Hopper and Comcare - [2001] AATA 53

DECISION AND REASONS FOR DECISION [2001] AATA 53

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/88

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ALVIN HOPPER
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member Dr Michael Miller, AO, Member

Date31 January 2001
PlaceCanberra

Decision      The tribunal sets aside the decision under review and in substitution therefor decides that the applicant suffers a compensable aggravation to his cervical spondylosis causing right-sided neck, shoulder and arm pain.
  .....................(Sgd).....................
  Pamela Burton
  Senior Member
CATCHWORDS
COMPENSATION – aggravation injury – pre-existing degenerative condition – aggravated by non-compensable injury – whether use of computer in employment contributed to further aggravation
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
CASES
Comcare v Fyfe [1999] FCA 1368
Commonwealth v Beattie (1981) 35 ALR 369
Fyfe v Comcare [2000] AATA 769

REASONS FOR DECISION

31 January 2001 Pamela Burton, Senior Member Dr Michael Miller, AO, Member

This is an application by Mr Alvin Hopper (the "applicant") for review of a decision made by Comcare (the "respondent"), on 8 March 2000. That decision affirmed a decision of the respondent which disallowed the applicant's claims for neck sprain and sprain of his shoulder and upper arm, which the applicant alleges are aggravations of a previous non-compensable injury. The respondent found that the injuries alleged by the applicant were not work-related.
The hearing was held over two days on 18 and 19 December 2000. Mr Graeme Lunney represented the applicant and Ms Lorraine Gabriel represented the respondent. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and a number of medical reports and clinical notes were admitted into evidence. The applicant gave evidence in person, and telephone evidence was given by Dr David Batagol, the applicant's general practitioner, Dr Garth Eaton, occupational physician, Ms Jacqui Barker, physiotherapist, Mr John Clifford, the applicant's work supervisor and Dr J M Matheson, neurosurgeon.
The issue
The issue is whether the applicant's conditions of work have aggravated a pre-existing degenerative disease of his cervical and upper thoracic spine, which had previously been aggravated in May 1988 and 19 September 1999 by two motor vehicle accidents. The 1988 motor vehicle accident occurred in the course of the applicant's employment (T5, p.11), but was the subject of a common law award of damages and is no longer compensable. The 1999 accident was not work-related and is not compensable. Both parties agree that the applicant is suffering from a degenerative condition of the spine. The degenerative disease was asymptomatic prior to the 1988 accident.
The applicant contends that the two motor vehicle accidents aggravated his pre-existing underlying degenerative condition. In relation to the 1988 motor vehicle accident, he contends that the aggravation settled following treatment. The respondent accepts this. In relation to the second accident, the applicant acknowledges that it aggravated his condition and contends that his employment further contributed to his degenerative condition. He contends that he suffers an overuse injury superimposed on and further aggravating his degenerative…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hopper and Comcare

Details

AGLC: Hopper and Comcare [2001] AATA 53
Case: [2001] AATA 53
Decision Date: 31 January 2001

CaseChat Overview and Summary

In the matter of Hopper and Comcare, the applicant, Hopper, sought to have his aggravation of a pre-existing degenerative condition recognised as a compensable injury under the applicable Australian legislation. The case was heard by the Administrative Appeals Tribunal (AAT) and subsequently reviewed by the Federal Court. The primary issue before the tribunal was whether the applicant's aggravation of his pre-existing degenerative condition was caused by his employment, specifically his computer work, or by the motor vehicle accident he had in 1999.

The tribunal found that the applicant's condition had been aggravated by his work, particularly the use of a computer. This conclusion was based on the evidence provided by Dr Batagol, the applicant's general practitioner, who stated that the applicant's job, which involved extensive computer work, had caused significant aggravation of his neck problems. The tribunal also considered the applicant's own evidence that the transition to a new computer system had increased his stress levels, contributing to his condition. The tribunal was satisfied that the aggravation was ongoing and constituted a distinct injury, rather than a temporary flare-up.

