrence of his squamous cell carcinoma.
35. Mr Gorton asked Dr Erdstein when he started avoiding the sun. He said that it was in about 1992, after the removal of the basal cell carcinoma alerted him to the danger presented by his skin condition. He said that he only went outside if it was necessary, for instance, to attend a clinic. Mr Gorton asked Dr Erdstein how he dealt with sun coming in through a window at home. He said he puts the blinds down if the sun is shining in.
SUBMISSIONS
36. Mr Ferwerda submitted that the evidence established that since 1 December 1988 there had been significant change in the underlying “patho-physiological” condition with the development of the skin cancer which was accepted by Comcare as compensable by letter of 15 November 1991 (A6).
37. Mr Ferwerda submitted that the fact that the Tribunal found in 1991 that there was no entitlement under s 41 of the 1971 Act, did not mean that Dr Erdstein was precluded by s 124 of the current Act from receiving lump sum compensation under ss 24 and 27 of the Act. He submitted that the decision of the Tribunal in 1991 decided only that, as at 1 November 1991, Dr Erdstein was not entitled to compensation for facial disfigurement under s 41 of the Act. It did not and could not decide that, even if his condition worsened, due to a qualitative and quantitative change in the underlying pathology, he would never be entitled to compensation for permanent impairment. The correctness of that analysis has recently been confirmed by the Federal Court in Rosillo v Telstra Corporation Limited [2003] FCA 1628. The Court held that a decision cannot operate as a bar to future liability, if the circumstances change so as to establish such a liability.
38. Mr Gorton submitted that the development of skin cancer was a natural progression (trans, p297) from the accepted solar keratoses condition. He pointed out that Senior Member Hallowes in Re Erdstein and Commonwealth of Australia noted, at 399, paragraph 15, that Dr Erdstein had written that the skin condition “may turn malignant despite carefulness”.
FINDINGS
39. We are not quite clear as to what the authorities mean by the term “patho-physiological change”. The terms “pathology” and “physiology” are defined in Black’s Medical Dictionary (40th edition) as follows:
PATHOLOGY - The science which deals with the causes of, and changes produced in the body by, disease.
PHYSIOLOGY is the branch of medical science that deals with the healthy functions of different organs, and the changes that the whole body undergoes in the course of its activities. The teaching of physiology is a basic part of the medical student’s initial education.
40. We consider that the term “patho-physiological condition” as used by Merkel J in West, at 571, was intended to refer to a change to the normal function of the body (physiology) due to the pathological (disease) process. With respect, we consider that the term “a change in the underlying pathological condition” conveys the same meaning.
41. Mr Gorton submitted that there had been no change in the underlying “patho-physiological condition”. He submitted that the skin cancers were simply a natural progression of the accepted solar keratoses condition. We cannot accept that contention. We find that pathologically identified squamous cell carcinomas and basal cell carcinoma are different pathological conditions from the solar keratoses, which are not malignant. Not all solar keratoses progress to malignancy.
42. We find that the development of skin cancer in 1992 was a qualitative change from the previously diagnosed solar keratoses and dermatitis. Thus the development of skin cancer meets the description of “a patho-physiological change”, in that the disease process (pathology) changes the function of the body (physiology), in this case the skin.
43. However, what is required to establish an entitlement to compensation for permanent impairment under the Act is that there be a “significant worsening of an impairment” (see 20.3 of the propositions in Maida), as a result of such a change in the underlying “patho-physiological condition”.
44. The term “impairment” is defined in s 4(1) of the Act as follows:
impairment means the loss, the loss of use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system.
45. The assessment of impairment for a skin disorder is to be done in accordance with Table 4.1 of the Guide. That table is as follows:
Table 4.1
% DESCRIPTION OF LEVEL OF IMPAIRMENT 0 The condition is absent on examination or if present can easily be reversed by appropriate medication or treatment AND causes no interference with activities of daily living when present.
5 The condition requires treatment for lengthy periods AND causes no interference with activities of daily living when present.
10 The condition is absent on examination or if present can easily be reversed by appropriate medication or treatment AND causes minor interference with activities of daily living when present.
20 The condition requires treatment for periods in aggregate up to 3 months per year AND causes interference with activities of daily living when present.
30 The condition requires treatment for periods in aggregate up to 4 months per year AND causes minor interference with activities of daily living when present.
40 The condition requires treatment for periods in aggregate up to 4 months per year AND causes major interference with activities of daily living when present.
45 The condition requires treatment for periods in aggregate up to 6 months per year AND causes minor interference with activities of daily living when present.
50 The condition requires treatment for periods in aggregate up to 6 months per year AND causes major interference with activities of daily living when present.
60 The condition requires treatment for periods in aggregate up to 9 months per year AND causes major interference with activities of daily living when present.
[It seems that there is a printing error here – possibly “major” should read “minor” for 60 impairment points as otherwise the descriptors of 60% and 70% are identical]70 The condition requires treatment for periods in aggregate up to 9 months per year AND causes major interference with activities of daily living when present.
75
to
100The condition is present all the time and requires treatment for between 9 and 12 months of the year AND causes major interference with activities of daily living.
46. One issue in applying Table 4.1 is whether Dr Erdstein’s skin cancers cause interference with “activities of daily living”. That term is defined in the glossary at p7 of the Guide as follows:
Activities of daily living are activities which an individual needs to perform to function in a non-specific environment (that is, to live). The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
-ability to receive and respond to incoming stimuli
-standing
-moving
-feeding (includes eating but not the preparation of food)
-control of bladder and bowel
-self care (bathing, dressing, etc)
-sexual function.
47. Table 4.1 has not often been considered in Tribunal decisions. We suggest that on close examination it contains a number of problems. First, there appears to be an obvious typographical error, as pointed out in paragraph 45. We suggest that it requires amendment. Secondly, in regard to the descriptor for the 10% impairment rating, it is difficult to see why a condition, which can easily be reversed by appropriate medication or treatment, would cause even minor interference with the aspects of “primary biological and psychosocial function”, described in the definition of “activities of daily living” in the Glossary at p7 of the Guide.
48. When Dr Erdstein’s attention was drawn to the definition of “activities of daily living” at p7 of the Guide, he said that the skin cancers do not interfere with any of the activities set out in that definition (trans, p101). He said they interfere with his enjoyment of life “and are time consuming”, and limit his ability to go out in the sun most of, or part of the day, which he used to enjoy (trans, p101).
49. Mr Gorton submitted that we should accept Dr Erdstein’s evidence and find that his skin cancers do not cause an impairment which interferes with any of his “activities of daily living”, and thus find that Dr Erdstein could not satisfy the descriptive criteria for a 10% whole person impairment rating on Table 4.1. On his submission, the appropriate rating would be 5%, which applies where:
The condition requires treatment for lengthy periods AND causes no interference with activities of daily living when present.
50. On the other hand, as we pointed out during the hearing, although Dr Erdstein said the skin conditions cause no interference with “activities of daily living”, he did say they were “time consuming”. Looking at his evidence as a whole, and at the evidence of Ms Erdstein, that must have been a reference to the time spent applying poultices every day or every second day.
51. In their evidence at this hearing, Dr Erdstein and Ms Erdstein described the complicated procedure used to remove crusts each day to allow inspection of the area under the crusts for signs of infection or of further skin cancer. The treatment requires Ms Erdstein to assist with producing warm damp tea towels filled with baking power (trans, p168). She also adjusts mirrors for Dr Erdstein to see if he can find any malignancies or infections and she lifts his head to enable him to make that inspection, because he cannot do that himself due to his osteoporosis (trans, p168).
52. In the absence of any challenge to the evidence that Mr Jenner recommended the poultice treatment, we find that the need to perform that lengthy process on a daily basis is an interference with “self care (bathing, dressing, etc)”. The fact that Dr Erdstein requires assistance from his sister to complete his shower and inspections reinforces that finding.
