Hill and Comcare
[2004] AATA 982
•21 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 982
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/1955
GENERAL ADMINISTRATIVE DIVISION ) Re
CHARLES HILL
Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms G Ettinger - Senior Member
Date21 September 2004
PlaceSydney
Decision The Administrative Appeals Tribunal sets aside the decision of Comcare, the Respondent in these proceedings, dated 14 October 2003 which affirmed the decision of Comcare dated 1 August 2003 to deny liability for the compensation claim of the Applicant, Mr Charles Hill pursuant to the Safety Rehabilitation and Compensation Act 1988, and in substitution finds that Comcare is liable for the injuries Mr Hill sustained in a fall on 4 November 2002.
Costs are awarded pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and pursuant to the Tribunal’s Practice Direction.
[Sgd] Ms G Ettinger
Senior Member
CATCHWORDS
Compensation - liability accepted for eye injury during employment – incapacity payments made until retirement of the Applicant – Applicant virtually blind in injured left eye – problems with right eye – fall in 2002 – did it arise out of compensable injury – import of Comcare’s actions in having paid for spectacles – decision set aside – injury arose out of provision of reasonable medical expenses, spectacles.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 4, 5(9), 14, 16 and 67(8)
CASE LAW
Moore v Telstra Corporation Ltd [1998] AATA 115
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Commonwealth Banking Corporation v O’Neill (1988) 9 AAR 170
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
REASONS FOR DECISION
21 September 2004 Ms G Ettinger - Senior Member
1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was that of Comcare, the Respondent in these proceedings, dated 1 August 2003 (T62), which was affirmed by the decision of Comcare dated 14 October 2003 (T64), to deny liability for the compensation claim of the Applicant, Mr Charles Hill, in regard to injuries sustained during a fall on 4 November 2002, claimed to have arisen out of his employment.
2. The Applicant, Mr Charles Hill was represented by Mr J Mrsic of counsel, instructed by T D Kelly & Co, and the Respondent, Comcare, by Mr N Polin of counsel, instructed by Phillips Fox Solicitors.
ISSUES BEFORE THE TRIBUNAL
3. The Tribunal had to decide whether the Respondent must, pursuant to the Safety Rehabilitation and Compensation Act 1988 (“the Act”), accept liability for injuries suffered by Mr Hill as a result of a fall on 4 November 2002.
LEGISLATIVE FRAMEWORK
4. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (“the Act”) in particular sections 4, 14, 5(9) and 16.
5. Section 4 of the Act defines “disease” and “injury” and follows as relevant:
“4. (1) In this Act, unless the contrary intention appears:
...
“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;
…
4.(3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a)
compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b)
it was reasonable for the employee to have obtained that medical treatment in the circumstances.”
6. In section 5(9) of the Act, unless the contrary intention appears:
“A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare, an administering authority, a licensed authority or a licensed corporation has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.”
7. Section 14(1) of the Act provides for compensation in cases of injury as follows;
“14 Compensation for injuries
14(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.”
8. Section 6A of the Act provides for compensation for injury arising out of the course of employment and as an unintended consequence of medical treatment received through the Commonwealth, in the case of members of the Defence Forces. Mr Mrsic submitted that he would not follow up any entitlement of Mr Hill pursuant to section 6A of the Act, in recognition of the fact Mr Hill was not a military member within the terms of the Act.
9. Section 16 of the Act deals with the liability for the Commonwealth to pay medical expenses in connection with a compensable injury. As relevant it follows;
“16. (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.
(2)
Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)
For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.”
EVIDENCE BEFORE THE TRIBUNAL
10. The Tribunal had before it documents (“the T-Documents”), lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act”) as Exhibit R1, and the highlighted parts of a letter of Dr M Delaney, ophthalmic surgeon, dated 18 June 2004, as Exhibit R2. The Applicant’s documents admitted into evidence were the statement of Mr Hill dated 5 April 2004 as Exhibit A1 and a letter of his optometrist, Mr D Stahmer, dated 2 October 2003 as Exhibit A2.
11. Mr Hill gave oral evidence on oath.
12. I moved then to consider the submissions of the parties.
APPLICANT’S SUBMISSIONS
13. Mr Mrsic submitted as follows:
· That liability and causation were to be determined;
· That, but for having lost 95 percent vision in his left eye in 1976, for which liability had been accepted, Mr Hill would not have fallen on 4 November 2002;
· That in a determination dated 4 July 1985 (T40), it was decided that Mr Hill’s “reactive depression and the resultant perceived loss of sight in the right eye and melancholy is sequelae to the loss of sight in the left eye”, and that liability to pay compensation in respect to incapacity for work had been accepted for any periods on and from 14 November 1980.
