Letitia Pickett and Comcare
[2013] AATA 516
•23 July 2013
[2013] AATA 516
Division
General Administrative Division
File Number
2012/4769
Re
Letitia Pickett
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 23 July 2013 Place Perth The decision under review is varied as follows:
·the description of the ailment suffered by the applicant on 12-13 August 2011 is changed from “migraine” to “migraine equivalent (slurred speech)”;
·the respondent is liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to pay compensation in accordance with that Act to the applicant in respect of an injury, namely, dog bite suffered by the applicant on 10 August 2011, but no compensation has been, or is presently, payable to the applicant, pursuant to s 16 or s 19 of the SRC Act, in respect of that injury.
In all other respects, the decision under review is affirmed.
............................[sgd]............................................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant employed by Australian Bureau of Statistics as urban collector July-September 2011 – applicant suffered dog bite in course of employment – dog bite a compensable injury – applicant subsequently suffered slurred speech –slurred speech not contributed to, to a significant degree, by employment - slurred speech not a compensable injury – applicant did not seek medical treatment or obtain medical certificate in relation to dog bite – applicant not incapacitated for work as result of dog bite - no compensation payable to applicant for dog bite – respondent not liable to pay compensation to applicant for slurred speech – decision under review varied
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 5A, s 5B, s 14(1) and s 54
REASONS FOR DECISION
Deputy President S D Hotop
23 July 2013
Introduction
Letitia Pickett (“the applicant”), who was born in October 1947, was employed by the Australian Bureau of Statistics (“ABS”) as an “Urban Collector” on a temporary (non-ongoing) basis under contract for the period from 1 July 2011 to 8 September 2011. Her duties in that employment comprised the collection and delivery of Census materials.
On 11 April 2012, the ABS received a completed Claim for Workers’ Compensation form, signed by the applicant and dated 29 March 2012, in respect of conditions described as:
“ Slurred Speech C/O
Lt Occular Headache
Back L/Leg Dog bite.” [sic]
In that form the applicant indicated that (inter alia):
·she first noticed that her speech was slurred on 12 August 2011 while collecting Census forms;
·she first sought medical treatment for that condition on 13 August 2011.
On 7 June 2012 a delegate of Comcare (“the respondent”) made a determination disallowing the applicant’s claim for compensation for “migraine” under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”).
Following a request by the applicant, by letter dated 19 July 2012, for a reconsideration of the abovementioned determination, a Review Officer of the respondent, on 18 September 2012, made a “reviewable decision” under s 62 of the SRC Act affirming that determination.
On 23 October 2012 the applicant lodged with the Tribunal an application for review of the reviewable decision of 18 September 2012.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T38, pp 1–130) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1 and A2 tendered by the applicant;
·Exhibits R1 and R2 tendered by the respondent; and
·the oral evidence of the applicant and of Professor Allan Kermode.
The applicant’s Evidence
The applicant tendered in evidence a handwritten statement by her, dated 18 December 2012, which had been written by her for the purpose of this proceeding and whose contents she confirmed were true and correct to the best of her knowledge. That statement is as follows:
“ I was employed as a casual urban collector for the Australian Bureau of Statistics from the 1/7/2011 to 8/9/2011. I started by attending a training course on the 18/7/2011 at Mandurah small business centre.
We did have a due date to work towards a schedule for the drop off and pick up books, I had about 475 houses my time included helping with queries also they had my phone number.
I estimate it was about a eight hour a day walking with all of equipment in a carry bag around my neck the weight I am unsure.
I would park my car at beginning of block keep to the left and meet up with my car at end and do the same as I moved through the plan.
I was not taking it easy I was trying to keep up with the schedule. I had water and snacks for my energy. A few days before the event of developing slurred speech I had pulsating throb next to my left eye; I didn’t mention this to my supervisor M/S Kayleen Cameron, but I did call her when I was bitten by the dog after I saw the bleeding she came straight away and dressed it I went back to work.
It was a few days later I developed a slur in my speech, I called Kayleen again she came straight away and told me to seek medical advice straight away. Kayleen took over my work load maybe 300 homes were left to finish off collecting I was giving a medical referral from my doctor to go straight to Peel Hospital, I was admitted to Emergency and admitted over night.
My speech at times is still slurred (WHY) I don’t know, I did get a medical certificate for a week off work, after I offered to help Kayleen but she said it was nearly finished, I also was report my earnings to Centrelink once a fortnight it was recorded.