53. It is apparent from a reading of the decision of the Tribunal in Re Erdstein and Comcare (1991) 24 ALD 382, at 389, paragraph 8, that there was no evidence that the poultice treatment was in use at that time. The only treatment referred to was the use of ointments and emollients. We find that the need for that different and more complex daily showering and inspection regime is a worsening of impairment due partly to the need to be vigilant to identify any new skin cancers. That is a result of the change in the underlying “patho-physiological condition”, when it developed to include skin cancer.
54. Mr Gorton submitted that the treatment Dr Erdstein was having for his solar keratoses had not changed, since the diagnosis of skin cancer. In the 1988 hearing, the evidence was that Dr Erdstein applied ointments to prevent and treat sunburn in Papua New Guinea prior to 1963. In the 1991 hearing the evidence was that he had to “apply various ointments and emollients to prevent any deterioration of his condition” (24 ALD paragraph 8, p389).
55. We find, as the Tribunal did in 1991, that the evidence at that hearing was not such as to give rise to any interference with the activities of daily living, or even any impairment rating on Table 4.1. The Tribunal said at paragraph 11 p390:
(11) The solar keratoses do not affect in any way the applicant’s “activities of daily living”, that is to say his primary biological and psychosocial functions such as standing, moving, feeding and self-care. Applying Table 4.1, we find that the greatest degree of impairment that might possibly be regarded as having resulted from the applicant’s solar keratoses is 5%. But that is the degree of impairment only if “the condition requires treatment for lengthy periods”. The applicant submitted that, because he had to apply ointments and emollients daily throughout the year, that requirement was met. Dr Stahle, on the other hand, said that the application of ointments and emollients to keep the skin soft was not treatment of the condition; only action taken to remove the keratoses by cryotherapy, excision or some other means constituted treatment. In view of the provisions of s 24(7), it is not strictly necessary for us to decide that point; but in our view Dr Stahle’s opinion is to be preferred and, for the purposes of application of Table 4.1 of the guide, treatment in relation to the applicant’s solar keratoses means more than simply the daily application of ointments and emollients. We have come to the conclusion, therefore, that, when Table 4.1 is applied, the degree of impairment is 0%
56. We find that since the first skin cancer was diagnosed and excised in January 1991 (A5), Dr Erdstein has been using treatment to remove the keratoses, to allow inspection for infection and skin cancers under the crusts. That different method of treatment does constitute an interference with “self-care (bathing)”.
57. We find that the treatment has changed from the creams and emollients referred to by the Tribunal in its 1991 decision, to the hot poultices and careful inspections described in the evidence. Mr Gorton submitted that unless the changed treatment was for the skin cancer there could be no permanent impairment assessment under the Act. We accept that submission. We find that the requirement for the poultice treatment is due in part to the development of skin cancer, and the need to be vigilant for any recurrence of malignancy. That constitutes a worsening of impairment and a quantitative and qualitative change in Dr Erdstein’s impairment due to skin conditions. We find that the worsening of impairment due to the development of skin cancers constitutes a further impairment since 1 December 1988 which is compensable.
58. It is difficult to match the current level of impairment with any of the descriptors on Table 4.1. We find that the requirement to apply a hot poultice for about half an hour before having a long hot shower for 20 minutes, and then to inspect the scalp and other parts of the body looking for signs of malignancy, using mirrors, and with assistance from Ms Erdstein, is a minor interference with self care. The evidence is that the treatment is required for 12 months of the year.
59. There is no descriptor which matches minor interference with activities of daily living with a requirement of treatment for 12 months of the year. If the descriptor for 60% were amended to apply to treatment for periods of up to 9 months of the year for a condition causing minor interference with activities of daily living, that would yield a high whole person impairment rating for a minor interference with activities of daily living.
60. The Guide is delegated legislation having been made pursuant to s 28(1) of the Act. The apparent error in Table 4.1 was not noticed or referred to during the hearing. We considered whether we should raise it with the parties. We decided that it was not necessary to do so because we are bound to apply the Guide and the error is not the sort which we could correct.
61. We refer to and adopt the reasoning on this point of the Tribunal in Re Krpan and Secretary, Department of Family and Community Services (1999) 57 ALD 663, at paragraphs 57 – 62, where the Tribunal said:
(57) The question of course arises whether it is appropriate for the tribunal, in effect, to rewrite subpara (iii) of para (c) of s 1179(5) of the Act so that it reads in the way suggested in the preceding paragraph — that is, as follows:
(iii) if a lump sum compensation payment is received on or after 20 March 1997 — the new lump sum preclusion period;
(58) At common law, the traditional approach to statutory interpretation is the literal approach whereby the words used in the relevant statutory provision are given their plain and ordinary grammatical meaning having regard to the statutory context in which they appear. An alternative, more contemporary, approach, at common law, to statutory interpretation is the purposive approach whereby the relevant statutory words are interpreted in such a way as will accord with or promote the purpose or object for which they were enacted. See, generally, Pearce and Geddes, Statutory Interpretation in Australia, 4th ed, 1996, pp 22–6. The latter approach is required to be adopted in the interpretation of Commonwealth statutory provisions by reason of s 15AA(1) of the Acts Interpretation Act 1901 (Cth) (the AI Act) which provides:
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
Section 15AB(1) of that Act provides that, in the interpretation of a provision of an Act, if any extrinsic material is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(59) The tribunal has no real doubt that subpara (iii) of para (c) of s 1179(5) of the Act, as it presently stands, involves two specific drafting errors and that it was, instead, intended by the legislature to be expressed in the terms set out in para (57) above. ….
(60) Accordingly, having regard to the considerations referred to in the preceding paragraph, the two specific drafting errors which the tribunal considers to be present in s 1179(5)(c)(iii) of the Act are (as suggested in para (56) above):
• the phrase “lump sum compensation affected payment should read “lump sum compensation payment”; and
• the phrase “before 20 March 1997” should read “on or after 20 March 1997”.
In each case, however, the meaning of the existing words is clear and there is no ambiguity or obscurity. ….
(61) In those circumstances, would it be appropriate for the tribunal, in effect, to rewrite subpara (iii) of para (c) of s 1179(5) of the Act so that it reads in the way set out in para (57) above? In the tribunal’s opinion, it would not. Although it may be appropriate for the tribunal, when called upon to interpret and apply a statutory provision which is open to more than one construction, to give that provision a strained construction or read words into it or otherwise clarify or modify the ordinary, grammatical meaning of the statutory language, in order to give effect to the intention or purpose of the legislature, it is not appropriate for the tribunal to substitute words for the words that appear in the relevant statutory provision when the meaning of the latter words is “intractable” and no construction, other than their ordinary, grammatical meaning, is reasonably open: Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 320; 35 ALR 151. For the tribunal to engage in such an exercise would be for it to engage in rewriting the relevant statutory provision — that is, to engage in the function of legislation rather than in the function of interpretation or construction. As McHugh JA said in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423:
But first and last the function of the court remains one of construction and not legislation.
Section 15AA(1) of the AI Act in no way derogates from that proposition. In Mills v Meeking (1990) 169 CLR 214; 91 ALR 16 Dawson J, referring to s 35(a) of the Interpretation of Legislation Act 1984 (Vic) (which is in similar terms to s 15AA(1) of the AI Act), said (at CLR 235; ALR 31) that that section:
… requires a court to construe an Act, not to rewrite it, in the light of its purposes.
Similarly, Burchett J in Trevisan v FCT (1991) 29 FCR 157; 101 ALR 26 said (at FCR 162; ALR 31):
Section 15AA [of the AI Act] requires a court to prefer one construction to another. Such a requirement can only have meaning where two constructions are otherwise open. The section is not a warrant for redrafting legislation nearer to an assumed desire of the legislature. It is not for the courts to legislate; a meaning, though illuminated by the statutory injunction to promote the purpose or object underlying the Act, must be found in the words of parliament.
….
