Lang and Comcare
[2006] AATA 460
•26 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 460
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/238
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID LANG Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr M. Miller AO, Member
Date26 May 2006
PlaceCanberra
Decision The reviewable decision made by Comcare on 29 November 2004 is affirmed.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION - Commonwealth employees – Aggravation of pre-existing condition of pain in mid thoracic region – Initial acceptance of liability in 1981 then determination to cease liability in 2004 - Whether Applicant continued to require treatment for the compensable injury – Whether Applicant incapacitated as result of compensable injury.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 20, 134
McDonald v Director-General of Social Security (1984) 1 FCR 354
Commonwealth of Australia v Borg (1984) 20 AAR 299
REASONS FOR DECISION
26 May 2006 J.W. Constance, Senior Member
Dr M Miller AO, MemberINTRODUCTION
1. Mr Lang’s working life has taken him from the coal mines of Wales to the construction sites of Canberra and to the offices of the Commonwealth Department of Primary Industry. Unfortunately, along the way he suffered a number of injuries, the latest of which was in 1981 when he was employed by the Department.
2. Comcare paid compensation to Mr Lang in respect of the 1981 injury from 1981 until November 2004. For reasons not apparent to us Comcare appears not to have taken adequate steps to review Mr Lang’s medical situation until September 2004. On 29 November 2004 it was decided that Mr Lang was not entitled to be compensated for pharmaceutical expenses he had claimed nor was he entitled to compensation for incapacity as of that date.
3. Mr Lang has sought a review of Comcare’s decision. For the reasons which follow we have decided to affirm the decision.
EVIDENCE AND FINDINGS OF FACT
4. 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.
5. Mr Lang is 74 years of age.
6. 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 the 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 standing on the table. Using this method he would retrieve up to 3 boxes per day and sort through their contents.
[1] T65.
7. 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. Mr Lang had a day off work and 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 working on the boxes until about mid September 1981.[3]
[2] S187.
[3] Ex. A3.
8. On 17 November 1981 Mr Lang lodged a notice of an injury being an “aggravation of an accident on 6/11/68.” [4] 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.
9. Based on this claim liability was accepted in September 1984 for “personal injury……in mid July 1981 namely, aggravation of a pre-existing condition of pain in mid thoracic region.” [7] 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.
[7] T76.
Medical evidence
10. We are satisfied that Mr Lang suffered from a condition or conditions which caused him to suffer pain in his thoracic region for several years prior to the 1981 incident. The clinical notes of Mr Lang’s general practitioners, Dr Reeve and Dr Herath,[8] contain numerous references indicating Mr Lang was complaining of “thoracic pain”. An entry for 9 June 1972 records “complaints of pain in middle of back (thoracic) for years becoming more frequent and painful”. There is also an entry of 24 March 1975 of “minor degenerative changes in thoracic spine.” References to thoracic pain continue in the clinical notes of the general practitioners until August 1976.
[8] S184 and S185.
11. 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 Andrew’s 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].” [9]
[9] S191.
12. 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.[10]
[10] S197.
13. Mr Lang had a series of operations on his cervical and lumbar spines in the early 1990’s. It appears that at least some of these operations were paid for by Comcare as compensation in relation to the compensable injury. In 2000 Dr Herath referred Mr Lang to Dr Chandran, Neurosurgeon. His report referred to problems Mr Lang was experiencing with his neck but did not refer to problems in the thoracic area. However in March 2002 Dr Speldewinde, Rehabilitation Consultant, reported Mr Lang’s distress as a result of an aggravation of pain in his thoracic spine.[11] A claim was made to Comcare[12] for treatment for this aggravation and apparently was paid. Dr Herath supported this claim in general terms.[13]
[11] T146.
[12] T148.
[13] T150.
14. In May 2002 Dr Herath referred Mr Lang to the Pain Management Centre at The Canberra Hospital in relation to his neck pain.[14] Neither the referral letter nor the report from the Centre[15] referred to complaints of pain in the thoracic region.
