Health Insurance Commission and Comcare and Wells
[2003] AATA 767
•22 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 767
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/253
GENERAL ADMINISTRATIVE DIVISION ) Re Health Insurance Commission Applicant
And
Comcare
1st Respondent
And
Janine Wells
2nd Respondent
DECISION
Tribunal Mr G A Mowbray Date22 July 2003
PlaceCanberra
Decision For reasons given orally the Tribunal affirms the decision of Comcare dated 1 May 2002.
The Tribunal orders the Applicant to pay the Second Respondent's costs as agreed or taxed.
..................[signed]...................
Member
CATCHWORDS
COMPENSATION – nature of compensable injury – whether compensable injury continues
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19
Comcare v Moon [2003] FCA 569
Re Carson and Telstra Corporation (2001) 33 AAR 351
Lees v Comcare (1999) 29 AAR 350; 56 ALD 84
Australian Postal Corporation v Oudyn [2003] FCA 318
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Commonwealth v Borg (1991) 20 AAR 299n
Comcare v Nichols [1999] FCA 209
Commonwealth v Beattie (1981) 35 ALR 369
Re Hocking and Australian Postal Corporation [2002] AATA 963
Martin v Australian Postal Corporation (1999) 29 AAR 420
Caldipp Pty Ltd t/as Slaven Motors v Delov [2002] FCAFC 352
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1; 144 ALR 510
Migge v Wormald Bros. Industries Ltd [1972] 2 NSWLR 29
Cavell v Repatriation Commission (1988) 9 AAR 534
Adelaide Stevedoring Co. Ltd v Forst (1940) 64 CLR 538
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190
EMI Australia v Bes [1970] 2 NSWR 238
REASONS FOR DECISION
5 August 2003 Mr G A Mowbray History of the Application
1. On 5 November 1998 Janine Wells completed a claim for rehabilitation and compensation for tendonitis in the neck muscles sustained on 17 September 1998. She had been working from home on that day. The condition affected her neck, left arm, left shoulder and left hand. She indicated that she had previously had a neck and left shoulder injury caused by a motor vehicle accident in November 1988 while working for the Department of Treasury, and had made a claim with Comcare in relation to that injury. She was now employed by the Health Insurance Commission.
2. On 12 January 1999 Comcare accepted liability for “neck sprain”. It appears that the description of the accepted condition was later amended to “intervertebral disc disorder – cervical region”, and further amended to “aggravation of intervertebral disc disorder – cervical region”.
3. On 29 October 2001 Comcare determined that on and from 28 September 2001 it was "no longer liable to pay compensation for your claim". The grounds for doing so were that her symptoms related to the 1988 motor vehicle accident. On 14 February 2002 Ms Wells through her solicitor requested a reconsideration of this determination.
4. On 1 May 2002 Comcare revoked the determination of 29 October 2001 and in its place determined that it was liable to pay compensation to Ms Wells pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”). On 28 June 2002 the Tribunal received an application for review of Comcare's decision from Ms Wells' current employer, the Health Insurance Commission.
5. The application was heard on 16-18 July 2003. The Health Insurance Commission (HIC) was represented by Mr Wayne Arthur of counsel, Comcare was represented by Mr Damien O’Donovan of counsel and Ms Wells was represented by Ms Lorraine Walker of counsel. Oral reasons for decision were given on 22 July 2003 affirming the decision under review.
6. On 30 July 2003 the Tribunal received a request for written reasons for the decision from HIC’s legal representative pursuant to 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the oral reasons with appropriate minor editing.
Background
7. Ms Wells, the Second Respondent in these proceedings, was born on 25 July 1963. On 7 November 1988, whilst working on a contract with the Treasury, she was involved in a motor vehicle accident in which her vehicle was hit from behind by another vehicle. The accident occurred on her way to work. She had a period off work and received incapacity benefits.
8. On 17 January 1989 Ms Wells became an employee of the HIC. Whilst undertaking work at home for the HIC on a lap top computer on the kitchen table on 17 September 1998 Ms Wells developed what she described in her Comcare claim as "neck pain - work related. tendinitis in the neck muscles".
9. Having accepted liability for “neck sprain” on 12 January 1999, Comcare later amended the accepted condition, as I have said, to "aggravation of intervertebral disc disorder - cervical region". As a consequence Ms Wells has received worker's compensation by way of medical expenses and incapacity payments. It is Ms Wells' condition flowing from circumstances in about July – September 1998 which is the subject of this application and in particular whether she continues to suffer from her compensable condition.
Legislation
10. The following provisions of the Act are relevant
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
“aggravation” includes acceleration or recurrence.
…
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
…
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…”
“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.
…”
“16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…”
“19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
…”
Evidence
11. The documentary evidence before the Tribunal consisted of documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (“T-documents”) numbered T1 to T161, the HIC’s documents A1 to A16, Comcare’s documents R1 to R5 and Ms Wells’ documents S1 to S4.
