Fraser and Comcare

[2007] AATA 1307

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1307

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2006/498

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		RAE FRASER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date8 May 2007

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley
Senior Member

  

COMPENSATION – applicant suffered a number of back and knee injuries at work prior to November 1987 – he then fell and suffered aggravating pain – worked another two days and not since – now 72 years – whether the effects of the aggravation have ceased – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Australian Postal Corporation v Bessey [2001] FCA 266

REASONS FOR DECISION

8 May 2007   Mr John Handley, Senior Member

1.      Mr Fraser applies to review a reviewable decision made by an officer of the respondent on 3 May 2006.  It was then decided to affirm a primary determination made in February 2006 denying ongoing liability for medical expenses and household services under the Safety, Rehabilitation and Compensation Act 1988 (the Act) with respect to the conditions of aggravation of lower lumbar disc degeneration and aggravation of bilateral arthritis to both knees.  Mr Fraser receives an extreme disablement pension (EDA) from the Department of Veterans’ Affairs and is the recipient of a Gold Card which gives him an entitlement to medical services.

2.      The claim for compensation completed by Mr Fraser does not plead aggravation of prior injury but it is not difficult to comprehend why the respondent treated the claim as an aggravation as opposed to a primary injury.  This is because Mr Fraser has a long history of back and knee injuries with the Australian National Line who employed him as a foreman stevedore.  Additionally, it was the opinion of Dr Munyard, consultant orthopaedic specialist who diagnosed the claimed conditions, that the applicant suffered an aggravation of pre‑existing degenerative changes in his back and knees.

3. The hearing of this application was held on 26 April 2007. Mr Fraser was unrepresented. Mr Lenczner of Counsel appeared on behalf of the respondent. Mr Fraser gave evidence as did Dr Beeby, his current treating general practitioner. Dr Munyard also gave evidence. Documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) were received into evidence as also was a report from Dr Beeby dated 23 November 2006. In his closing submissions Mr Lenczner relied on the decision of Giles J in Australian Postal Corporation v Bessey [2001] FCA 266 (Bessey) which was submitted as authority for the meaning of an aggravation of an underlying condition.

4.      The relevant episode submitted by Mr Fraser giving rise to the aggravation of pre‑existing injuries was alleged to have occurred on 23 November 1987.

5.      By way of background (and the following is not in dispute) Mr Fraser suffered severe hip and pelvis injuries in a motor car accident in 1956.  It would appear that that incident set in train an irreversible degenerative process which has resulted in no less than five hip replacements.  In February 1982 he suffered back, left arm and shoulder injuries which gave rise to common law proceedings being issued against the employer and which were resolved by negotiated settlement in approximately 1994.  Mr Fraser then received a lump sum award of damages.  In July 1984, Mr Fraser fell at work and it appears that he aggravated his hip injuries and or caused a need for replacement of a hip which had in fact been replaced previously in 1978.  That procedure occurred in 1985 and on the evidence of Mr Fraser he contracted golden staph infection which caused pain at T10, T11 and T12.  In April 1987 he suffered left knee injuries at work.

6.      On 23 November 1987, Mr Fraser said that he was working inside a cage which was dropped over a distance of one or two feet.  His description of the nature of injury or disease was pain in back and knees (T‑docs, p37).  It does not appear that Mr Fraser then ceased work.  In a medical report of 22 April 1998, Dr Cass obtained a history from Mr Fraser of the sudden onset of low back pain after he had been bending and straightening on 26 November 1987.  Mr Fraser saw his treating general practitioner Dr Leung on 27 November 1987.  He has not since worked.  Attempts to have him return to work were unsuccessful despite medical practitioners certifying him as being fit for duties with considerable restrictions.  In November 1990 the employer terminated the employment by reason of invalidity retirement.

7.      The case brought by Mr Fraser is to recover compensation by reason of the incident of 23 November 1987 aggravating his pre‑existing back and knee injuries.  The case on behalf of the employer is that that episode – if it occurred – caused no more than a temporary aggravation of the pre‑existing injuries.  Additionally, it was the case of the respondent that the temporary effects of the aggravation have long since ceased and the pre‑existing degenerative condition, and or the anticipated progression of it in the applicant’s lower back and knees is now the cause of his pain and discomfort.  In those circumstances the respondent asserts that it has no liability.

medical evidence

8.      Mr Scott examined the applicant at the request of the employer’s representative in July 1986.  He concluded that the applicant then suffered from chronic low back strain and aggravation of pre‑existing asymptomatic degenerative disease in the lumbo‑sacral spine.  It was his opinion that the fall in either 1982 or 1984 aggravated pre‑existing degenerative changes.  He was also of the opinion that the applicant’s prognosis then was uncertain because of the slowly advancing nature of the arthritic processes.

