Keenan and Comcare
[2009] AATA 884
•16 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 884
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4348
GENERAL ADMINISTRATIVE DIVISION ) Re VICKY KEENAN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor R Creyke, Senior Member
Dr M Miller AO, MemberDate16 November 2009
PlaceCanberra
Decision Comcare is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 for Ms Keenan’s ‘disc protrusion’ with a deemed date of injury of 4 October 2007. The matter is remitted to Comcare to calculate the amount of compensation owing to Ms Keenan as a result of this decision.
............................[sgd]........................
Professor R Creyke, Senior Member
CATCHWORDS
COMPENSATION - claimed injury – disease – disc protrusion – neck – bus driving – previous claim – contribution to a significant degree – substantially more than material – decision remitted to Comcare
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5, 5A, 5B, 7, 14, 53
McDonald v Director-General of Social Security (1984) 1 FCR 354
Repatriation Commission v Smith (1987) 15 FCR 327
Sellick v Australian Postal Corporation [2009] FCAFC 146
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Health Insurance Commission v Van Reesch (1996) 45 ALD 302
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Roncevich v Repatriation Commission (2005) 222 CLR 115
Roncevich v Repatriation Commission (2003) 75 ALD 345
Comcare v Amorebieta (1996) 66 FCR 83
Comcare v Sahu-Khan (2007) 156 FCR 536
Comcarev Canute (2005) 148 FCR 232
Re Redmayne and Comcare [1996] AATA 179
REASONS FOR DECISION
16 November 2009 Professor R. Creyke, Senior Member
Dr M. Miller, Member AO
1. Ms Keenan works for the Australian Capital Territory Internal Omnibus Network (ACTION) as a bus driver. On 30 September 2007 she experienced pain in her left shoulder, left arm and back which later transferred to her neck.
2. On 20 December 2007 Ms Keenan lodged a workers’ compensation claim.[1] That claim was rejected on 31 March 2008,[2] a decision which was affirmed on further review on 31 July.[3] Ms Keenan appealed to the Tribunal on 16 September 2008.[4]
[1] T8.
[2] T13.
[3] T16.
[4] T2.
Issues
3. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) provides that an applicant is to be paid compensation if the person has suffered an injury arising out of, or in the course of employment that has resulted in incapacity for work or impairment. The principal issue in Ms Keenan’s case is whether Comcare is liable to pay her compensation under section 14 of the Act. The answer to that issue depends on whether Ms Keenan’s condition was constitutional and/or has been caused or aggravated by her employment.
4. Comcare initially indicated its intention to argue there was no liability because the circumstances relevant to Ms Keenan’s claim came within section 7(7) of the Act, namely, that Ms Keenan had made a ‘wilful and false representation’ that she did not suffer or had not previously suffered from the claimed condition. That intention was abandoned at the hearing, rightly in the Tribunal’s view. Ms Keenan presented as an honest witness, although it was also clear she has poor recollection and was often careless in filling out forms.
Background
5. Ms Keenan commenced work as a bus driver with ACTION in about August 2003. Ms Keenan’s duties initially involved driving a Hino bus for special needs passengers. This make of bus does not have power steering and has a manual transmission. In her shift of 4 hours a day beginning in 2003, and from 2005, for 5 hours a day, Ms Keenan would drive children with disabilities to and from school. She also drove elderly commuters outside school hours, some of whom were wheelchair bound. She was required to lift wheelchairs into the bus and from time to time assist passengers alighting and disembarking.[5]
[5] Exhibit A2.
6. On 4 October 2005, Ms Keenan experienced a slight stiffness in her neck and shoulders.[6] She claimed the stiffness in her neck was due to the fact that on the previous day she had spent a lengthy period scrubbing the roof and sides of her bus. The evidence indicated that from time to time she had previously experienced a ‘stiff neck’; the first occasion in 2002 was prior to her work with ACTION; the second occasion, involving pain in the left arm, was in 2005 while she was employed by ACTION.
[6] Exhibit A1.
7. Following the stiffness in her neck on 4 October 2005, Ms Keenan attended a chiropractor, Dr M Burdeu, on 5 October 2005 who certified her unfit for work for 5 days. She sought treatment from Dr Burdeu on five occasions in October 2005. The condition was diagnosed as ‘cervicothoracic facet joint irritation with associated soft tissue and muscular involvement’. In evidence Ms Keenan said the condition of her neck ‘felt muscular’. Dr Burdeu’s notes indicated ’facet joint sprain at the levels of C1/2, C4/5, C6/7 and T1/2 with paraspinal muscle involvement’.[7] The symptoms abated following chiropractic treatment and Ms Keenan had no more neck problems until 2007.
[7] Exhibit R7.