12. Oral evidence was received from Ms Wells and the following medical witnesses
· Drs Somasundaram and Sivakumaran, both general practitioners at the same practice formerly attended by Ms Wells
· Drs Newcombe and Blum, both neurosurgeons consulted by Ms Wells for treatment
· Dr Andrews, a neurologist consulted by Ms Wells for treatment
· Dr Schellenberger, a surgeon for Ms Wells
· Dr Brownbill, a consultant neurosurgeon engaged by Comcare
· Dr Whittaker, a consultant rheumatologist engaged by Comcare
· Associate Professor Oakeshott, a consultant specialist in occupational medicine engaged by Comcare
· Dr Olsen, a consultant physician in occupational environmental and medicine engaged by HIC
· Dr Maxwell, a consultant orthopaedic and spinal surgeon engaged by HIC.
Evidence of Ms Wells
13. In oral evidence Ms Wells said that on the day of the 1988 motor vehicle accident, she experienced burning on the left side of her neck and left shoulder. She attended Woden Valley Hospital on that day and saw her GP two days later. For weeks afterwards she experienced headaches. During that period she also had two or three physiotherapy appointments. She had time off work followed by a graduated return to work, but she was not back working full time at Treasury by the time her contract expired in January 1989.
14. In January 1989 she started full time work with HIC. She was still having problems at the time she saw the Commonwealth Medical Officer for examination in June 1989, but she was able to work.
15. In the ensuing years Ms Wells continued to have headaches and shoulder problems and she asked her GPs about the cause. She denied, however, having a continuing stiff neck and her headaches were much less severe than they had been initially after the motor vehicle accident. She had substantial periods pain-free with occasional flare- ups.
16. Ms Wells took some time off for headaches but otherwise used Panadol. Generally her headaches did not interfere with her work. No specific treatment or referral was required within this period as she was coping with her condition. There were years within this period when she had no time off work for headaches. Similarly there were some years where she had no consultations with her GPs related to headaches or shoulder problems.
17. From September 1997 to March 1998 Ms Wells was seconded to the office of the Minister for Health. Here her desk was not set up for computers and she was required to lift lever arch files from the shelves above her. As a consequence, she experienced shoulder problems and recurring headaches.
18. In the period March to September 1998 she used Panadol practically daily, taking between two and six tablets a day. Although she had regular Panadol usage before that she doubted that it was daily. In July 1998 she was the minute taker for a three-day conference. For this she used a laptop computer. She developed a lot of headaches and took Panadol for them.
19. Ms Wells said that prior to 17 September 1998 she was regularly working from about 8 am to 6 or 7 pm. She was coping well, although she acknowledged she was taking Panadol regularly. She was functionally in good shape. She was receiving good reports about her work. She participated in an active lifestyle involving aerobics, netball, swimming and riding a pushbike. She weighed about 50 kilograms and was a size 8.
20. On Thursday 17 September 1998 she was using a laptop computer on her kitchen table, finalising the minutes of the July conference. She began working at about 8 am. During the day she started to get a stiff neck, headaches and shoulder pain and her head started leaning to the right. She took Panadol but continued working. By 6 pm when she finished working she was very sore and it was difficult to rotate her head. That night she could not get comfortable and had the urge to vomit. She eventually slept sitting upright on the lounge with pillows. This was unlike any episode of symptoms that she had experienced before. In evidence she described the pain as excruciating and that she had been in “agony”.
21. The next morning, Friday 18 September 1998, her head was stuck to the right. She attended a physiotherapist who straightened her neck but she was still suffering much pain and limited movement. The stiffness was not removed. Her left shoulder muscles were in spasm and her left forearm was heavy, with a prickly sensation and with pins and needles in her fingers. She did go to work that day and speak to her supervisor but was unsure how long she stayed at work. While she accepted in cross-examination that there was no leave record for this day I note that the original claim form (T5) records the date of return to work as 21 September 1998, the following Monday.
22. In the week commencing Monday 21 September she was on a course rather than performing her usual work. She was at work for the first three and a half days of the week and saw her GP on the Friday. She then took pre-planned long service leave during which she rested. On her return to work the pain came back up to intolerable levels. She stopped work as a result.
23. Ms Wells said that in the next few months she suffered severe and frequent migraine-like headaches, reduced neck rotation, a burning sensation and an altered feeling in the left side of her face. Ms Wells attempted a graduated return to work on a few occasions, but when she increased her hours she would "come crashing down". The pain was too severe and she could not cope.
24. She has had at least one consultation with a medical practitioner every month since September 1998. She has seen a variety of specialists and the problems were much more significant than they had been prior to 1998. She had experienced partial relief from radio frequency lesion treatment by Dr Blum, particularly the second time she had this treatment.
25. Ms Wells said that she has become very teary. She feels she has lost her career. Work was the whole of her life, apart from her husband and children. Initially she suffered frustration at not knowing what was wrong as it was a long time before she was told by doctors that she had a cervical disc problem. She said her emotional problems pre-dated the death of her father and the termination of a pregnancy.