(62) Accordingly, the tribunal will not depart from the literal words of s 1179(5)(c)(iii) of the Act and will apply those words, in accordance with their plain and ordinary grammatical meaning and in accordance with any relevant statutory definition of those words, to the facts of the present case. Before doing so, the tribunal notes that there is a decision of the tribunal to the contrary effect — Re Lawrie and Secretary, Department of Family and Community Services (1998) 54 ALD 483 — in which s 1179(4)(a)(iii) of the Act (which is in identical terms to, and contains the same apparent drafting errors as, s 1179(5)(c)(iii) of the Act) was applied as though it read in the way set out in para (57) above. For the reasons expressed above, however, the tribunal respectfully declines to take that approach in the present case. In the tribunal’s opinion it is the responsibility of the legislature to correct drafting errors in its legislation by the process of statutory amendment and, in relation to subparas 1179(4)(a)(iii) and 1179(5)(c)(iii) of the Act, the relevant drafting errors are such that they can very easily be corrected by this means. It is not appropriate for the tribunal in the present case in effect to usurp the function of the legislature by effectively rewriting the relevant statutory provision.
62. Deputy President Hotop, who was the Presiding Member in Krpan, followed that decision in Re Veness and Department of Family and Community Services [2000] AATA 6, and again in Re Secretary, Community and Family Services and Dujmovic [2000] AATA 208.
63. We have referred to Pearce, Statutory Interpretation in Australia, 5th edition, at paragraph 2.24. It is there suggested that an obvious printing or drafting error may be corrected where it is obvious what was intended. There is discussion at paragraphs 2.7 to 2.12 of s 15 AA of the Acts Interpretation Act 1901, but there is no suggestion that Krpan was wrongly decided. It is cited with apparent approval at paragraph 2.9
64. In this matter, it is not a question of preferring one possible interpretation of the descriptor for a 60% impairment rating to another. The words used are quite clear and can be given their normal meaning. Nor is it crystal clear that the word “major” in the descriptor for 60% whole person impairment rating should be “minor”. That would, as we have said earlier, lead to a high impairment rating for a minor interference with activities of daily living. It may be that some other amendment is intended. Perhaps the 60% descriptor is correct, but the 70% descriptor should be changed.
65. We have concluded that we must apply the Table according to its terms. We cannot attempt to guess what Comcare intended, and then rewrite the descriptor in that way. We do however draw the apparent error to the attention of Comcare and suggest that some change is required.
66. We have concluded that the most appropriate rating in this matter is 45% on Table 4.1 which applies where:
45. The condition requires treatment for periods in aggregate up to 6 months per year AND causes minor interference with activities of daily living when present.
67. The decision under review will be set aside. In substitution the matter will be remitted to Comcare for reconsideration in accordance with the direction that the amount of compensation payable to Dr Erdstein under ss 24 and 27 of the Act be calculated on the basis that he has a 45% impairment rating on Table 4.1 in respect of a significant worsening in his impairment after 1 December 1988, resulting from pathological change in the nature of his skin conditions. That significant change to the underlying “patho-physiological condition” is the diagnosis of skin cancer in 1991. The resulting impairment causes minor interference with self care because of the need to use poultices, have lengthy showers and remove crusts to allow inspection for skin cancers.
V2001/862
68. This matter concerns a claim by Dr Erdstein to have osteoporosis accepted as a compensable disease. Dr Erdstein claims that he developed osteoporosis as a result of avoiding the sun due to his compensable skin malignancies. He claims that the lack of sun exposure since about 1992 resulted in a vitamin D deficiency, and was a contributing factor to the osteoporosis.
69. There is no dispute that Dr Erdstein suffers from osteoporosis with vertebral wedge fractures. Dr Erdstein explained that his osteoporosis has a significant effect on his lifestyle. He demonstrated, as was apparent, that he could not lift his head above the horizontal, which means that he looks at people’s knees or feet and has difficulty communicating with people. He said that his back is stiff and his range of movement has been affected to a severe extent. He said he also suffers pain in the right side of his chest wall most of the time.
70. The T documents do not include Dr Erdstein’s claim in respect of osteoporosis. The earliest letter from him in the T documents is dated 16 November 2000 (T5 p13). It refers to a letter from Comcare dated 15 November 2000 “re osteoporosis”, from which it appears that Dr Erdstein had made a claim in respect of osteoporosis prior to 15 November 2000.
71. It appears that Dr Erdstein had forwarded to Comcare a letter dated 8 September 2000 from Dr Zimmet, the Professorial General Medical Registrar of the Alfred Hospital (“the Alfred”), in support of his claim (T3 p11). That letter reads:
This is to certify that recent tests and specialist medical assessment conducted at the Alfred Hospital have revealed that Dr Noah Erdstein, is suffering from osteoporosis and vertebral crush fractures.
The osteoporosis has been largely contributed to by Vitamin D deficiency as a result of his rigorous avoidance of the sun, due to his accepted skin malignancies.
These further complications should now be recognised as an aggravation of his accepted skin disabilities.
72. Comcare sought further information from Dr Erdstein. He replied on 16 November 2000. He explained that the osteoporosis was diagnosed at the Alfred, when he was an inpatient there for unrelated matters. He also commented, “osteoporosis has sneaked in despite the fact that I am very partial to dairy products, and my daily intake always includes at least one glass of milk, together with cheese, yoghurt, etc” (T5, p13).
73. Dr Erdstein said that since he was diagnosed with osteoporosis in August/September 2000, he takes a calcium and a vitamin D tablet (Ostelin) every day. He said that after he was discharged as an inpatient from the Alfred, in September 2000, he continued to see Dr Langham, a specialist physician, in the General Medical Outpatient Clinic at the Alfred, until she left the hospital in March 2001.
74. Dr Langham provided a report (T9 p19) dated 31 January 2001 which stated:
With respect to the questions you raised regarding Dr Erdstein’s Vitamin D induced osteoporosis, it appears his avoidance of UV radiation has been present for many years. He was assessed by the endocrinologists whilst an inpatient in August 2000 after his original diagnosis of osteoporosis with vertebral crush fractures.
The endocrinology team felt that while advanced age and immobility were contributed [sic] to the osteoporosis, Vitamin D deficiency (diagnosed on serum estimation) was a likely contributor to his poor bone quality. Calcium, testosterone and parathyroid hormone levels were normal. They recommended treatment with ostelin and caltrate, which was subsequently instituted by his team of doctors.
75. On 23 January 2001, Comcare sought a report from Mr Hopkins as to Dr Erdstein’s claims that his osteoporosis resulted from his rigorous avoidance of the sun. Mr Hopkins’ report was provided on 9 February 2001. He wrote (T11, p21-22):
I note from your enclosures that it has been suggested by the Alfred Hospital that Dr Erdstein suffers from osteoporosis with vertebral wedge fractures, which he has claimed is largely contributed to by rigorous avoidance to [sic] the sun due to accepted skin malignancies, i.e. solar keratoses on his scalp.
To my examination, Dr Erdstein had major solar keratoses on his scalp. It is totally beyond my comprehension as to how such lesions could be accepted as compensable; nevertheless, they appear to have been.
With regard to the suggested mechanism of his osteoporosis, I have great difficulty in accepting this thesis.
Both men and woman [sic] of Dr Erdstein’s age group frequently present with osteoporosis and it is frequently associated with multiple wedge fractures of the vertebrae. The causes of this are many; in my experience the most common is simply the ageing process and lack of mobility.
I have great difficulty in believing that in preventing the sun from reaching the solar keratoses on his head (which could be achieved by wearing a hat), this would result in a loss of Vitamin D.
In my experience it is true that in certain groups, clothing their children to the extent where they are virtually completely covered, adequate Vitamin D absorption may be prevented, with the subsequent production of rickets. However, I have never heard of such an explanation in an elderly male.
In my opinion, the question you pose should be put to an appropriate physician with an interest in metabolic diseases, as the investigation of such matters tends to be performed by physicians (as apposed [sic] to orthopaedic surgeons).
In doing so, I advise that it would be appropriate to obtain further information from D H Zimmet of the Alfred to elucidate what the “recent tests and specialist medical assessment conducted at the Alfred” could lead to their conclusion that:
“The osteoporosis has been largely contributed to by Vitamin D deficiency as a result of his rigorous avoidance of the sun, due to his accepted skin malignancies.”
