Gait and Comcare (Compensation)
[2018] AATA 4282
•16 November 2018
Gait and Comcare (Compensation) [2018] AATA 4282 (16 November 2018)
Division:GENERAL DIVISION
File Number(s): 2016/4672
Re:Beverly Gait
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Dr Ion AlexanderDate:16 November 2018
Place:Sydney
The Tribunal affirms the decision under review.
................................[sgd]....................................
Senior Member Linda Kirk
CATCHWORDS
COMPENSATION – workers compensation – neck injury – whether Applicant suffered an injury or disease – whether claimed injury arose out of, or in the course of, employment – whether employment contributed to a significant degree – expert medical evidence considered – pre-existing history of neck pain and degenerative disease of the cervical spine – decision under review affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation, Compensation and Other Legislation Amendment 2007 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14,CASES
Australian Postal Corporation v Burch (1998) 156 ALR 483
Comcare v Mooi [1996] FCA 1587; (1996) 69 FCR 439
Comcare v Power [2015] FCA 1502; (2015) 238 FCR 187; 149 ALD 286; 68 AAR 228
Comcare v Reardon [2015] FCA 1166; 148 ALD 356
Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2011] AATA 886
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Prain v Comcare [2016] AATA 459
Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626
Ogden Industries Pty Limited v Lucas [1967] HCA 30; (1967) 116 CLR 537
Reardon and Comcare [2015] AATA 360Su v Comcare [2011] AATA 934
REASONS FOR DECISION
Senior Member Linda Kirk
Dr Ion Alexander16 November 2018
INTRODUCTION AND BACKGROUND
Ms Beverley Gait (‘the Applicant’) was born in June 1963 and commenced employment with Australian Border Force (ABF) in May 2011 as an Australian Border Force Officer.
By application dated 1 March 2016[1] the Applicant lodged a claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) in respect of a neck injury she claimed to have suffered at work on 27 May 2015 (‘the Claimed Injury’).
[1] T Documents, T9 at pages 37-42.
In a determination dated 18 May 2016,[2] the Respondent denied liability under s 14 of the SRC Act in respect of the Claimed Injury on the basis that the Applicant had not suffered an injury which was significantly contributed to by her employment.
[2] T Documents, T21 at pages 85-88.
On 1 July 2016 a delegate of the Respondent affirmed the determination[3] (‘the Reviewable Decision’).
[3] T Documents, T25 at pages 94-100.
On 31 August 2016 the Applicant applied for a review of the Reviewable Decision by this Tribunal.[4]
[4] T Documents, T2 at pages 4-5, Application for Review of Decision dated 31 August 2016.
The matter was heard by the Tribunal in Sydney on 30 and 31 August 2018. The following witnesses gave oral evidence at the hearing:
(a)the Applicant;
(b)Dr Matthew Paul, Consultant Occupational Physician; and
(c)Professor Peter Youssef, Consultant Rheumatologist.
The following documents were before the Tribunal:
(a)Report of Dr Roger Pillemer dated 30 January 2017 (Exhibit A1);
(b)Statement of the Applicant dated 3 August 2018;
(c)Reports of Dr Dwight Dowda dated 30 October 2017 and 13 December 2017 (collectively Exhibit A2);
(d)ABF Transfer of Applicant to Mobile Deployment Force documentation dated 19 January 2015 (Exhibit A3);
(e)Report of Danielle Bertelli dated 19 March 2017 (Exhibit A4);
(f)Report of Dr Raj Reddy dated 21 March 2017 (Exhibit A5);
(g)Report of Professor Peter Youssef dated 30 August 2017 (Exhibit R1);
(h)Various summons material tendered during the hearing (Exhibit R2):
(i)Bronte Medical Centre clinical notes
(ii)Physio Posture and Fitness Centre records
(iii)Sydney Airport Medical Centre clinical notes
(iv)Suncorp insurance records
(v)Agency records
(i)Email to Alex Sherbourne from Kristen Rowlands-Crosbie (Sparke Helmore) dated 18 July 2018 and reply from Mirka Kubeckova (Office Coordinator, Physio Posture and Fitness Centre) dated 19 July 2018 (Exhibit R3);
(j)Respondent’s s 37 documents (T1-T25);
(k)Respondent’s supplementary s 37 documents (ST1-ST25);
(l)Applicant’s Statement of Facts, Issues and Contentions dated 1 December 2017; and
(m)Respondent’s Statement of Facts, Issues and Contentions dated 19 December 2017.
LEGISLATIVE FRAMEWORK
The SRC Act
Comcare’s liability to pay compensation is provided for in s 14(1) of the SRC Act as follows:
14. Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
An “injury” is defined in s 5A(1) of the SRC Act as follows:
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B of the SRC Act defines a “disease” as follows:
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
Section 4(1) of the SRC Act provides the following in relation to the terms “ailment” and “aggravation”:
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
“aggravation” includes acceleration or recurrence.
Section 5B(3) of the SRC Act defines the expression “significant degree”:
“significant degree” means a degree that is substantially more than material.
ISSUES FOR DETERMINATION
The issues for determination are whether the Respondent is liable to pay compensation to the Applicant for the Claimed Injury under s 14 of the SRC Act, and specifically:
(1)Did the Applicant suffer an “injury (other than a disease)” which arose out of, or in the course of her employment with ABF as defined in s 5A(1)(b) of the SRC Act?
(2)Did the Applicant suffer an aggravation of a “disease”, as defined in s 5A(1)(a) and s 5B(1)(b) of the SRC Act, to which her employment with ABF contributed, to a significant degree?
(3)If so, did the injury or aggravation of the disease result in incapacity for work or impairment for the purposes of s 14(1) of the SRC Act?
EVIDENCE BEFORE THE TRIBUNAL
Applicant’s Employment with Australian Border Force
The Applicant commenced employment with ABF on 12 May 2011. She initially did some work as a trainee and then worked for three and a half years as a customs officer at Sydney Kingsford Smith Airport. This role involved a range of duties including marshalling, assessment duties and baggage examination.[5]
[5] Transcript at page 22.
In January 2015 the Applicant moved to the ABF mobile deployments team.[6] Prior to the Claimed Injury she worked approximately 40 hours per week. She worked shifts of nine or nine and a half hours on a seven day rotation. She was nominally based at Mascot but was required to be deployed to various other sites, including the Container Examination Facility (CEF) at Port Botany.[7]
[6] Exhibit A3, Transcript at page 15.
[7] Transcript at page 21.
The Applicant’s duties required her to walk, stand, sit, bend, lift, push and pull. The heaviest item she was required to lift was less than 20 kilograms but she was often required to handle high volumes at times.[8]
[8] Transcript at page 25.
