Hook and Comcare (Compensation)
[2020] AATA 1792
•17 June 2020
Hook and Comcare (Compensation) [2020] AATA 1792 (17 June 2020)
Division:GENERAL DIVISION
File Number: 2019/0853
Re:Nathan Hook
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President I. Hanger AM QC
Date:17 June 2020
Place:Brisbane
The Tribunal affirms the decision under review.
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Deputy President I. Hanger AM QC
CATCHWORDS
WORKERS COMPENSATION – cervical spondylosis – whether applicant suffered a disease or an aggravation of a disease for the purposes of section 5B(1)(b) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the disease or aggravation of disease was contributed to in a significant degree by the applicant’s employment – whether the applicant suffered an injury which arose out of or in the course of his employment pursuant to section 5A(1)(c) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5B, 5A, 14
CASES
Szajna v Australian Postal Corporation [2014] FCA 1136
REASONS FOR DECISION
Deputy President I. Hanger AM QC
17 June 2020
BACKGROUND
Mr Hook (“the applicant”) is employed by the Department of Human Services (“DHS”) in a Child Support Smart Centre in Brisbane and has been employed by the DHS since 9 February 2009[1].
[1] Exhibit 1, T Documents, T12, Timeline of Events and Date Specification, pages 68 – 69.
In the course of his work the applicant has to look at more than one computer screen. That involved turning his head from one computer screen to another; making notes and dealing with phone calls.[2] On 13 August 2018[3] he says that he was completing a phone call with a customer and turned his head to the left in order to make notes on a notepad on his desk.[4] He felt pain in his upper arm and neck after turning his head.[5] He was seen by the first-aid officer and taken off manning phones for a couple of hours and then went home on sick leave.[6] On 28 August 2018 he submitted a claim for workers’ compensation for an “injured neck/shoulder and left arm”.[7]
[2] Exhibit 1, T Documents, T12, Job task analysis, page 115 – 119; T19 Request for reconsideration, page 176.
[3] Exhibit 1, T Documents, T12, Injury Report, pages 90 – 91,
[4] Exhibit 1, T Documents, T5, Workers Compensation Claim Form, page 45; T12, Injury Report, page 90.
[5] Ibid.
[6] Exhibit 1, T Documents, T12, Manager’s timeline of events, page 112.
[7] Exhibit 1, T Documents, T5, Workers Compensation Claim Form, page 45.
The issue in dispute is whether the applicant is entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in respect of the incident. Section 14(1) of the Act provides “…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.”
That involves a consideration of the proper diagnosis of the condition; whether the applicant suffered a disease or an aggravation of a disease pursuant to section 5B(1)(b) of the Act; and if so whether that disease or aggravation of disease was contributed to in a significant degree by his employment. It also involves a consideration of the issue as to whether the applicant suffered an injury which arose out of or in the course of his employment pursuant to section 5A(1)(c) of the Act.
MEDICAL EVIDENCE
On 27 August 2018 an MRI was conducted of the applicant’s cervical spine.[8] It showed “spondylotic changes associated with the C5/6 level with mild disc bulge as well as uncovertebral osteophyte formation resulting in foraminal narrowing bilaterally. Impingement of the C6 nerve roots were suspected bilaterally.”[9]
[8] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, Annexure 1
[9] Ibid.
On 10 October 2018 the applicant was examined by Dr Blair Christian, an occupational physician, who reported that in his non-specialist radiologist opinion the MRI films showed that the applicant had a degree of mild spondylosis present with disc bulge at C5/6 and C6/7 leading to some narrowing of the nerve root exits of the left C6 and C7 nerve roots.[10] The doctor expressed the opinion that the applicant’s work tasks did not cause the underlying cervical spondylosis and that the neck and left arm pain was due to an aggravation of the pre-existing spondylosis with disc bulges. He opined that the simple act of turning the head to the left would not ordinarily be expected to lead to cervical spine pain or irritation of the nerve roots in the spine without a degree of pre-existing spondylosis or disc bulge.[11] Turning the head as the applicant described would not be expected to lead to an injury such as a disc extrusion.
[10] Exhibit 1, T Documents, T15, Report of Dr Blair Christian dated 23 October 2018, page 144.
[11] Exhibit 1, T Documents, T15, Report of Dr Blair Christian dated 23 October 2018, page 144.