In short, I find the whole matter highly questionable, but consider it would be more appropriately dealt with by a physician with an interest in metabolic or bone disease.
76. Instead of seeking an opinion from “a physician with an interest in metabolic or bone disease”, as suggested by Mr Hopkins, Comcare proceeded to reject Dr Erdstein’s claim.
77. The primary determination in the matter was made on 10 May 2001 (T15). The reviewable decision which affirmed the primary determination was made on 6 July 2001. The reason given in the primary determination, for refusing Dr Erdstein’s claim was, as stated by Mr Hopkins in his report, that the most common cause of osteoporosis was the ageing process. The decision-maker questioned whether a contribution due to vitamin D deficiency was probable, rather than possible. On reconsideration, the decision-maker wrote that, without test results as to the vitamin D deficiency, he was not satisfied, on the balance of probabilities, that Dr Erdstein’s vitamin D deficiency had been caused by his avoidance of the sun.
78. In a second report dated 18 June 2003 (A8) Dr Langham repeated that vitamin D deficiency was considered to be a likely contributing factor for Dr Erdstein’s osteoporosis. She wrote:
This diagnosis was reached following consultation with the endocrinology unit at the Alfred Hospital, who noted Dr Erdstein had a low serum Vitamin D level when investigating him for potential secondary causes of osteoporosis during an inpatient stay in August 2000.
I confess I am unable to add any further information as to the likely mechanisms or relative contribution of the Vitamin D deficiency to Dr Erdstein’s osteoporosis.
79. The Tribunal had before it Dr Chosich’s report of 10 October 2003 (A9). Dr Chosich is a visiting endocrinologist at the Department of Endocrinology and Diabetes at the Alfred. He wrote about Dr Erdstein’s care and investigations in that department. He concluded:
I note that Dr Erdstein rigorously avoided the sun from 1992 onwards and I believe this would be a significant factor in his relatively low vitamin D level. This in turn could have contributed to his reduced bone mineral density. Further, there is evidence that treatment with vitamin D supplementation in people with vitamin D deficiency can reduce the risk of fractures. However, his increasing age and decreased mobility due to his Parkinson’s disease may also be contributing factors. It is difficult to determine how much each factor contributed to his reduced bone mineral density.
In summary, I believe that Dr Erdstein’s history of avoidance of sun exposure would have contributed to his relatively low vitamin D level and that this in turn may have contributed to reduced bone mineral density. Although we do not have the result of a DEXA scan (a measure of bone mineral density) his plain x-rays would be consistent with the diagnosis of osteoporosis. The collapsed vertebra would be a consequence of osteoporosis as other causes were excluded.
80. Dr Chosich gave evidence. He said the likely explanation of the osteopenia (thin bones) which showed on plain x-ray was osteoporosis. He also said that Dr Erdstein’s kyphoscoliosis or curvature of the spine was contributed to by his osteoporosis, because the plain x-ray showed vertebral fractures and anterior wedging indicating that the front of the vertebra had collapsed down. Dr Chosich said that the reported crush fracture of vertebra nine, in his opinion, was also related to the osteoporosis, because other possible explanations, such as malignancy has been excluded.
81. Dr Chosich said Dr Erdstein’s vitamin D level, when tested in 2001, was low, at 30 nmol/L. He noted from the test result that normal was stated to be 25-108 nmol/L, but he explained that, even in 2001, a level of below 50 was considered as indicating a relative deficiency or sub-optimal level. He added that currently some experts quote the normal range as 60 or above. He said (trans, p185) that there is a consensus in the field that, where people with osteoporosis have a vitamin D level below 50, treatment with a vitamin D supplement can be a benefit.
82. Dr Chosich said (trans, p176) that the majority of our vitamin D is obtained through sunlight exposure to the skin. He said there are very few dietary sources of vitamin D in Australia. He said it is only in countries where dairy products are fortified with vitamin D, that they provide useful vitamin D. He said there is vitamin D in fish livers, and in some fish, but you probably would not get enough vitamin D just from eating fish.
83. Dr Chosich said that the connection between low vitamin D levels, say below 50 nmol/L, and lack of exposure to the sun is “being more and more recognised now” (trans, p176). He said vitamin D levels tend to be lower in winter and in people who are institutionalized and do not get outside, as well as in people who cover up for religious reasons. He said there is now concern that covering up with sunscreen might also be contributing to lower vitamin D levels. He agreed with Mr Gorton that 10 minutes of sun exposure two or three times a day, if the limbs and face were exposed, would be adequate.
84. Dr Chosich, in his report, wrote that it was recommended that Dr Erdstein take an oral vitamin D supplement. Dr Erdstein said that since the diagnosis he had been taking a calcium tablet and a vitamin D tablet, Ostelin, daily. Dr Chosich, in his report, noted that on a return visit on 10 September 2001 Dr Erdstein was suffering increasing deformity due to his curvature of the spine, but his vitamin D level had improved to 48 nmol/L.
85. Dr Chosich said that ageing, being immobile, low testosterone and low vitamin D may all contribute to a thinning of the bones. He said that Dr Erdstein’s testosterone level was within the normal range. He said there is no doubt that immobility can be associated with reduced bone density (trans, p186). He said that regular weight bearing exercise has a positive effect in maintaining the integrity of the skeleton; walking half an hour three times a week would be considered a benefit. If a person is not doing any walking, that might certainly contribute to a decrease in bone density (trans, p179).
86. In cross examination, Dr Chosich maintained the view that a low vitamin D level would probably be a contributing factor to reduced bone mineral density, in addition to ageing. He said (trans, p184) that he was not comfortable with the proposition that the ageing process is the major, and perfectly adequate, explanation of Dr Erdstein’s osteoporosis. Dr Chosich suggested that all the other relevant factors including vitamin D levels must be investigated. Dr Chosich did not agree with the proposition put to him by Mr Gorton (trans, p185), that it is going too far to assert that vitamin D deficiency was a likely causative factor for Dr Erdstein’s osteoporosis. Dr Chosich replied (trans, p185):
I believe it would be a contributing factor. You can’t say it’s the only factor or the major factor but I believe it would be a contributing factor.
87. Dr Chosich said that studies show that decreased vitamin D levels can affect bone density within 1 or 2 years. In answer to a question from the Tribunal, he said that the kyphoscoliosis could be due partly to the rigidity of the muscles associated with Parkinson’s, but, insofar as it is a deformity of the skeleton, it would be secondary to the osteoporosis. Dr Chosich said that because Dr Erdstein’s reduced bone density shows up on a plain x-ray, he would expect it to be significantly reduced. He explained that usually you have to have lost 25-30% bone density for it to show up on a plain x-ray.
88. Dr Stevenson had provided reports dated 21 May 2002 and 21 November 2003. He wrote those reports on the basis of the material placed before him, without examining Dr Erdstein. In the first report (R2) he dealt with the argument that Dr Erdstein’s osteoporosis developed as a result of vitamin D deficiency resulting from avoidance of the sun, because of his skin malignancies. Dr Stevenson wrote:
In general, osteoporosis is extremely common in the elderly, and requires specific explanation only if premature, which it clearly is not here. It is known to every reasonably instructed doctor to be such a ubiquitous part of the aging process that one wonders why a specific explanation is sought for its occurrence in the eight [sic] decade. Osteoporotic fractures occur in 28% of Australian men over the age of 60, though our sunny climate gives us the highest incidence of skin cancer in the world. Chronic smoking, alcohol and glucocorticoid therapy are known additional risk factors, probably irrelevant here. However, immobility also is a risk and this man suffers severe Parkinson’s disease. However, the aging [sic] process itself is the major and perfectly adequate explanation.
89. Dr Stevenson wrote that Vitamin D deficiency primarily causes a different disease, osteomalacia. He concluded:
There would appear therefore to be numerous breaks in the chain of argument. Osteoporosis is ubiquitous in aged persons, especially those immobile from debilitating neurological disease. A stratagem of staying out of the sun because of New Guinea has nothing to do with it.