The Applicant’s duties at the CEF included testing of various goods and inspection of items that ranged in size, and involved operation of a pallet X-ray and mobile X-ray machines.[9]
[9] Transcript at page 23.
Claimed Injury - 27 May 2015
On 27 May 2015 the Applicant was deployed at the CEF at Port Botany on a 1pm to 9pm shift. Her team had a full container of boxes that each contained 12 bottles of aloe vera juice. They were tasked to open each box, take the lid off the bottle, examine underneath the lid, replace the lid and put it back in the box. They were looking for a marking for contamination or infusion within the liquid itself. The team undertook this task for the full shift of approximately seven hours. They were either sitting on the boxes and moving them as they opened them or kneeling on the concrete floor.[10] The work was rapid and repetitive but not particularly heavy.[11]
[10] Transcript at page 18.
[11] Transcript at page 25.
At the end of her shift the Applicant went home and went to bed ‘feeling sore and stiff, but otherwise okay.’[12] She woke up during the night ‘with considerable pain to the right side of [her] neck’. She had very little sleep.[13] The next day her neck was ‘very, very sore around the right-hand side … where the flexing point is.’[14] She had restricted movement to the left side of her neck so she ‘had problems turning to the left and looking to the left and moving [her] neck to the left.’[15]
[12] Transcript at page 18.
[13] Transcript at page 18.
[14] Transcript at page 18.
[15] Transcript at page 28.
The Applicant completed another shift at the CEF on 28 May 2015. She and the team undertook the same work but it was less intense as there was less urgency to get the job done as there were only 60 boxes left to be examined.[16] The Applicant told her supervisor that her neck was sore, but she kept working and did not ask him to complete an incident report form.
[16] Transcript at page 27.
On 4 June 2015 the Applicant saw Mr Alex Sherborne, a physiotherapist at Physio Posture Fitness Clinic. Mr Sherborne thought that her pain was consistent with a soft tissue injury in the upper thoracic spine. Mr Sherborne reported, ‘Her pain was palpable and focal at T2-4, worst on the left.’[17]
[17] T Documents, T22 at page 89.
On 10 June and 18 June 2015 the applicant saw Dr Gene Scorringe, an osteopath.[18]
[18] Transcript at page 30.
The Applicant took leave from 1 to 23 July 2015 to travel overseas. She did not report her symptoms or the injury until after she returned to work. She thought that with ‘time away and some self-management [the injury] would get better.’[19]
[19] Transcript at page 27.
When she returned to work the Applicant resumed her normal duties but her team helped her because they were aware that she was having some symptoms.[20]
[20] Transcript at page 30.
Claimed Aggravations to Claimed Injury – 12 August 2015 and 21 January 2016
On 12 August 2015 the Applicant was doing similar work to that on 27 May 2015 at the CEF and she experienced similar pain. She reported this to her supervisor and completed an incident report. The following day she took sick leave.[21]
[21] Transcript at page 31.
During 2015 the Applicant attended Physiotherapy Guided Sessions (PGS) at Physio Posture Fitness Clinic but did not receive any other physiotherapy treatment.[22]
[22] Exhibit R2.
On 21 January 2016 the Applicant was working at aviation goods on the afternoon shift. She was lifting and x-raying boxes and also opening them to inspect their contents and noticed some symptoms in her neck.[23]
[23] Transcript at page 32.
On 1 February 2016 the Applicant attended the Sydney Airport Medical Centre and saw Dr Somnuk Phonesouk. She told him that she hurt her neck and shoulder lifting boxes at Sea Cargo – the site of the original Claimed Injury – and that she’d had physiotherapy and osteopathy treatment. She told him that she had constant, severe pain and that even little things set it off, particularly repetitive lifting.[24] Dr Phonesouk diagnosed cervical radiculopathy[25] and prescribed Mobic and Panadol for her pain, and referred her for an x-ray and CT scan of her neck.[26]
[24] Transcript at page 33.
[25] Reference to report dated 1 February 2016.
[26] Transcript at page 33.
The Applicant returned to see Dr Phonesouk on 4 February 2016 and he prescribed Panadeine Forte to help her sleep. She told him she wanted to take sick leave but he advised her to make a worker’s compensation claim.[27] He issued a medical certificate declaring her unfit for work from 4 February 2016 until 8 February 2016.[28]
[27] Transcript at page 33.
[28] Transcript at page 34, T Documents, T6 at page15.
On 8 February 2016 the Applicant saw Mr Sherborne for treatment and again saw Dr Phonesouk. Dr Phonesouk issued her with a non-worker’s compensation certificate in which he said she was fit for work but gave her a lifting restriction of 5 kilograms and restrictions on repetitive movements of the upper body, above shoulder work and also sitting for longer than 30 minutes per day.[29]
[29] T Documents, T6 at page16.
On 29 February 2016 the Applicant saw Dr Yuen, another doctor at the same medical practice as Dr Phonesouk. She told him about the Claimed Injury in May 2015 and her symptoms and treatment. She told him about a one tonne of cargo job with opening and repacking that she did at aviation goods on 25 January 2016 and that she was ‘sore again and found neck movements irritating.’[30] Dr Yuen issued her with a certificate stating she was fit for work with the same restrictions as before, and added that she was only to drive to and from work.[31] He also referred her for a MRI scan.[32]
[30] Transcript at page 34.
[31] T Documents, T6 at page 17.
[32] Transcript at page 35.
On 29 February 2016 the Applicant also had an initial workplace assessment carried out by Ms Brophy, a rehabilitation consultant engaged by ABF.[33] She told Ms Brophy about the Claimed Injury and the treatment she’d received. Ms Brophy discussed with her the option of submitting a claim for compensation.[34] A suitable duties plan was issued for the Applicant. [35]
[33] ST Documents, ST7 at pages 109-119.
[34] Transcript at page 35.
[35] Ibid.
Compensation Claim for Claimed Injury
On 1 March 2016 the Applicant lodged a claim for workers’ compensation for a ‘neck injury’ claimed to have been sustained on 27 May 2015.
In the claim form the Applicant answered ‘no’ to the question of whether she had ever previously experienced a similar symptom, injury or illness. The Applicant also answered ‘no’ to the question of whether she had ever claimed compensation through any insurer for a similar injury or condition.[36]
[36] T Documents, T9 Question 33 at page 40.
Applicant’s Previous Compensation Claim
The medical records show that before the Claimed Injury, the Applicant sustained an injury on 24 January 2008 (‘the 2008 Injury’) when she was working at Sydney Airport for a previous employer, Menzies Aviation/British Airways. The Applicant was pushing a passenger in a wheelchair when it ‘got stuck’ on a speed bump on the passageway.[37] When she tilted the wheelchair back a little and pushed to get the back wheels over the bump, she felt a sudden pain in her left shoulder.[38]
[37] Detail of incident in report of Dr Breit, Orthopaedic Surgeon dated 28 April 2009 at page 2.
