Lang and Comcare
[2007] AATA 1627
•3 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1627
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2007/26
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID LANG Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr M.D Miller AO, Member
Date3 August 2007
PlaceCanberra
Decision The reviewable decision made by Comcare on 29 November 2004 will be affirmed. ....................................................
J.W. Constance, Senior Member
CATCHWORDS
Compensation – Commonwealth employees – Lower back injury –Whether applicant required medical treatment for injury – Whether applicant entitled to incapacity payments – Whether prejudice to applicant resulting from significant time delay
Safety, Rehabilitation and Compensation Act1988 (Cth) ss 4, 16, 20, 134
McDonald v Director-General of Social Security (1984) 1 FCR 354
Commonwealth of Australia v Borg (1984) 20 AAR 299
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
REASONS FOR DECISION
3 August 2007
J.W Constance, Senior Member
Dr M.D Miller AO, MemberINTRODUCTION
1. Mr Lang suffered an injury to his back in 1981 whilst employed by the Department of Primary Industry. Comcare paid compensation to Mr Lang in respect of this injury from 1981 until November 2004.
2. For reasons not apparent to us Comcare appears not to take adequate steps to review Mr Lang's medical situation until September 2004. On 29 November 2004 it was decided Mr Lang was not entitled to be compensated for pharmaceutical expenses he had claimed nor was he entitled to compensation for incapacity at that date.
3. Mr Lang has sought a review of Comcare's decision. In May 2006 we decided to affirm Comcare's decision. Mr Lang appealed to the Federal Court against this decision and the matter was remitted to the Tribunal for hearing in accordance with the decision of the Court.
4. When the matter again came before us for hearing the parties agreed that a transcript of the evidence previously given and the exhibits before us on the previous occasion should be taken into evidence in this hearing. This was done. The transcript is exhibit R1, the section 37 documents are exhibit R2 and the supplementary documents are exhibit R3. For ease of reference we shall refer to particular documents forming parts of exhibits R2 and R3 by their “T” and “S” descriptions.
5. As much of what we previously decided is not in dispute we have reproduced some of our findings set out in our earlier decision in this decision.
6. For the reasons which follow we have decided to affirm the decision under review.
EVIDENCE AND FINDINGS OF FACT
7. Unless otherwise stated the following findings of fact are based on the evidence of Mr Lang. We are satisfied of the facts found on the balance of probabilities.
8. Mr Lang is 74 years of age. On 19 October 1970 he joined the Commonwealth Public Service as an assistant printer with the Department of Primary Industry.[1] In about mid 1981 he was working in a basement checking boxes of stored documents. This involved his lifting boxes weighing between 35 and 50 lbs from a shelf above his head. To reach the boxes he would use a ladder but if this was unavailable he would use a chair to climb onto a table and then climb onto another chair which was standing on the table. Using this method he would retrieve up to 3 boxes per day and sort through their contents.
[1] T65.
9. After doing this work for about 6 weeks Mr Lang says that as he was getting down from the chair on the table he fell backwards and landed on the chair standing on the floor. He says that about an hour later he was getting a lot of pain around his chest, more severe on his left side. That day Mr Lang attended hospital as he was concerned that the pain may be a result of a heart condition. He was advised by the doctor who attended him that the pain he was experiencing was consistent with disc degeneration in his mid and lower back. Mr Lang had been wearing a back brace to relieve these symptoms whilst working in the basement prior to his fall.[2] On his return to work he continued the retrieval and sorting of the boxes until about mid September 1981.[3]
[2] S187.
[3] Ex. A3.
10. We do not accept the evidence of Mr Lang that he fell from the table onto the chair below. We refer to the evidence which has caused us to form this view in the following paragraphs 6-59 inclusive.
11. On 17 November 1981 Mr Lang lodged a notice of an injury which he described as an “aggravation of an accident on 6/11/68.” [4] The injury suffered in 1968 was an injury to the lower back. In a claim form lodged the same day[5] he stated the injury occurred in July 1981 and was an aggravation of an injury to the 3/4 thoracic discs. He stated the cause of the injury to be:
“Assembling shelving, sorting, counting, wrapping, unpacking boxes and shelving forms used by the department. Using a step ladder, a chair and a small desk to reach top shelves.” [6]
[4] T46.
