Gregory and Comcare (Compensation)

[2018] AATA 2075

Gregory and Comcare (Compensation) [2018] AATA 2075 (3 July 2018)

Division:GENERAL DIVISION

File Number(s):      2016/6739

Re:Wayne Gregory

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Ms S Taglieri SC, Member

Dr R Walters, Member

Date:3 July 2018

Place:Hobart

The decision under review is set aside and remitted to the respondent to give effect to these reasons.

................................[sgd]....................................

Ms S Taglieri SC, Member

Catchwords

COMPENSATION – liability for previously accepted injury – entitlement to medical expenses and incapacity payments – whether effects of compensable injury are continuing – whether incapacity and treatment results from the compensable injury – disc prolapse and degenerative changes in lumbar spine – decision under review set aside and remitted.

Legislation

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

Cases

Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533
Australian Telecommunications Commission v Barker [1990] FCA 489
Brackenreg v Comcare [2010] FCA 724; (2010) 187 FCR 209
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Comcare v Power [2015] FCA 1502; (2015) 238 FCR 187
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Re Hocking and Australian Postal Corporation [2002] AATA 963
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Manns and Comcare [2012] AATA 462
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

REASONS FOR DECISION

Ms S Taglieri SC, Member
Dr R Walters, Member

3 July 2018

1. This application concerns a review of a decision of the respondent to cease paying medical expenses and making incapacity payments under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an injury suffered by the applicant on 21 January 1993.

2. The respondent determined that it had no present liability to make incapacity payments or payment of medical expenses by determination dated 23 September 2016. That decision was subsequently affirmed on 25 November 2016 following reconsideration (the reviewable decision).

3. The applicant made an application to this Tribunal on 14 December 2016 seeking a review of the reviewable decision.

4. On 4 to 6 April 2018 inclusive, the Tribunal heard the application for review. At the conclusion of the hearing on 6 April 2018, leave was given to each of the parties to file a written submission in reply to the submissions made by the other party during the hearing. The applicant’s solicitors subsequently advised that they did not wish to make any further submissions, but the respondent filed written submissions dated 20 April 2018.

   LEGAL PRINCIPLES OF RELEVANCE TO REVIEW

5. The Tribunal’s task on review in this case is influenced by the nature of the decision being reviewed. The decision made by the respondent of 25 November 2016 was that the applicant no longer required medical treatment or incapacity payments for the symptoms resulting from the injury of 21 January 1993. The decision does not dispute a liability for the original injury, which was characterised as a L5-S1 disc prolapse.[1] Rather it denies that there is a need for treatment and incapacity as a result of the 21 January 1993 injury.

   [1] See T71 & T137.

6. The ultimate issue for the Tribunal is whether the respondent’s decision described above was correct or preferable. That involves deciding on all the evidence before it, whether the applicant was still suffering from the effects of the L5-S1 disc prolapse injury which occurred on 21 January 1993. If so, then the Tribunal is also required to determine if the injury and its effects rendered the applicant incapacitated to some degree and requiring medical treatment.

7. Some established principles of law have been applied to guide the Tribunal in its task on review. They are as follows:

   (a)The standard of proof or satisfaction is on the balance of probabilities.[2]

   (b)There is no strict onus of proof imposed on one party or the other, but where the respondent by its determination has disturbed the status quo, it is required to persuade the Tribunal to a comfortable level of satisfaction that the status quo should be disturbed.[3]

   (c)Whether the applicant still suffered from the compensable injury, being an L5-S1 disc prolapse, and whether that injury caused incapacity or a need for treatment are to be determined according to the common sense chain of causation principles.[4]

   (d)Where an injury causes fluctuating incapacity due to variable symptoms, this alone does not deny existence of a continuing condition or entitlement to compensation.[5]

   [2] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 which has been followed in many Tribunal cases, such as Manns v Comcare [2012] AATA 462.

   [3] See Australian Telecommunications Commission v Barker [1990] FCA 489, [8]; Brackenreg v Comcare [2010] FCA 724; (2010) 187 FCR 209; Re Hocking and Australian Postal Corporation [2002] AATA 963; and Comcare v Power [2015] FCA 1502; (2015) 238 FCR 187.

   [4] See, eg, Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1, 6; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516; and Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29, 33.

   [5] See Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533; and Re Hocking and Australian Postal Corporation [2002] AATA 963.