[38] Respondent’s SFIC paragraph 3.6.
This incident was the subject of a workers’ compensation claim involving QBE for the previous employer.
Medical History in relation to the 2008 Injury
Following the 2008 injury, the Applicant saw Dr Keller at the Sydney Airport Medical Centre on 24 January 2008.[39]
[39] Exhibit R2, Clinical Notes, Sydney Airport Medical Centre.
The Applicant underwent a series of osteopathy treatments with Ms Barker between February and May 2008 including adjustments to the thoracic and cervical spines.
The Applicant saw Dr Keller on 5 and 12 May 2008. His notes indicate that she was having pain in the mid-upper arm, radiating to her left shoulder and her neck.[40]
[40] Transcript at page 46, Exhibit R2.
On 27 January 2009, the Applicant underwent an arthroscopic acromioplasty, RCR and AC joint excision and physiotherapy treatment performed by Dr Wade Harper.[41]
[41] Respondent’s SFIC paragraph 3.7 and report of Dr Breit at page 2.
On 28 April 2009 the Applicant saw Dr Robert Breit, an orthopaedic surgeon, in connection with her shoulder injury. She told him she was having some intermittent neck soreness and stiffness.[42]
[42] Transcript at page 46, Exhibit R2.
A rehabilitation plan report dated 2 June 2009 included a notation that the Applicant continued to report chronic pain in the left arm, shoulder, neck and upper back.[43]
[43] Transcript at page 47, ‘Work Focus Australia Return to Work Plan’, Exhibit R2.
On 21 September 2009, Dr Keller noted in relation to the Applicant:
No work for one year, employable in all admin duties, focus to be any employment followed by upgrade to more desired post.[44]
[44] Transcript at page 47.
On 25 January 2010 the Applicant saw Mr Bodycombe, a physiotherapist, who stated in his report:
She complains of neck pain and headaches and third and fourth left digit paraesthesia and pain radiating down her arm.[45]
[45] Transcript at page 47, Report of Mr Bodycombe, Exhibit R2.
The Applicant received treatment at the Pain Management Clinic at the Prince of Wales Hospital. On 3 June 2010, the Registrar of the Clinic, Dr Sachin Shetty, provided a report in which she noted that the Applicant described shoulder and neck pain as a dull ache, while she experienced numbness over the left arm, particularly over the outer aspect of the hand.[46] The Applicant told her that she had occasional flare-ups without trigger, but more consistently, any lifting activities and over-shoulder level activities worsened the pain.[47]
[46] Transcript at page 47, Report of Dr Shetty, Exhibit R2.
[47] Transcript at page 48.
In a client details sheet for physiotherapy treatment with Mr Sherborne completed on 21 June 2011, the Applicant noted that her current areas of pain were left shoulder, neck, back and left upper arm. She noted that she had been experiencing this pain for three years.[48]
[48] Respondent’s SFIC paragraph 3.8(a).
On 8 January 2012, the Applicant saw Dr Goldberg, an orthopaedic surgeon, about her left shoulder. He reported:
She needs to permanently avoid heavy lifting and overhead lifting, as well as activities that cause her discomfort.[49]
[49] Report of Dr Goldberg dated 8 January 2012, Exhibit R2.
Peripheral nerve conduction studies conducted on the Applicant by Dr Ron Granot, neurologist, on 12 July 2013 were within normal limits. It was noted:
Electromyography demonstrated mild be definite neurogenic changes (most clear in biceps) suggesting a C5/6 cervical radiculopathy or proximal plexopathy’.[50]
[50] Respondent’s SFIC paragraph 3.8(b); Report of Dr Granot dated 12 July 2013, Exhibit R2.
In a report dated 17 July 2013, Dr Benjamin Cass, orthopaedic surgeon, described the Applicant’s condition as:
‘left with multi-sited severe pain that runs in the left side of her neck particularly posteriorly, in the infraspinatus and the area of rotator cuff distribution down the arm, at one of the anterior portal sites and over the AC joint. She definitely needs to see a neurologist or cervical spine neurosurgeon and have an MRI scan of her neck. Her nerve conduction studies have shown definite C5 and C6 changes consistent with a higher nerve lesion. There is no particular denervation signals or major changes but there is a change in the latency and she needs to be assessed. It is possible that a significant part of her pain does not come from her shoulder but is from a disc lesion or a higher impingement lesion in her neck. Range of motion in her neck was full today and did not overly exacerbate the shoulder but that does not rule this out.[51]
(Emphasis added)
[51] Report of Dr Cass dated 17 July 2013.
A MRI of the Applicant’s cervical spine on 19 July 2013 reportedly revealed mild cervical disc changes without spinal stenosis and without convincing signs of foraminal neural compression; prominent mainly left sided cervicodorsal junction facet joint degenerative change (at C6/7 and C7/T1) with some mild changes more proximally; a very shallow central disc bulge at C3/4; mild right sided facet joint degenerative features; mild disc narrowing at C4/5 with a shallow posterior disc bulge disc narrowing at C5/6 disc narrowing and signal loss with a shallow broad based central disc ridge. At C9/7- disc desiccation. A midline annulus fissure was seen with a broad based central disc annulus bulge.[52]
[52] Respondent’s SFIC paragraph 3.8(d).
A further MRI of the cervical spine and brachial plexus on 12 September 2013 showed no evidence of brachial neuritis or other brachial plexus pathology. Soft tissues of the neck and supraclavicular fossa otherwise appeared normal.[53]
[53] Respondent’s SFIC paragraph 3.8(e).
On 30 October 2013 the Applicant saw Dr Granot and reported her pain had improved describing it as on average six out of ten. He reported:
Shoulder pain and neck pain seems to be improving with physiotherapy focused more on the neck.[54]
[54] Report of Dr Granot dated 30 October 2013, Exhibit R2.
During 2014 the Applicant consulted doctors in relation to insomnia and was prescribed sleeping tablets. On 29 April 2014 she reported to Dr Bosky that her work cover payments were ending that day.[55]
[55] Transcript at page 53.
On 18 December 2014 the Applicant saw Dr Phonesouk and told him she had been slurring her words. Dr Phonesouk sent her for a CT scan of the brain and a CT carotid Doppler scan. The results of these scans were clear.[56]
[56] Transcript at page 54.
The Applicant saw Dr Phonesouk again on 8 January 2015 and complained of numbness in her thigh. He referred her to two neurologists.
On 31 January 2015 the Applicant saw Dr Bosky and told her about the problems she was having with her speech and feeling disoriented as well as the numbness in her thigh. Dr Bosky referred the Applicant to Mr Scorringe.