[5] T4.
[6] T4.
In the notice Mr Lang did not refer to having fallen.
12. From the late 1960’s until the mid-1980’s Dr Horniblow was Mr Lang’s general practitioner. Dr Horniblow’s clinical notes are in evidence[7]. Dr Horniblow recorded twelve consultations with Mr Lang between 1 July 1981 and 12 November 1981. There are references to complaints by Mr Lang of chest pain and thoracic pain in this period but no reference to Mr Lang’s having fallen at work. Taking into account the details recorded in Dr Horniblow’s notes we are of the view that he would have recorded the fall had Mr Lang informed him of it.
[7] S185.
13. One of the documents in evidence is a typed statement made by Mr Lang on 23 February 1982.[8] The statement is unsigned but was acknowledged by Mr Lang when he gave evidence. The statement was prepared on Mr Lang’s instructions by Messrs Crossin & Co, the solicitors then acting for him in relation to his claim against the Department in relation to the injury he claimed to have suffered in July 1981.[9] In the statement Mr Lang described the work he was doing in June 1981 involving his climbing onto a table and chair to remove the boxes from the shelves. He said that in “July 1981 after I had been in the storeroom for approximately six weeks I was experiencing severe pains in my back and around into my chest.” Mr Lang did not refer to having fallen whilst engaged in this work. When asked why he had not done so Mr Lang said that a sentence referring to this was omitted from the statement. As there is no apparent omission from the statement and as Mr Lang did not offer any explanation for this omission we do not accept his evidence in this regard.
[8] S187.
[9] S188.
14. On 28 April 1982 Messrs Crossin & Co wrote to Dr Horniblow seeking a report in relation to Mr Lang’s condition.[10] The solicitors enclosed a copy of the statement referred to in the preceding paragraph. The solicitors advised Dr Horniblow:
“Our client instructs that in particular since June 1981 his work as a Storeman and Printer within the Department of Primary Industry involved considerable bending and lifting and that he commenced to experience severe pain in his mid and low back."
[10] S188.
15. By reason of the solicitors not having included a reference to the alleged fall in either the statement or the letter we infer that Mr Lang did not instruct them that he had fallen in the circumstances he has described to us.
16. In August 1982 Dr Andrews, Consultant Neurologist, who was then treating Mr Lang, reported to Messrs Crossin & Co.[11] In this report Dr Andrews refers to Mr Lang working in the stores in the Department in July 1981 and being required to do some lifting of boxes off shelves. Dr Andrews reported that Mr Lang claimed that this intermittent lifting aggravated his thoracic pain but went on to say that on no occasion did Mr Lang claim that a specific injury was sustained. We infer from this that Mr Lang did not inform Dr Andrews of the alleged fall.
[11] S191.
17. Dr Robson, a Neurosurgeon, began treating Mr Lang in 1969. This treatment was in relation to pain in his neck and lower back.[12] On 1 June 1984 Dr Robson reported to the Commonwealth Medical Officer in relation to Mr Lang’s various complaints, including a complaint of thoracic pain in December 1981. Dr Robson reported that Mr Lang “was in June 1981 transferred to the stores section, and this resulted in increase in physical components of his work.” Dr Robson did not refer to Mr Lang having fallen at this time and we infer that Mr Lang did not advise Dr Robson of any such fall.
[12] T71.
18. We take into account the many opportunities which were available to Mr Lang to describe the circumstances of the alleged fall and which were not taken by him. These were circumstances in which one would expect that Mr Lang would have referred to the fall if it had occurred. We are satisfied on the balance of probabilities that Mr Lang did not fall at work in or about July 1981 in the manner described or in similar circumstances. We do not regard him as a reliable witness and we do not accept his evidence in this regard. However his evidence that for about six weeks in June/July 1981 he was involved in work requiring him to lift heavy boxes from above head height was not challenged and we accept this evidence.
19. Mr Lang’s evidence as to the nature of his thoracic pain [13] can be summarised as follows:
·from 1974 until 1977 he suffered thoracic pain (between his shoulder blades) of such intensity to require medication which included a morphine derivative;
·from 1977 until August 1981 he suffered this pain about 90% of the time but it was “bearable” and he was able to cease the medication;
·since 1981 he has suffered constant thoracic pain spreading from his back around to his chest; to ease this pain he has taken medication and has forced his shoulders back to the extent that he has created a “barrel chest”.
