Gazzard and Comcare (Compensation) - [2018] AATA 3276

Gazzard and Comcare (Compensation) [2018] AATA 3276 (5 September 2018)
Division:GENERAL DIVISION
File Number(s): 2016/5570; 2016/5575
Re:David Gazzard
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:5 September 2018
Place:Canberra

The Tribunal affirms the decisions under review.
........................[sgd]................................................
Deputy President J Sosso
Catchwords
COMPENSATION: ceased effects determination – appropriate diagnosis – whether employment still contributes, to a significant degree, to the applicant’s ailments – cervical spondylosis – causal link between sedentary work and cervical spondylosis – Telstra Corporation Ltd v Hannaford - decisions affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; 151 FCR 253
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Secondary Materials
Al-Bustany DA, Aziz ZA 2009, ‘Cervical Spondylosis among Group of Computer Users in Erbil City’, Zanco Journal of Medical Sciences, vol. 13, no. 2, pp. 1 - 9.
Ariëns, G A M et al. 2001, ‘Are neck flexion, neck rotation, and sitting at work risk factors for neck pain? Results of a prospective cohort study’ Occupational Environmental Medicine, vol. 58, no. 3, pp. 200 – 207.
Binder, A 2007, ‘Cervical spondylosis and neck pain’, British Medical Journal, vol. 334, pp. 527-531.
Eskay-Auerbach, M, Talmage JB 2016, ‘Spine’ in Melhorn MJ et al. ‘AMA Guides to the Evaluation of Disease and Injury Causation’ (2^nd ed).
REASONS FOR DECISION
Deputy President J Sosso
5 September 2018
INTRODUCTION

Mr David Gazzard (“the Applicant”) has made two applications for review of decisions made by Comcare pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).
Those Applications can be summarised as follows:
(a)
Application 2016/5570 seeks review of a decision of 18 August 2016 (Exhibit 1 T97 pp. 522 - 527) affirming a “ceased effects” Determination of 3 May 2016 (Exhibit

1 T82 pp. 447 – 450) under ss 16 and 19 of the Act for the previously accepted “aggravation of cervical spondylosis without myelopathy (unspecified), somatisation disorder and aggravation of adjustment reaction with anxious mood” with a deemed date of injury of 12 November 2007; and
(b)
Application 2016/5575 seeks a review of a decision of 18 August 2016 (Exhibit

2 T12 pp. 103 – 107) affirming a Determination of 17 June 2016 (Exhibit 2 T9 pp. 69 – 73) under s 14 of the Act denying the Applicant’s claim for “chronic cervical spine pain syndrome, chronic thoracic spine pain syndrome, major depression and associated adjustment reaction with anxious mood as a result of occupational overuse injury” with a deemed date of injury of 12 November 2007.
Mr Woulfe of Counsel for Comcare submitted both at the hearing and in Comcare’s Written Submissions (“CWS”) dated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gazzard and Comcare (Compensation)

Details

AGLC: Gazzard and Comcare (Compensation) [2018] AATA 3276
Case: [2018] AATA 3276
Decision Date: 5 September 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Gazzard, against a determination by Comcare that his former employment ceased to contribute, to a significant degree, to his cervical spondylosis as at 3 May 2016. The Administrative Appeals Tribunal was required to determine whether the applicant's employment continued to be a significant factor in the aggravation of his condition.

The central legal issue before the Tribunal was whether the applicant's employment with the Australian Tax Office had ceased to be a significant contributing factor to his cervical spondylosis by the specified date. This required an assessment of the medical evidence and the applicant's work history to establish the causal link between his employment duties and the progression of his condition.

The Tribunal found that much of the medical evidence supporting the applicant's case, particularly the reports of Dr Kelman, was based on an incomplete and inaccurate medical history provided by the applicant. The applicant had failed to disclose previous neck pain and injuries prior to May 2002, which undermined the reliability of diagnoses that attributed his cervical spondylosis solely to his later employment. The Tribunal noted that while prolonged computer work without breaks could contribute to cervical spondylosis, the applicant's failure to provide a full history meant that the causative link to his specific employment was weakened.