90. In evidence Dr Stevenson acknowledged that both inactivity and vitamin D deficiency, as well as ageing, contribute to osteoporosis, although he said that vitamin D deficiency was regarded as relatively low in the list of importance.
91. We prefer the evidence of Dr Chosich, which was supported by the reports of Dr Langham and Dr Zimmett, to that of Dr Stevenson, which was supported by the report of Mr Hopkins. Dr Chosich and Dr Langham are specialist physicians who have held senior positions in the Department of Endocrinology and Diabetes at one of Melbourne’s leading hospitals. Dr Zimmet was working as a Registrar in that unit when the diagnosis of osteoporosis was made. They all support Dr Erdstein’s claim that his osteoporosis has probably been contributed to by a vitamin D deficiency, resulting from his rigorous avoidance of sun exposure since his first skin cancer was diagnosed in 1991. Dr Chosich said that immobility due to osteoarthritis of the knees, would also be a contributing factor.
92. We find on the balance of probabilities that Dr Erdstein’s avoidance of sun exposure contributed to his low vitamin D levels and to the development of his osteoporosis. We find that his immobility resulting, in part, from his compensable left knee condition was also a contributing factor to the osteoporosis. We accept that Parkinson’s disease (“Parkinson’s”) also contributed to the immobility and that ageing is also a contributing cause of osteoporosis. But those matters do not detract from the contributions of his low vitamin D level, and of immobility due, in part, to osteoarthritis of the left knee.
93. Dr Stevenson placed more emphasis on inactivity than on vitamin D deficiency, but in his evidence he acknowledged that they are both factors which play a part in the development of osteoporosis along with ageing, which he regarded as the most significant factor.
94. The Act in s4(1) contains the following relevant definitions of the terms “injury”, “disease” and “ailment”:
injury means:
(a) a disease suffered by an employee; or
…
disease means:
(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.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
95. The concept of a contribution in a “material degree”, as referred to in the definition of “disease” in s 4(1) of the Act, has been discussed in a number of cases. Even though the decisions of Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 43 and Treloar v Australian Telecommunications Commission (1990) 12 AAR 535 arose under the earlier Commonwealth compensation legislation, the 1971 Act, the comments of Davies J in Re Welsford, and of the Full Court in Treloar have been recognised as applicable to the test in the Act.
96. In Re Welsford, Davies J said, at 43,
It is sufficient that the employment contributes 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. In a case where a number of separate factors contribute to 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.
97. In Treloar, the Full Court also considered the meaning of the concept of employment contributing to a disease. The Court said, at 542:
Consistently with what was said by Windeyer J [in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, at 641], “contribution” does not require that the contributing factor be a causa sine qua non; the “but for” test is not appropriate nor is the causa causans or “real effective cause” or “proximate cause” formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then they do not “contribute”.
98. Ryan J, in Suters v Australian Postal Corporation (1992) 28 ALD 320 at 331 held that, although Treloar considered the 1971 Act, in which the word “material” did not appear, it contains a valuable exposition of the concept of contribution to a material degree.
99. We find, on the balance of probabilities, that Dr Erdstein’s rigorous avoidance of sun due to his solar keratoses and skin cancer, and his inactivity due, in part, to the compensable osteoarthritis of the left knee, have contributed to the development of Dr Erdstein’s osteoporosis. We find that osteoporosis is a “disease” and an “injury” under the Act and is compensable. The decision under review will be set aside. In substitution the determination of 10 May 2001 will be varied to provide that Comcare is liable to pay compensation in accordance with the Act in respect of Dr Erdstein’s osteoporosis.
V2001/367
100. In this matter Dr Erdstein seeks review of a reviewable decision of 5 February 2001 (T16 pp33-35) which affirmed a determination made 4 January 2001 (T13 pp29-30) accepting liability for the development of marked change (osteoarthritis) of the left knee, but denying liability to pay compensation in respect of osteoarthritis of the right knee. The issue is whether the osteoarthritis of the right knee is caused or contributed to by the accepted “injury left knee” which covers a torn medial meniscus dating back to 1973.
101. When Dr Erdstein wrote to Comcare on 24 July 2000 (T8 p16), asking to have the original acceptance of “injury left knee” extended to cover osteoarthritis of both knees, he wrote that the osteoarthritis of the left knee was much more advanced than that of the right knee. He explained that, in his opinion, the problem with the right knee was due to “favouring the Left Knee while walking, and throwing my weight onto the Right Knee all these years, so that in effect the Right Knee has had to carry more than its fair share of my body weight.”
102. Comcare arranged for Dr Erdstein to be examined by Mr Hopkins, a consultant orthopaedic surgeon. He provided a report dated 25 August 2000 (T9 p21-22), in which he concluded:
Dr Erdstein appears to have sustained a medial meniscus injury in 1973 to his left knee in the manner described. It is unclear to me as to why he did not undergo surgical intervention at that point. Although this was prior to the days of arthroscopy, many satisfactory meniscectomies were performed, although open meniscectomy may increase the incidents of long term osteo-arthrosis. Nevertheless, the condition of osteo-arthrosis has developed over the years.
He claims to have been symptomatic ever since the injury and, therefore, in my opinion, it is likely that he did sustain a meniscus lesion which has not fully resolved over that extended period of time.
He now presents with marked osteo-arthritic changes, perhaps more in the medial compartment on the left on clinical evidence with some marked varus deformity and a fixed flexion deformity. The latter indicates that his knee has not been straight for several years.
Regarding his right knee, he suffers with minor lesser degenerative changes, although he also has a flexion contracture on this side which, in my opinion, considering the state of his knee, is more likely to be related to his habit of sitting as opposed to walking than any significant intra-articular pathology.
I consider it likely that his osteo-arthrosis of the left knee is secondary to his longstanding meniscus injury in 1973. However, as far as his right knee is concerned, this simply demonstrates constitutional mild degenerative changes. There is no evidence whatsoever to suggest that a complaint with the opposite knee of this nature [sic].
When walking, each leg takes the same amount of weight once the full weight is placed upon the limb, whether the knee is straight or bent is irrelevant. In fact, the right knee has taken no more weight than the left over the years. Therefore, in my opinion, the current presentation of his right knee is entirely due to constitutional degenerative osteo-arthrosis which is not unexpected in a man of 75 years of age.
103. In a supplementary report of 5 December 2000 (T11 pp26-27) Mr Hopkins reviewed x-rays, which he said showed quite gross degenerative osteoarthrosis of the medial compartment of both knees but more marked on the left side.
104. On the basis of Mr Hopkins’ reports, the claim in respect of the right knee was rejected and the rejection was affirmed. After correspondence from Dr Erdstein, Mr Hopkins was asked to provide some further information. He confirmed his view that there is “absolutely no evidence whatsoever to support that osteoarthrosis in a contra-lateral knee develops because of osteoarthrosis in the opposite knee” (T21 p42). He also wrote that osteoarthrosis of the knee is frequently accompanied by loss of full extension or flexion deformity, simply as a result of the osteoarthrosis. He commented that Parkinson’s also impinges on Dr Erdstein’s “inability to ambulate”.
105. In respect of his knee problem, Dr Erdstein said that his injury was diagnosed as a torn medial meniscus of the left knee by a Repatriation Department orthopaedic specialist in 1973. He said a decision was made to treat the problem conservatively. He did stretching exercises for six months, gave the knee rest, took tablets for the pain and started using a walking stick to support his body weight.
106. Dr Erdstein said that it was his opinion that because of the injury to his left knee, when he walked he came down on the right leg with some force, or with bumps and jars. In the mid 1990’s he developed symptoms in his right knee, which he believed resulted from the alteration in his gait and weight bearing, caused by the left knee injury.
107. Dr Erdstein said that he had some physiotherapy and hydrotherapy for several months in the 1990’s, but he stopped these therapies because the improvement was very temporary. He said he had not consulted any orthopaedic specialist or even any medical practitioner for treatment of his knees. He said the only treatment he has now is pain killers.