[13] Transcript 10.4.06 pp. 13-18.
20. On the basis of the notes of Dr Horniblow [14] we are satisfied that between 1971 and 1975 Mr Lang suffered a number of episodes of thoracic pain of sufficient severity for him to consult Dr Horniblow. Mr Lang gave evidence that he had complained to Dr Horniblow of thoracic pain on only one occasion in 1972. We do not accept this evidence and prefer the evidence of the Doctor’s clinical notes which record at least 5 instances of Mr Lang complaining of thoracic pain in 1972.
[14] S185.
21. We are satisfied that Mr Lang suffered bouts of thoracic pain intermittently between July 1981 and 1987. This finding is supported by the various medical reports in evidence as well as Dr Horniblow’s notes. Reference to complaints by Mr Lang of thoracic and/or chest pain is found in the following:
·statement of Mr Lang of 23 February 1982 (S187);
·report of Dr Horniblow dated 8 August 1982 (S190);
·report of Dr Andrews dated 19 August 1982 (S191);
·report of Dr Kitchin dated 22 March 1983 (S197);
·report of Dr Lithgow dated 21 July 1983 (S199).
22. Based on Mr Lang’s claim, in September 1984 liability was accepted for “personal injury……in mid July 1981 namely, aggravation of a pre-existing condition of pain in mid thoracic region.” [15] On the basis of this decision Mr Lang received compensation for incapacity from 9 September 1981 until 29 November 2004, a period of just over 23 years. On 16 June 2005 Comcare affirmed a determination of 29 November 2004 that the accepted condition did not currently result in the need for medical treatment or in incapacity.
[15] T76.
23. We are satisfied that the occurrence of thoracic pain after July 1981 has not been as severe or constant as described by Mr Lang. There are many documents before us which record Mr Lang as complaining of neck and/or lower back pain but make no reference to complaints of thoracic or chest pain. These are:
·letter from Dr Herath to Dr Robson of 22 July 1987 (S204);
·report of Dr Robson dated 21 September 1987 (S205);
·report of Dr Robson dated 7 November 1988 (S207);
·letter from Dr Herath to Dr Robson of 29 March 1992 (S215);
·report of Dr Robson to Dr Herath 1 June 1992 (S216); on 8 March 1994 Dr Robson reported that Mr Lang “has no significant problems” other than a recent injury to his neck (S219);
·report of Dr Chandran, Neurosurgeon dated 12 September 2000 (S234);
·letter from Dr Herath to Dr Fuller, Neurosurgeon, 28 March 2001 (S237);
·report of Dr Fuller dated 23 August 2001 (S238);
·report of Dr Burke, Respiratory and General Physician, dated October 2001 (S245);
·letter from Dr Herath to Dr Clubb, Consultant Pain Management, dated 29 May 2002 (S257);
·report of Dr Clubb dated 27 August 2002 (S265);
·report of Dr Burke to Dr Craigie, General Practitioner, dated 13 August 2003 (S282);
·report of Dr Yeaman, Urologist, dated 5 January 2004 (S294); report of Dr Clubb dated 23 March 2004 (S295);
·Discharge Referral from The Canberra Hospital to Dr Herath dated 5 April 2004 (S297);
·report of Dr Clubb dated 17 August 2004 (S300);
24. Mr Lang was treated for chest pain at the Emergency Department of The Canberra Hospital on 30 June 2003[16], 10 October 2003[17] and 10 May 2005[18]. Although the final diagnosis on each occasion was musculoskeletal pain the main investigation appears to have been directed to the condition of Mr Lang’s heart.
[16] S280.
[17] S289
[18] S317.