[14] S257.
[15] S265.
15. In June 2004 Dr Herath certified to Comcare that Mr Lang needed treatment in relation to his injury on 6 November 1968.[16] We assume this certificate was intended to refer to the aggravation of that injury. He also certified the need for medication on 10 June 2004.[17]
[16] T156.
[17] T157.
16. On 14 September 2004 Comcare arranged for Mr Lang to be examined by Dr Griffith, Consultant Surgeon, “to assess liability issues and the requirement for further medical treatment.” [18] At that time Mr Lang reported that he suffered thoracic pain varying in intensity from 0 to 7-8/10.[19]
[18] T158.
[19] Ex. R1.
17. Dr Griffith was of the opinion that Mr Lang’s “accepted claim for aggravation of pre-existing condition of pain in the mid-thoracic region is purely descriptive and is not a pathological diagnosis, and thus should never have been acceptable as a basis for a long term workers compensation claim.” [20] Dr Griffith continued in his report:
“The exacerbation in 1981 may well have been post-traumatic having regard to the fall which he described as occurring on 1st July 1981. Notwithstanding, in the absence of structural injury, one would have expected any such aggravation to have been resolved within three months and not to have remained symptomatic 23 years later….. I consider the work contribution would have ceased within three months of this incident, which was approximately the time when he resigned his then position with the department. No employment related aggravation (in the absence of demonstrable structural injury) should be considered as not having resolved.”[21]
[20] Ex. R1.
[21] Ex. R1.
In a later report [22] made after he reviewed additional documents, Dr Griffith added that if pathology, such as a compression fracture, had been present when Mr Lang fell from the table onto the chair, “it would certainly have been obvious and would have progressed in the form of degenerative spondylosis of the thoracic spine in the interim period.” [23]
Dr Griffith gave evidence and confirmed the opinions expressed in his reports.
[22] Ex. R2.
[23] Ex. R2 p.12.
LEGISLATION
18. 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.”
19. 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.
THE REVIEWABLE DECISION
20. 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
21. 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:
“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.”
22. 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.” [24]
[24] At 307.
23. 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 (ie. 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?
24. Mr Lang has given evidence as to an incident in 1977 involving his falling on stairs at work. This evidence is not relevant to the issues we have to decide.
DETERMINATION OF THE ISSUES
25. For reasons already stated we are satisfied that Mr Lang suffered pain in the thoracic region for several years prior to 1981. We also accept the evidence of Dr Griffith that in the absence of structural injury (of which there is no evidence) it is reasonable to expect that the aggravation would have resolved long before 29 November 2004. It is not necessary that we determine a precise date of resolution and we do not do so. Dr Griffith is well qualified (both formally and in terms of length of experience) to give the opinion he did and he presented detailed reports and clearly expressed opinions. He also has a particular interest in the treatment of chronic spinal pain.
26. There is further support for our conclusion in the reports of Dr Andrews and Dr Kitchin. Dr Andrews said that the lifting of the boxes would only have caused a temporary aggravation and Dr Kitchin’s view was that in 1983 Mr Lang’s complaint was of thoracic degenerative disease. This is consistent with Mr Lang having suffered thoracic pain prior to the 1981 aggravation.
27. The medical evidence in support of an ongoing condition as a result of the aggravation comes from Dr Herath and Dr Speldewinde. Although both these practitioners are treating doctors we prefer the evidence of Dr Griffith for the reasons stated and because it is supported by the views of other practitioners.
28. Taking into account all of the evidence referred to we are satisfied on the balance of probabilities that as at 29 November 2004 Mr Lang did not require medical treatment for, nor was he incapacitated as a result of, the compensable injury he suffered in 1981.
DECISION
29. The reviewable decision made by Comcare on 29 November 2004 will be affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M. Miller AO, Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 10 April 2006
Date of Decision 26 May 2006
Representative for the Applicant Self
Counsel for the Respondent Ms L. Walker
Solicitor for the Respondent Deacons
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