8. Ms Keenan submitted an Accident/Incident Report to ACTION on 18 October 2005 and made a claim for compensation for ‘neck sprain’.[8] On 23 December 2005, the claim was rejected by Comcare, a decision upheld on reconsideration on 28 June 2006. The reasons for the rejection were principally Ms Keenan’s failure to provide a medical certificate from a legally qualified medical practitioner in support of her claim. Comcare said there was no evidence that Dr Burdeu was a qualified medical practitioner. In any event, the authorised review officer found that there was insufficient evidence that the neck symptoms resulted from Ms Keenan’s employment. In Comcare’s view it was more likely that the symptoms were a continuation of a pre-existing neck condition, unrelated to employment. Ms Keenan did not seek review of the reconsideration decision by the Tribunal.
[8] Exhibit R1.
9. In May 2007, Ms Keenan commenced driving commuter buses. She was driving all models including PR1s, PR2s and PR3s, gas buses, articulated buses and mini buses.[9] At the hearing, Ms Keenan gave evidence that the larger buses, while they had power steering, were otherwise more physically demanding than the Hino buses she was formerly driving. The steering wheel was much larger and was fixed, meaning she had to stretch when going round corners. There was suspension for the seat, but when she went over a sizeable bump, the seat would go up and down but the wheel was fixed, thus stretching her arms. Going over a bump would also jar her arms because often the seat went down to and hit the metal before it started to go up again. Ms Keenan stated that at times this was quite violent and could be uncomfortable.
[9] Exhibit A1.
10. Ms Keenan said she first began to experience a build up of pain in her left shoulder, left arm and back while driving a commuter bus on 30 September 2007. She said on that day she started off as normal, but by the end of that day, her left shoulder ached, she had pins and needles in the left arm and at the end of the shift she had to carry her money bag in her other hand because it was too painful to carry it with her left arm.
11. At the time she was driving a Scania bus. The size of the wheel was slightly smaller than in some of the larger buses, but not significantly so. The suspension was the same. The seat could tilt and be adjusted for someone like Ms Keenan with shorter arms, but the suspension did not prevent jarring when the bus went over a bump.
12. At the hearing, Ms Keenan was asked to compare the pain she had experienced in 2005 with that in 2007. She replied that they were not the same at all. What she experienced in 2007 was completely different from the effects on her neck in 2005: the onset of the pain was different, her level of mobility was different, the intensity of the pain was different, and the long-term effects were different. The pain she first experienced in September 2007 was so acute that she was anxious she would not be able to finish her shift. Nothing like that occurred in 2005. She conceded that the location – the neck – was the same, but likened the distinction to the difference between having a cramp in the leg and breaking a leg.
13. Ms Keenan attended a medical practitioner on 4 October 2007 for treatment for pain in her left shoulder.[10] On 17 October 2007 an x-ray was made and an ultrasound was taken of Ms Keenan’s shoulder.[11] Both found little abnormality.
[10] T14 folio 52.
[11] T6 and T5 respectively.
14. Ms Keenan continued her normal driving duties after the incident. However, although the pain lessened initially, she soon experienced increased pain and stiffness in her neck, pain in the left upper arm, with numbness and tingling in the index and middle fingers. As a consequence, she attended her medical practitioner on 8 December 2007 who certified her unfit to work from 10 – 12 December.[12] She was prescribed analgesics, rest and physiotherapy.
[12] T4 folio 6.
15. Ms Keenan lodged an Accident/Incident Report on 14 December 2007[13] and, on 20 December 2007, a claim for compensation.[14] Ms Keenan remained off work on medical advice from 17 December 2007 until 7 March 2008.[15] From 8 March 2008 she resumed work and now drives commuter buses for between twenty to twenty-five hours a week. She continues to experience pain and stiffness in the neck but the numbness is now confined to her index finger.
[13] T7.
[14] T8.
[15] T4, folios 7-21.
Law
16. Section 14 of the Act provides that a person is to be paid compensation if the person has suffered an injury that has resulted in incapacity for work or impairment. An ‘injury’ is defined expansively to include a ‘disease’:
(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
17. Other relevant sections are 4(1), 5, 5A, 5B, 7(4) and 53. ‘Employee’ is defined in section 5 to include:
(a) a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of … a Territory or under a contract of service’.
‘Injury’ is defined in section 5A(1) to mean:
(a) a disease suffered by an employee; or
(b) 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; 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), that is an aggravation that arose out of, or in the course of, that employment.
‘Disease’ is defined in section 5B:
(1) In this Act:
(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 a licensee, the following matters may be taken into account:
(a) the duration of the 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.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
‘significant degree’ means a degree that is substantially more than material.
Section 4(1) defines ‘ailment’ to mean:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 7, as relevant, states:
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation …
(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
Section 53, as relevant, states:
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury …
18. There is no question that Ms Keenan is employed by the Australian Capital Territory (ACT) Government which for the purposes of the Act is declared to be a Commonwealth authority.[16] ACTION buses are part of the Territory and Municipal Department of the ACT Government. Ms Keenan is also an ‘employee’ since she is 'employed under a law of ... a Territory or under a contract of service'.[17]
[16] By Commonwealth Gazette S252, 1 July 1994, the ACT Public Service was declared to be a 'Commonwealth authority' for the purpose of the Act.