25. The first reference in the medical records in evidence to Mr Lang suffering thoracic pain after 1987 appears to be in a notification of treatment plan forwarded to Comcare by Dr Speldewinde on 4 June 2002[19]. This letter notified Comcare of the cost of recommended medication being Neurontin (300 mg tablets). Dr Speldewinde described the condition being treated as “persisting thoracic pain with radiation of neuropathic pain to sternum.” We do not accept this as an accurate statement of the condition which was then being treated by Dr Speldewinde. On 5 March 2002 Dr Herath wrote to Dr Speldewinde thanking him for reviewing Mr Lang “for the continuing management of his neck pain.” [20] On 25 June 2002 Dr Speldewinde reported to Dr Herath that Mr Lang had “dramatically improved with Neurontin 300mg tds”. Dr Speldewinde refers to a procedure “to ease some of the upper neck pain and stiffness” but makes no reference to treatment of thoracic pain.[21]
[19] S259.
[20] S255.
[21] S260.
26. Mr Lang complained of thoracic pain to Dr Griffith, Consultant Surgeon, when he assessed him in September 2004[22], and to Dr Talbot, Consultant Orthopaedic Surgeon, when he assessed Mr Lang in May 2005[23]. Dr Talbot reported Mr Lang’s complaint of thoracic pain as follows:
“ Mr Lang informs me that the pain he was experiencing was in the mid-line in his thoracic spine between the shoulder blades, but the pain extended around his rib cage, mainly to the left towards the front of the chest. The pain has continued and has been present ever since [1973 or 1974]. He maintains that the pain did not ease.”[24]
[22] T161.
[23] T173.
[24] T173.
Both Dr Griffith and Dr Talbot were appointed by Comcare to undertake assessments for the purpose of determining Mr Lang’s entitlement to ongoing compensation.
THE REVIEWABLE DECISION
27. The decision which is reviewable by us is a decision of Comcare made on 16 June 2005 to affirm a determination of 29 November 2004. This determination was that as at 29 November 2004 Mr Lang was not entitled to compensation for:
a) medical treatment for the injury under section 16 of the Act;
b) incapacity payments under section 134 of the Act.
It should be noted that section 134 provides for the calculation of the amount of compensation payable rather than the determination of liability to pay. The provision under which it was initially determined that Comcare had a liability to pay compensation for incapacity is section 20.
ISSUES FOR DETERMINATION
28. In McDonald v Director-General of Social Security (1984) 1 FCR 354 at 369 Jenkinson J. dealt with the question of the proper determination of the issue or issues to be decided by this Tribunal in a matter such as this:
“There is, however, in my opinion a dilemma in which either a court or an administrative authority determining rights or liabilities may find itself, for the resolution of which the same principles are applicable by each tribunal. Either tribunal may find itself unpersuaded either that a circumstance exists or that it does not exist. (The same may be said of a past or a future circumstance.) The court or the administrative authority will determine, by reference to the substantive law, whether it is the existence or the non-existence of the circumstance which is determinative of the question for decision.”
29. In Commonwealth of Australia v Borg (1984) 20 AAR 299 the Full Court of the Federal Court considered circumstances similar to those before us. The Court was dealing with the Act in force prior to the present Act but the principle is equally applicable. In that matter Jenkinson J. said that a decision that compensation is not payable (in a situation where it has been paid previously) should not be made unless the decision maker “was persuaded that one of the entitling circumstances had on or before [the date of the decision] ceased to exist.” [25]
[25] At 307.
30. On the basis of the above the issues we have to determine are:
1)are we persuaded that as at 29 November 2004 Mr Lang did not require medical treatment for the compensable injury (i.e. the aggravation suffered in 1981)?
2)are we persuaded that at 29 November 2004 Mr Lang was not incapacitated as a result of the compensable injury?
LEGISLATION
31. Subsection 16(1) of the Act provides:
“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.”
32. Payment of compensation for periods of incapacity in the case of an employee who has retired is provided for by section 20 of the Act. Subsection 20(2) provides:
“Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.”
When this subsection is read in conjunction with subsection 20(1) it is clear that it is referring to incapacity to work as a result of an injury within the meaning of the Act.
OPINION EVIDENCE AS TO THE EFFECT OF THE 1981 AGGRAVATION
33. Both Dr Talbot and Dr Griffith provided reports and gave evidence as to their assessments of Mr Lang.
34. In part Dr Talbot reported:
“He appeared to be an accurate witness and he complained of pain around the right T7 dermatome when he was lightly touched anteriorly in this region. That would suggest the possibility of nerve root irritation posteriorly…………………………….. On clinical grounds, I consider that Mr Lang has sustained a mid-thoracic disc injury, at approximately T6/7 level with nerve root involvement……. I consider that he first injured his mid-thoracic region in 1973 or 1974, in the event described when he slipped on stairs while carrying three reams of paper. I consider that the aggravating injury occurred in July 1981 in the event described when he was climbing on chairs and a desk and he felt……..The aggravation has not resolved.” [26]
[26] T173 pp.6, 7.