On 18 May 2015 the Applicant underwent some nerve conduction tests in relation to her left thigh at the Prince of Wales Hospital. On 28 May 2015, the day following the Claimed Injury, the Applicant saw Dr Yuen to discuss the results of the test. She did not mention the Claimed Injury nor the pain she was experiencing as a consequence. The Applicant said the reason she did not do so was because Dr Yuen was not her regular doctor.[57]
[57] Transcript at page 55.
On 16 June 2015 the Applicant saw her regular doctor, Dr Phonesouk about the numbness in her thigh. She made no mention of any neck problem or of the Claimed Injury.[58]
[58] Transcript at page 56.
Medical Treatment - Post Compensation Claim for Claimed Injury
The Applicant first sought treatment in relation to the Claimed Injury when she saw Dr Phonesouk on 1 February 2016 – see above paragraph 28.
On 3 March 2016 the Applicant saw Dr Yuen and told him she was submitting a workers’ compensation claim. He issued her with a workers’ compensation claim certificate with the same restrictions as those in the certificate dated 8 February 2016, but added a restriction on pushing or pulling weights greater than 5 kilograms and also on bending, twisting or squatting.[59] He also referred her to Dr Sharron Flahive, a sports physician. [60]
[59] T Documents, T7 at pages 33-34.
[60] Transcript at page 36.
On 9 March 2016 the Applicant underwent a MRI scan of her neck, and on 14 March 2016 she saw Dr Phonesouk who prescribed painkillers and noted that she was having physiotherapy and osteopathic treatment. Dr Phonesouk recommended reduced days at work to assist her recovery and issued a certificate noting two dates of injury being 27 May 2015 and 21 January 2016.[61]
[61] Transcript at page 36, T-Documents, T6 pages at 21-28.
On 23 March 2016 the Applicant saw Mr Jeff Butler for acupuncture and remedial massage.[62]
[62] Transcript at page 37, T Documents, T24.
On 30 March 2016 she saw Dr Flahive who recommended she undergo a CT SPECT bone scan.[63]
Expert Medical Opinion with respect to the Claimed Injury
[63] Transcript at page 37, T Documents, T16 at pages 63-64.
Dr Matthew Paul, Consultant Occupational Physician
The Applicant saw Dr Paul at the request of the Respondent on 11 April 2016.[64] The Applicant told Dr Paul about her neck pain which she described as constant at between five and eight out of ten, and that she noticed pain if she did repetitive lifting, pushing, pulling or over-shoulder height lifting.[65] She said there was no radiation of the pain, no numbness or tingling.
[64] Report of Dr Paul dated 20 April 2016, T Documents, T18 at pages 69-79.
[65] Transcript at page 38, T Documents, T18 at page 72.
Dr Paul asked the Applicant about any previous medical problems. The Applicant replied that she had undergone a surgical procedure in 2012 that had resulted in medical complications, which were rectified in 2013. In addition, the Applicant had injured her right knee as a child and had undergone an arthroscopy without complications.[66] The Applicant did not inform Dr Paul that she had suffered an injury to her left shoulder at work with another employer in 2008 and had undergone a rotator cuff repair and resection of the acromioclavicular joint in 2009.
[66] Report of Dr Paul, T Documents, T18 at page 73.
The Applicant explained her failure to tell Dr Paul about this previous injury and surgery as follows:
Specifically, before seeing or having been asked to attend any of these medical independent assessments, I spoke with my solicitor and I was told that I only had to - I was going to be assessed, independently assessed regarding anything to do with my neck only. I was told that I wasn’t - didn’t have to respond to any other medical history. I had signed a disclosure, knowing that my whole medical history was available and I did that quite willingly.[67]
[67] Transcript at page 44.
In his report dated 20 April 2016, Dr Paul accepted that the Applicant may have aggravated underlying degenerative disease in her cervical spine as the result of her work duties, but expressed some reservations regarding the relationship between her work and her condition on the basis that she told him she had been receiving treatment from an osteopath for about a year before the onset of her symptoms.[68]
[68] Reference in transcript at page 66, T Documents, T18 pages 69-70.
He stated in his report:
This may be a degenerative condition that has become symptomatic, and would have become symptomatic regardless of work.[69]
[69] Report of Dr Paul, T Documents, T18 at page 75.
Dr Paul was subsequently provided with further material including clinical records of the Applicant’s treating doctors and the reports of Dr Pillemer, Professor Youssef, and Dr Dowda. During his oral evidence, he was asked by counsel for the Respondent whether anything contained in this further material would cause him to alter in any way the opinion he expressed in his report dated 20 April 2016. He replied:
Yes. So, I think I accepted Ms Gait’s history that she had never had any previous episodes of neck pain prior to the initial injury and from the material provided it appears to be a significant pre-existing history of neck pain and, I suppose, the reliability of the history provided by Ms Gait is called into question. So, I would say that I don’t think she’s had an aggravation of an underlying and pre-existing condition. I think that she had ongoing neck pain probably that has been present for some time and probably continues.[70]
[70] Transcript at page 67.
Dr Paul was asked to comment on the fact that the Applicant had a consultation with a general practitioner, Dr Yuen, on the day following the Claimed Injury, and did not say anything to him about it or the pain she was experiencing. He stated:
… I would find that quite unusual and it’s difficult to put into - and, essentially, it causes me to question the reliability of the history provided by Ms Gait to myself, and perhaps the practitioners, but it does seem to indicate that there may be a degree of exaggeration because you would expect someone with such severe neck to perhaps mention it to their general practitioner around the time that they presented.[71]
[71] Transcript at page 5.
Dr Roger Pillemer, Orthopaedic Surgeon
The Applicant saw Dr Pillemer at the request of her solicitors on 30 January 2017.[72] She told him about the discomfort in the base of her neck in the midline extending to her upper back region being mainly on the left side of her neck and that her symptoms were aggravated by any repetitive activity of her head and neck.[73] She said that her symptoms were on average five to seven out of ten and could be as high as eight out of ten and that the various physiotherapy, osteopathy and chiropractic treatments she had received only helped for about two days.[74]
[72] Exhibit A1, Report of Dr Pillemer dated 30 January 2017.
[73] Exhibit A1, Transcript at page 39.
[74] Exhibit A1, Transcript at page 40.
The Applicant told Dr Pillemer that she had no problems with her neck prior to May 2015.
In his report dated 30 January 2017, Dr Pillemer noted that the MRI and CT scans showed ‘mild cervical spondylosis that would not account for [the Applicant’s] presentation at the moment.’
In relation to the attributability of the Applicant’s work to her condition, Dr Pillemer opined:
Noting the nature and conditions of her work, as well as the fact that increased activity aggravates her symptoms, suggest that her work would need to be regarded as a substantial contributing factor to the development of her symptoms.[75]
[75] Exhibit A1 at page 3.