108. Dr Erdstein agreed with Mr Gorton that an injury to one knee will not necessarily cause osteoarthritis in the other knee. However, he said that it is his opinion that because his every movement is accompanied by jars and jolts, due to the instability of the left knee, it has led to uneven wear of the cartilage on the right knee and produced osteoarthritis of his right knee (trans, p131). Dr Erdstein said that he had suffered instability of the left knee since 1973, and had used a walking stick most of the time since then.
135. Both parties consented to this matter being dealt with in this hearing, even though the reviewable decision was made after the first day of the hearing of matters v2000/405, v2001/367 and V2001/862. There is no disagreement about the fact that Dr Erdstein reasonably requires nursing home care, because of his general medical condition. We have concluded that, while the Parkinson’s and urinary tract ailment play a part in Dr Erdstein’s requirement for nursing home admission, it cannot be said that the requirement is due to those diseases rather than the compensable conditions of osteoarthritis of both knees and osteoporosis. They also play a significant part in the requirement for nursing home care.
RELEVANT LEGISLATIVE PROVISIONS
136. The provisions of the Act dealing with compensation for the cost of medical treatment are ss 4(1) and 16(1). They provide, so far as relevant:
4(1) Medical treatment means:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c) dental treatment by, or under the supervision of, a legally qualified dentist; or
(d) 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; or
(e) 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; or
(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g) treatment and maintenance as a patient at a hospital; or
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i) any other form of treatment that is prescribed for the purposes of this definition.
16(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
137. As discussed earlier, it is not in dispute that Dr Erdstein requires nursing home care. His lack of mobility means that his sister cannot adequately care for him alone in their home. His osteoarthritis of both knees plays a significant part in that lack of mobility. We were not addressed as to which paragraph of the definition of medical treatment was apt to cover nursing home care. Paragraph (g), which covers “treatment and maintenance as a patient at a hospital”, could be relevant. We are of the view that paragraph (h) which refers to “nursing care, … whether in a hospital or otherwise” is the relevant paragraph.
138. As set out in paragraph 131 above, on 8 August 2003 Dr Bitterfeld wrote to Comcare asking that Comcare approve and pay for Dr Erdstein’s admission to a nursing home (T9 p25).
139. At the hearing, Dr Erdstein said the main reason why he requires admission to a nursing home is his total inability to stand or walk (trans, p110). He said he should have two people to put him into bed or to get him up. He said he regarded it as appropriate for Comcare to pay for his nursing home care because of his immobility due to his compensable left knee condition.
140. Dr Erdstein said that he had been using a wheelchair for four or five years. He said he started using it when he found he could not stand because of the osteoarthritis in the knees (trans, p52). Dr Erdstein said no treating doctor had recommended the use of a wheelchair. It was his own decision. A copy of an agreement with Caulfield (A14) shows that Dr Erdstein obtained his own wheelchair in September 1998, although the file (A16) shows that the process of finding the right wheelchair had started by July 1997, and that he had been using a borrowed one in 1996.
141. Dr Erdstein said that at first he only used the wheelchair when he left his home, but now he uses it more. In April, on the first day of the hearing, he said that he still did not use it inside his home. In November, at the resumed hearing, we were told that he was no longer walking, even inside his home.
142. Mr Gorton put to Dr Erdstein that he had written in Attachment B to his claim for compensation for increased impairment due to his compensable skin disorders (V200/405 T1, p8):
I am physically crippled by Parkinsonism, and I need the assistance of an attendant for every move.
143. Dr Erdstein said that he should have written “Parkinsonism etc”. He also said that his Parkinsonism is “mainly controlled by medication” (trans, p111).
144. Mr Gorton asked Dr Erdstein why he had not taken advantage of an agreement by Comcare to cover the cost of physiotherapy and hydrotherapy treatment, but had instead asked for admission to a nursing home. Dr Erdstein explained that he could not get to the Epworth Hospital for the treatment. He said that wheelchair taxis are very unreliable, and they do not accept Comcare taxi approvals. Dr Erdstein agreed that he had not told Comcare of those difficulties. Dr Erdstein said that another factor which caused him to seek approval of admission to a nursing home was that his left knee condition became much worse after July 2002.
145. Ms Erdstein gave evidence that she was not able to do very much for Dr Erdstein because she suffers from depression and from a right thumb injury. She said that he had in some ways looked after her, until he became “unable to walk completely”. She thought that was in about the middle of 2003. She said that as long as Dr Erdstein could “shuffle about a bit with support” (trans, p165), he did most things, such as personal care and some cooking. Now, all he can do is give her moral support. She said she helps Dr Erdstein as much as she can, but “[h]e really needs a professional person now” (trans, p166).
146. Ms Erdstein said that she helps Dr Erdstein get up out of his chair many times a day, including whenever he wants to go to the toilet, or to get into or out of bed, or to go out for an appointment, or even just when he needs to change position. Ms Erdstein said that she gets up to help Dr Erdstein change position, in order to avoid bed sores, every couple of hours during the night. She also helps him go to the toilet during the night. As discussed earlier, she also helps him apply hot poultices and inspect his scalp.
147. Ms Erdstein explained the problem with wheelchair taxis. She said they are very unreliable and do not come when you call them. She gave one example of an occasion when she and Dr Erdstein had been invited to a party a week earlier. She said the wheelchair taxi they had ordered never came and, eventually, after many, many calls an ordinary taxi came. She and the driver had to “pull him and shove him into the taxi”. Nor could they get a wheel chair taxi for the journey home.
148. Ms Erdstein said she did not think she was physically able to keep providing care for Dr Erdstein in their home. She said he needed professional help, unless physiotherapy could help him regain more use of the knees, so he could walk a bit and stand up and weight bear again. Ms Erdstein explained that they had looked into using a lifting machine and had found it was not suitable (trans, p193).
149. Mr Conroy said that if Dr Erdstein cannot be looked after at home by his sister, because of his knee conditions, “then it would seem …. Inevitable that he will have to be looked after in a nursing home”. He said (trans, p209):
the knee conditions of themselves would be enough to precipitate the need for nursing home care if there wasn’t satisfactory care at home.
150. Dr Bitterfeld, in evidence, explained that he had written the letter dated 8 August 2003 recommending Dr Erdstein for nursing home admission (T4 p9), because, due to his osteoarthritis, he cannot stand or walk or bear weight, even with the aid of a carer. He said that Dr Erdstein needs continuous 24 hour care and should not be at home with his level of sickness. He explained that in his opinion it is not possible for Ms Erdstein to look after Dr Erdstein. He said that Ms Erdstein told him she could not cope and he believed her.
151. Dr Bitterfeld said that whenever Dr Erdstein had attended at his rooms, he had been in a wheelchair, and was brought in by his sister. The first time Dr Erdstein attended Dr Bitterfeld was on 10 October 2000. Dr Bitterfeld said he had never seen Dr Erdstein stand up.
152. Dr Bitterfeld said he had not really been involved with Dr Erdstein’s management, because Dr Erdstein was uncommunicative. He had never let Dr Bitterfeld “really fully examine him” (trans, p246). Dr Bitterfeld said that when he had last assessed Dr Erdstein’s ability to move the left knee, it had decreased since an earlier examination. He said Dr Erdstein now is not able to extend the knee more than 90 degrees. He said there was more movement of the right knee but neither could be extended more than 90 degrees (trans, p242). He said Dr Erdstein can no longer even move from his chair. Dr Bitterfeld said that he did not expect physiotherapy to increase mobility, but only to reduce pain and discomfort.
153. Dr Bitterfeld said that as long as Dr Erdstein could move around with help from his sister, he could continue to be cared for at home, but the fact that he can no longer move around and is chair bound, has dramatically increased his need for nursing home care.