35. Dr Griffiths is of the opinion that, in the absence of demonstrable structural injury, any contribution to Mr Lang’s condition by his employment activities in June/July 1981 would have ceased within 3 months. Dr Griffith gave his opinion based on the assumption that Mr Lang fell in 1981 in the manner described. For the reasons we have given we have found that that fall did not occur.
36. In support of his view Dr Griffith reported:
”……….. there may well be a significant embellishment at work to account for a significant element of his current symptoms in the thoracic region, as the condition has not relentlessly progressed, has been present for decades, and cannot be attributed to the minor pathology present in the thoracic spine which, if anything, is no greater than that would be expected from an individual in the eighth decade of life. There is no objective evidence for anything other than minimal progression in the thoracic spondylosis now extant." [27]
[27] T161 p.8.
37. There is other medical opinion which supports the view of Dr Griffith.
38. Mr Lang was examined by Dr Andrews, Consultant Neurologist, in August 1982. This examination may have been for the purposes of a medico-legal report but this is not clear. Dr Andrews was of the opinion that the work Mr Lang did lifting the boxes would only have caused a temporary aggravation of his condition, “lasting at the most, only a months [sic].” [28]
[28] S191.
39. Dr Kitchin, Orthopaedic Surgeon, examined Mr Lang on 15 March 1983. In Dr Kitchin’s opinion Mr Lang’s complaint by that time was of thoracic degenerative disease.[29]
[29] S197.
40. In May 1982 Dr Robson reported to Mr Lang’s solicitors in part as follows:
“He has had this chest pain previously and my notes indicate that he had it in 1974………. I can only report what he says as I have no way whatever of assessing the severity of this chest pain, as at no time has it been possible to reach a diagnosis as to its cause. It has always been considered to be associated with degenerative vertebral change, but a certain positive diagnosis has never been possible." [30]
[30] T53.
41. On 1 June 1984 Dr Robson reported to the Commonwealth Medical Officer and included the following comments:
“ My first note of his inter-scapular pain, that is to say his mid-thoracic pain, is in 1972 when he had some inter-scapular pain……….. I then did not see him until 1973 when he told me of trouble with his neck, and then in November 1974 for the first time, his main problem was described as being his mid-thoracic pain……….. Nothing further seemed to happen about this until the middle of 1975 when again he reported to me that he still suffered from this pain in his mid-thoracic region and that it had gradually got worse.
I saw him in July of that year and he had been off work since March. I was unable to find anything very significant, and as he was in the middle of a prolonged insurance compensation claim, I really felt that his improvement would be expedited by settlement of his claim.
Again he seemed to disappear from sight until December 1981 when there was this same complaint of thoracic pain. At that stage an x-ray of his thoracic spine showed scattered degenerative changes of this, but nothing at any one level of great significance. Again no particular action was taken, and in 1982 that particular matter was reviewed” [31]
[31] T71.
42. Dr Talbot was of the opinion that the handling of the boxes in the manner described by Mr Lang could have caused a thoracic disc protrusion without his having fallen as he claims. Dr Talbot stated that disc protrusion more usually occurs with some kind of trauma, but that the trauma may be the final straw which occurs to a disc which has been injured previously in a chronic process.[32] In the opinion of Dr Griffith the occurrence of a disc protrusion in these circumstances was possible but would be “relatively unusual in the absence of major trauma.” [33] In his view had Mr Lang “suffered significant structural injury, in particular, the compression fracture or major disc protrusion, he would have been totally incapacitated, taken to hospital, almost certainly required parenthelopious to control it, had a period of bed rest for a week or two. That didn't happen. Yes, he had discomfort and, yes, he had, I think, a couple of periods of absence from the workplace, but nothing serious enough to indicate a major structural injury or support a diagnosis of major structural injury having been suffered at that time………...” [34]
[32] Transcript 29.6.07 p-32.