[17] Safety, Rehabilitation and Compensation Act 1988 s 5.
19. Ms Keenan lodged an Accident/Incident Report on 14 December 2007. This is taken to be a notice in writing for the purpose of section 53 of the Act.
20. The principal issue is whether the injury to Ms Keenan’s neck, shoulder and arm in 2007 was caused by events in her workplace. It was accepted by both parties and the Tribunal so finds that Ms Keenan suffered from a C7 disc protrusion or prolapse which has resulted in nerve impingement. At the hearing, there was considerable discussion of the stiffness in her neck which occurred in 2005, with a view to establishing a link between the condition in 2005 and the injury/disease in 2007.
Evidence
2005 injury
21. The evidence connecting Ms Keenan’s stiff neck with her employment was as follows:
·‘[D]iary notes’ kept by the bus attendant, Ms T McCauley, recorded that on 29 September 2005, a Thursday, ‘Vicki, was doing a 3 point turn … got pain in her neck’. The second entry, dated 4 October 2005, recorded ‘Vicki – neck sore, in pain (poor dear)’.[18] A Witness Statement dated 19 October 2006 by Ms McCauley referred to Ms Keenan’s ‘sore neck and sholders’ (sic) which occurred while Ms Keenan was ‘driving’.[19] At that time, Ms Keenan was driving a bus with manual transmission and no power steering.
·Ms Keenan said that on 4 October 2005 she woke up with a slightly stiff neck. The previous day she had cleaned the school bus, a task requiring scrubbing the walls, roof, and floors of the bus. As she said ‘it was not light work’.
·On 5 October 2005, Ms Keenan attended Dr Burdeu, of the Tuggeranong Chiropractic Centre, who provided certificates stating Ms Keenan was not fit to attend work from 10 – 11 October 2005 and then from 12 – 15 October 2005. The report referred to ‘associated muscular involvement’ and noted ‘[a]n initial diagnosis of facet joint sprain at the levels of C1/2, C4/5, C6/7, and T1/2 with paraspinal muscle involvement’.[20]
·In an undated report of Dr Burdeu,[21] referred to in a letter of Ms Keenan dated 17 February 2006, Dr Burdeu stated that Ms Keenan had attended for treatment on 5 October 2005 for an ‘acute cervical injury sustained while driving a bus for the ACTION Bus Company’ and that Ms Keenan had related the injury to an incident five days previously.[22]
·At the hearing Dr Burdeu conceded that his brief contemporaneous notes on 5 October 2005 did not contain any references to bus driving being the cause of the problem.[23] Nor could Ms Keenan recall whether she had mentioned to Dr Burdeu at the time of her consultation that she related the condition to bus driving. She also conceded that she had not mentioned the cleaning of the bus as a reason for her stiff neck in reports prior to July 2009, although as she pointed out at the hearing, it had been mentioned in correspondence at the time, including her letter of 22 January 2006 seeking review following rejection of her claim for neck sprain in 2005.[24] Her claim for worker’s compensation in 2005 also referred to the incident as occurring ‘On my school run in my bus’.[25]
·Dr Burdeu, in evidence at the hearing, agreed that his notes for 22 July 2002, referred to ‘cervical stiffness’, and on 18 October 2004, ‘cervical tension – quite tender and extending into the L arm area’.[26] At the hearing, Ms Keenan could not recollect those instances, although she accepted that in October 2004 she had experienced pain in her left arm. She also accepted that in February 2004, as well as October 2004, she had attended the doctor for pain in her left arm.
[18] Exhibit R3, p3-4.
[19] Witness statement of Ms T McCauley dated 19 October 2005.
[20] Exhibit R7, p5.
[21] At the hearing Dr Burdeu advised the report was written on 8 November 2005.
[22] Exhibit R7, p5.
[23] Exhibit R7, p4.
[24] Letter dated 22 January 2006 from the Applicant to Ms M Jacobs.
[25] Exhibit R2, p6.
[26] Exhibit R7, page 3 and 4 respectively.
2007 injury
22. Medical evidence was provided by Dr D Bornstein, consultant orthopaedic surgeon, Dr R Evans, a physician, Dr C Howse, a sports medicine specialist, and by Dr C McGuiness, Dr S El Sherif, Dr M Ragavan, and Dr S Rasaratnam of the Tuggeranong Square Medical Practice (Practice). Dr Burdeu, Dr Bornstein and Dr Evans gave evidence at the hearing.
23. Ms Keenan’s evidence at the hearing was that on Saturday 29 September 2007 (conceded at the hearing to be Sunday 30 September) she experienced pain while driving the bus. The pain started in her left arm and then became worse. Ms Keenan said by the end of her shift the pain was ‘acute’. As the pain continued, Ms Keenan said that on 4 October, she had attended the Practice where she was seen by Dr McGuiness who recommended ‘diagnostic imaging’ of her left shoulder.[27]
[27] T14, folio 52.