Consequently, the Tribunal determined that the applicant's former employment had ceased to significantly contribute to any aggravation of his cervical spondylosis as at 3 May 2016. The decisions under review were affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I agree with Mr Woulfe’s submission that the two applications cover the same ground and overlap. The disposition of Application 2016/5570 will, for all intents and purposes, flow on and result in the disposition of Application 2016/5575.BACKGROUND The Applicant was born in 1965 and is currently 53 years old. He is a married man and has one adult daughter. After leaving school he worked for Australia Post as a mail officer and then worked for the Australian Government Retirement Benefits Office, later known as ComSuper, as a Clerical Assistant Grade 1, eventually, over a 13 year period, being appointed to the APS 5 level – Exhibit 1 T1.1 p. 7, T9 p.56. In 1998 the Applicant transferred to the Australian Tax Office (“ATO”) to work as a software and systems tester, and, after six months, having shown an aptitude for working with the software system, was moved to the Technical Support Office (“TSO”). The Applicant’s role expanded and he was given a team member to assist him in performing his duties. In addition, the Applicant was tasked with training team members in some of the less difficult aspects of running computer software for their respective projects. The Applicant claimed that as the size of the team increased his chances of taking breaks decreased and time spent on computer tasks increased. He experienced pain in his cervical and thoracic spine regions, with numbness and tingling in his right arm and hand. In May 2002 the Applicant submitted a claim for “Cervicobrachial syndrome (diffuse) (right)” which Comcare accepted – Exhibit 1 T1.1 pp. 7 - 8. The Tribunal was provided a copy of that claim which was admitted as Exhibit 7. In response to Question 18(a) which asked: “Have you ever had a similar injury or illness before, work related or otherwise (even if you think it is unrelated to this injury or illness)?”, the Applicant ticked the “No” box. The Applicant was performing “pre-injury” duties by September 2002 and in early 2003 he was moved out of the TSO role and transferred into a Software Tester role with a primary responsibility for testing low priority changes. In July 2003, the Applicant attempted to commit suicide due to his depressed mood and spent time in the psychiatric ward of Calvary Hospital. He submitted a further claim, which was accepted, for “aggravation of adjustment reaction with depressive reaction” – Exhibit 1 T1.1 p. 8. In 2006 the Applicant was transferred to the Health and People Management Business Line (“ATO People”), involving case management and clerical services – Exhibit 1 T9 p.56. In 2007 the Applicant and his wife had a three month overseas holiday. On his return to ATO People in November 2007, he was transferred from a Case Manager role to a placement with another employee that required him to handle incoming mail, scan the hard copies, load the digitised document into the electronic management tool and then advise the relevant case manager that mail had been received and was available for actioning. The Applicant made the following statement – Exhibit 1 T1.1 p. 9:“I was alone for the first week back. As the week went on the level of pain increased and by Friday the 9th November 2007 I awoke in severe pain and did not attend work. Since this episode I have been in more severe continual pain and continued my time at the ATO on reduced duties and hours. I submitted a compensation claim in January of 2008 and Comcare made a determination to accept liability for “Aggravation of Cervical Spondylosis without Myelopathy, Somatization Disorder and Aggravation of Adjustment Reaction with Anxious Mood (DSM-IV coding 309.24).”

Evidence

Evidence Before The Court

The Applicant accepted an invalidity retirement, as a result of his claimed conditions, on 23 May 2013 – Exhibit 1 T68 pp. 337 – 338.MEDICAL EVIDENCE The Tribunal has been presented with extensive medical evidence. However, for current purposes, reference need only be made to the evidence of three Doctors. The Applicant seeks to rely on the medical assessments of Dr Kelman, orthopaedic surgeon, whilst Comcare relies on the assessments of Dr Uthum Dias, occupational physician and Dr Derek Lovell, psychiatrist. The reports of each of these experts are set out below. It will be noted however, that the Tribunal also had the benefit of hearing Drs Dias and Lovell give evidence. The Applicant did not call Dr Kelman to give evidence, and, accordingly, Mr Woulfe did not have the opportunity to question Dr Kelman. It is important to set out what is a self-evident truth. Medical evidence, when not solely based on analysing objective information or data, is predicated on the treating doctor being provided a comprehensive and accurate medical history by the patient. When a treating doctor is either given inadequate or inaccurate information, the validity and accuracy of a subsequent diagnosis is inevitably suspect. In short, when a medical expert makes a diagnosis based on a flawed factual matrix, the tribunal of fact must necessarily give much less weight (if any) to the diagnosis in the relevant medical report(s).Dr Kelman Dr Kelman assessed the Applicant on two occasions, the first being on 8 April 2008. In the section of his report entitled “Past Medical History”, Dr Kelman made the following observations – Exhibit 1 T9 pp. 57 - 58:“He denies any previous injuries to his neck or upper limbs prior to May 2002.He has had an injury to his ankle in 1999 and has also had a ligament reconstruction procedure on his right knee.He suffers from irritable bowel syndrome and diverticulitis and has had a bowel resection for the treatment of this.” The Applicant informed Dr Kelman that there was a family history of Scheuermann’s disease. Dr Kelman viewed both MRI scans set out above (see paras 19 – 20). Dr Kelman’s interpretation of the MRI neck scan was “…that there is mild cervical spondylosis at C5/6 and C6/7 with no cord impingement. The lateral recesses appear satisfactory” – Exhibit 1 T9 p. 58. Dr Kelman interpreted the MRI of the Applicant’s right shoulder as showing “no major pathology in the bone or in the rotator cuff” – Exhibit 1 T9 p. 59. Dr Kelman diagnosed the Applicant with cervical spondylosis. Based on the history he was provided, Dr Kelman opined that the causative factor for the diagnosis “…is not of specific trauma but considerable tension in his neck as a result of his work related activities of working long hours at computer hardware.” In reaching this conclusion, Dr Kelman went on to state: “Prior to May 2002 he had no history of injury to his neck. The injury to his neck in 2002 came about as a result of prolonged periods of work without appropriate management of his work or workstation” – Exhibit 1 T9 p. 59.