· That Comcare paid for glasses in November 2002 pursuant to section 4 of the Act, which could be characterised as “medical treatment”, essentially to assist the right eye; Mr Mrsic submitted that the fall and resultant injuries occurred in the course of replacement of an artificial aid, the glasses, and that the glasses were required for Mr Hill to see – one could not divide the eyes, Mr Mrsic submitted. He submitted that Mr Hill fell because he could not see properly.
RESPONDENT’S SUBMISSIONS
14. Mr Polin submitted as follows:
· Linking the fall of 4 November 2002 with the accepted condition was a problem; causation was a problem;
· Mr Hill had lived in the premises in which he fell for a considerable time, and was able to move around; he had learned to manage the disability;
· That the fall was due to the problems with Mr Hill’s left eye, and not his glasses, which cannot assist with the left eye in any case;
· Mr Polin submitted the Respondent was relying on the case of Moore v Telstra Corporation Ltd [1998] AATA 115; the fact that Telstra paid for the glasses was an error, which was irrelevant; the repair of the glasses had not arisen out of Mr Hill’s employment, and accordingly no compensation was payable.
THE TRIBUNAL’S DELIBERATIONS AND CONCLUSIONS
15. I must take into account the evidence, submissions, both oral and written, the case law and legislation to make the correct and preferable decision regarding Mr Hill’s entitlement for compensation, and consider whether the Respondent is liable to pay compensation to Mr Hill with regard to injuries suffered in a fall on 4 November 2002.
16. l put on record that I accepted Mr Hill as a witness of truth, and acknowledge that notwithstanding difficulties in giving evidence, he did so to the best of his ability, whilst acknowledging his memory loss. I put on record also the expression of regret made by Mr Polin on behalf of the Respondent, acknowledging that Mr Hill suffered the fall and its consequences on 4 November 2002.
17. In making the decision, I had to consider the effect of sections 4(1), 4(3), 5(9), and 16 of the Act. Section 4(1) of the Act defines injury and disease. It was not in dispute, and I accepted that Mr Hill has 95 percent loss of vision in his left eye caused by an injury (section 4(1) of the Act), sustained in the course of his employment on 24 August 1976 (T6, T14, Exhibit R2 and other documents).
18. There was no dispute, and I was satisfied that glasses do not assist with Mr Hill with vision in the left eye, (Exhibit R2).
19. Mr Hill received lump sum compensation for permanent impairment of the left eye, (T15), and as Mr Hill was totally incapacitated for work, Comcare paid weekly compensation until the Applicant reached retirement age in 1995.
20. The medical evidence indicates that Mr Hill had trouble with his right eye, and that he sought assessment and medical treatment for that from approximately 1978. At T19, Dr Hughes wrote on 14 November 1980 that he found that notwithstanding Mr Hill’s report that his right eye had deteriorated, he found the right eye “essentially healthy”. At T22, on 14 April 1981, Dr Shetty gave a medical certificate to Mr Hill for two weeks off work for pain the in the right eye and headache. On 23 April 1981, (T23), and at T24, dated 31 April 1981, Dr Shetty again certified the Applicant unfit for work for two further two week periods for the same reason. Referrals and investigations followed (T25,T28,T29,T35,T36). On 1 December 1981, the Medical Officer, at Garden Island reported that Mr Hill was suffering from “blindness in L eye & pain in R eye and headache and will never be able to carry out his duties continuously and efficiently.”
21. Dr Maxwell, a neurologist, stated that he suspected that Mr Hill had had an occipital cortical injury at the time of his accident, with some damage to the visual cortex. He added however that there was no suggestion of this on the CT Scan. (T36, dated 15 January 1985). He added:
“The alternative is that these symptoms are related directly to his retinal detachment though this only involved the left retina. At the time of assessment he was grossly visually disabled and it would seem unlikely that there would be any further improvement in his condition. This dated from the time of his injury and one would have to accept that this is directly related to the nature and extent of his injury. He is severely visually disabled. There is unlikely to be any improvement.”