While noting that the Applicant had ‘very genuine ongoing symptoms’ Dr Pillemer was unable to suggest a firm diagnosis and recommended that further investigations be carried out. Dr Pillemer suggested she have a SPECT CT scan particularly noting the lower cervical/upper thoracic region.[76]
[76] Exhibit A1 at page 3.
Dr Raj Reddy, Neurosurgeon
The Applicant saw Dr Raj Reddy on 21 March 2017. In his report of the same date, Dr Reddy said in relation to her imaging and investigations:
Her CT and MRI are relatively unremarkable. Her SPECT scan does, however, show some very mild uptake of the facet joints in her cervical spine.[77]
[77] Exhibit A5, Report of Dr Reddy dated 21 March 2017.
In terms of his examination findings Dr Reddy went on to say:
[S]he’s a well looking woman with a normal gait. She has no evidence of pronator drift. She had normal power in all muscle groups of both upper limbs. She does not complain of any radicular arm symptoms.
…
I suspect she may have caused some injury with facet joint inflammation which could be contributing to her pain and I’ve suggested targeted Cortisone injections to try and help manage this. [78]
[78] Exhibit A5.
Dr Dwight Dowda, Consultant Occupational Physician
The Applicant saw Dr Dowda at the request of ABF on 23 October 2017.[79] She told him that her pain was localised to the nape of her neck. She said there had been six or seven occasions since the onset of her neck pain when she had experienced an unusual tingling sensation in the top of her left middle finger from about the last knuckle down to the end of the finger, with the finger blanching or going white but not staying blanched.[80]
[79] Exhibit A2, Report of Dr Dowda dated 30 October 2017.
[80] Transcript at page 42.
In his report dated 30 October 2017 Dr Dowda provided the following diagnosis:
The specific diagnosis of her condition is facet joint arthrosis with secondary muscle spasm causing pain in the neck and in the case of neck movement, limited rotation capability to the left.[81]
[81] Exhibit A2 at page 5.
Professor Peter Youssef, Consultant Rheumatologist
The Applicant saw Professor Youssef on 30 August 2017.[82] She told him that she had discomfort over the back of the left side of her neck which was associated with restricted movement and that her symptoms were present all day and night. She rated her symptoms as seven out of 10 in severity and worse with activities.[83] She told him about the various treatments she’d received and said she only received short-term benefit from them.[84]
[82] Exhibit R4, Report of Professor Youssef dated 30 August 2017.
[83] Exhibit R4, Transcript at page 40.
[84] Exhibit R4, Transcript at page 41.
Professor Youssef asked the Applicant whether she had made any prior compensation claims. The Applicant told Professor Youssef that she had not made any prior compensation claims until he told her that the paperwork indicated that she had a previous shoulder injury.[85] In her oral evidence the Applicant said she did not tell Dr Paul about this previous claim because he asked ‘whether I had same or similar injury’.[86] She told him that she had undergone a surgical repair of her shoulder by Dr Harper and was off work for about four months after the injury and continued to work for Menzies for a period of eight months doing security work. She then applied to work with ABF by which time the shoulder was pain free and the claim completed.[87]
[85] Exhibit R4.
[86] Exhibit R4, Transcript at page 44.
[87] Exhibit R4, Transcript at page 47.
In his report dated 30 August 2017, Professor Youssef reported that when he pointed to possible scars on her shoulders she moved her head easily and quickly to look at each shoulder, in contrast to the more restricted movement she demonstrated during his formal examination.[88]
[88] Exhibit R4.
In his report, Professor Youssef expressed the view that the Applicant may have sustained a musculoligamentous strain of the cervical spine on 27 May 2015 which he would have expected to have resolved within two to six weeks. He concluded that her employment did not cause a structural injury to the spine.[89] In his opinion, the mild degenerative disease of the cervical spine demonstrated, on various investigations, was pre-existing and did not, in any event, explain her alleged ongoing symptoms. Further, as at the date of his examination of the Applicant, there was no incapacity impairment or need for medical treatment that he thought could be related to any injury arising out of her work with ABF.[90]
[89] Exhibit R4 at paragraphs 3.4 and 3.6.
[90] Exhibit R4 at paragraph 3.6.
During his oral evidence at the hearing, Professor Youssef was asked by counsel for the Respondent whether on his examination of the Applicant he found any evidence of a cervical radiculopathy as diagnosed by Dr Phonesouk on 1 February 2016. He replied:
I didn’t find any weakness in the upper limbs or neurological abnormalities and also I did not find any physical abnormalities to suggest radiculopathy.
…
The diagnosis for radiculopathy based on pain radiating into the upper limb and a diagnosis of radiculopathy cannot be made without pain radiating into the upper limb or evidence of weakness or some neurological abnormality consistent with radiculopathy.[91]
[91] Transcript at page 75.
Professor Youssef told the Tribunal that he found that there was no radiation of pain or weakness or numbness to justify the findings made by Dr Phonesouk.[92]
[92] Transcript at page 12.
Professor Youssef was asked whether he agreed with the finding of Dr Pillemer:
Noting the nature and conditions of her work, as well as the fact that increased activity aggravates her symptoms, suggest that her work would need to be regarded as a substantial contributing factor to the development of her symptoms.[93]
[93] Exhibit A1 at page 3.
He replied:
No, I wouldn’t agree with that. I mean the changes that are present on the scans are really within normal limits, for someone of her age, were very minor and are unlikely to cause any significant symptoms and in the applicant’s structural change, I can’t see how her work would have caused any significant changes in the cervical spine that would result in ongoing continuing, and certainly severe, pain that would restrict her function.[94]
[94] Transcript at page 13.
Professor Youssef was provided with two reports by Dr Dowda dated 30 October and 13 December 2017.[95] In his 30 October 2017 report, Dr Dowda attributed the Applicant’s symptoms to facet joint arthrosis.[96] Professor Youssef was asked whether he agreed with this diagnosis:
No, the changes that he refers to impact very mild. They’re evidence of mild increased uptake in one of the facet joints on the right and one on the left. In fact, the MRI scan refers to changes more in a facet joint on the right, which is not the site of her symptoms. These changes are very minor and are unlikely to be causing symptoms.[97]
[95] Exhibit A2.
[96] Transcript at page 13.
[97] Transcript at page 13.
Professor Youssef was asked whether he agreed with Dr Dowda’s recommendations with regard to the restrictions he thought should be placed upon the Applicant’s work. Professor Youssef replied:
No, I cannot see the need for any significant restrictions based on any structural abnormality that are present on any of the scans.[98]
[98] Transcript at page 13.