Decision

Reasons for decision

The Tribunal therefore finds that the Applicant’s former employment ceased to significantly contribute to any aggravation of his cervical spondylosis as at 3 May 2016.DECISION The decisions under review are affirmed.

Ratio Decidendi

Legal Principle Established

The conclusions reached by the authors are as follows – Exhibit 13 p. 8:“1. The study has confirmed that during working on computer forward head posture, when maintained over along period of time, can have harmful effect on the cervical spine of the computer users.2. Longer work periods without a break time and total weekly work hours appear to place workers at risk to develop cervical spondylosis.3. For any workers in who forward head posture occurs as a result of jobs it is important to assess how this may be correct…”CONSIDERATIONIntroduction Much of the Applicant’s case was weakened by the concessions he made during Mr Woulfe’s cross-examination. Mr Woulfe forcefully submitted (Comcare’s Written Submissions (“CWS”) para 17) that most of the medico-legal opinion that supports the Applicant’s case (at one level or another), was based on factual assumptions that were exposed during the cross-examination to be partially incorrect. First, Mr Woulfe drew the Tribunal’s attention to various passages in the reports of Dr Kelman. In his report of 9 March 2010, Dr Kelman made the following observation – Exhibit 1 T27 p. 142:“Mr Gazzard, who is currently 44 years of age, has been involved in information technology most of his working life. He began to have problems in 2002 when he was working in IT support. Thereafter followed a long history of pain in his neck and upper limbs.” This misconception flowed from the self-reported information given to Dr Kelman by the Applicant when he was assessed on 8 April 2008. In his first report dated 14 April 2008, in the section headed “Past Medical History:”, Dr Kelman noted – Exhibit 1 T9 p. 57:“He denies any previous injuries to his neck or upper limbs prior to May 2002”. Subsequently (at Exhibit 1 T9 p. 59), Dr Kelman again noted that prior “…to May 2002 he had no history of injury to his neck”, and again on the next page of his report – Exhibit 1 T9 p. 60: “There is no history of any previous diseases or neck injuries prior to May 2002.” It is patently clear that the Applicant was less than fulsome in giving Dr Kelman an accurate account of his past neck problems, and Dr Kelman’s reports were predicated on an incomplete medical history. The strength of Dr Kelman’s reports are weakened by these omissions. Unfortunately, the failure of the Applicant to provide a full and accurate medical history does not only affect Dr Kelman’s medical reports. This problem appears in a number of the medical reports prepared by other professionals who examined the Applicant over the years. When the Applicant was assessed by Dr George, consultant psychiatrist, on 7 April 2008, he “…said he had his chronic neck and shoulder pain from 2002 and that more recently, his pain had become more constant” – Exhibit 1 T8 p. 48. Likewise, when the Applicant was assessed by Dr Anthony Sheehan, consultant psychiatrist on 5 March 2010, he told Dr Sheehan “…that in the period 2000 to 2002 he developed neck and shoulder pain described as ‘occupational overuse syndrome’” – Exhibit 1 T28 p. 149. Again, there was no mention of the Applicant experiencing neck pain over a prolonged period of time before this assessment.