26. She described her current condition as including severe headaches which she suffers on and off as well as more frequent “nagging” headaches that she is able to cope with. With bad headaches she has a creepy feeling on her skull and the left side of her face feels dull or numb. A burning sensation in the left side of her neck is always present. She suffers from a shoulder muscle knot and her left forearm feels tight and heavy as if she has been lifting weights. She has pins and needles in the thumb and the first two fingers of her left hand.
27. She is teary all the time and anxious about going out of the house. Her weight has increased 30 to 40 kilograms and her dress size is now 18. Activities such as reading, reversing the car or turning her head to look at someone will lead to a crick in the neck, a burning sensation and an increase in headaches. She emphasised that the symptoms were quite different to those she had experienced before 1998 and that they had not resolved.
Consideration of Issues and Findings
Issues
28. In final submissions all parties agreed that the essential issue before the Tribunal was whether there has been a change in circumstances such that Ms Wells is no longer entitled to compensation. That is, has Ms Wells' accepted condition described by Comcare as "aggravation of intervertebral disc disorder – cervical region" ceased to have effect.
29. There is no dispute that
· Ms Wells had a car accident in 1988, resulting in time off work whilst she was employed by the Treasury
· in July 1998 Ms Wells attended a conference in Sydney for three days and typed up notes on a laptop computer
· on 17 September 1998 Ms Wells undertook work duties at home to complete the minutes of the July conference. For that she claims she used a laptop computer on her kitchen table from about 8 am to 6 pm with some breaks during the day.
30. It is also pertinent to note that the decision of 12 January 1999 to accept liability, and therefore accept that Ms Wells suffered a work related injury by reason of the circumstances of July – September 1998 and particularly 17 September 1998, is not before the Tribunal. The reviewable decision of 1 May 2002 is that Ms Wells continues to suffer a condition for which Comcare is liable for compensation under the Act. The Tribunal is not empowered to re-open the question whether Ms Wells did in fact suffer a work-related injury as the HIC did not challenge that decision by way of seeking a reconsideration under the Act at the time of the original determination. Rather, it is for the Tribunal to determine whether Ms Wells continues to suffer an ongoing condition traced back to July – September 1998 which is compensable (see Justice Mansfield in Comcare v Moon [2003] FCA 569).
“Cease liability/effects” issues
31. As I have said before, often where “cease liability” or “cease effect” issues arise under the Act there appears to be a misunderstanding of the nature and effect of any such determination and of the statutory provisions relied on. In Re Carson and Telstra Corporation (2001) 33 AAR 351 Deputy President Estcourt stated
“49. It would only be a rare case where a reconsideration of the substantive determination under s.14 that Comcare was liable to pay compensation in accordance with the Act would be warranted…
…
55. Telstra by its determination of 21 February 1995 was not, properly understood, denying those findings implicit in the original determination, it was merely determining that, on the available medical evidence, it was no longer liable for payment of medical expenses or incapacity payments.
56. That is to say, the effect of the determination that “liability in respect of this injury ceased on and from 5 February 1995” was not a decision to “cease liability” altogether or to “cease liability” under s.14, but rather a purported determination to cease the payment of compensation under s.16 and s.19 of the Act.”
32. Implicit support for this approach is found in Lees v Comcare (1999) 29 AAR 350; 56 ALD 84, especially at [34] upon which Deputy President Estcourt relies.
33. More recently Justice Cooper said in Australian Postal Corporation v Oudyn [2003] FCA 318
“30. The decision of the Full Court in Lees makes clear that a decision to accept liability under s 14 of the Act involves no more than acceptance of a liability to pay compensation under the Act in accordance with the provisions of the Act in respect of a particular injury. A decision to accept liability under s 14 of the Act involves findings as to the five elements identified by the Full Court in par [35] of its reasons.
31. The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including s 24. These determinations give substance to the liability “... to pay compensation in accordance with this Act”, provided for in s 14. They do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act. The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated.
32. The power of APC to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees.. A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury. The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14.
33. Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.
34. APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 (FC) at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.”
34. I note that Oudyn is on appeal to the Full Court, but I agree with and adopt these views and those of Deputy President Estcourt. It is clear from these authorities that the 29 October 2001 determination made by Comcare in this matter (subsequently revoked by the reviewable decision) was not, as the reviewable decision supposed, made under section 14 of the Act but under other sections such as 16 (medical expenses) and 19 (incapacity payments).
The burden of persuasion
35. It is neither particularly apt nor appropriate to refer to a common law concept of a burden or onus of proof placed on a particular party in administrative proceedings in the Tribunal. However there has been a line of authority in both the courts and the Tribunal on what has been described as the “burden of persuasion” in these matters.