24. An x-ray and ultrasound dated 17 October 2007 indicated little abnormality, although the ultrasound did show mild thickening of the supraspinatus tendon consistent with chronic inflammation.[28] Physiotherapy was recommended, initially, for the shoulder problem. Ms Keenan said it was the physiotherapist who later identified she also had a neck problem.
[28] T6 and T5 respectively.
25. The pain in her neck and arm continued to worsened, and Ms Keenan attended the Practice on nine more occasions between 8 December 2007 and 7 March 2008.[29] Ms Keenan was certified unfit for work from 10 – 12 December 2007 and then from 17 December 2007 until 7 March 2008.[30] At the hearing, Ms Keenan said her neck did not become problematic until December 2007, although she had pain in her arm from October 2007. A computed tomography (CT) scan of her neck on 21 December 2007 and a magnetic resonance imaging (MRI) scan on 24 December 2007 revealed a C6/7 protrusion impinging on the left C7 nerve root. This was identified as the cause of her neck and left arm pain, numbness in her arm, and the tingling in the fingers of her left hand.[31]
[29] T14, folios 53-61.
[30] T4, folios 6-21.
[31] T9 and T10 respectively.
26. Ms Keenan was referred by the Practice on 28 December 2007 to a sports physician, Dr Howse, who reported on 20 February 2008, ‘numbness in the hand and lateral elbow,’ ‘chronic C7 nerve root impingement due to a disc prolapse’, and noted that the MRI scan had shown ‘degenerative changes in the left lateral disc with some impingement of the left C6 nerve root’.[32]
[32] T12.
27. In a medical report dated 7 April 2009 for the purpose of the hearing Dr Evans noted that Ms Keenan was able to work although she still experienced neck pain. He noted that the pain was more pronounced on the left side of the neck, no longer radiated to the arm, but that she had numbness and tingling in the left index finger and experienced cramps in the left arm. He also reported that her neck pain could be aggravated by bending or twisting of the neck and that it hurt to carry a heavy supermarket shopping bag in the left, but not the right arm, or if she drove for a while. She did not have back pain, but she has ‘cervical headaches’ with pain felt in the head but arising from the neck. [33] Dr Evans’ report was made after he had taken a detailed history from Ms Keenan in a session which lasted for at least an hour.
[33] Exhibit A3.
28. Dr Evans said at the hearing that even if Ms Keenan had experienced three episodes of neck pain prior to 2007, driving a bus could still have been a contributory factor to the neck condition in 2007. He accepted that the references to deterioration of the C5/6 and C6/7 discs could indicate constitutional or degenerative changes but noted that the events involving ACTION bus driving in 2007 could have aggravated this underlying condition. He said in his opinion if the extrusion of the disc occurred over the period of a day it was not due to degenerative changes. Although he conceded that a disc can prolapse without any effort, he said this could also be due to activity.
29. A report of Dr Bornstein, dated 5 May 2009, confirmed that Ms Keenan has a ‘double level lesion in her neck which is extremely chronic’. In his view, ‘the degenerative changes … would almost certainly not have developed in the course of a year but would have been present for a protracted period of time and evolving as well.’ In his opinion Ms Keenan ‘has had a protrusion which has affected the nerve root on the left hand side of the C6/7 level’ but, in his opinion, this occurrence was spontaneous and it was coincidental that it occurred while she was at work. In his opinion, the condition had not been caused by, nor aggravated to a significant degree by work.[34] This opinion was confirmed in a further report of 21 May 2009.[35] At the hearing, Dr Bornstein described the disc problems as a ‘disease process’. He also conceded at the hearing that driving a bus with suspension which goes up and down, but using a steering wheel which is fixed, could cause a disc protrusion. At the same time he said any movement, even while in bed, could trigger the protrusion. In a further written report of 7 August 2009,[36] commenting on Dr Evans report of 19 May 2009, Dr Bornstein did not alter his opinion that there was no direct causal relationship between the medical conditions experienced by Ms Keenan and her employment.
[34] Exhibit R8.
[35] Exhibit R9.
[36] Exhibit R10.
30. Ms Keenan gave evidence that she had seen Dr Bornstein on one occasion only, on 31 March 2009. She was given a form to fill out which took 4-5 minutes and then was seen by Dr Bornstein for about ten minutes. When asked at the hearing whether this was his standard time for a medico-legal assessment, Dr Bornstein said that his patients were given ‘as much time as needed’. The question arose because Dr Evans, in his report of 19 May 2009, had been critical of Dr Bornstein’s report on the grounds of its brevity, its incompleteness (his report did not mention Ms Keenan’s elbow weakness – a neurologic weakness, nor the events of 2005), and his failure to take account of the stresses on Ms Keenan’s neck in 2007.[37]
[37] Exhibit A4.
31. At the hearing, Ms Keenan said her symptoms now ‘come and go’. She continues to experience pain in her neck and shoulders, cramps in her forearm, and numbness in her hand, particularly her index finger, symptoms she has never experienced previously. At times she wakes in the night with the pain. However, she does have periods when she is pain free. She does not cook for her family since her shift finishes after dinner time. Previously she did make the family meals. Since October 2007 she does not do much cleaning, leaving that largely to her husband; she does not change beds, do the laundry or the gardening, and the vegetable garden has been abandoned. Prior to starting work with ACTION Ms Keenan said she had mostly been at home for eighteen years, but she had undertaken cleaning work from time to time on a casual basis.