9.      In another report completed by Mr Scott in July 1988 – that is after the episodes of November 1987 – he reported that a history then obtained from Mr Fraser was the fall in 1984 caused the injuries to his knees and from that time he has suffered pain and discomfort, the left knee being worse than the right.  He did obtain a history of Mr Fraser ceasing work in November 1987 because of increasing pain and discomfort in his back and because of worsening pain and discomfort in his right knee.  There is no indication from this report of any history of episodes occurring in November 1987.  On examination there was full range of movement of left and right knees with patello‑femoral crepitus in the left knee and discomfort in the right knee on extreme or flexion.  Range of movement in the lower spine was reduced by 50 per cent in all directions.  Mr Scott was of the opinion that in the two years since he first saw Mr Fraser there was evidence of spondylitic changes which were responsible for increased pain and discomfort in the lower back.  Despite the absence of a history of knee injuries in the earlier consultation, Mr Scott accepted that there was clinical and radiological evidence of degenerative disease in both knees (an x-ray report was incorporated into his report).

10.     Mr Marshall consulted with the applicant in June 1987 and prepared a report (T5, p21).  He apparently had reported on 16 June 1986 but that report was not within the documents lodged by the respondent.  He noted that the applicant was limping and using a walking stick and obtained a history of pain in his knees and hips.  He noted that the applicant was then waiting for an arthroscopy under Mr Hart who was then treating.  He thought the applicant’s left knee injury was associated with an episode at work in April 1987.

11.     In another report by Mr Marshall of July 1988, he thought the applicant’s knee injuries were referrable to falling in 1984.  (His former report made no mention of the 1984 incident.  It is not known whether the report of June 1986 contained any reference to the episode in 1984).  He noted that the applicant ceased work on 27 November 1987 but did not have any history of an episode of 23 November 1987.  The history taken as to the reasons for then ceasing work was he says that both his knees hurt and also because he has pains in his back.

12.     Mr Hart is the applicant’s treating orthopaedic surgeon who has managed the treatment for his hips and knees.  In a report of May 1987 he obtained a history of the applicant suffering left knee injury in April 1987 at work.  X-rays at that time demonstrated tri‑compartmental osteoarthritis.  In a further report of May 1988, Mr Hart obtained a history of pain in both knees, lower back and both thighs.  The thigh pain was thought to be related to the hip injuries.  The right knee demonstrated tenderness and an arthroscopy was proposed.  In another report of October 1988, Mr Hart reported, following the right knee arthroscopy, that he observed the presence of chondromalacia with considerable erosion over the femoral and medial tibial condyle.  There is no reference in any of the three reports of Mr Hart to the episodes of November 1987.

13.     The applicant was asked to explain why the injury report and claim form with respect to the episode of 23 November 1987 was completed on 31 October 1988.  Mr Fraser said that the superintendent, Mr Costenoble, had told him that forms previously completed had been misplaced and he required the forms to again be completed.  In a letter to the predecessor of Comcare on 4 November 1988 an officer of the employer reported that an accident report was not received from Mr Fraser following the episode in November 1987 until he was contacted in October 1988 and requested to provide details of the incident.  The explanation of the applicant and the comments of the employer’s representative are not necessarily inconsistent.  It is conceivable that if the original claim forms were misplaced that the officer would record that the report was not received.  For the purposes of this decision I am satisfied and find as a fact that the applicant was working inside a cage which was forcibly dropped over a distance of one or two feet on 23 November 1987 when he then suffered jarring type effects to his lower back and knees.

14.     Dr Munyard examined the applicant at the request of the respondent on 22 June 2005.  It was his opinion that the applicant suffered the aggravation of pre‑existing degenerative changes in his back and knees.  He thought the effects of the aggravation had resolved and the ongoing difficulties relate to the underlying degenerative process, which is occurring in his back and knees.  Additionally he was of the opinion that the employment component of his condition has ceased.

15.     Dr Beeby reported that the incident of 23 November 1987 has probably, significantly contributed to the pain and osteoarthritis as reported above.  Dr Beeby did provide an extensive report and history of the applicant’s complaints.  He also incorporated an x-ray and CT scan report of 15 November 2006 which did show extensive vascular calcifications in both knees, extensive degeneration between L1 and L5, narrowing at L3/4 and L4/5, degeneration at the facet joints and marked vertebral lipping.

16.     Dr Leung (who has since died) treated the applicant for many years.  In a report of 11 November 1988, he was of the opinion the applicant suffered new and aggravated injuries on 23 November 1987.  He reported the back injury could be attributable to straightening up after bending over or from being jarred and a right knee meniscectomy of June 1988 was probably attributable to the injury on 23 November 1987 as well as the previous injuries.

