GENERAL ADMINISTRATIVE DIVISION PETER HANLEY and COMCARE

[2010] AATA 132

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 132

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2008/2580

DIVISION	)
GENERAL ADMINISTRATIVE DIVISION	Re	PETER HANLEY

Applicant

And  COMCARE

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe and Dr G J Maynard, Member

Date 22 February 2010

Place Brisbane

Decision  The Tribunal affirms the decision under review.

.....................[Sgd].........................

Senior Member

CATCHWORDS

COMPENSATION – claim for compensation – injury caused by motor vehicle accidents travelling to and from work – chronic neck pain – damages paid previously – applicant precluded from further compensation – disciplinary proceedings reasonable – aggravation due to disciplinary proceedings not an injury – injury not attributable to employment – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 16, 19, 48

REASONS FOR DECISION

22 February 2010 Senior Member Bernard J McCabe and Dr G J Maynard, Member                  

1.      Mr Peter Hanley is a public servant and the applicant in these proceedings. He injured his neck in motor vehicle accidents on the way to or from work on three occasions. He says he now suffers from chronic neck pain. He says the situation is complicated by the development of a chronic pain disorder that is attributable to the pain from these work-related injuries. The chronic pain disorder might also be a response to other events that occurred in the workplace. While Comcare, the respondent, has paid compensation to the applicant in the past, it now denies it is liable to compensate Mr Hanley under the provisions of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of the neck condition (including the chronic pain disorder) after November 2007.

2.      The respondent does not dispute that Mr Hanley is experiencing neck pain. It argues instead that the pain is not attributable to the applicant’s work – or if it is, liability is excluded because the work events in question included reasonable disciplinary proceedings taken against the applicant.

3.      We agree with the respondent. We explain our reasons below.

The facts

4.      Mr Hanley injured his neck in a car accident on his way to work on 17 February 1998. Comcare accepted liability for “muscle spasms lumbar and cervical spine”. He injured his neck again in another car accident on his way home from work on 19 October 1999. Comcare accepted liability for “neck sprain”.

5.      The applicant commenced legal proceedings to recover damages in respect of the car accidents. He received a settlement in respect of both injuries from insurers.

6.      Mr Hanley said he continued to experience pain following the accidents and insurance payouts. The pain came and went, he said. A rehabilitation consultant was retained to examine his workplace to see if his needs could be accommodated. The consultant made a number of recommendations including suggesting a special chair. Mr Hanley said it took over six months to secure a chair with the appropriate specifications. He says he was happy with the chair when it arrived, but it soon became apparent that it needed some repairs.

7.      The applicant said he contacted the supplier to discuss the repairs. He was told it might take some time to get a replacement chair that could be used while the repair work was done. Mr Hanley said he was happy enough with that arrangement. But his plans were upset when an occupational health and safety (OHS) officer took it upon herself (according to Mr Hanley) to remove the chair without telling him while he was at lunch. The chair was despatched for repairs before a replacement could be found. Mr Hanley complained to his supervisor who, perhaps unwisely, invited Mr Hanley to speak directly with the OHS officer who made the decision.

8.      The meeting between Mr Hanley and the OHS officer did not go well. It ended with a loud dispute. The officer subsequently made a complaint against Mr Hanley as a result of his behaviour towards her. He was formally charged with contravening the APS Code of Conduct on 3 June 2003. He was suspended from duty pending the outcome of the investigation into his conduct. Mr Hanley said a number of people told him about concerns over the way in which the investigation was being handled. We understand the investigation might have ranged beyond the incident with the OHS officer to include other allegations that were ultimately rejected. Perhaps in response to the criticisms, the original investigating officer was replaced. The inquiry ultimately concluded that Mr Hanley breached the Code of Conduct. He was formally reprimanded and transferred. Mr Hanley says he was unhappy with the outcome but he decided not to do anything about it at the time after talking with a union lawyer.

9.      In the meantime, Mr Hanley had another car accident on his way to work on 14 April 2003. Comcare accepted it was liable for whiplash. The accident was not especially serious. It was certainly not as serious as the earlier car accidents. Comcare also accepted it was liable to pay incapacity payments in respect of ‘muscle spasm neck’ that occurred during a brief period as a consequence of having to make do without the special chair.

10.     Mr Hanley was absent from work for long periods. He says his neck condition is now chronic and it is getting worse. He says he is in constant pain. He wants to be compensated because he says his problems are attributable to his work.

The medical evidence

11.     The applicant did not present any medical evidence at the hearing despite being given ample opportunity to do so. We read reports provided by Drs Lockwood and Leong, who are psychiatrists, and Drs Morris and Steadman, who are orthopaedic surgeons.