   MATERIALS BEFORE THE TRIBUNAL

8. During the course of the hearing the Tribunal received the T documents into evidence in their totality. In addition, the applicant gave oral evidence and was cross-examined. Three medical experts were called by the parties to give evidence. The applicant relied on Mr Thomas Kossmann, an orthopaedic surgeon. The respondent relied on Dr Alison Drewry, a consultant occupational physician, and Dr Thirayan Muthu, a consultant neurosurgeon. There was no challenge to the expertise of either Mr Kossmann or Dr Muthu, however the applicant’s counsel challenged Dr Drewry in relation to her qualifications and relevant experience during cross-examination. The views of the expert witnesses are discussed below in these reasons.

9. The Tribunal also received numerous documents that had been summonsed, including the following:

   ·the applicant’s general practitioner records from Eastern Shore Doctors;[6]

   ·records from Qantas comprising a payslip report covering the period 17 September 1996 to 19 June 2007, and leave records for the period 1988 to 2006;[7]

   ·records produced by the applicant’s previous employers;[8] and

   ·a schedule of payments from Comcare for the period 21 January 1993 to 30 June 2016.[9]

   [6] Exhibit A1.

   [7] Exhibit R1.

   [8] Exhibit R2.

   [9] Exhibit R5.

10. When the expert witnesses gave evidence, reports they had prepared concerning the applicant’s injury and condition were tendered together with various journal articles and emails, being the following:

    ·an abridged curriculum vitae for Mr Kossmann;[10]

    ·Mr Kossmann’s amended report dated 10 May 2017;[11]

    ·Mr Kossmann’s supplementary report dated 28 March 2018;[12]

    ·a journal article from The New Zealand Medical Journal dated 29 July 2011 and entitled ‘The “Twins Study” and the misunderstanding of epidemiology that clouds occupational associations and low back disorder’;[13]

    ·reports of Dr Drewry dated 16 December 2017 and 25 January 2018, an email from Dr Drewry to the respondent’s solicitors sent on 3 April 2018, and a curriculum vitae;[14] and

    ·a report of Dr Muthu dated 12 March 2018 and an email from Dr Muthu to the respondent’s solicitors sent on 4 April 2018.[15]

    [10] Exhibit A2.

    [11] Exhibit A3.

    [12] Exhibit A4.

    [13] Exhibit A5.

    [14] Exhibit R3.

    [15] Exhibit R6.

    MATTERS OF CONSENSUS BETWEEN THE PARTIES

11. The statements of facts, issues and contentions filed by each party demonstrate that the respondent accepted that the applicant had suffered an injury to his lower back on 21 January 1993 when manipulating a loaded container of fish within the hold of an aircraft. At this time a container had become jammed and the applicant attempted to manually free it from the jam and in doing so suffered the back injury.[16] During the hearing the respondent did not challenge the proposition that the applicant had suffered an injury to his lower back on 21 January 1993, nor did it seriously challenge that the nature of that injury involved a disc prolapse at L5-S1.

    [16] See respondent’s concession of facts subject to limitations at [5] of its statement of facts, issues and contentions dated 13 November 2017.

12. It was also common ground that following the injury, the applicant had a period of time away from work but then participated in a return to work program and returned to pre-injury duties by the time of the closure of his rehabilitation program on 8 November 1993.[17] By this time, the applicant’s vulnerability to further low back symptoms because of the L5-S1 disc prolapse was noted and comment was made that the applicant would ‘probably continue to have some back pain at times during his employment, and care must be taken at all times with regard to his posture when performing manual tasks.’[18]

    [17] T29.

    [18] T29, p 44.

13. It was also common ground that after return to work in November 1993, the applicant had other episodes of low back pain however there was contention about whether these episodes were the result of the injury on 21 January 1993 or ‘new’ and separate injuries.

    HISTORICAL COURSE FOLLOWING INJURY ON 21 JANUARY 1993

14. The evidence revealed that there was a relapse in back symptoms on 29 June 1995 and the applicant was certified as fit for light duties.[19] The respondent had the applicant assessed by an orthopaedic surgeon following this relapse. That surgeon, Dr Graeme Doig, accepted that the disc prolapse at L5-S1 in January 1993 had caused slight degenerative change in the lumbar spine and because of this, the applicant experienced exacerbations of symptoms intermittently. Dr Doig opined that incapacity in 1995 was related to the original injury of 21 January 1993. He forecast that there may be occasional days of incapacity into the future.[20]

    [19] T30, p 45.

    [20] T33, p 51.

15. The applicant again resumed a return to work and rehabilitation program following the relapse in June 1995. He was assessed by another orthopaedic surgeon, Mr Colin Hooker, at the request of the respondent. Mr Hooker also accepted the ongoing symptoms at that time were related to the January 1993 injury. He too forecast the possibility of the prolapse of the lumbar disc being symptomatic in the future.[21]

    [21] T49, pp 77-78.