[33] Transcript 29.6.07 p-38.
[34] Transcript 29.6.07 p-38.
REASONING
43. Having considered all of the evidence we are satisfied that there has been a change in the circumstances entitling Mr Lang to payment of compensation. We are satisfied on the balance of probabilities that the injury suffered by Mr Lang in July 1981 in respect of which compensation has been paid had ceased to have any effect upon him by 29 November 2004, being the date of the determination which was affirmed by the reviewable decision.
44. We are satisfied that whatever injury Mr Lang suffered as a result of moving the boxes in June and July 1981 did not have the continuing effects claimed by him. We prefer the view of Dr Griffith to that of Dr Talbot in this regard.
45. The basis of Dr Griffith’s opinion was that Mr Lang suffered thoracic pain prior to 1981, the condition had not relentlessly progressed and that had he suffered a traumatic injury to his spine at work he would have suffered far more severe symptoms than he did. This is consistent with the facts we have found.
46. On the other hand Dr Talbot based his opinion on the assumption that Mr Lang suffered a mid-thoracic disc injury in 1973 or 1974 and that he aggravated this when he fell in 1981. We are satisfied that the factual basis for Dr Talbot’s opinion (so far as it relies upon Mr Lang having fallen in 1981 at work) does not exist.
47. Dr Talbot said that his opinion would not necessarily change on the assumption that Mr Lang suffered thoracic pain prior to the 1973 or 1974 incident. He said that the reason for this was the “intensity and distribution of the pain” [35]suffered by Mr Lang. In his view “ there is a very different -- there is a great difference between a little bit of mild mid-back pain, and the pain which Mr Lang has, which is, in my opinion, strongly suggestive of nerve compression due to a disc prolapse." [36] As already set out we are satisfied that Mr Lang suffered considerable thoracic pain prior to 1973 and that his complaints of such pain were not consistent after 1983. On the evidence before us there was no recording of complaints of thoracic pain by Mr Lang from 1987 until 2002 despite his having consulted a number of medical practitioners in that time. The history given by Mr Lang to Dr Talbot was recorded by Dr Talbot as follows:
“ Mr Lang informs me that the pain he was experiencing was in the mid-line in his thoracic spine between the shoulder blades, but the pain extended around his rib cage, mainly to the left towards the front of the chest. The pain has continued and has been present ever since [the 1973 or 1974 incident]. He maintains that the pain did not ease." [37]
[35] Transcript 29.6.07 p-31.
[36] Transcript 29.6.07 p-31.
[37] T173 p.2.
We are not satisfied that the history on which Dr Talbot based his opinion is accurate.
48. In addition to the above we take into account the opinions of both Dr Talbot and Dr Griffith that prolapse of a thoracic disc usually occurs as a result of trauma.
49. In preferring the view of Dr Griffith we also rely upon the opinions of Dr Andrews, Dr Kitchin and Dr Robson to which we have referred previously. All of these practitioners had the advantage of assessing Mr Lang about the time of the 1981 injury. In addition Dr Robson had been Mr Lang’s treating specialist for many years prior to that time and had the benefit of considering the x-ray of his left thoracic spine in December 1981.
Absence of MRI scan
50. An issue arose in relation to the need for Mr Lang to undergo an MRI scan. Both Dr Talbot and Dr Griffith said that this scan would determine whether Mr Lang has suffered damage to one or more of the discs in his thoracic spine. Dr Talbot referred to the need for such a scan in his report to Comcare in May 2005. Mr Lang is willing to undergo the scan and Comcare is willing to pay for it but neither he nor Comcare has arranged for this to happen.
51. Counsel for Mr Lang argued very strongly that Comcare could not discharge the evidentiary onus upon it when this procedure was outstanding, bearing in mind the importance in reaching a diagnosis placed upon it by both doctors. In view of Counsel’s submission we considered whether the Tribunal should arrange for the scan but we have decided that in this case this is not appropriate. Neither Counsel requested this be done. Although both Dr Talbot and Dr Griffith agreed that the scan would assist in diagnosing Mr Lang’s present condition they did not suggest that it would assist in determining whether any disc damage (if it was shown to exist) was suffered or aggravated as a result of Mr Lang’s employment in 1981. Dr Talbot stated that if a disc prolapse was shown to exist he would still need to rely on the history given to determine the cause of that injury.