17.     Dr Leung, unlike most of the other doctors does have a history of an episode on 23 November 1987 but the first certificate written by him follows a consultation on 27 November 1987.  This is consistent with working after 23 November and another episode of bending causing back pain.  These were features of the report of Dr Cass.  The opinions of Dr Leung with respect to whether the injuries were aggravated or new are not helpful in deciding whether there was, at May 2006 any continuing aggravation from the episode in November 1987.

18.     Dr Damigos treated the applicant after the death of Dr Leung.  In a report of 6 September 2005 she expressed the opinion that the effects of the episode of 23 November 1987 had not ceased.  She also reported that the applicant suffered osteoarthritis which was progressive and degenerative.  She was not aware of any pre‑existing conditions.

conclusion and reasons for decision

19.     For the reasons which follow I am satisfied on the probabilities that by reason of the episode at work on 23 November 1987 the applicant did suffer temporary aggravation of pre‑existing degenerative disease in his lower back and knees.  I am also satisfied that the effects of the temporary aggravation have ceased.

20.     Mr Fraser last worked in November 1987.  He had previously suffered a number of back and knee injuries.  Indeed he had recovered common law damages for back injuries which occurred in 1982.  There was considerable radiological evidence before November 1987 of degeneration affecting the lower back and knees.

21.     When the whole of the medical evidence is now reviewed, it was inevitable that the applicant would suffer severe incapacitating pain in future years by reason of the pre‑existence of the disease process.  It is almost 20 years since the applicant last worked and he is now 72 years of age.  Nothing points to the degenerative progression of the pre‑existing disease as having any connection with the episode of 23 November 1987 except by it causing a temporary aggravation precipitating incapacity for a limited duration.  The incapacitating effects now upon the applicant in my view are wholly attributable to the disease process which existed before November 1987 and which by its normal and anticipated progress is now manifesting in severe pain and restriction.

22.     I am not satisfied that the applicant himself regarded the episode at November 1987 as of any significance nor would it appear that the medical practitioners placed great weight upon it.

23.     The claim for compensation completed in October 1988 – almost 12 months after the episode of November 1987 – describes the injury as pain in back and knees.  This is despite the pre‑existing injuries having been disclosed and no description then of any aggravation or worsening of those injuries.  The cage in which the applicant was then working fell over a distance of one or two feet and whilst it would appear that a jarring type effect was caused to the applicant’s lower back and knees, he was able to walk out of the cage (refer report of Mr Munyard at T‑docs, p88) and he continued to work for at least the next two or three days until 26 November 1987 when he reported to Dr Cass of the sudden onset of pain in his low back.  Indeed, Dr Cass reported he was quite satisfactory until 26 November 1987.  Doctors Scott, Marshall and Hart have not reported any history from Mr Fraser of an episode on 23 November 1987 which in my view is consistent with the applicant then not regarding that episode of any significance.  Indeed, Mr Scott reported in July 1988 that the applicant ceased work in November 1987 because of increasing pain and discomfort in his back and because of worsening pain and discomfort in his right knee.  Specifically there is no report of incapacity being precipitated by the episode in November 1987 nor is there any mention of the pre‑existing injuries or disease process being worsened or aggravated by the episode of 23 November 1987.

24.     In Bessey, Giles J decided (paragraph 6) ‑ having referred a number of previous High Court authorities – that if an underlying condition is aggravated or worsened then any resultant incapacity is compensable.  However, if on the evidence, the aggravation is temporary in nature only and the effects of the temporary aggravation later cease to have any effect, thereby not leaving the underlying condition to be in any worse state, there is, in those circumstances, no continuing injury causing incapacity.  His Honour also decided that increasing symptoms of pain was not of itself compensable in the absence of evidence of permanent underlying changes to a pre‑existing injury.  If the increased symptoms of pain were related entirely to the pre‑existing or constitutional degenerative changes there would not be an aggravation within the meaning of the compensation legislation and there would be no entitlement in those circumstances to compensation.

25.     I think on balance following the episode of 23 November 1987, that the applicant did suffer increased pain in his lower back and knees, because of an aggravation of the pre‑existing disease process but it was of a temporary nature only.  There is no evidence that the aggravation in November 1987 resulted in any permanent worsening of the disease process.  Some time subsequent to November 1987 and certainly before the examination of Dr Munyard in 2005 the temporary effects of the aggravation had ceased and the pre‑existing degenerative process alone was responsible for ongoing symptoms of pain and incapacity.  I thought the opinions of Dr Munyard were sound and on balance, should be preferred.

26.     For the reasons given above it is my view that the decision under review should be affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney
  Personal Assistant

Date of Hearing  26 April 2007
Date of Decision  8 May 2007
Solicitor for the Applicant          Self Represented
Counsel for the Respondent     Mr J Lenczner
Solicitor for the Respondent     Australian Government Solicitor