16. The rehabilitation and return to work program continued and by January 1996, the applicant had again returned to his pre-injury duties. At the time, his general practitioner, Dr Ross, wrote to the respondent identifying that the applicant was managing his low back symptoms utilising an exercise program but that from time-to-time he would suffer muscle spasm and back pain requiring physiotherapy.[22] These symptoms and the management of them were regarded as consistent with the ongoing effects of the L5-S1 lumbar disc protrusion, notwithstanding the applicant’s return to pre-injury duties.

    [22] T56, pp 85-86.

17. On 16 February 1996 the applicant was still certified as fit for selected work with limitations, despite return to pre-injury duties and hours in January.[23] The comment made by Dr Ross on the medical certificate was full duties with discretion to ‘hold back if he feels necessary’. Again this was indicative of the presence of some continuing vulnerability due to the L5-S1 disc injury suffered in 1993 and its effects.

    [23] T57, p 87.

18. The various documents tendered in evidence disclosed that the applicant apparently continued in his pre-injury duties and hours, self-managing any symptoms he experienced periodically in his lumbar spine until a further relapse on 22 September 2003. At this time, he reported experiencing low back pain while performing his usual duties unloading an aircraft.[24]

    [24] T65, p 96.

19. Based on medical advice, the applicant attributed his condition in September 2003 to his original injury. That advice plainly was given by Dr Cross, the general practitioner, given the contents of his report to the respondent dated 27 February 2004.[25] Dr Cross opined that the applicant had experienced a closed period of incapacity which he described as ‘inevitable’ as a consequence of his disc injury some years ago.[26]

    [25] T69, p 104.

    [26] T69, p 104 at [11].

20. By determination of 18 March 2004,[27] the respondent accepted that the applicant’s back condition after 2003 and incapacity resulting from it was the result of the original injury in January 1993 and it recommenced payments of compensation.

    [27] T71, pp 108-9.

21. After this, compensation continued to be paid at various times and to various degrees even after the applicant was effectively retrenched from Qantas and later secured alternative employment in varying capacities in the security industry.

22. By 2016 the applicant was being treated by Dr Ian Readett at Shoreline Doctors Surgery. The respondent requested a medical report in respect of the applicant’s condition.[28] Dr Readett responded on 29 May 2016 indicating that the applicant had a history of chronic intermittent lower back pain with occasional tingling sensation in his right foot.[29] There is reference to the symptoms first occurring in 1991 but the description of the injury event is consistent with the injury on 21 January 1993 and most likely is simply a clerical error. Dr Readett, on examination in 2016, identified objective signs of reduced lower back extension, lateral flexion and rotation, and attributed this to chronic intermittent lower back pain related to the disc derangement. He considered that there needed to be a restriction on lifting but that the applicant was fit for full-time work and no specific treatment would be required.

    [28] T129, pp 220-223.

    [29] T130, pp 224-225.

23. The respondent then sought an opinion from Dr Drewry, a consultant occupational physician, and her views (not set out in full but which are referred to at T132 and Exhibit R3) influenced the respondent to determine that it did not have liability to pay compensation, either for incapacity payments or treatment expenses. It is sufficient to identify that the effect of Dr Drewry’s opinion is that:

    ·any symptoms the applicant experienced in the lumbar spine are no longer causally related to the injury in 1993 but instead are due to the natural progression of an underlying condition said to be constitutional, lumbar disc degeneration;[30] and

    ·the applicant did not require treatment or rehabilitation and that he had capacity for full-time employment in a light/medium role appropriate to his skills and training.[31]

    [30] T132, p 234 in answer to Question 3.

    [31] T132, p 236.

    OPPOSING CONTENTIONS OF THE PARTIES

24. The respondent effectively contended that the applicant’s current lumbar spine condition was not the result of any compensable injury for which he had claimed compensation. It appeared to put its case on two basic premises. First, that since the original prolapse at L5-S1 in 1993, the normal aging process and the congenital or genetic effects of lumbar disc degeneration had come into play and overridden the significance of the 1993 injury with respect to the chain of causation for the current condition of the applicant. Second, that notwithstanding that the respondent was liable for payments of incapacity and medical expenses in respect of the applicant’s injury in 1993, it no longer was liable due to a break in the chain of causation due to ‘new injury’ occurring on any of 29 June 1995, 22 September 2003 or 15 April 2004.

25. The respondent’s contention at the hearing was in contradiction to the earlier determination of 18 March 2004 and the continuation of payment of compensation.