This is my truth, I went to work and this is what happened while I was working. This is not imaginary …” [sic] (Exhibit A1)
The applicant also confirmed that the contents of her letter to the respondent, dated 19 July 2012, requesting a reconsideration of the abovementioned determination of 7 June 2012, are true and correct (subject to an amendment referred to below) to the best of her knowledge. The contents of that letter are as follows:
“ I disagree with some of the determinations made by your organisation.
Firstly, the statement ‘what appears to be a left ocular headache’ is not correct. I did not have a headache but what I experienced was a pulsating or pounding feeling behind my left eye. I did not say I had a headache but this is the terminology used by the medical practitioner I saw. It is misleading I feel and to say that I had a migraine is quite incorrect. Furthermore I do not suffer from migraine and I do not believe I have ever had a migraine. Later in April 2012, some 8 months later, Dr Kermode deemed the incident that caused my speech to slur and weakened facial muscles, as an acute neurological episode with it being possible to be a migrainous phenomenon or having some relationship to residual factors from other multiple conditions. It is noted quite clearly that these are only possibilities. I feel that all these doctors draw conclusions and mention possible related health matters, but no one, not the medical staff at Peel, or Dr Kermode, the neurologist really can say what occurred when I had the slurred speech. However, there is evidence or [sic] some reduced blood supply. I did not have a headache or nausea or other migrainous symptoms. Just a throbbing and pulsating sensation behind the left eye and difficulty speaking and articulating my words.
I do not know how the condition developed or what caused it but I do know that it happened following the dog bite incident and that I pushed myself hard to complete my Census collection. Under the circumstances, I wonder how much my condition may have been aggravated by pushing on, carrying that heavy bag full of census forms and feeling stressed and panicky at times, after being bitten by the dog and having to complete the census collection while feeling not up to my usual self.
I reported the dog bite incident to my supervisor Kaylene Cameron on 10/8/2011 when it occurred and she looked at it and dressed the wound. She only advised me to seek medical attention to have a tetanus shot but as I had had one recently enough, there was no need to attend [sic] medical attention. As Kaylene had not advised me to seek medical attention then and the need to have the census forms collected was ever present in my mind, I went back to work collecting the census forms, even though I was feeling a bit alarmed about encountering another dog. It was over that period that I first noticed a throbbing sensation in the left eye area. I cannot remember specifically when that occurred but it continued for the next few days and then on Friday night and the following Saturday morning I was unable to speak properly. So much so that Kaylene observed it when speaking to me and was concerned enough to advise me to attend the ED immediately. This was 13/8/2011. I am sure that Kaylene and the staff at Peel Health ED will confirm that my speech was impaired.
Dr Kermode states that other people I know do not notice the speech impediment. These other people did not see or speak to me on the 13/8/2011. These episodes of slurred speech are still occurring sometimes when I am tired or unwell. Other people have noticed and commented on occasions. I am keen to find out if there is anything that I can do or any treatment or speech or physiotherapy that could improve things for me.
It seems that although there was no evidence of a lesion or larger area of the brain dying, it appears there are some small areas that have reduced blood supply or small vessel ischemic disease. I believe the diagnosis was actually transient ischemic attack of the brain (see letter from Dr Goutam Sharma at Metceni Health). Dr Sharma also states that I do not have any congenital malformation or predisposition which would have caused the slurred speech and left sided pulsation (he also uses the incorrect term of left sided headache). He also says that some people may argue that my history of hypertension and hypothyroidism can contribute to this, but as my blood pressure and thyroid were both stable at that time, and usually are, then it seems unlikely that they would have contributed to this problem. He attaches a copy of my lipid profile (cholesterol levels) to further show the stable satisfactory condition of my cholesterol. Please see this letter as I believe this may be new additional information for this case.
Furthermore, Dr Sharma believes that the stress of being chased and bitten by a dog could cause sufficient stress and panic attack and consequent increased blood pressure which could then cause the ischemic attack. It is not the cut itself (dog bite cut) that has caused the problem, but the panic and anxiety of the experience and then having to continue going into yards where there could be other dogs that could attack me.
I find it surprising that you were not satisfied that I had suffered a transient ischemic attack when the MRI report requested by Dr Brett Sillars himself on 14/8/2011 clearly states in the comment in the last paragraph on page 1 that there are appearances favouring moderate small vessel ischemic disease. When something is transient then it is only occurring at times and I believe that often many or sometimes all tests can be normal when the attack is no longer occurring or is only mild. Perhaps Dr Sillars may not have seen this MRI report, as it is written and signed by Dr Sonia Dale. It appears Dr Sharma has viewed the MRI report from the 14/8/2011.