154. Dr Stevenson had provided a report dated 21 November 2003 dealing with the issue of admission to a nursing home (R3). Once again, that report was written without examining Dr Erdstein. Dr Stevenson wrote:
The evidence seems remarkably clear that Dr Erdstein is a profoundly debilitated man who requires nursing care because of constitutional conditions unrelated to a modest aggravation of osteoarthritis in his right knee.
…
Dr Conroy’s statement appears perfectly correct that by all commonsense criteria this man is past ordinary home care and in need of institutionalised care. However, osteoarthritis of his left knee appears a trivial contributor to this necessity. [emphasis added]
155. In his evidence, Dr Stevenson said he did not consider nursing home treatment was required for the left knee condition. He explained that if that was Dr Erdstein’s only problem, he could get around on crutches.
SUBMISSIONS
156. Mr Ferwerda submitted that on the medical evidence, and on the evidence of Dr Erdstein and Ms Erdstein, we should find that it is appropriate for Dr Erdstein to be cared for in a nursing home. Mr Gorton did not disagree with that submission. We find that Dr Erdstein requires nursing home care because of his disabilities, and because his sister cannot adequately care for him on her own.
157. The more difficult question is whether nursing home care is treatment which it is reasonable for Dr Erdstein to obtain in relation to compensable injuries.
158. Mr Ferwerda submitted that nursing home care was required as treatment because of Dr Erdstein’s lack of mobility due to osteoarthritis of the left and right knees, and osteoporosis. Mr Ferwerda said, in response to Dr Stevenson’s evidence, that it was appropriate for the Tribunal to recognise that Dr Erdstein could not get around on crutches, as Dr Stevenson suggested, because his other conditions meant that he could not carry his weight on his other leg and arms. We accept that submission as correct in law. It is well established that a respondent in the field of personal injury, at law takes the injured person as he finds him, “with all his predispositions and susceptibilities whatever they might be” – per von Doussa J in Commonwealth of Australia v Smith (1989) 10 AAR 277, 284. The osteoarthritis of the left knee is not Dr Erdstein’s only problem. Because of that problem, combined with his other problems, such as osteoporosis and osteoarthritis of the right knee, which we have found are compensable, and Parkinson’s which is not compensable, he can not get around on crutches. He is therefore immobile and requires nursing home care.
159. Mr Gorton submitted that we could not be satisfied, in the absence of evidence from a neurologist, that the lack of function of the legs was not due to the Parkinson’s. Mr Gorton relied on the letter from Dr Erdstein (T405 p8) where he had written that he was “physically crippled by Parkinsonism”. Further, Mr Gorton pointed out that Dr Bitterfeld had said that Dr Erdstein never let Dr Bitterfeld examine him fully. Mr Gorton asked the Tribunal to consider what weight it could give to Dr Bitterfeld’s evidence as to the left knee being quite fixed, in view of the evidence that Dr Erdstein never allowed Dr Bitterfeld to fully examine him.
160. There is merit in those submissions. We expressed our surprise during the hearing that we did not hear evidence, or even have before us a report, from Dr Wodak as to the Parkinson’s. Nor did the respondent call a neurologist. However, as we will explain, we have concluded that the evidence as to the contribution of the osteoarthritis of the knees is so clear, that there is no need for evidence from a neurologist. We accept that Parkinson’s is a significant factor in Dr Erdstein’s need for nursing home care, but we find that the osteoarthritis of the knees and the osteoporosis are also significant reasons why he requires nursing home care.
161. We note that, in Smith, von Doussa J said that it is clear law that it is not necessary for an incapacity to result solely from a compensable injury before compensation is payable as a consequence of that injury. His Honour explained at 284-5:
However, it is clear law that it is not necessary for an incapacity to result solely from a compensable injury before compensation is payable as a consequence of that injury: Harwood v Wyken Colliery Co [1913] 2 KB 158 at 169 and Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157 at 162. It is sufficient if the injury contributes in a material sense to the incapacity: Federal Broom Co Pty Ltd v Semlitch, supra, per Taylor J at 635; A-G v Gabell, [1968 SASR 44] per Bray CJ at 48, 50. If a compensable injury constitutes one of a number of factors or events each of which combine as links in a chain of causation terminating in a single condition amounting to total incapacity, that incapacity will be fully compensable, the injury being a contributing cause in a material sense: see Bratovich v Rheem (Aust) Pty Ltd (1971) 2 SASR 33 per Bray CJ at 43. The critical consideration is that a single condition arises causing incapacity even though the condition may have independent causes. Such a case is to be distinguished from one where independent causes produce independent consequences, distinct bodily conditions which amount to total incapacity only because they must be added together: see Ward v Corrimal-Balgownie Collieries Ltd, [(1938) 61 CLR 120], especially per Dixon J, as he then was, at 141. See also Morris v George [1977] 2 NSWLR 552, especially per Glass JA at 580, and on appeal to the Privy Council, Bushy v Morris [1980] 1 NSWLR 81.
162. Applying Smith, the question is whether Dr Erdstein’s incapacity to walk, which is the major reason why he requires nursing home care is, in part, a result of his compensable osteoarthritis of the knees and his osteoporosis. We find that the evidence establishes that the requirement for nursing home care is contributed to in a material sense by the osteoarthritis of the knees and the osteoporosis. Although, as Mr Gorton pointed out, Dr Bitterfeld’s evidence was of very limited assistance, his opinion that Dr Erdstein required nursing home care because of his immobility due to osteoarthritis of the knees was supported by the opinions of Mr Hopkins, Mr Hadley and Mr Conroy as to the part the osteoarthritis played in causing Dr Erdstein’s immobility.
163. Mr Hopkins in his report of 2 September 2000 (V2001/367 T9, p17-24), on physical examination reported:
(i)Examination of the lower limbs revealed that Dr Erdstein was unable to stand without significant assistance;
(ii)The left knee joint had a restricted range of movement from 30 degrees to 115 degrees, with a 30 degree fixed flexion deformity. It was Mr Hopkin’s opinion that Dr Erdstein had been unable to fully extend his left knee for a very long time; and
(iii)The range of movement of the right knee was from 20 degrees to 125 degrees. This knee also could not be fully extended, and it would be impossible for Dr Erdstein to walk unaided.
164. In a supplementary report of 16 March 2001, Mr Hopkins pointed out that Dr Erdstein’s marked Parkinson’s also impinged on his ability to ambulate. He said that, due to his osteoarthritis of the left knee, Dr Erdstein had about a 60% loss of use of the left leg at or above the knee, or a 50% impairment for the left leg alone, on Table 9.5 of the Guide. The criteria for that percentage whole person impairment are:
Can rise to standing position and maintain it with difficulty, but cannot walk.
165. Mr Hadley provided reports of 12 July and 17 October 2001 (A1 and A2). He wrote that Dr Erdstein was unable to stand or walk. He said the osteoarthritis would continue to become worse. He added:
The osteoarthritis in his left and right knee is now so advanced it is bad enough for him to have a total knee replacement operation performed on each knee, but due to his age and having Parkinson’s Disease he is not a suitable candidate for major surgery.
166. Mr Conroy provided two reports dated 27 May 2003 (T8, p20) and 18 November 2003 (A8). He set out the history given by Dr Erdstein and his findings on examination as follows (T8, p21):
EXAMINATION
On examination he was a small, flexed man, confined to a wheelchair. There was gross restriction for movement in his left knee, and a lesser restriction for movement in his right knee. When he attempted to stand he was unable to bear any weight, being held by his sister. He lacked 30 degrees of extension at both knees. He was able to flex the right knee to 110 degrees and the left knee to 90 degrees. There was thus a loss of more than half of he anticipated range of movement at both knee joints. There was bony swelling and tenderness at both knee joints, but more marked on the left. The muscles in both legs were considerably wasted.
167. Mr Conroy assessed Dr Erdstein as having a 65% impairment assessed on Table 9.5 of the Guide, as he cannot stand or walk.
168. The reports indicate that, because of his impairment due to his osteoarthritis of both knees, Dr Erdstein is unable to stand or walk. The reports mention his osteoporosis and the resulting kyphosis and the Parkinson’s as also contributing to Dr Erdstein’s inability to ambulate.