Finally he was asked whether he agreed with the recommendation of Dr Reddy on 21 March 2017 in relation to the likely effectiveness of cortisone injections for the Applicant’s pain:[99]
I think that it’s unlikely to make any difference to her symptoms. The symptoms are out of proportion to any of the structural abnormalities. In fact, the bone scan, the Nuclear Medicine Scan, shows only being mild changes on the right and the left. On the right, it’s C4-5 and on the left it’s C5-6. These changes are minor and I think it’s unlikely that any injections are going to make any difference to her symptoms.[100]
[99] Exhibit A5 at page 1.
[100] Transcript at page 14.
Professor Youssef was asked by the Tribunal to comment on the fact that the Applicant had a consultation with Dr Yuen on the day following the Claimed Injury and she didn’t say anything about the injury to him. He stated:
I would have expected if she had - if there was severe neck pain that would have prevented her from moving her neck that she would have complained about that to Dr Yuen on that day. I wouldn’t have expected it to have resolved by the time she saw Dr Yuen. I would have expected her to be - you know, to have significant symptoms and to have discussed those with Dr Yuen on that day.[101]
[101] Transcript at page 15.
SUBMISSIONS
The Applicant argued that she sustained an injury to her neck at work on 27 May 2015 which she has ‘been unable to recover from.’ Prior to this date she had just previously completed a full fitness and medical assessment and was able to perform 100 percent of her duties. Prior to this date she had ‘never suffered thoracic pain in [her] neck.’[102] She was reluctant to submit a Comcare claim but did so at the direction of HR and her managers. It was ‘something [she] wanted to avoid at all costs.’ She tried to self-manage what she believed to be a ‘strain or sprain’ and consequently did not report the injury immediately.[103]
[102] Transcript at page 17 and page 82.
[103] Transcript at page 82.
The Applicant acknowledged that she has ‘an extensive medical history spanning the past 10 years’ including the reconstruction of her left shoulder in 2009 which followed a work injury. The spine pain in her neck, which had an onset following the 27 May 2015 incident, is unrelated to this shoulder injury.[104]
[104] Transcript at pages 82-83.
The Respondent argued that the Applicant is an unreliable historian and that the Tribunal should not accept her claims that before 27 May 2015 she never suffered neck pain from the spine.[105] The medical evidence, particularly the report of Dr Cass dated 17 July 2013, shows that she clearly experienced neck pain prior to May 2015, and it very likely had a spinal origin rather than being referred pain from the shoulder injury. The Applicant was aware of this report and therefore knew about the connection between her spine and any pain she was having in her neck.[106] Despite this, she did not disclose her shoulder injury to Dr Paul and only disclosed it to Professor Youssef when he asked her about it. The reason why she did not do so is because she suffered neck pain and associated neurological symptoms after the shoulder injury.[107]
[105] Transcript at page 79.
[106] Transcript at page 79.
[107] Transcript at pages 79-80.
The Respondent further argued that her delay in reporting the injury and failure to accurately disclose her prior history is such that the Tribunal cannot be satisfied that it is more probable than not that the Applicant suffered any aggravation of a pre-existing condition. This is supported by the fact that the Applicant did not mention to Dr Yuen the injury or the severe pain she claims to have been experiencing when she saw him the day following the incident. Accordingly, the Tribunal cannot be satisfied that the Applicant suffered even the temporary aggravation that Professor Youssef posited which he thought likely to have lasted only a matter of weeks.[108]
[108] Transcript at page 80.
In relation to the expert medical evidence, the Respondent argued that it supports a finding that the MRI and CT scans do not account for the Applicant’s presentation and symptoms. The opinion of Professor Youssef, a specialist rheumatologist, should be preferred over the findings of Dr Dowda and Dr Reddy in relation to the diagnosis of facet joint arthrosis or inflammation. Only Professor Youssef was aware of the Applicant’s prior history, and when Dr Paul was made aware of this he revised his initial opinion that the Applicant had an aggravation of an underlying and pre-existing condition.[109]
[109] Transcript at page 81.
The Respondent argued that the pain and restrictions on movement the Applicant claims to experience are not materially different from those noted by Dr Goldberg in January 2012, more than three years before the incident on 27 May 2015.[110]
[110] Transcript at page 82.
CONSIDERATION
The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.
Issue 1 - Was the Claimed Injury ‘an injury (other than a disease)’ as defined under s 5A(1)(b) of the SRC Act?
The first issue for the Tribunal’s consideration is whether the condition for which the Applicant seeks compensation can be considered a “disease” or an “injury other than a disease” for the purposes of the SRC Act.
Distinction between an ‘injury simpliciter’ and a ‘disease’
The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is an important one for an applicant because, for an injury that is not a disease (often referred to as an “injury simpliciter” – see Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369,[111] the injury must arise out of, or in the course of, the employment: s 5A(1)(b) of the SRC Act. That is, “… the physical or mental injury has to have a causal or temporal connection with the employee’s employment.”[112]
[111] Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369French CJ, Kiefel, Nettle and Gordon JJ at [378].
[112] Ibid, French CJ, Kiefel, Nettle and Gordon JJ at [379].
An injury simpliciter is contrasted with a disease, which must be contributed to, to a significant degree, by the employee’s employment.[113] The latter requires a stronger causal connection between the employment and the ailment: Australian Postal Corporation v Burch (1998) 156 ALR 483 at [486] and Prain v Comcare [2016] AATA 459 at [7]-[8].
[113] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(1).
Whether a claimed condition is an injury simplicter or a disease must be determined on a case-by-case basis. As Gleeson CJ and Kirby J observed in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 174 ALR 626 at [632]: “Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case”. Therefore, the question of whether an applicant has a disease or injury must be determined with reference to “… precise evidence … concerning the nature and incidents of the physiological change…”[114]
[114] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 174 ALR 626 per Gleeson CJ and Kirby J at [637].
What is an injury simplicter?
In Australian Postal Corporation v Burch (1998) 156 ALR 483 at [488], the Full Court of the Federal Court of Australia found a stroke to be an injury because, in the circumstances, it was “…a disturbance of the normal physiological state … or an ascertainable lesion or dramatic physiological change”. Similarly, in Kennedy Cleaning Gleeson CJ and Kirby J stated that “… a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state … may qualify for characterisation as an ‘injury’…” at [637].
An injury does not have to be something that is external to the body, or “… produced by external causes”: Kennedy Cleaning per Gleeson CJ and Kirby J at [635]. For example, a disc prolapse could be an injury, depending on the medical evidence.[115]
[115] Dixon CJ in Kavanagh v Commonwealth (1960) 103 CLR 547 at [553] cited by Senior Member Dwyer in Re Winsall v Comcare (2003) 72 ALD 696 at [708].
In Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369, French CJ, Kiefel, Nettle and Gordon JJ, in a joint judgment, at [34] cited the following passage from May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 at [444] – [445] with approval:
The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was, instead, “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind”.