36. Where the relevant reviewable decision is one concerning the “ceasing” of liability the authorities refer to an obligation on the Tribunal to be satisfied on the balance of probabilities that the particular condition has ceased. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525 Justice O’Connor and Mr Barbour spoke of an obligation to produce material supporting a change in circumstances
“In our view, as it is clear from the statutory intention that the respondent can only reconsider a determination when there has been a change in circumstances, it seems justifiable to expect the respondent to be able to produce material in these proceedings supporting its assertion that the applicant is no longer entitled to compensation. There is no strict burden of proof as such but there must be additional evidence to indicate that there has been such a change in circumstances.”
37. Justice Jenkinson in Commonwealth v Borg (1991) 20 AAR 299n at 307 put it in these terms
“I think that the Act required on its proper construction that the delegate should not make the determination he did make unless he was persuaded that one of the entitling circumstances had on or before 28 July 1988 ceased to exist.”
38. In Comcare v Nichols [1999] FCA 209 Justice Heerey said at [22]
“In the present case, Mrs Nichols was receiving compensation in respect of an injury (RSI) which had been found in 1985 to result in incapacity for work. Comcare contended in 1996 that she no longer suffered from RSI. Comcare therefore had to establish this fact. Perhaps more accurately, it was the Tribunal, as an administrative decision-maker, which had to satisfy itself that this was the case. It was so satisfied.”
39. Nichols is consistent with the earlier authorities and is the approach I will adopt in considering the “cease liability” matter in these proceedings.
A compensable aggravation
40. When and for how long is an aggravation compensable? In Commonwealth v Beattie (1981) 35 ALR 369 Justices Evatt and Sheppard posed the following question at 375
“Can incapacitating pain brought on by activity undertaken in the course of employment constitute an aggravation of a physical injury, notwithstanding that such pain is not brought about by any further pathological change.”
To which they responded at 377
“The Federal Broom case [Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626] is, therefore, subject to the differences in the legislation, an authority which establishes that there may be an exacerbation or an aggravation notwithstanding that there is no change in the underlying pathology. Whether there is an exacerbation or an aggravation in such a case will be a question of fact.”
And at 378
“For present purposes, it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.”
41. In Re Hocking and Australian Postal Corporation [2002] AATA 963 I said the following (emphasis added)
“66. Both counsel sought support from a passage in Australian Postal Corporation v Bessey (2001) 32 AAR 508
“6. It has been well settled by a series of decisions starting from Jordan CJ’s judgment in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 and Casarotto v Australian Postal Commission (1989) 86 ALR 399, that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.
7. In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable so incapacitating the respondent.
8. This would require compensation for the period when the symptoms were operative, but would not, without more, constitute continuing injury. To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continued to have an effect. The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulted from a work related injury (including aggravation) but rather resulted from the underlying condition.”
67. A careful reading of both Justice Gyles’ judgment and the Tribunal decision that he set aside (Re Bessey and Australian Postal Corporation (2000) 60 ALD 529) shows that the error his Honour was correcting was a failure by the Tribunal to make a finding as to whether a work-related aggravation continued to impact upon Mr Bessey’s condition after he ceased the activity of riding motorbikes that was causing the aggravation. The Tribunal had apparently thought its finding that Mr Bessey had a compensable incapacity on the day he ceased riding motorbikes automatically meant that his incapacity after that date continued to be compensable.
68. As is shown by his Honour’s judgment and the cases cited therein, particularly Salisbury and Darling Island, it is necessary for the compensable injury to continue to have an effect for the entitlement to compensation to continue. However I also note that the decision in Salisbury and several of the judgments in Darling Island indicate that the progression of an underlying condition to the point of incapacitating an employee will not cease that person’s entitlement to incapacity so long as the compensable injury still has an effect. In Salisbury Chief Justice Jordan said ((1943) 61 WN (NSW) 87 at 92-93)
“To say that the employment injury merely accelerated the occurrence of a disability which the disease alone would inevitably have produced later on, is to say that it caused disability to occur at a time when it would not otherwise have existed, but that subsequently the disease reached a stage which made it alone sufficient to produce the disability. But assuming that the worker would have been entitled to go on getting compensation if the disease had grown now worse, I cannot see how, consistently with the authorities, it can be held that the fact that the disease did get worse disentitles him to compensation. The question is, not whether the disease has caught up with the effects of the employment injury, but whether the employment injury has ceased to produce disabling effects.”
Having expressly approved the reasoning in Salisbury, Chief Justice Barwick said in Darling Island at 26
“If the resulting incapacity is temporary, and has ceased by the time the award is made, the award will be limited to that period of incapacity. If the incapacity is temporary but continuing at the date of the award, as a rule, the award will be expressed to continue during the incapacity… or the award may simply be made without limitation as to the time… But the question in either case is whether the injury had ceased to cause incapacity.””