26. The applicant conversely contended that the applicant suffered an injury simple on 23 January 1993, namely a lumbar disc prolapse at L5-S1, and that the effects of that injury have prevailed ever since to varying degrees. He maintained that the relevance of the L5-S1 disc prolapse remained an operative factor contributing to the symptoms and incapacity from time to time. This being the case although there may be other contributing factors of relevance.

    EVALUATION OF EVIDENCE BEFORE THE TRIBUNAL

27. The applicant’s evidence was clear and straightforward. There was no suggestion of exaggeration and appropriate concessions in respect of degree of symptoms, need for treatment and extent of incapacity for work were properly made throughout his evidence.

28. The Tribunal members were impressed by the applicant’s candour and accepted his evidence in its totality.

29. To the extent that the applicant accepted that his symptoms were experienced periodically, the Tribunal is of the view that this evidence must be taken in the context of the applicant’s evidence in totality. Namely that he avoids activities prone or likely to increase symptoms and manages his back condition with a home exercise program and prescribed medication.[32] He also took Panadol, used heatpacks and lay on the floor if he felt the symptoms coming on. It was also clear that the applicant had developed a routine of managing his posture, limited some activities, used daily pacing, resting and using a spa to avoid experiencing continuous symptoms. Despite this, there were symptoms of pain to varying degrees.

    [32] Di-Gesic and panadeine forte.

    Evidence of Mr Kossmann

30. The Tribunal noted that the opinion of Mr Kossmann was largely consistent with that of other orthopaedic specialists who had examined the applicant in the past. He considered that the applicant had suffered an L5-S1 disc prolapse on 21 January 1993 in the workplace event. This occurred in the context of a prior injury that had rendered his lumbar spine vulnerable and as a consequence of the disc prolapse, the applicant has been left with discogenic back pain from disc space narrowing at L5-S1 and changes to the disc and facet joints surrounding the prolapsed disc.

31. Mr Kossmann was of the opinion that the changes shown in more recent imaging studies were consistent with progressive degeneration significantly contributed to by the discrete lumbar disc protrusion on 21 January 1993. He described the injury event which was the subject of the claim for compensation and the proceedings before the Tribunal as a ‘severe aggravation, acceleration and exacerbation of [the applicant’s] lumbar spine condition’ and noted that this had been diagnosed as a L5-S1 disc prolapse. Under cross-examination by counsel for the respondent Mr Kossmann essentially maintained his views but made proper concessions in relation to the contributing effects of factors other than the disc prolapse injury to the level of degeneration present on the MRI imaging in 2016.

32. The Tribunal does not regard the evidence of concessions as an inconsistency as asserted by the respondent. Rather it is a proper concession by the expert that there was not a single or sole cause for the applicant’s radiologically-detectable pathology in 2016. Despite this, Mr Kossmann maintained consistently his view that the disc prolapse remained an important material contributing factor to the progressive accelerated degeneration that it invoked and the related incapacity since.

    Evidence of Dr Drewry

33. The Tribunal formed the view on the basis of Dr Drewry’s evidence that her clinical experience in respect of spinal injuries was not as well-developed as Mr Kossmann and Dr Muthu. Her responses to questions posed by counsel and the Tribunal frequently were referenced in the context of theory and medical literature.

34. While Dr Drewry accepted that suffering the disc prolapse at L5-S1 in January 1993 was a contributing factor to the development and extent of degenerative changes in the lumbar spine of the applicant in 2016, she was not able to convincingly persuade the Tribunal that other contributing factors, which were acknowledged by other experts, had become of greater significance or collectively were of greater significance to render nugatory the effect of continuing material contribution by the L5-S1 disc prolapse.

1. The Tribunal rejects the ultimate views of Dr Drewry and prefers that of other experts who gave evidence.

   Evidence of Dr Muthu

2. Like Mr Kossmann, Dr Muthu accepted that the nature and extent of degenerative lumbar spine in 2016 were the result of multiple contributing factors. Furthermore, his evidence was largely consistent with that of Mr Kossmann in relation to the consequential nature of degeneration in the lumbar spine after a disc prolapse. Although Dr Muthu accepted that the disc prolapse was waiting to happen he also accepted that it did in fact occur during the episode of injury on 21 January 1993. He also accepted that the radiological changes were consistent with the symptoms that the applicant had given evidence about which he experienced over time.