Consideration
Standard of proof
32. A decision on the issues requires that the Tribunal be ‘satisfied’ that there is a connection between Ms Keenan's employment and her neck condition, a test which has been equated to the civil standard on the balance of probabilities.[38] The test means, as Woodward J expressed it in McDonald v Director-General of Social Security:
If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing.[39]
[38]McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358; Repatriation Commission v Smith (1987) 15 FCR 327.
[39] McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358.
Date of injury
33. The first issue is the date of the injury. Ms Keenan said she first sought medical treatment for her left shoulder and arm pain on 4 October 2007.[40] Dr McGuiness’ 'Progress notes' of 4 October 2007 state that Ms Keenan visited her on that date for a condition her notes describe as 'sore left shoulder at the back, radiates down the arm, into shoulder, anterior chest. No tingling'. The x-ray and ultrasound of Ms Keenan's left shoulder requested by Dr McGuiness were obtained on 17 October 2007. At that stage, the condition was identified only as a 'left shoulder' problem. It was not until Ms Keenan saw the physiotherapist in December 2007 that the neck problem was identified.
[40] T14, folio 52.
34. Ms Keenan said that the initial pain experienced on 30 September had lessened and then returned worse than before. This is borne out by the medical certificates from the Practice. Dr Rasaratnam's notes of the visit from Ms Keenan on 8 December 2007 state 'L shoulder pain worse since yesterday'. A note by Dr Rasaratnam of 12 December 2007 notes 'constant pain'.[41] The certificate dated 20 December 2007 from Dr El Sherif for the purpose of the workers' compensation claim states, 'Pain started while was driving the bus in her L shoulder and going to hand, then disappeared, then return (sic) worse than before'. All the later certificates from the Practice contain the same notation.[42]
[41] T14, folio 53 and 54 respectively.
[42] T4, folios 8-21.
35. On 8 December 2007 Ms Keenan sought treatment from a medical practitioner for ‘pinched nerve in neck’. The injury to the neck was reported in an Accident/Incident Report dated 14 December 2007 and a workers’ compensation claim, including for ‘possible pinched nerve in neck’, was completed on 20 December 2007. In the workers’ compensation claim Ms Keenan had listed 4 November 2007 in response to the question 'When were you injured or when did you first notice you were ill?'[43] Ms Keenan acknowledged in evidence that this was an error. The date should have been 4 October 2007.
[43] T8, folio 29.
36. Comcare in its initial determination of Ms Keenan’s claim deemed the date of the injury to be 20 December 2007.[44] That was because there were no diagnoses in the medical certificates, of 8 December 2007 and 17 December 2007.[45] Dr El Sherif, however, did provide a certificate for the purpose of a compensation claim on 20 December 2007 in which the diagnosis was given as ‘L shoulder pain and upper back sorness (sic) for assessment’.[46] The Comcare reconsideration decision did not nominate a date of injury.[47]
[44] T13, folio 47.
[45] Safety, Rehabilitation and Compensation Act 1988 s 7(4).
[46] T4, folio 8-9.
[47] T16.
37. Nonetheless, if the Tribunal finds that Ms Keenan’s neck condition is caused by her employment and the first evidence of that condition was the pain experienced on 30 September 2007 which led Ms Keenan to seek medical attention on 4 October 2007, the failure correctly to diagnose the condition should not prevent an earlier date of injury being accepted. As McKerracher and Mansfield JJ said, obiter, in the Federal Court in Sellick v Australian Postal Corporation[48] (Sellick):
There is something to be said for the proposition that the notice of injury initially given by the applicant, namely ‘pain in the right shoulder’ was, by the subsequent presentation of various medical certificates and medical reports, sufficient to have constituted a claim that the pain in his right shoulder flowed either from soft tissue injury in the shoulder, or from aggravation of a degenerative spinal condition, or from chronic sprained interspinous ligament, or from a combination of those conditions.[49]
Buchanan J also said in Sellick:
There may be a real question whether the AAT is jurisdictionally confined by the particular description given by an employee of the cause of an otherwise compensable injury… [I]t may not be necessary, at least in every case, that absolute precision be supplied if it is otherwise clear that a sufficient connection with employment exists.[50]
[48] Sellick v Australian Postal Corporation [2009] FCAFC 146.
[49] Ibid at [7] per Mansfield and McKerracher JJ.
[50] Ibid at [23] per Buchanan J.
38. These statements indicate that applicants cannot be expected to have the ability of a medical practitioner to diagnose conditions with accuracy. They provide a degree of flexibility in assessing the legal consequences of an inadequate initial diagnosis. The Tribunal adopts the statements for the purpose of this matter. Assuming that the Tribunal finds that Ms Keenan’s neck condition was contributed to by her employment, the application of these tests would mean the deemed date of injury is 4 October 2007 when Ms Keenan first saw Dr McGuiness about her sore left shoulder, a condition initially diagnosed as ‘sore shoulder’, a diagnosis later amended to include the neck condition.