I believe with this information and the fact that much of what you have based your decision on may be, in fact, incorrect. You may find that it is quite possible that my condition may have been caused by the stress of being chased and bitten by the dog.
If a plausible link between my condition and my employment does not satisfy the requirement of significant contribution on a balance of probabilities then could you explain exactly what does satisfy the requirement? What exactly would you say are the balance of probabilities?
…” (T36)
The applicant said that the word “pounding” in the second sentence of the second paragraph of that letter was inaccurate and that the word “throbbing” was the appropriate term to describe the feeling behind her left eye which she had experienced.
In cross-examination the applicant gave evidence to the following effect:
·she called her supervisor on 13 August 2011 about her slurred speech and she then went to her general practitioner who gave her a referral to the Emergency Department at Peel Health Campus;
·she then attended the Emergency Department at Peel Health Campus on 13 August 2011;
·she was discharged from Peel Health Campus on 14 August 2011;
·in October 2011 she saw another general practitioner, Dr Muller, in order to obtain a second opinion about the cause of her slurred speech;
·Dr Muller referred her to Professor Kermode whom she had seen in 2007;
·she saw Professor Kermode in April 2012;
·she had never experienced slurred speech before 12 August 2011 but she has since experienced it at times when she is tired.
Medical Material in the T Documents and the Summonsed Documents (Exhibit R1)
A clinical note of Dr Raja Marimuthu of Metceni Health, dated 12 August 2011 at 11.23 am, refers to the applicant’s “having slurred speech – last 24 hrs” (Exhibit R1, p 200).
Medical records regarding the applicant provided by Peel Health Campus refer (inter alia) to the following:
·the applicant was admitted on 13 August 2011 at 11.57 am with a “presenting problem” described as “slurred speech” (T27, p 74);
·a CT Brain report, dated 13 August 2011, referred to a clinical history of “throbbing headache, slurred speech” and concluded:
“ No significant intracranial abnormality. No intracranial haemorrhage.” (T27, p 87);
·the applicant was discharged on 14 August 2011, the “principal diagnosis” being “slurred speech”, “? TIA” (T27, p 80).
An MRI Brain with MRA report, dated 18 August 2011, found “no focus of diffusion restriction suggestive of acute ischaemic injury” and “no intracranial vascular stenosis” (T7).
A report of Dr Goutam Sharma of Metceni Health, dated 16 May 2012, to the respondent states as follows:
“ Thank you for your request for information on Letitia, age 64 Years in relation to her slurred speech, left ocular headache, dog bite on her left leg.
The answered [sic] to your questions are compiled below
1.Mrs Picket has been a patient at this practice since 15/11/2005.
She was first consulted in this surgery by my colleague on 13/08/11 for slurred speech and was referred to emergency department as she had no documented past history of slurred speech or ocular headache.
The history reported by her was sudden onset of slurred speech.
2.The copies of hospital notes, investigation results pre & post admission, the blood test results, report of Dr Kermode’s letter [sic] are attached.
3.She was seen by Dr Kermode only after the episode of slurred speech according to my notes. No reports from Dr Sillars are available to me.
4.The diagnosis was Transient ischaemic attack of brain.
5.From notes and investigation done since 15/11/2005 she does not have any congenital malformation or predisposition which caused to [sic] contribute to her slurred speech & left ocular headache.
Though one can argue that her hypertension, hypothyroidism can contribute to this condition. But she had a stable blood pressure, well controlled thyroid hormone level, well controlled lipid profile, the results of which are attached.
(a) It is difficult to explain precisely how pre-existing condition played a role in her condition, usually people with uncontrolled blood pressure or high cholesterol level could predispose to stroke/transient ischemic attack.
(b) I do not think that her ultimate condition of slurred speech is a consequence of the progression or the inevitable consequences of one of the condition [sic] as I have mentioned above.
6.In my opinion the employment can contribute to the condition in a significant way by being chased & bitten by a dog, she probably had a panic attack & she suffered a hypertensive episode.
7.Yes, I think that her Commonwealth employment with Australian Bureau of Statistics contributed of [sic] her being nipped by the dog. If she does not have this job, there was no chance of being nipped by the dog.
8.As I have mentioned in the answer to question number 6, the stress of being chased & bitten by a dog may have contributed significantly for [sic] her slurred speech.
9.She was unfit for work from 12/08/12 to 23/08/12.