42. In Martin v Australian Postal Corporation (1999) 29 AAR 420 Justice Burchett referred to Chief Justice Barwick’s decision in Darling Island
“24. The same problem came under consideration in the High Court of Australia in Darling Island Stevedoring & Lighterage Co Limited v Hankinson (1967) 117 CLR 19. The appeal there involved a worker suffering from a spinal infection which had not disabled him but would, unless treated, in the ordinary course of events have progressed to produce a collapse of vertebrae and incapacity. He suffered at work an injury, aggravation or acceleration of his condition, resulting in total incapacity. The appellant contended, as Barwick CJ said (at 22), that “any aggravation … was of limited duration, that is to say, was limited to that period which would elapse between the date of the collapse of the vertebrae and that time at which in any event the disease of its own course would have caused incapacity.” Barwick CJ pointed out (at 23) that there was “no evidence upon which the time could be established at which total incapacity would have occurred due to the progress of the infection alone”. He said (at 26-27):
An acceleration by work in an employment of a pre-existing disease not itself arising out of or received in the course of the employment becomes in itself an injury within s 9 of the [Workers’ Compensation Act 1926]. … If incapacity in fact results from the acceleration, is this not enough to entitle the worker to an award in the same way or to the same extent as would be the case with any other injury? I have no doubt that it would. If the incapacity it causes ceases, the award will be for that reason terminable. But that incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity. It seems to me nothing to the point that that other cause would have been the pre-existing disease in its own unaided progression. Where the incapacity which results from the acceleration is permanent, in my opinion, the award is not terminable because that incapacity would in any case have been the end result of the pre-existing disease.
It is obvious that this reasoning could equally be applied to the Act which I am concerned [that is, the Safety, Rehabiliation and Compensation Act 1988] which also contains provisions (noted above) bringing an aggravation or acceleration within the statutory concept of injury.” (Emphasis added)
43. More recently in Caldipp Pty Ltd t/as Slaven Motors v Delov [2002] FCAFC 352 Justice Higgins referred to the distinction in Salisbury v Australian Iron and Steel
“48. … In that case, the worker had a progressively worsening cardiac condition, a disease unrelated to his employment. His employment resulted in a disease, not itself disabling, of the lungs. The latter, however, accelerated the progress of the cardiac condition which would, in any event, even absent the lung condition, have become disabling. The inevitability of incapacity for work from another cause does not break the causal link between the compensable incapacity and continuing incapacity for work.” (Emphasis added)
Later Justice Higgins said
“78. In the case of a pre-existing underlying disease, aggravation or exacerbation of it may be compensable if:
(a) the pathology is worsened so that incapacity results; or
(b) the symptoms, whether experienced before or not, are exacerbated so as to result in incapacity for work.”
44. Justice Madgwick said in the same case
“84. It is perhaps surprising, given the amount of case law on the subject, that in 2002 there might still be any room for argument about the legal concepts inherent in the treatment by Australian workers’ compensation laws of incapacity caused by “injuries” comprised of work-related aggravations of diseases unrelated to the work. Yet this case shows that such may be the position.
85. The law, as exemplified by the relevant A.C.T Act, and explained in the cases referred to by Higgins J, seems to me to warrant the following propositions:
(1) If a worker has a disease, goes to work with it, but ceases work because of the disease, incapacity for work on account of the disease alone is not compensable. An example is a worker with the common cold. If he/she sniffles, sneezes, coughs and so on at work and has to go home again on that account, but the work has not intensified the level of actual or potential suffering, there is no aggravation/exacerbation of the disease and the incapacity is not compensable. This is trite.
(2) If, however, the work intensifies the symptoms of the disease and as a result of the intensified symptoms the worker is incapable of working, that is a compensable aggravation/exacerbation of the disease. Again that is trite.
(3) If, after and because of one or more such intensifications of symptoms, the disease is made harder to treat or symptoms are more readily precipitated or the symptoms are worse when they occur or the physical or mental causes of the disease worsen, and inability to perform work is caused by, respectively, such difficulty of treatment, precipitation of symptoms, worsened symptoms or deterioration of pathology, then there has also been a compensable aggravation/exacerbation of the disease. It is important to recognise the significance both of the multiple ways in which a disease might be aggravated by work-related factors and of the requirement that the incapacity be caused by the disease as so aggravated.
(4) However, if there has been no work-related intensification of present suffering or of the ill effects of the disease producing present suffering, there is no compensable aggravation or exacerbation of the disease.” (Emphasis original)
A “common sense” approach
45. On the issue of causation the Full Federal Court said in Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6; 144 ALR 510 at 515
“Whether total incapacity results from an injury is a question of fact. This is no different from the application to a given case of the common law principles of causation in negligence cases: a “common sense” evaluation of the causal chain is required – that evaluation being made in the light of the statutory formula itself.” (Emphasis added, citation omitted)
46. In Migge v Wormald Bros. Industries Ltd [1972] 2 NSWLR 29 Justice Mason, as he then was, said
“It has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of commonsense, rather than scientific or logical theories of causation…
…
The question of causation is essentially one of fact.” (Emphasis added)
Justice Mason’s view was subsequently approved on appeal to the High Court (Migge v Wormald Bros. Industries Ltd (1973) 47 ALJR 236).