'Injury' or 'disease'
39. The second issue is whether Ms Keenan is suffering from an 'injury' or a 'disease'. Liability to pay compensation under the Act arises in relation to an ‘injury’.[51] An ‘injury’ means a ‘disease’, or ‘an injury (other than a disease)' or an ‘aggravation of a physical or mental injury’. ‘Disease’ is further defined in s 5B of the Act to mean an ‘ailment’ or an ‘aggravation of such an ailment’. Section 4(1) defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
[51] Safety, Rehabilitation and Compensation Act 1988 s 5A.
40. The initial determination, in the absence of a more detailed medical diagnosis, assumed that Ms Keenan's condition was a 'disease'. The reconsideration decision also stated that Ms Keenan was claiming compensation for a 'disease'.[52] There is no reference in the workers’ compensation claim form to the claim being for a 'disease'.[53]
[52] T13 and T16 respectively.
[53] T8.
41. At the hearing, Comcare said it was not sure whether the claim related to a disease or a discrete injury, although initially both parties appeared to accept that the claim was for a disease. However, following the medical evidence at the hearing, the question of whether the condition was a disease or an injury became an issue. Comcare, while accepting that it was for the Tribunal to decide, maintained that Ms Keenan's conditions involved a disease process and opted to accept that the claim was for a ‘disease’.[54] Counsel for Ms Keenan contended, however, following the medical evidence, that the disc protrusion could be classified as a frank injury. If the condition is classified as a disease, the causal test in section 5B requires, for liability, that employment must have made a ‘significant contribution’ to the ailment.
[54] Safety, Rehabilitation and Compensation Act 1988 s 5B.
42. Dr Evans at the hearing confirmed that if the condition was classified as a ‘disease’, in his view driving buses would have contributed, to a significant degree, to Ms Keenan’s condition. However, he also queried whether Ms Keenan had suffered an 'acute injury'. As he put it, a disc protrusion is 'like an injury', and he affirmed that a disc protrusion which occurred over the course of 8 hours could be equated to an acute injury.
43. Dr Bornstein's opinion was that a disc protrusion was like toothpaste in that it protrudes or emerges if squeezed. However, he conceded that a disc is more likely to protrude if there is movement. Hence, although in his view a disc protrusion was akin to a disease process he also conceded that it could be caused by activity.
44. The definitions of ‘injury’ and ‘disease’ in the Act overlap to a degree. In those circumstances, the Tribunal has referred to the dictionary for assistance. The Macquarie Dictionary defines 'injury' as 'harm of any kind done or sustained', and to 'injure' is '1. to do or cause harm of any kind to; damage; hurt'. An injury then may be a result of something hurtful done to a person. 'Disease' is defined as '1. a morbid condition of the body, or of some organ or part; illness; sickness; ailment.' In accordance with these dictionary definitions, an injury is the result of some activity which triggers the harmful effect, while a disease can be described as self-generating or autogenous. The distinction is neatly captured in the following cases.
45. In Zickar v MGH Plastic Industries Pty Ltd[55] (Zickar) a majority of the High Court concluded that the sudden rupture of blood vessels and consequent cerebral haemorrhage was an injury and it was not necessary to make the claim for a disease. The Full Federal Court applied Zickar to conclude in Health Insurance Commission v Van Reesch[56] (Van Reesch) that the finding could equally apply to a disc prolapse which was not an inevitable consequence of an existing back condition. The Court concluded that the disc prolapse could be identified as an 'injury' rather than an aggravation of a disease. As Northrop J said in Van Reesch:
To adapt the wording of Toohey, McHugh and Gummow JJ in Zickar, the present case is not one of an autogenous disease. Or to put it more accurately, it is not an autogenous disease upon which Mrs Van Reesch relies. It may be accepted that her back condition was an autogenous disease but her claim to personal injury is based on the disc prolapse which occurred. There is evidence that the disc prolapse was not an inevitable consequence of the disease. The rupture, being the prolapse, has been treated. If there was no rupture, there would be no event answering the description of personal injury and Mrs Van Reesch would be driven to rely upon the definition of disease. ... But there was such an event and the presence of the disease does not preclude reliance upon that event as personal injury.[57]
[55] Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310.
[56] Health Insurance Commission v Van Reesch (1996) 45 ALD 302.
[57] Ibid at 307-308.
46. Although Zickar related to the Workers Compensation Act 1987 (NSW), and Van Reesch to the Compensation (Commonwealth Government Employees) Act 1971, (Cth), the discussion remains relevant to the terms 'injury' and 'disease' in the current Act because of the similarity of the tests.