169. When the Tribunal expressed concern about the lack of evidence as to the role of the Parkinson’s, Mr Ferwerda drew the Tribunal’s attention to the Alfred notes (A10 pp150-153), as support for Dr Erdstein’s evidence that the main cause of his decreasing mobility was his left knee pain. The note at page 153 is dated 26 May 2000. It records that Dr Erdstein was “quite adamant” that the reason he could not walk was because of his left knee pain, but the physiotherapist suggested “that there were multiple factors contributing to his decreasing mobility of which Parkinson’s disease was one”. The physiotherapist in a letter of referral to Caulfield (R10 p156) wrote:
Dr Erdstein believes his decreased mobility is due to left knee pain on weightbearing and lack of extension of both knees. He has recently decided to seek some professional input (physio and orthopaedic surgeon consult) as he says his mobility has worsened over recent times. He has been doing exercises at home (for legs) and using hot packs on both knees but believes that this has not helped. He hopes that further professional input may assist him to walk again.
Dr Erdstein and Claire are of the opinion that treatment directed at improving the knee pain will improve Dr Erdstein’s walking ability. This opinion is understandable but ignores both the significance and duration of the Parkinson’s related problems.
170. There was discussion during the hearing about the calling of Dr Wodak, the treating neurologist or another neurologist (trans, pp230 and 306).Mr Gorton, in his final address, suggested that the absence or Dr Wodak or a neurologist’s evidence was a critical gap.
171. In the absence of expert neurological evidence, we asked for production of Dr Erdstein’s file from Caulfield, which was the agency which assisted him obtain a wheelchair. The Tribunal hoped that the Caulfield file would provide evidence as to the relationship between the Parkinson’s and the inability to walk. The parties were invited to, and did make submissions as to the material in that file.
172. The earliest document in the file is a referral form to an occupational therapist, dated 19 May 1995 (A16). The referral came about following a visit by Ms Erdstein to Caulfield, at the suggestion of Peter MacCallum. The note states “he has arthritis and is quite frail and shakey [sic]. He requires assistance with most daily living tasks”. At that stage loan of a step was requested to assist with transfers in and out of bed. When use of a wheelchair was first mentioned, on 11 June 1997, Dr Erdstein was said to have borrowed a chair from a friend and to be “anxious to obtain permanent wheelchair”. The diagnosis set out on that entry is of “Parkinson’s Disease”. Arrows indicate that it was leading to increasing disability.
173. A document relating to a home assessment on 18 June 1997 states that Dr Erdstein had “Parkinson’s disease (started 4 years ago), arthritis in both knees (worse in (L))” and poor vision and depression. The presenting problem is said to be “very slow mobility indoors with assistance, unable to ambulate outdoors à housebound”.
174. The Caulfield file shows:
(i)That Dr Erdstein was said by Ms Erdstein to have arthritis and be frail and shaky in 1995;
(ii)That in 1997, his presenting conditions were shown as Parkinson’s and “arthritis in both knees (worse in (L))”;
(iii)That in 1997 he was already using a borrowed wheelchair for outdoor activities;
(iv)Both Parkinson’s and arthritis of the knees contributed to the need for a wheelchair, the supply of which Caulfield helped arrange;
(v)Dr Erdstein had Parkinson’s some years before 1997;
(vi)Dr Erdstein’s current wheelchair, which was the first one ordered for him, was obtained through Caulfield in September 1998 (A14).
175. The evidence in the Caulfield file is consistent with the evidence in the Alfred file (R10). It shows that Dr Erdstein was treated for Parkinson’s disease during an inpatient admission in September 2000. At that time he was seen by Dr Wodak, a visiting neurologist, who commenced treatment with Sinemet (R10 pp86-89). Dr Wodak also referred Dr Erdstein to Caulfield for physiotherapy and hydrotherapy.
176. The Alfred notes (R10 pp113-114) contain entries which appear to relate to an earlier attendance on 26 July 2000, in which the past medical history refers to “Parkinson’s Disease for three years – Arthritis Bilateral OA of knees”.
177. Dr Erdstein said that he had developed symptoms of Parkinson’s disease in about 1998. We find it must have been somewhat earlier than that. The first symptom was a tremor of the left hand when he was upset, but he did not immediately recognise it as a sign of Parkinson’s disease.
178. Dr Erdstein said that he already had problems with both knees prior to the diagnosis of Parkinson’s disease by Dr Wodak at the Alfred in September 2000. Dr Wodak prescribed Sinemet (trans, p51). He still takes Sinemet. He said it is a relaxant and overcomes most of the symptoms of Parkinson’s disease. The Alfred Hospital medical file included a letter to Dr Erdstein dated 24 April 2001 (A10 p 93), which reads:
Although Sinemet has made a worthwhile difference, you remain disabled and very dependent on your sister.
179. There is support for Dr Erdstein’s evidence that he already had problems with arthritis of the left knee prior to the diagnosis of Parkinson’s in the report of Dr Stahle, who saw Dr Erdstein in 1990. He wrote in his report of 28 November 1990 (R11 p56) that Dr Erdstein was suffering problems due to arthritis. Dr Stahle, in the background history, wrote:
He gave up the locum work about 4 years ago because he has a bad knee condition – arthritis, and he would be getting on in years and did not need much.
180. Dr Stahle also noted, in that report, that arthritis was limiting Dr Erdstein’s social activities particularly in cold weather. Dr Stahle’s report of November 1990 made no mention of any symptoms or diagnosis of Parkinson’s disease.
181. On that evidence, we find that Dr Erdstein had a problem due to arthritis of the left knee in 1990. That was earlier than the diagnosis of Parkinson’s disease. We find that the osteoarthritis of the left knee has deteriorated since 1990 and osteoarthritis has also developed in the right knee. Because of the osteoarthritis, Dr Erdstein cannot stand or walk. Parkinson’s, although it is treated with Sinemet, adds significantly to his mobility problems. The osteoporosis and the associated curvature of the spine also cause mobility problems, as Dr Erdstein is stooped and cannot straighten his spine.
182. It is conceded that Dr Erdstein requires nursing home treatment. The reviewable decision refused the claim on the basis that the requirement for nursing home admission was related to constitutional and ageing factors, rather than to the acceleration of the left knee osteoarthritis.
183. We do not find that the requirement of nursing home care is related to constitutional and ageing factors, “rather than” to the osteoarthritis of the left knee and other compensable conditions. The osteoarthritis of both knees and the osteoporosis have now been found to be compensable conditions. We find they make a material contribution to the incapacity which means that Dr Erdstein requires nursing home admission. There is undisputed evidence that, because of his osteoarthritis of the knees, Dr Erdstein cannot stand or walk. All the mentioned conditions make a material contribution to Dr Erdstein’s immobility.
184. We find that Comcare is liable to pay compensation to Dr Erdstein under s 16(1) of the Act in respect of the cost of nursing care in a nursing home (being treatment that it is reasonable for Dr Erdstein to obtain in the circumstances) in relation to the conditions of osteoarthritis of left and right knees and osteoporosis. There is no evidence before us as to the amount that it is reasonable for Comcare to pay in respect of that treatment. That will need to be considered in light of our findings.
185. The decision under review will be set aside. The matter will be remitted to Comcare for reconsideration in accordance with the direction that Comcare determine the amount payable as compensation under s 16(1) of the Act, in accordance with our findings as set out in paragraph 184 above.
COSTS
186. We will order that the costs of the proceedings be paid by Comcare, pursuant to s 67(8) of the Act.
I certify that the 186 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer and Associate Professor Maynard, Member.
Signed: Josephine McKay
AssociateDate/s of Hearing 7 April 2003, 25-27 November 2003
Date of Decision 30 July 2004
Counsel for the Applicant Mr J Ferwerda
Solicitor for the Applicant Slater & Gordon Lawyers
Counsel for the Respondent Mr M Gorton
Solicitor for the Respondent Australian Government Solicitor
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