47. In another context, Justice Burchett said in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 that the Tribunal's task was
“[T]o make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.” (Emphasis added)
48. This common sense approach is supported by Acting Chief Justice Rich in Adelaide Stevedoring Co. Ltd v Forst (1940) 64 CLR 538 at 563-4
“I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology.. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death? From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort. Be it so.. That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events. If medical knowledge develops strong positive reasons for saying that the lay common-sense presumption is wrong, the courts no doubt, would gladly give effect to this affirmative information. But, while science presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences.” (Emphasis added)
49. Further assistance is provided in Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190. Justice Reynolds, who was in dissent but not on this particular point, said at 194
“Difficulty arises when an expert witness speaks only in terms of possibility in circumstances where it can be seen that he declines to draw the inference which the lay tribunal is invited to draw. It seems to me that the answer to the question which is posed in such cases begins with an understanding of the real content of the medical opinion relied upon. An expression of opinion that a condition could be or might be related to a suggested cause will have different meanings in different contexts. If nothing is known as to the aetiology of a condition or disease, no cause can be excluded as a matter of logic, and so it might be said that any suggested cause might have or could have caused it. In such case the assertion is not in the full sense an expression of expert opinion and has no probative force.
If very little is known of the relevant aetiology, a similar expression of opinion may mean that present scientific knowledge does not exclude the possibility of a causative relationship. If much is known and the knowledge is explained and expounded to the tribunal of fact, an expression of opinion which does not pass beyond possibility may be regarded as a precise and guarded scientific statement which leaves the ultimate question or probability to the tribunal to pronounce upon, having regard to all the facts.”
50. In the same case Justice Mahoney at 200 quoted with approval a passage from the judgement of Chief Justice Herron in EMI Australia v Bes [1970] 2 NSWR 238 at 242
“Medical science may say in individual cases, that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside the area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical evidence denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.”
Following this quotation Justice Mahoney said
“I do not read the Chief Justice to mean that, given a possible cause, the reasoning to its being an actual cause is simply “intuitive” and subject to no limitations. In such a case as the present, the question would be whether the evidence showed the connection between the possible cause and the condition which occurred was sufficiently close to warrant a reasonable mind, faced with the problem of determining the question upon the evidence before it, concluding that the possible was the actual cause.”
Has Ms Wells' 1998 compensable condition resolved
51. Mr Arthur for HIC submitted that Ms Wells continues to suffer from the condition she experienced as a result of the motor vehicle accident in 1988. This condition was aggravated by the incidents and events in 1998 but the aggravation was temporary and lasted no more than two or three months. Any ongoing condition, he submitted, was attributable to the 1988 motor vehicle accident.
52. Mr O'Donovan for Comcare submitted that the motor vehicle accident continued to play a role in Ms Wells' current condition, but this condition was aggravated significantly in 1998 and the aggravation had not resolved and remains the cause for Ms Wells' ongoing incapacity. These submissions were essentially endorsed by Ms Walker for Ms Wells.
53. The medical evidence on the events of July to September 1998, and in particular 17 September 1998, includes the following.
54. Dr Somasundaram noted that Ms Wells had not experienced the reported symptoms before the 1998 events. He did not make a full diagnosis when Ms Wells consulted him in September 1998 but was under the impression she had suffered a soft tissue injury. However he was perplexed by the continuation of her symptoms and therefore referred her to Dr Newcombe. The duration of her symptoms made it unlikely it was simply a soft tissue injury, which would normally resolve. He now thought they could be due to a combination of soft tissue injury and the disc prolapse at C3/4 identified in a MRI scan on 20 July 1999 (T30). He also agreed that a disc herniation could be associated with acute pain.
55. Dr Blum stated that the more severe neck pain and headache experienced by Ms Wells indicated the further deterioration of a damaged disc. A herniation was commonly associated with acute pain. Long periods with her head down or typing could have exacerbated a pre-existing lesion. In this case, it was reasonable to say that prolonged neck flexion was a factor. Dr Blum agreed it was unusual for typing to damage a disc, but if Ms Wells was typing for long periods, this could cause a significant muscle spasm and pain. Although muscular spasm was unlikely to cause a normal disc to prolapse it could worsen an already damaged disc.
56. Dr Brownbill said this was a case of probable aggravation of existing degeneration due to keyboard activities and the use of a laptop, as it involved a posture in a forced position for a long period. It was unlikely that such an incident of itself would cause significant damage to a normal disc, but it was likely to damage an already damaged disc. He pointed also to a psychological reaction to pain. Alternatively it was possible Ms Wells had a facet joint problem and this also would be an aggravation of pre-existing changes.
57. In Dr Whittaker's view there had been a spontaneous protrusion of the C3/4 disc, which was already degenerative, whilst undertaking work duties. But it was not caused by the work duties. In Dr Whittaker's view Ms Wells’ degenerated disc was likely to have herniated anyway. The level of activity required to herniate a disc was in inverse proportion to the level of degeneration. Prolonged neck flexion would not normally cause a disc protrusion. At most, it would be a minor contributing factor. Other general activities were possible causes. For example sport was a more likely cause. In his view identifying the final event that led to herniation was difficult as there may be no “event” at all. However history of acute pain on a specific day was suggestive of a definite event on that day, as was a sudden change in symptoms such as inability to turn one's neck. This could be due to an acute event superimposed on a longstanding pathology. A disc herniation often led to an escalation in symptoms.