47. In Ms Keenan's case, although the evidence established that she had an autogenous disease - the constitutional degeneration of her neck at the C5/6 and C6/7 disc levels - by analogy with Van Reesch, her claim does not relate to that underlying condition. Her time off work was due to a discrete event, a disc protrusion which impacted on the C7 nerve in her neck caused apparently over the space of four hours while driving on 30 September 2007. In other words, the claim was caused by an activity – bus driving – which is said to have caused her neck condition, not to the underlying degenerative condition of her cervical spine. This finding was also supported by the evidence of Dr Evans to be an ‘acute injury’. The Tribunal preferred the evidence of Dr Evans to that of Dr Bornstein, because of its greater thoroughness. For these reasons, the Tribunal finds that the claim is for an ‘injury’ not for a ‘disease’.[58]
[58] See also Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286.
48. The next issue is whether that injury arose out of, or in the course of employment. The test for ‘arising out of or in the course of employment’ was interpreted expansively by the High Court in Roncevich v Repatriation Commission[59] (Roncevich) in relation to the same expression in the Veterans’ Entitlements Act 1986 (Cth). In Roncevich, the High Court interpreted the expression to cover ‘acts … part of … service to the employer’ including ‘whatever is incidental to the performance of the work’ and ‘what is ‘reasonably required, expected or authorized.[60] It is not contested that the condition of her neck arose ‘in the course of employment’.[61] Applying these tests, the Tribunal concludes that if it is found that the activities involved in driving a bus contributed to the disc protrusion, the injury suffered by Ms Keenan arose in the course of her employment as a bus driver.
[59] Roncevich v Repatriation Commission (2005) 222 CLR 115.
[60] The quotes approved by the High Court are taken from a passage in the dissenting judgment of Heerey J in the Full Federal Court in Roncevich v Repatriation Commission (2003) 75 ALD 345 at 350, 354-355.
[61] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286.
49. If the Tribunal is wrong in finding that Ms Keenan’s neck condition was an ‘injury’, it is necessary to discuss whether the neck condition is a ‘disease’. This requires considering first whether her disc protrusion was an ‘ailment’ since a ‘disease’ covers an ‘ailment’. An ‘ailment’ means ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
50. A literal interpretation of ‘ailment’ appears to cover Ms Keenan’s neck condition since this is clearly a ‘physical … disorder’. The question, however, is whether it can be described as ‘of sudden onset’ or of ‘gradual development’. A condition which progressively worsened over four hours is not easily categorised as of ‘sudden onset’. Nor, however, is it necessarily a ‘gradual development’. Contrasting ‘sudden’ with ‘gradual’ suggests that the emergence of the condition would occur over a lengthier period than four hours. Nonetheless, the Tribunal accepts that the alternatives in the expression, ‘whether of sudden onset or gradual development’, were intended to expand the meaning of ‘ailment’ to include conditions which occur over shorter or lengthier periods of time. On that basis, the Tribunal finds that Ms Keenan’s disc protrusion impinging on the C7 nerve could be an ‘ailment’ and hence a ‘disease’. The disc protrusion, since it arose from the degenerative changes in Ms Keenan’s neck could also be classed as an aggravation of an ailment.[62]
[62] Comcare v Amorebieta (1996) 66 FCR 83.
51. If the neck condition is an ailment and hence a 'disease' her employment must also have contributed to the condition ‘to a significant degree’, that is, a degree that is ‘substantially more than material’. The factors which indicate that employment makes a ‘contribution … to a significant degree’ to a ‘disease’ are non-exhaustively defined in section 5B(2).
Contribution to a ‘significant degree’, that is, ‘substantially more than material’
52. On 13 April 2007, the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 inserted section 5B into the Act. The history of the legislative meaning of ‘disease’ is relevant in understanding the intention behind the amendment. Immediately prior to 13 April 2007, the former section 4(1) defined liability for ‘disease’ as requiring that employment ‘contributed in a material degree’ to the disease. As the Explanatory Memorandum to the legislation noted, the amendment was made necessary because:
Since the enactment of the SRC Act in 1988, ‘material degree’ has been interpreted in court and tribunal decisions so as to erode significantly the extent to which employment must have contributed to the contraction or aggravation of the disease for it to be compensable.
53. What amounted to a ‘material contribution’, was considered in Comcare v Sahu-Khan[63] where Finn J endorsed the decision of the Full Federal Court in Comcarev Canute[64] that this expression was ‘intended to require that the contribution be “more than a mere contributing factor”’. As His Honour put it, the inclusion of the term ‘material’ imposed an ‘evaluative threshold below which a causal connection may be disregarded’.[65] Finn J concluded that the correct test for ‘in a material degree’ was probably best captured by the meaning in the Shorter Oxford English Dictionary as ‘4. In a material degree; substantially, considerably’[66] and that ‘in a material degree’ required an evaluation of all relevant factors.[67]
[63] Comcare v Sahu-Khan (2007) 156 FCR 536.
[64] Comcarev Canute (2005) 148 FCR 232 at [12].
[65] Comcare v Sahu-Khan (2007) 156 FCR 536 at 542.
[66] Ibid at [15].
[67] Ibid at [16].