The tribunal set aside the decision under review and in its place determined that the applicant's cervical spondylosis causing right-sided neck, shoulder, and arm pain was a compensable aggravation. This decision was based on the applicant's evidence, Dr Batagol's evidence, and the reports of other medical professionals. The tribunal found that the applicant's working conditions had contributed to the aggravation of his pre-existing degenerative disease in his cervical spine. The tribunal's decision was certified as a true copy by the Associate, James Enderbury, on 31 January 2001.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In relation to the applicant's psychological state, Mr Clifford recalled that the applicant looked "down" at times in May and June of 2000, but was more "buoyant" after that. He could not recall any specific event at work which could account for the applicant feeling "down". However, the applicant's evidence was that the transition to a new computer system in his workplace had contributed to his level of stress, as it was a "bad system which disrupted the office". Mr Clifford confirmed that the transition was a "particularly frustrating one for everyone" (Exhibit H, p.2). It was an "unhappy process" involving many "corrupt documents" and the unavailability of documents. There were a number of "salvage operations" and it seems clear that the process affected the entire office.The medical evidence Dr Batagol, the applicant's general practitioner since 1999, provided a number of reports (Exhibit B). In his report of 11 November 1999 Dr Batagol provided a detailed history of the events following the accident of 19 September 1999 including clinical findings and treatment. He expressed the view (p.2) that the applicant's symptoms and disabilities were caused by the 1999 motor vehicle accident, but he acknowledged that the symptoms could be an exacerbation of a pre-existing injury. He opined that the symptoms were probably a combination of muscle spasm and disc disease resulting in nerve root compression, which was causing the parasthesiae in both the applicant's upper limbs. In his report of 23 March 2000 Dr Batagol opined that it was more likely than not that the latest accident in 1999 had exacerbated the previous 1988 accident, and that this had been further exacerbated by his daily computer duties at work. In a letter dated 10 May 2000 to Comcare, Dr Batagol reports on the applicant's complaints of neck pain following a full day's activity on the computer. He said:I am writing to advise that I reviewed… [the applicant] … when he reported a severe flare-up of his neck pain after spending the entire day of the 3rd of May working on the computer, to complete work to a deadline. The pains are consistent with muscle spasm and are clearly related to his computer work, as illustrated by this latest incident.I believe that you are already aware that his current job involves much computer work, both with keyboard and mouse and that has already led to pain in the neck, shoulders and forearms …I think it is almost certain that his job has caused a significant aggravation of his neck problems … In his report of 11 November 1999 Dr Batagol said that the applicant had "developed some right-sided neck pain and stiffness, with associated right arm paraesthesiae." In evidence Dr Batagol said that the fact that the applicant has a new set of symptoms suggested "something new has happened". Under cross-examination, he was questioned at length about the applicant's personal problems including the breakdown of his marriage. It was put to Dr Batagol that this in itself could have aggravated the applicant's condition, to which Dr Batagol agreed this was a possibility. The tribunal asked Dr Batagol whether the "something new" that had happened could have been the 1999 accident. Dr Batagol agreed this was possible but that it could also have been the work-related problems.

Decision

Reasons for decision

The respondent cited the cases of Comcare v Fyfe [1999] FCA 1368) and Commonwealth v Beattie (1981) 35 ALR 369 submitting that the applicant's pain suffered in the course of his computer work is not compensable as it falls within the category of a temporary "flare up". The respondent referred the tribunal to the discussion by the tribunal in Fyfe v Comcare [2000] AATA 769. In that decision the tribunal made it clear that an "aggravation" which is only a "temporary aggravation" and one that causes "no ongoing problems or structural change" is rather a "minor flare up" which temporarily increases pain rather than constituting distinct injury (paras. 57-58). The tribunal is satisfied that the right sided neck, arm and shoulder symptoms from which the applicant currently suffers is an aggravation injury under the Act and not merely a non-compensable "minor flare up". There is sufficient material to support the finding that the aggravation is ongoing. In particular, the tribunal takes into account the applicant's evidence, Dr Batagol's evidence, and the reports of Dr Billett (Exhibit C) and of Dr Eaton (Exhibit D). The tribunal is satisfied that the applicant's conditions at work have contributed to the aggravation of his pre-existing degenerative disease in his cervical spine. Decision The tribunal sets aside the decision under review and in substitution therefor decides that the applicant suffers a compensable aggravation to his cervical spondylosis causing right-sided neck, shoulder and arm pain.I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member and Dr Michael Miller, AO, MemberSigned: James Enderbury ..................................................................................... AssociateDate/s of Hearing 18 and 19 December 2000 Date of Decision 31 January 2001Counsel for the Applicant Graeme Lunney Solicitor for the Applicant Higgins Solicitors Counsel for the Respondent Lorraine Gabriel Solicitor for the Respondent Dibbs Barker Gosling

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.