Their Honours went on to state that, “subjectively experienced symptoms, without an accompanying physiological or psychiatric change” are not sufficient to be a disease or an injury at [381]. That is, merely ‘feeling unwell’, or experiencing symptoms, will not be sufficient to establish an injury. What is also needed is “physiological evidence, pathology or a known diagnosis to explain the symptoms”: Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886 at [63] quoted in Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369 per Gaegler J at [385].
An injury can include a “sudden physiological change resulting from a disease”: Kennedy Cleaning, per Gaudron J at [639]. Similarly, Gleeson CJ and Kirby J stated at [636], “the mere fact that a sudden physiological change is in some way connected with an underlying ‘disease’ process does not, of itself, prevent the classification of such a change as an ‘injury’ within the primary statutory provisions that apply to such a case.”[116]
[116] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 174 ALR 626 at [636].
It was, however, observed by the High Court in Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369 at [379] that suddenness will not always be necessary for there to be an injury (other than a disease) or a disease. Their Honours stated that suddenness may nevertheless be “useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease” at [47].
Was the Claimed Injury an injury simplicter?
The Applicant argues that she suffered an “injury” at work on 27 May 2015. According to the High Court in May and the authorities outlined above, for it to be an “injury” under s 5A(1)(b) there must have been “some definite or distinct physiological change or physiological disturbance for the worse which, if not sudden, is at least identifiable.”[117] If this is so, then the condition may be treated as an injury simpliciter under s 5A(1)(b).
[117] Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 331 ALR 369; 150 ALD 392; 90 ALJR 626 at [60]; 381; 404; 635 citing Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; 74 ALJR 1298; Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Callinan J dissenting.
On the basis of the evidence before it, and for the reasons outlined in the following paragraphs, the Tribunal is not satisfied that the Applicant suffered an “injury (other than a disease)” under the SRC Act.
According to the Applicant’s own evidence, at the end of her shift on 27 May 2015 she felt stiff and sore but otherwise okay. The Applicant claims to have woken during the night with severe pain in her neck. The Applicant nonetheless reported at work the following day and completed another shift and did not ask that an incident report be completed. The Applicant also attended her GP practice the day after the Claimed Injury and did not mention it or any symptoms to her treating practitioner. The Applicant did not seek treatment for the Claimed Injury for a further week on 4 June 2016. She saw a physiotherapist, of whom she’d been a patient for four years, and told him about her pain. In the two weeks following she saw an osteopath and then travelled overseas for three weeks. Although she claims to have experienced similar pain on two further occasions whilst performing similar work on 12 August 2015 and 21 January 2016, the Applicant did not see a doctor about her neck pain until 1 February 2016, some eight months after the date of the Claimed Injury.
The evidence shows, and the Applicant concedes, she had an extensive medical history which pre-dated the Claimed Injury, including a left shoulder reconstruction which followed a workplace injury. The evidence before the Tribunal, particularly the report of Dr Cass dated 17 July 2013, shows that the Applicant experienced ‘left with multi-sited pain that runs in the left side of her neck’ and Dr Cass recommended the Applicant see a neurologist or cervical spine neurosurgeon and undergo a MRI of her neck. Dr Cass’s opinion in relation to the Applicant’s symptoms, some two years prior to the Claimed Injury, was that:
[i]t is possible that a significant part of her pain does not come from her shoulder but is from a disc lesion or a higher impingement lesion in her neck.
The Tribunal finds on the basis of the evidence before it that the Applicant experienced severe neck pain prior to May 2015 that very likely had a spinal origin rather than being referred pain from the shoulder injury. Furthermore, as this condition had been diagnosed and documented and the Applicant advised to see a neurologist or cervical spine neurosurgeon, the Applicant was aware that her severe neck pain was likely deriving from her spine.
The Tribunal has had regard to the Applicant’s explanation as to her reasons for not reporting the Claimed Injury to Dr Yuen when she saw him the day following the incident. The Tribunal finds it implausible that if she was indeed experiencing severe pain and unable to move her neck to the left that she would not mention this to a doctor, even if he was not her regular practitioner, and despite attending the appointment for an unrelated health issue.
The Tribunal has had regard to the Applicant’s claims that she thought that with time and self-management her symptoms and pain would alleviate. The Tribunal finds it implausible that the Applicant would not have been aware that her pain and symptoms were a continuation of a previously diagnosed spinal condition requiring specialist medical treatment and possibly surgery, and that her pain was therefore unlikely to improve without such medical intervention.
The Tribunal accepts the Applicant’s evidence that she did not wish to make a compensation claim, and it is for this reason that she did not lodge a claim for more than nine months following the Claimed Injury and only after she was encouraged to do so. However, the Applicant’s failure to report the incident and delay in lodging a compensation claim is also consistent with the Applicant being aware that her neck pain and symptoms were unrelated to her work and a consequence of a pre-existing spinal condition.
The Tribunal finds, on the basis of the medical and other evidence before it, that the Applicant did not sustain an “injury” as defined under s 5A(1)(b) of the SRC Act as there is inadequate evidence to support a finding, as required in the words of the High Court in May, that there was “some definite or distinct physiological change or physiological disturbance for the worse which, if not sudden, is at least identifiable”.[118]
Issue 2 - Was the Claimed Injury a ‘disease’ as defined under s 5A(1)(a) and s 5B(1)(b) of the SRC Act?
[118] Ibid.
The second issue for consideration in determining whether the Applicant suffered an “injury” as defined under s 5A(1) of the SRC Act is whether she suffered from a “disease” for the purposes of s 5A(1)(a) of the SRC Act and specifically whether this was, under s 5B(1)(b) of the SRC Act, an “aggravation of … an ailment … that was contributed to, to a significant degree, by [her] employment”.
What is a ‘disease’?
In contrast to an injury simpliciter, a disease can be described as a change in underlying pathology. In Kennedy Cleaning at [637] Gleeson CJ and Kirby J said:
The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an “injury” in the primary sense.
The meaning of disease was considered by the Federal Court in Comcare v Mooi.[119] At the time it was decided, s 5B had not been enacted and the definitions of “disease” and “ailment” were found in s 4(1) of the SRC Act. Those definitions were in terms consistent with their current definitions. Drummond J began by noting that:
By s 4, the term ‘injury’ means physical or mental injury other than disease, while the term ‘disease’ means any physical or mental ailment, disorder, defect or morbid condition. The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition: a slight ailment (The Macquarie Dictionary) – that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.[120]
[119] [1996] FCA 1587; (1996) 69 FCR 439.
[120] [1996] FCA 1587; (1996) 69 FCR 439 at [10]; 442-443.
Referring to the ordinary meanings of the word “disease” as well as the meanings given in medical dictionaries, Drummond J concluded:
Only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus ‘injuries’ for the purposes of s 14(1) of the Act.[121]
[121] [1996] FCA 1587; (1996) 69 FCR 439 at [16]; 445.