54. Since that decision, the amendments to the Act in 2007 required that the ailment be contributed to, to a significant degree, by the employment. ‘[S]ignificant degree’ was defined to mean ‘substantially more than material’.[68] The legislation thus appears to have adopted the meaning favoured by Finn J, together with his suggestion that the definition should take into account a list of relevant factors.
[68] Safety, Rehabilitation and Compensation Act 1988 s 5B(3).
55. The amended test for contribution in section 5B appears to accord with the Explanatory Memorandum to the Safety, Rehabilitation and Compensation Amendment Bill 2006 which stated that it amended the definition of ‘disease’ to ‘strengthen the connection between the disease and the employee’s employment’.
It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.
As the Explanatory Memorandum pointed out the intention was to provide coverage only for truly work‑related fatalities, injuries and illness.[69]
[69] Explanatory Memorandum Regulation Impact Statement p iv.
56. It is clear that the policy behind the amendment to the definition of ‘disease’ was to strengthen the connection between employment and a disease. The requirement that the employment must make a ‘significant contribution’ to the disease ensures, as the Regulation Impact Statement in the Explanatory Memorandum indicates, that there is ‘an effective test of work-relatedness, providing eligibility only for work-related diseases consistent with the intention of the SRC Act and consistent with eligibility in most other State schemes’.[70] The Tribunal has taken these indications of the meaning of ‘substantially more than material’ into account when applying the test to Ms Keenan’s circumstances.
[70] Ibid at p viii.
Relevant factors (section 5B(2))
55. The factors which are relevant to Ms Keenan’s application are:
- Duration of employment. Ms Keenan had been driving buses for ACTION since 2003. From May 2007, until the injury occurred, a period of some five months, she had been driving the larger commuter buses. This period would be sufficient, for the impact of any stresses to the body from that activity to be experienced.
- Nature of employment tasks. Ms Keenan’s driving of commuter buses, and on the day in question, a Scania bus with a fixed wheel which put strain on the neck when a person with short arms was turning corners, and a seat suspension which could cause jarring when going over bumps are tasks which may have an impact on a person’s neck.
- Predisposition. Ms Keenan was adamant that the earlier stiff neck incident in 2005 involved a quite different level of pain and symptoms. For example, she said she had no numbness or significant pain from the earlier occurrence. At the same time, the predominant medical view, and the Tribunal has so found, was that she had a constitutional predisposition to cervical weakness. Nonetheless, liability for an injury or a disease for a person with a pre-existing weakness which happens to become symptomatic while at work is not necessarily barred by the legislation,[71] provided the connection between the employment and the expression of the symptomatology is substantially more than material.[72]
[71] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286; Re Redmayne and Comcare [1996] AATA 179; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310.
[72] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B.
- Activities not related to the employment. Prior to joining ACTION Ms Keenan did not play sport, she did formerly do some gardening and housework, and, on a casual basis, she did some cleaning. No evidence was led to indicate that these could have caused the injury.
58. On balance, taking account of these factors and of the available evidence, the Tribunal is satisfied that it was Ms Keenan’s employment that contributed, to a significant degree, to the protrusion of the disc. Although there was no evidence of any particular occurrence while driving on 30 September 2007 which led to the protrusion, and there was medical evidence that minimal activity, such as movement in bed could lead to the eruption, the Tribunal finds, given the timing of the development of symptoms, and the evidence of the strains on her neck caused by the activities associated with commuter bus driving, that it was more probable than not that it was driving the bus which caused the eruption. The Tribunal’s findings are supported by the fact that, on the evidence, there was no alternative activity in which Ms Keenan was engaged at that time which was likely to have caused the disc protrusion. Moreover, the impact of these work-related factors – the stretching, and the jarring of Ms Keenan’s arms and neck due to driving – was more than a mere contributing factor to the disc protrusion and nerve impingement and was a contribution which was ‘substantially more than material’.
Conclusion
59. The Tribunal finds that; either Ms Keenan’s disc protrusion is an injury which arose out of, or in the course of, her employment as a bus driver; or that her neck condition is a disease, being an ‘ailment’ or an ‘aggravation of an ailment’,[73] and the Tribunal is satisfied that Ms Keenan’s employment contributed to that condition to a significant degree.
[73] Comcare v Amorebieta (1996) 66 FCR 83.
60. The Tribunal decides accordingly that Comcare is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 for the incapacity arising out of Ms Keenan’s ‘disc protrusion’ with a deemed date of injury of 4 October 2007 the matter is remitted to Comcare to calculate the amount of compensation owing to Ms Keenan as a result of this decision.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Professor R Creyke, Senior Member and Dr M Miller, Member.
Signed: ..................[sgd].....................................
J. Lakin, AssociateDate of Hearing 12 and 13 October 2009
Date of Decision 16 November 2009Counsel for the Applicant Mr R Shillington
Solicitor for the Applicant Maurice Blackburn LawyersCounsel for the Respondent Ms L Walker
Solicitor for the Respondent Sparke Helmore Lawyers
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