Dr Simon F. Journeaux is a Consultant Orthopaedic Surgeon. He provided a report dated 24 June 2019[12] and concluded that the applicant suffered from C5/6 cervical spondylosis with a prolapsed intervertebral disc which was pre-existing but asymptomatic.[13] He expressed the opinion that the turning of the head at work caused an exacerbation in symptomatic terms of the degenerative pre-existing pathology and that the only connection with employment is that the applicant happened to be at work at the time.[14]
[12] Exhibit 5, Report of Dr Simon F Journeaux dated 24 June 2019.
[13] Ibid, page 9,
[14] Ibid.
Dr Journeaux provided a supplementary report on 18 July 2019[15] and expressed the opinion that there was no work-related activity that would have had a significant relationship to the onset of the survival spondylotic symptoms.[16]
[15] Exhibit 7, Supplementary Report of Dr Simon F Journeaux dated 18 July 2019.
[16] Ibid, page 3.
On 18 September 2019 Dr Christiaan Mostert, a general practitioner, who saw the applicant immediately after the incident on 13 August 2018 stated that the spondylosis is an obvious pre-existing condition but that he had no evidence of proof that the bulging disc was long-standing and that he could not exclude the possibility that the symptoms experienced were due to any acute event occurring at work when he turned his neck.[17]
[17] Exhibit 10, Report of Dr Christiaan Mostert dated 18 September 2019, page 1.
Dr Journeaux provided another report on 28 November 2019[18] and expressed the opinion that the applicant suffered a disc prolapse/disc protrusion rather than a disc bulge.[19] To the extent that there is a slight inconsistency between the evidence of the two doctors I prefer the evidence of the Orthopaedic Surgeon to the evidence of the general practitioner given their respective training and experience. Dr Journeaux expressed the opinion that the disc prolapse/disc protrusion arose as a result of age-related changes and was not an injury because the mechanism of injury, that is the turning of the head, was not consistent with causing the pathology. The pathology was caused by constitutional changes occurring with age.[20]
[18] Exhibit 9, Report of Dr Simon F Journeaux dated 28 November 2019.
[19] Ibid, page 3.
[20] Exhibit 9, Report of Dr Simon F Journeaux dated 28 November 2019, page 3.
THE LEGISLATION
The applicant contends that the disc prolapse was an injury as defined in section 5A(1)(b) of the Act. In his submissions, the Applicant states “the pinched nerve was a result of a bulging disc. There was an injury, a rehabilitation, and a resolving of the injury. This is separate to the pre-existing condition.”[21]
[21] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions dated 10 March 2020.
Section 5A(1)(b) of the Act defines “injury” as “an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment.”
The definition of “injury” requires it to be “other than a disease”. The word “disease” is defined in s5B of the Act.
Section 5B provides:
(1) in this act:
“disease” means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the commonwealth or licensee, the following matters must be taken into account:
(a) the duration of employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
…
(3) In this Act:
“significant degree” means a degree that is substantially more than the material.
The meaning of these sections has been considered in a number of cases and was summarised by Rangiah J in Szajna v Australian Postal Corporation [2014] FCA 1136 at [76] in the following terms:
“What the cases establish is that:
(a) In order to decide whether an employee has sustained an “injury” within the meaning of that word, consideration must be given to the precise evidence on a case by case basis.
(b) If the evidence establishes something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify as such an “injury”.
(c) It is necessary to consider whether the propounded “injury” is distinct from the underlying pathology that constitutes a “disease” that directly or indirectly cause the sudden change to occur.
(d) The question of whether the physiological change or disturbance is the inevitable consequence of the progress of the disease may be relevant in deciding whether there is an “injury”, but it is not itself necessarily determinative.”
FINDINGS
In the present case the applicant was in the unfortunate position of having degenerative changes caused by age which over a period of time resulted in a disc bulge/prolapse. That was not employment related. It was present prior to the event at work on 13 August 2018. The symptoms occurred at work when the applicant turned his head in a normal movement but the extent of work-related involvement was purely temporal. He did not suffer an injury. He suffered from an age-related disease. The disease was not contributed to, to a significant degree, by his employment.
The decision under review is affirmed.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President I. Hanger AM QC.
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Associate
Dated: 17 June 2020
Date of hearing: 29 May 2020 Applicant: Self-represented Counsel for the Respondent: Ms K Slack Solicitors for the Respondent: Sparke Helmore