What is an aggravation of a disease (ailment)?
This was considered by the High Court in Ogden Industries Pty Limited v Lucas.[122] The majority of the Court decided that Mr Lucas had not suffered a further injury within the meaning of the legislation. Windeyer J explained what is required for there to be an ‘aggravation’ of a disease:
It seems to me that it is impossible to bring this occurrence within that definition. It was not in itself a disease contracted in the course of employment. Was it the aggravation … of a pre-existing disease? It seems to me that it cannot be said that it was. ‘Aggravation’ means, I think, that an existing disease had been made worse, not that it has simply become worse.[123]
(Emphasis added)
[122] [1967] HCA 30; (1967) 116 CLR 537; Barwick CJ, Taylor, Windeyer and Owen JJ; Kitto J dissenting.
[123] [1967] HCA 30; (1967) 116 CLR 537 at [29]; 593.
Contributed to, to a significant degree, by the employment?
The Applicant’s condition, being a disease, must be contributed to, to a significant degree (that is, substantially more than material – see s 5B(3) of the SRC Act), by her employment: s 5B(1) of the SRC Act.
As Mortimer J in Comcare v Reardon (2015) 148 ALD 356; [2015] FCA 1166 at [75] noted, “… the question of causation, contribution or aggravation by employment for the purposes of the definition of ‘disease’ is … a determination for the merits reviewer on the evidence and material before it”.
In Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502, Katzmann J discussed the meaning of “to a significant degree” in s 5B(2) of the SRC Act, which is defined in s 5B(3) of the SRC Act as “a degree that is substantially more than material”. Her Honour stated at [78], “[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial”, and further at [82] that, “… a material contribution is one which is greater than minimal or, one might say, trivial”.
Katzmann J considered the previous Compensation (Commonwealth Government Employees) Act 1971(Cth), which required employment to be “a contributing factor to the disease”. The current definition in s 5B of the SRC Act which requires the employment to have contributed “to a significant degree” was inserted by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth). After discussing this amendment, Her Honour stated:
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial at [93].
In Reardon and Comcare [2015] AATA 360 at [37] Member Taglieri summarised the meaning of “contribution to a significant degree” as follows:
I must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.
Member Taglieri also outlined the matters which must be taken into account by the Tribunal when undertaking this evaluation, as well as determining causation when there are several contributing factors to the disease at [36]:
In Su v Comcare the requirement of contribution to a significant degree was expressed as follows, when approving of Justice Finn’s approach to interpretation in Comcare v Sahu-Kahn:
“When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury.” (Footnotes omitted).
Was the Claimed Injury an aggravation of an ailment contributed to, to a significant degree, by the Applicant’s employment?
The Tribunal has had regard to the evidence before it, particularly the expert medical evidence, and finds that the Applicant did not suffer a “disease”, defined as an ailment or an aggravation of an ailment, that was contributed to, to a significant degree, by the Applicant’s employment.
The Applicant expressed a genuine belief that her neck condition is related to her employment, specifically the Claimed Injury on 27 May 2015. However, for the reasons outline below, the Tribunal finds that this is not supported by the expert medical evidence before the Tribunal.
The expert medical evidence supports a finding that the Applicant has an underlying degenerative disease in her cervical spine.
As outlined above, Dr Reddy and Dr Dowda found respectively that the CT and MRI indicated facet joint inflammation or facet joint arthrosis. Professor Youssef concluded that the mild degenerative disease of the cervical spine demonstrated on various investigations was pre-existing.
On the basis of the evidence before it, the Tribunal finds that at the date of the Claimed Injury, the Applicant suffered from a pre-existing spinal degenerative disease that satisfies the definition of an ‘ailment’ in section 4(1) of the SRC Act in that is a ‘morbid condition’.
The question is whether the Claimed Injury was ‘an aggravation of such an ailment’ that was ‘contributed to, to a significant degree’ by the Applicant’s employment with ABF.
In his April 2016 report, Dr Paul accepted that the Applicant may have aggravated underlying degenerative disease in her cervical spine as the result of her work duties, but expressed some reservations regarding the relationship between her work and her condition on the basis that she told him she had been receiving treatment from an osteopath for about a year before the onset of her symptoms.
At the time of his report, Dr Paul had not been made aware of the Applicant’s significant pre-existing history of neck pain. Once the Applicant’s history was made known to him, Dr Paul revised his opinion and concluded that the Applicant had not had an aggravation of an existing condition.
Professor Youssef was asked whether he agreed with the finding of Dr Pillemer:
Noting the nature and conditions of her work, as well as the fact that increased activity aggravates her symptoms; suggest that her work would need to be regarded as a substantial contributing factor to the development of her symptoms.[124]
[124] Exhibit A1 at page 3.
Professor Youssef disagreed with this finding:
… I can’t see how her work would have caused any significant changes in the cervical spine that would result in ongoing continuing, and certainly severe, pain that would restrict her function.[125]
[125] Transcript at page 13.
The expert medical evidence before the Tribunal supports a finding that the Claimed Injury was not an aggravation of an ‘ailment’ that was contributed to, to a significant degree, by the Applicant’s employment with ABF. In making this finding, the Tribunal has given considerable weight to the findings of Professor Youssef and the revised opinion of Dr Paul in relation to the contribution of the Applicant’s employment to her condition. The Tribunal prefers these opinions over that of Dr Pillemer for the reason that at the time of his report Dr Pillemer was unaware of the Applicant’s significant pre-existing history of neck pain.
Accordingly, the Tribunal finds that the Claimed Injury does not satisfy the definition of a ‘disease’ under the section 5B(1) of the Act as it is not satisfied on the balance of probabilities it is an aggravation of an ailment that was contributed to, to a significant degree, by the Applicant’s employment.
As the Tribunal is satisfied that the medical evidence supports the finding that the Claimed Injury was not an aggravation of an ailment that was contributed to, to a significant degree, by the Applicant’s employment, it is not necessary for it to consider the factors listed in subsections 5B(2)(a)-(e) of the SRC Act.
As the Tribunal is not satisfied that the Claimed Injury is a “disease”, it is not an “injury” as defined by section 5A(1)(a) of the SRC Act read with section 5B(1)(b) of the Act.
CONCLUSION
The Tribunal finds, for the reasons outlined above, that the Applicant did not suffer an injury within the meaning of s 14 of the SRC Act. The Respondent is therefore not liable to pay compensation to the Applicant for the Claimed Injury.
DECISION
The Reviewable Decision is affirmed
I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk and Dr Ion Alexander
...................................[sgd].......................................
Associate
Dated: 16 November 2018
Date(s) of hearing: 30 and 31 August 2018 Applicant: In person Counsel for the Respondent: Mr B Kelly Solicitors for the Respondent: Ms K Miller, Sparke Helmore Lawyers
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