52. In view of the conclusions we have already reached we did not consider it necessary to have the results of the scan before reaching a decision or that we should remit the matter to Comcare for reconsideration after obtaining the results of a scan. The latter was one option put by Counsel for Mr Lang. If the scan showed that Mr Lang does not suffer thoracic disc damage it would support the findings we have made; if it did not we are satisfied that it would not assist us in deciding when the damage occurred and therefore would not alter our decision in the matter.
Outstanding medical treatment
53. Counsel for Mr Lang has also argued that the reviewable decision must be set aside because the MRI scan is medical treatment in respect of which, on the evidence before us, Comcare is liable to pay compensation to Mr Lang under section 16 of the Act.
Subsection 16(1) provides:
“ where an employee suffered 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 to such amount as Comcare determines is appropriate to that medical treatment."
“Medical treatment” is defined in section 4 to include “therapeutic treatment obtained at the direction of a legally qualified medical practitioner".
In the same section “therapeutic treatment" is defined to include “an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, and injury."
54. We do not accept this argument. Both Dr Talbot and Dr Griffith were appointed by Comcare for the purpose of assessing Mr Lang’s ongoing claim. Neither is, nor has been, a treating medical practitioner. Furthermore they recommended the MRI scan be carried out, neither directed the procedure.
55. In our view it is not the intention of the Act that Comcare is to pay compensation under section 16 in respect of expenses to be incurred in investigating a claim. The use by Parliament of the terms “medical treatment” and “therapeutic treatment” (emphasis added) in sections 4 and 16 indicates that the phrase “done for the purpose of diagnosing” in the definition of “therapeutic treatment” is to be read as referring to diagnosis for treatment. Furthermore, subsection 16(1) only requires compensation to be paid ”in respect of medical treatment obtained……” In this case no such treatment has been obtained nor is there any evidence that Mr Lang has made a claim for such treatment.
Unfair Prejudice
56. Counsel for Mr Lang urged upon us that because we are being asked to make findings as to events of more than 26 years ago there is in some way an increased onus on Comcare as otherwise Mr Lang will be unfairly prejudiced by the passage of time. In Counsel’s words, “……Comcare, in a case like this, would have to have compelling evidence in order to convince the Tribunal to affirm a decision to cease [Mr Lang’s] entitlements after 26 years, compelling evidence.” [38] In support of the above proposition Counsel referred us to the decision of the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
[38] Transcript 29.6.07 p-51.
57. In Brisbane South Regional Health Authority v Taylor the High Court was dealing with an application to extend the time for commencing an action. The High Court referred to the unfairness which could arise from permitting argument about circumstances which had taken place far in the past. This is in part the reason for the imposition of limitations on the commencement of proceedings. However the Safety, Rehabilitation and Compensation Act requires Comcare and this Tribunal to make decisions in relation to ongoing liability to compensate in relation to claims which arose many years ago. This is not a matter of extending the time for taking action. It is a matter of exercising the decision-making power given by the legislation. We must exercise the power given to us on the basis of such evidence as is available.
58. We do not agree that in a case such as this there is any greater onus placed on Comcare. Clearly, in assessing evidence in a matter where there has been a substantial effluxion of time since the events being considered, the Tribunal takes into account that memories fade and that it is increasingly likely that certain evidence may no longer be available. We have borne this in mind in considering our findings in this matter. However Mr Lang did not appear to us to be having difficulty in giving his evidence and at times exhibited a surprisingly clear recollection of events. We also had the advantage of extensive documentation, including medical records, going back to the events of 1981 and beyond. Counsel argued that there may be other relevant documents which are not before us. There is no evidence that this is the case and we note that despite this being the second time this matter has been before this Tribunal as well as being before the Federal Court, there has been no application for a direction that supplementary documents be filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
DECISION
59. The reviewable decision made by Comcare on 29 November 2004 will be affirmed.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member.
Signed: .....................................................................................
Geoff Foley, Associate
Date/s of Hearing 29 June 2007
Date of Decision 3 August 2007
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant Legal Aid
Counsel for the Respondent Ms L Walker
Solicitor for the Respondent Deacons
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