22. There followed psychiatric examinations and reports, Dr Robbie (T37, dated 15 January 1985, and Dr Wright-Short (T38, 22 January 1985). Dr Robbie opined that Mr Hill had a “significant depression, of a mixed sort, and there is an element of anxiety as well.” He suggested that the depression related to Mr Hill’s circumstances and unemployment, and suggested testing by a psychologist and neurologist to ascertain whether there was also intellectual deterioration. He added that: “It is possible that as his depression lifts there will be an improvement in the vision of his right eye, but I would not expect it.” Dr Wright-Short also diagnosed reactive depression due to the loss of the left eye and opined: “It is quite possible that Mr Hill’s perception of deterioration of function in his right eye and accompanying pain in the eyeball have a psychogenic basis but nevertheless would be quite real for him.”
23. Dr Beaumont, who is an ophthalmic surgeon wrote on 24 January 1985 (T39), that Mr Hill reported troubles with his right eye started in 1977/78. He opined that in his view the Applicant had a large degree of psychological overlay and that the visual loss in both eyes was accentuated by psychological factors.
24. I noted that in a determination dated 4 July 1985 (T40), Comcare decided that Mr Hill’s “reactive depression and the resultant perceived loss of sight in the right eye and melancholy is sequelae to the loss of sight in the left eye”, and that liability to pay compensation in respect to incapacity for work had been accepted for any periods on and from 14 November 1980. I noted also that this was contradicted in an undated determination of Comcare (T46), likely to have been dated mid-May 1999, (see T47), where it was stated that in relation to Mr Hill’s reactive depression:
“Liability has never been accepted in relation to this condition.
You were first diagnosed with reactive depression in January 1985. … I accept that the medical evidence supports on the balance of probabilities that you suffer from a psychiatric condition to which your employment with the Commonwealth has contributed to in a material way…. Dr Burkett, psychiatrist, anticipated an 80% recovery in your psychiatric condition. We consider that it is not currently possible to assess the degree of permanent impairment cause (sic) by your psychiatric condition at this stage …”
25. I noted further that the officer in that same determination, referred to muscular (sic) degeneration of the right eye, referred to the opinions of ophthalmic surgeons Hann and Vandeleur, and stated that liability (for permanent impairment), had not been accepted for that condition. The officer then stated:
“On the balance of probabilities, we find that your right eye condition cannot be said to have been caused, aggravated or accelerated by your employment with the Commonwealth.
Accordingly, I determine that you have no entitlement to permanent impairment compensation in respect of “complete loss of sight in the left eye, continuing deterioration of sight in the right eye and reactive depression.”
26. I understood the decision at T46, referred to above to be in relation to a claim for permanent impairment, with which I am not concerned in the present case. Accordingly, I have continued here to consider whether the Respondent has liability in relation to Mr Hill’s injuries sustained on 4 November 2002.
27. Mr Hill’s evidence which I accepted, was that on 7 October 2002, he went to his optometrist in regard to adjustment of his glasses which were in need of repair or replacement, and were slipping down his nose. He told me that the optometrist had been too busy to do anything about them on that day, but was arranging for two pairs of new glasses, for reading, and for general use (which he in fact collected on 7 December 2002). Comcare has also paid for medical treatment, and glasses on at least two occasions including the most recent, in late 2002 (Exhibit A2).
28. There was no disagreement about what happened then, which was that Mr Hill fell down the stairs at home in his townhouse, where he has resided since 1997. I noted that in the reviewable decision (T64), the Review Officer discussed Mr Hill having suffered falls over a period of time, “documented from at least 1989”. It was also undisputed that he suffered facial injuries and bilateral colles fractures of the wrists in the fall of 4 November 2002. He claims, as a result, to suffer and facial scarring and disability in the wrists. For my part, apart from feeling extremely sorry for Mr Hill, and accepting his evidence, it was a matter of causation, and whether the consequences of that fall were compensable.
29. At the Hearing the parties agreed that the Applicant’s injuries sustained in the fall on 4 November 2002 were deemed to be injuries arising out of his employment pursuant to section 6A of the Act. However in his closing submissions Mr Mrsic abandoned the reliance on section 6A and submitted that but for the blindness in the Applicant’s left eye, he would not have fallen, and further, that the injuries sustained in the fall were an unintended consequence of the medical treatment, being the provision of glasses for the compensable left eye impairment.
30. I first considered whether Mr Hill was an employee pursuant to the deeming provisions, section 4(3) and 5(9) of the Act, and was satisfied on the basis of document T40 which I have discussed, that liability had been accepted for (reactive depression) and the loss of sight in the right eye arising out of the injury to the left eye. The medical evidence before me did not satisfy me that either the depression or the loss of sight in the right eye had improved over the years and accordingly, although the injury of 4 November 2002 occurred quite some years after Mr Hill ceased employment, I was satisfied that the glasses were required for the right eye, and that the circumstances of the fall on 4 November 2002 were as a result of not being able to see because the glasses had slipped, and Mr Hill has poor vision in the right eye, as well as no vision in the left eye.