58. Dr Newcombe said the events in 1998 precipitated the symptoms for which he saw Ms Wells. These symptoms were associated with a small prolapse of the C3/4 disc. The pain correlated with the C3/4 finding. There had been a further specific aggravation, consisting of an aggravation of a pre-existing spondylosis (which may have troubled Ms Wells from time to time) and the prolapse of the disc. A prolapse could be caused by many things if the antecedent situation exists, but one is bound by the history and the onset of pain. Typing would not normally cause pain by itself but would in special circumstances. A posture associated with typing in a non-ergonomic environment could cause a prolapse. Torticollis (deformed posturing of the neck to one side as experienced by Ms Wells on 17-18 September 1998) had varying causes including disc problems, but he had never seen torticollis caused by spondylosis.
59. Dr Andrews diagnosed a sudden subluxation of the facet joints, presumably caused by activity at the time. He said torticollis could be secondary to a neck problem causing spasm. It could also be caused by diseases of the vertebrae, but he emphasised he was referring to developmental diseases. Typing should not ordinarily cause injury but it depended on ergonomics, repetition, and maintenance of posture. Repetitive rotation of the neck by 10 to 15 degrees would be enough to cause an aggravation, and using a laptop on a kitchen table certainly could be a trigger.
60. Professor Oakeshott found no significant pathological change in the July – September 1998 period. In his view there had been no facet joint or disc injury. The torticollis could have been due to an episode of muscle spasm but this had resolved.
61. Dr Olsen was of the view that the disc protrusion at C3/4 was almost certainly not related to or contributed to by Ms Wells' work including her typing activities in 1998. There was no objective evidence to support such a conclusion. In his view Ms Wells may have had discogenic pain involving the C3/4 level together with referred pain which had resulted in chronic headaches and the other symptoms that she reported. As an alternative she may have had a mechanical derangement of the facet joints at C2/3 and C3/4, also resulting in pain and symptomatology as outlined by her. In his opinion if there was any contribution by the seated posture or any other matter related to her work that contribution was only an immediate contribution, that is a short term presence of pain in a situation where the pain would recur on a continuing basis whether Ms Wells performed the work as described or not.
62. Dr Maxwell considered that on the balance of probabilities the changes in Ms Wells’ cervical spine at the C3/4 level were degenerative. Although the symptoms were increased following the episode in 1998 he did not consider that the pathology in her neck changed significantly. She had aggravated some pre-existing degenerative changes on 17 September but on the balance of probabilities this aggravation would have settled down, from a physical point of view, after two to three months.
63. Dr Schellenberger said that Ms Wells' condition from the motor vehicle accident was aggravated significantly during the six month period of work in the Health Minister's office. In the period from mid-1998 to mid-September 1998, by which time Ms Wells had returned to the HIC, she had an increased management work load including the conference in July and further computer work at home in mid-September completing the report on the conference minutes. Dr Schellenberger was of the opinion that this caused further significant aggravations to Ms Wells' neck, with headaches and left upper shoulder blade pain. Dr Schellenberger was uncertain of the exact pathology. It was possible that the September 1998 incident caused a disc protrusion. Once a disc was damaged, as it appeared had occurred in 1988, it would not take too much for a disc protrusion to occur.
64. Dr Veness, Ms Wells’ treating psychiatrist, was initially to give oral testimony but in the event no party had any questions for him. His reports were in evidence. In his report of 11 February 2003 (Exhibit S4) he concluded
“Janine Wells has been suffering from a chronic pain disorder (cervicobrachial neuropathic pain) since the motor vehicle accident in 1988. She coped by taking increasing quantities of analgesics and reinforcing her personal determination to not only continue working full time but to make a career in the public service. She managed all this until 1998 when an attack of acute torticollis was followed by an increase in the severity of pain and the development of a major depressive illness. Both conditions have dogged her since.
In addition to the depression she has developed an anxiety disorder.”
65. It is clear to me that around July to September 1998, and probably on 17 September 1998, Ms Wells suffered a major aggravation of her pre-existing neck condition. The vast weight of medical evidence suggests that this was a prolapse of the C3/4 disc. This is supported by at least Drs Newcombe, Blum, Brownbill, Somasundaram, Whittaker and perhaps by Drs Schellenberger and Olsen, although Drs Olsen and Whittaker would not attribute the prolapse to work activities. Dr Andrews attributes both the pre-existing condition and the aggravation to a facet joint injury. Dr Maxwell talks of the aggravation being a soft tissue injury in 1998. Professor Oakeshott and Dr Cohen (whose report is Exhibit S2) talk of neuropathic pain.