3. Dr Muthu agreed that there was an incapacity for heavy work, which the Tribunal interpreted reasonably to be work of the nature the applicant had performed as a baggage handler. He also accepted that the prolapse that occurred in the workplace in 1993 probably accelerated the course of the degenerative process while acknowledging that there were multiple contributing factors to the degenerative changes in the applicant’s lumbar spine by 2016. Dr Muthu also observed that there was no history of a genetic predisposition to degenerative back disease. Although he stated that the applicant’s work as a baggage handler after the initial injury likely contributed to the continuing course of degeneration, he also agreed that once prolapsed, the disc would never totally heal.

   CONCLUSION AS TO CAUSATION

4. Given the evaluation of the evidence above, the Tribunal is satisfied that the injury sustained on 21 January 1993 constituted an injury (not being a disease) within the meaning of s 4 of the Act. Such injury, being most likely an L5-S1 disc prolapse, continued to be a relevant and material contributing factor to the applicant’s lumbar spine condition and the variable incapacity and symptoms it produced over time. The Tribunal is of the view that this remained the case after 2016.

5. The respondent argued that either new injuries or a degenerative condition of the lumbar spine had been suffered and that these, in effect, broke the chain of causation between the compensable injury and incapacity suffered since. As this amounts to an argument that the status quo before the determination under review ought not remain, it was for the respondent to persuade the Tribunal accordingly.[33]

   [33] See reasons at paragraph 7(b) above.

6. There was little compelling evidence placed before the Tribunal by the respondent to support its case. There is evidence of variable and even intermittent symptoms and incapacity since the compensable injury of 21 January 1993. This is entirely consistent with the progressive degenerative changes now evident in imaging. However, as explained by the evidence of Mr Kossman and Dr Muthu, those degenerative changes were in part the result of the prolapsed L5-S1 disc which never ‘healed’, remained vulnerable and itself accelerated the course of degeneration in the lumbar spine which would otherwise have occurred.

7. Regarding the contentions of the respondent that there were new injuries,[34] the Tribunal is not persuaded that there was any new injury. Rather, it is satisfied that the increased lumbar spine symptoms that were experienced after periods of return to work were more likely a manifestation of the normal and expected prognostic course of the original injury in 1993 as identified in the opinions of Dr Ross, Dr Doig and Dr Hooker.

   [34] See paragraph 24 above.

8. Broadly speaking there was a large degree of consistency between the evidence of Dr Muthu and Mr Kossmann. The Tribunal considers that their evidence supports the existence of a continuing causal link between the original injury in 1993 and the applicant’s continuing lumbar spine condition and symptoms. The L5-S1 disc prolapse, once it occurred, never fully ‘healed’ and significantly contributed to an acceleration in the course of the normal degenerative process which would have occurred had the prolapse injury not been sustained.

9. There was no serious challenge to the applicant’s case that he remained partially incapacitated for work. Indeed the experts all agreed as to that following cross-examination. Whether the partial incapacity for work is conducive to entitlement to an incapacity benefit is dependent on what the applicant is able to earn in suitable employment. The applicant has undertaken suitable employment in various security duties but it appears from Exhibit R5[35] that there is likely to be an entitlement to payment of incapacity payments for partial incapacity. However, the quantum of any entitlement to incapacity payments is not the subject of a determination under review and in any event there is no evidence that permits any findings about this. The Tribunal finds that the applicant continues to have a partial incapacity for work as the result of the injury suffered on 21 January 1993.

   [35] Comcare payments list to 22 September 2016.

10. In respect of treatment, the consensus of the medical evidence is that there is no significant treatment required for the compensable injury at this time. However, it is also apparent on the evidence before the Tribunal that the applicant requires conservative management of his symptoms, probably by involving use of prescription and non-prescription medications as required, an exercise program (self-managed) and heatpacks. Preferring the views of Mr Kossman, the Tribunal accepts there is a need for intermittent physiotherapy, hydrotherapy and acupuncture.[36] The Tribunal is of the view that there is a reasonable and necessary need for these modalities of treatment as a result of the injury suffered on 21 January 1993.

    [36] Exhibit A3, p 9.

    DECISION

11. The conclusion of the Tribunal is that the decision under review was not correct and ought to be set aside. The decision is set aside and remitted to the respondent to give effect to these reasons.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member and Dr R Walters, Member

.................................[sgd]..................................

Associate

Dated: 3 July 2018

Date(s) of hearing:	4-6 April 2018
Date final submissions received:	20 April 2018
Counsel for the Applicant:	Mr B Hilliard
Solicitors for the Applicant:	Slater and Gordon
Counsel for the Respondent:	Mr C Hobbs
Solicitors for the Respondent:	Australian Government Solicitor