12.     The evidence from the orthopaedic surgeons suggests the applicant’s current pain is the product of degenerative change in the neck. That condition may be constitutional, although it may have been caused or aggravated by the car accidents in 1998 and 1999. Both of the orthopaedic surgeons agree that the 2003 accident may have temporarily exacerbated symptoms associated with the degenerative condition but they are confident any effect was temporary. They say the 2003 accident did not change the course of the underlying degenerative condition. We have no reason to dispute that evidence, and we accept it.

13.     Dr Lockwood diagnosed chronic pain syndrome. She said the condition was attributable to the pain associated with the applicant’s neck condition and to workplace stress. Dr Leong agreed pain and workplace stress – specifically, the dispute over the chair and the disciplinary proceedings that followed – was a factor in the development of chronic pain disorder. In his oral evidence, he suggested he was now of the view that the chair incident and its aftermath loomed largest as a source of stress. Both doctors also diagnosed major depression. We accept the applicant experiences chronic pain, which may be attributable to a chronic pain condition, and major depression. We also accept the chronic pain condition in particular is multi-factorial in that it is brought on by pain connected with the neck condition and workplace stress, including stress associated with the dispute over the chair and the subsequent disciplinary proceedings.

14.     We note several of the doctors expressed concern over Mr Hanley’s consumption of large amounts of pain medication. Drs Morris, Lockwood and Leong referred to an opiate addiction. That is a concern, not least because it is well known that the consumption of opiate-based pain killers can actually exacerbate headaches.

The legislation

15. The applicant is seeking compensation under ss 16 and 19 of the Act in respect of his condition. Comcare says his claim must fail for several reasons. Mr Dube, for Comcare, began by referring to s 48 of the Act. In summary, that section says an employee who might otherwise be entitled to compensation under this Act in respect of an injury may not recover compensation from the employer if the employee recovers damages in respect of the injury from someone else. That section applies here: the insurers who paid damages effectively assumed responsibility for any liability that arose out of the car accidents in 1998 and 1998. They presumably discharged their responsibility by making a payment of money to Mr Hanley. To the extent that his neck condition is attributable to (or was aggravated by) those accidents, Mr Hanley is precluded from further compensation under the Act by reason of s 48.

16.     We accept the uncontested medical evidence that the 2003 motor vehicle accident caused, at most, a temporary aggravation to the neck condition. The course of the worsening degenerative condition was not changed by that event. It follows there is no right to ongoing compensation arising out of the 2003 accident.

17.     It only remains to consider whether the chronic pain syndrome can be attributable to employment. Taking the evidence at its most favourable, the condition developed for a number of reasons that included the pain which flowed from:

· the 1998 and 1999 accidents (which is not compensable by reason of s 48), and

·      workplace stress associated with problems over the chair and disciplinary proceedings.

18. While conflict in the workplace might be compensable under the Act in some circumstances, s 4(1) says (or, more accurately, the sub-section said before the Act was amended) that an injury, disease or aggravation that was “a result of reasonable disciplinary action taken against the employer” will not be considered to be an “injury” for the purposes of the Act. The Full Federal Court confirmed in Hart v Comcare [2005] FCAFC 16 that if disciplinary proceedings made a contribution to the onset of the condition, the definition in s 4(1) is satisfied and the condition ceases to be regarded as an injury. It does not matter that there might be other “legitimate” or non-excluded factors that also make a contribution to the onset of the condition: per Branson, Conti and Allsop JJ at [22].

19.     If we are satisfied the disciplinary proceedings were reasonable, Mr Hanley’s claim cannot succeed because we accept they made a contribution (if not the only contribution) to the onset or aggravation of his neck condition and chronic pain syndrome.

20.     Mr Hanley raised some questions about the investigative process. While he expressed his dissatisfaction with the way in which the proceedings were conducted and with the outcome, he agreed he did not appeal or otherwise contest the outcome after taking legal advice. We were not provided with any other evidence that would justify us in concluding there was a problem with proceedings that were otherwise regular on their face. We do not think there was anything unreasonable about the decision to commence proceedings given the conduct that Mr Hanley acknowledged. In those circumstances, we accept the disciplinary proceedings were reasonable.

Conclusion

21.     The decision under review must be affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr G J Maynard, Member.

Signed: .............[Sgd]..........................................................
  Associate

Date of Hearing  28 January 2010

Date of Decision  22 February 2010
Applicant  Self-represented
Counsel for the Respondent     Mr Ben Dube
  Mr Phil Nolan
Solicitor for the Respondent     SPARKE HELMORE