66. Noting the evidence of Ms Wells, in particular the significant changes in her symptoms pre- and post-September 1998, the change in her attendance at her GP and the decline in her work capacity, and having regard to the authorities to which I have referred to above, the commonsense conclusion is that a significant aggravation occurred in July to September 1998.
67. As to whether that aggravation has resolved, the medical evidence was as follows
· Dr Blum said that the aggravation appears to be permanent. Ms Wells had significant ongoing effects at the time of his last consultation and if the disc had pre-existing damage it was less likely that the aggravation would completely resolve
· Dr Brownbill said that if the pain had continued then it was likely that the aggravation had caused further damage to the disc. Failure to sustain a return to work meant that it was likely that there had been further damage. A continuation of increased symptoms meant an increase in pathology. In his opinion both the motor vehicle accident in 1988 and the 1998 incident continued to operate – the 1998 incident was not responsible for all of Ms Wells’ symptoms but it made a contribution. He referred to the difference between her pre-existing pain level and her current pain level
· Dr Newcombe said that aggravations may resolve but that pain is often ongoing. He had recommended surgery because of the prolonged period without resolution and the severity of the symptoms. He said that whether aggravation is ongoing depends on continuity of pain and whether the pain was intermittent before the aggravation took place. Ongoing pain from the event means pain continues to be related to that event. If there is continuity of pain and incapacity for work is ongoing, on the balance of probabilities there is a relationship to the event that precipitated that pain and incapacity.
· Dr Andrews expressed the opinion that the symptoms had never seemed to have gone away
· Dr Schellenberger said that the neck injury from the motor vehicle accident and the 1998 aggravation had not recovered and, in her view, was not ever expected to fully recover
· Dr Veness found that Ms Wells remained ill from pain, depression and anxiety. Treatment would need to continue indefinitely. He did not expect her to ever return to full time employment
· Dr Somasundaram agreed that the condition had not resolved
· Dr Maxwell considered that the aggravation would have settled “from a physical point of view” after two to three months
· Professor Oakeshott said any aggravation would be temporary
· Dr Olsen refused to accept there was any contribution to Ms Wells’ condition by events in 1998. If there had, it amounted only to "a short term presence of pain".
68. Taking all the evidence, and bearing in mind the authorities to which I have referred above, it is clear to me that Ms Wells continues to suffer from the aggravation of 1998, and to a significant extent. This is not to say that the 1988 motor vehicle accident is not contributing to her symptoms. The majority of medical practitioners considered that accident to be the original cause of Ms Wells’ degenerative C3/4 disc. But whether or not that is the case is not relevant if the 1998 events remain a significant contributor to Ms Wells' ongoing condition.
69. In my view the weight of medical evidence clearly points to the 1998 aggravation still being operative. This includes not only the expert testimony of the various medical practitioners, but also the documentary evidence of the notes from the practice of Drs Somasundaram and Sivakumaran (Exhibit A11) from November 1988 to November 1998, which show a marked increase in Ms Wells’ level of medical consultation and treatment from September 1998. This is strongly supported by the evidence of Ms Wells about her condition, both pre- and post-1998 and up to the present, which was tested in cross-examination but not in any serious way rebutted.
70. All the evidence indicates that the increased symptoms, medical consultation and treatment have continued to the present. As Mr O'Donovan submitted, the medical practitioners who thought the aggravation had ceased provided no convincing explanation of why Ms Wells' symptoms continue at a much higher level than they did prior to 1998. They simply asserted an expectation that any aggravation would have resolved. This expectation was not consistent with Ms Wells’ history.
71. In the final analysis, for HIC to succeed in this application Quinn, Borg and Nichols require that I be satisfied on the balance of probabilities that there has been a change in Ms Wells' circumstances. I cannot be and am not so satisfied. In fact the evidence satisfies me that her condition continues as at today. The reviewable decision must be affirmed.
Conclusions
72. In summary I am satisfied that
· Ms Wells suffered a significant aggravation of her neck condition in July – September 1998
· that condition had not resolved in October 2001 (the time of the primary determination), May 2002 (the time of the reviewable decision) or at today's date.
Decision
73. The Tribunal affirms the reviewable decision of 1 May 2002. Pursuant to section 67(8)(a) of the Act the Tribunal orders the Applicant to pay the costs of the Second Respondent as agreed or taxed.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:
...........[Trevor Mobbs]..........................................
AssociateDates of Hearing 16-18 July 2003
Date of Decision 22 July 2003
Date of Written Reasons 5 August 2003
Counsel for the Applicant Mr Wayne Arthur
Solicitor for the Applicant Ms Rosemarie Sebastian-Pillai, Legal Adviser, Health Insurance Commission
Counsel for the 1st Respondent Mr Damien O'Donovan
Solicitor for the 1st Respondent Ms Rebecca Shelley, Australian Government Solicitor
Counsel for the 2nd Respondent Ms Lorraine Walker
Solicitor for the 2nd Respondent Mr Bill Redpath, Pamela Coward and Associates
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