31. I have noted also Dr Delaney’s opinion expressed in his report of 18 June 2004 (Exhibit R2), mindful that Dr Delaney reviewed reports but did not examine Mr Hill. Dr Delaney has confirmed the almost complete loss of vision in the left eye which cannot be assisted by the wearing of glasses. He has also acknowledged the difficulties with vision Mr Hill has experienced in his right eye, referring to Dr Beaumont’s opinion that there is a psychological overlay involved. He concluded that: “It is possible that whilst adjusting the spectacles on his face he momentarily blocked the downward vision from one or both eyes causing him to trip or fall. This could have occurred even if the spectacles were in a good state of repair but they are only useful in improving the vision in the right eye.”
32. I considered whether the depression and resultant loss of sight in the right eye which the Applicant suffers, was materially contributed to by his employment. In doing so, I was mindful that the principal cases in which the phrase “material contribution” was interpreted including: Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36; Westgate v Australian Telecommunications Commission (1987) 17 FCR 235; Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173; and Commonwealth Banking Corporation v O’Neill (1988) 9 AAR 170.
33. I was mindful that for Mr Hill’s employment to have materially contributed to his depression and right eye condition, a causal link between the accident which caused the blindness in the left eye and the condition of the right eye would have to be found. I had to be satisfied that the events at work actually caused the condition or its aggravation. Mr Hill’s employment did not need have been the only cause of his condition as claimed, but its role must not have been insignificant.
34. I noted that in the case of Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 a decision made pursuant to the Commonwealth Employees (Compensation) Act 1971, (“the 1971 Act”), it was held that once the causal link was established on the balance of probabilities and was not left in the area of conjecture, "it matters not that the contribution be large or small." The Tribunal in Treloar (supra) had based its reasoning on the High Court’s approach in Federal Broom (supra). I referred to the medical evidence discussed above which supported the depression and deterioration of sight in the right eye arising out of the loss of the left eye and was satisfied of the appropriate contribution in terms of the case law cited above.
35. I also considered the case of Moore (supra) relied on by the Respondent, and distinguished it on the basis that notwithstanding the reviewable decision stating that liability had not been accepted for the right eye, T40 clearly indicated that liability had been accepted for depression and deterioration of sight in the right eye arising out of the left eye injury. Accordingly the glasses which were required to assist sight in the right eye were reasonable medical treatment within the terms of the Act. There was no medical evidence in this case to indicate that Mr Hill’s depression and resultant right eyesight problems had diminished since he left work, or any other time. Accordingly Mr Hill’s fall and injuries on 4 November 2002 arose out of that medical treatment, (the provision of glasses), as the fall and resultant injuries occurred during a time when his glasses required repair or replacement, which was under negotiation at the relevant time.
36. On the basis of the medical evidence as detailed above, I found that that in relation to Mr Hill’s fall and subsequent injuries on 4 November 2002, there was material contribution of the workplace. I was satisfied that the fall was as a result of reasonable medical treatment, the glasses Mr Hill requires for his right eye problems which arose out of his depression and right eye problems associated with the compensable injury to his left eye. I was satisfied that Mr Hill fell because he could not see out of his blind left eye, and because his glasses which he requires for his right eye were in need of repair or replacement, rendering him at the time of the fall, unable to see properly out of his right eye.
37. Accordingly I find that liability must be accepted for the fall of 4 November 2002 and its consequences, and the reviewable decision set aside.
DECISION
38. The Administrative Appeals Tribunal sets aside the decision of Comcare, the Respondent in these proceedings, dated 14 October 2003 which affirmed the decision of Comcare dated 1 August 2003 to deny liability for the compensation claim of the Applicant, Mr Charles Hill pursuant to the Safety Rehabilitation and Compensation Act 1988, and in substitution finds that Comcare is liable for the injuries Mr Hill sustained in a fall on 4 November 2002.
39. Costs are awarded pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and pursuant to the Tribunal’s Practice Direction.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
Signed: …………………………………………...
Associate
Dates of Hearing 23 June 2004
Date of Decision 21 September 2004
Solicitor for the Applicant T D Kelly & Co
Counsel for the Applicant Mr J Mrsic
Counsel for the Respondent Mr N Polin
Solicitor for the Respondent Phillips Fox Solicitors
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