I feel that there is no single factor that has contributed to this condition.
…” (T31, pp 93-94)
A report (undated) of Dr Brett Sillars, Consultant Physician, to the respondent states as follows:
“ In direct response to your questions (as numbered on the request)
1.I reviewed Ms Pickett whilst an inpatient in Peel Health Campus. She was admitted on the 13th of August 2011. I reviewed her once on the 14th of August 2011. She was reviewed by other doctors prior to this review. She was discharged from hospital on the 14th of August 2011 after my review.
2.Her presentation was most consistent with a migraine. A transient ischaemic attack is less likely based on her clinical presentation. Subsequent imaging of the brain (CT and MRI) field to reveal an alternate underlying neurological process to account for her presentation.
3.Emotional stress is a known potential precipitating factor in the development of a migraine. The neurophysiology of migraines is complex otherwise does not seem otherwise relevant to Ms Pickett’s presentation. [sic]
4.She had no pre existing condition relevant to her presentation.
5.…
6.…
7.I do not feel that her employment with the Bureau of Statistics contributed to her condition beyond the potential stress associated with being ‘nipped by a dog’ contributing to the development of a migraine.
8.The only plausible link between Ms Pickett’s presentation with a migraine and between [sic] being ‘nipped by a dog’ is with the stress resulting from having been ‘nipped by a dog’.
9.There should be no permanent effect or damage from Ms Pickett’s condition. I did not review her clinically after her presentation to hospital to confirm this. The effects of migraine should abate within 72 hrs or sooner.
10.There is no specific treatment required at this stage unless there are any ongoing symptoms.” (T30)
The Evidence of Professor Allan Kermode
Professor Kermode, Consultant Neurologist and Clinical Professor of Neurology, The University of Western Australia, confirmed that he had seen the applicant on two occasions, namely 24 July 2007 and 24 April 2012.
Professor Kermode first saw the applicant following a referral by Dr Carolyn Richards of Metcini Health and he provided a report, dated 24 July 2007, to Dr Richards as follows:
“ Diagnoses:
1.Acute experiential phenomena
1.1 query migraine equivalent or non-structural attack
2.Anxiety disorder
3.Migraine with aura
3.1 previous blurring of vision
4.Recovered alcoholic 20 years previously
5.Stopped smoking 2000
Thank you for referring this woman for assessment. I have detailed handwritten notes, but to summarise after driving for several days from Melbourne she developed an attack where she felt ‘overheated, pins and needles all through the body, and the eyesight going funny’. It is quite clear that both sides of her vision were affected and the entire body was with pins and needles. This persisted for some 20-30 minutes but she also developed some right sided motor alterations as if everything was ‘slowing down’. She felt nauseated but there was no headache and she said and I quote ‘my whole being, my whole body felt better by 90 minutes’.
I have handwritten notes that detail other aspects of the history.
On examination she was a slightly anxious dextral woman with a normal neurological examination. There were no carotid bruits and the cardiac examination was normal. I did not measure her blood pressure, but she tells me the last time it was done in your rooms it was 120/80.
I believe this patient has had a non-structural problem, probably related to either a migraine equivalent or anxiety disorder. For completeness I have arranged to perform a cerebral MRI at no cost to the patient and I will advise you of the result. I also discussed some of her anxiety issues with her.
…” (Exhibit R1, p 178)
Professor Kermode wrote a letter, dated 4 September 2007, to the applicant as follows:
“ I am writing to advise your MRI has not shown any severe or unpleasant abnormality. However there are age related changes most likely related to previous smoking and migraine. Importantly this MRI has excluded stroke as a cause of your recent attack.” (Exhibit R1, p 179)
Professor Kermode saw the applicant on 24 April 2012 following a referral by Dr Julia Muller of Kwinana Medical Centre as follows:
“ Thank you for seeing Ms Letitia Pickett, age 64 yrs.
I saw this pleasant lady for the first time last week.
She gives PH TIA in 2007, and I believe she saw you at that time.
In August she developed slurred speech following dental Rz that included LA. The slurring did not resolve and she was admitted overnight to Peel health campus. Diagnosis TIA.
She had a carotid duplex arranged by her usual GP and she will bring copy of this to her appt.
I have included MRI.
When I saw her she was taking aspirin, and not prescribed assasantin.
She had also been prescribed crestor, which she is now taking.
She was normotensive, BP 134 75, PR 70 R.
Her usual GP is Dr Sharma, Medicini [sic] Medical centre, Mandurah.
…” (Exhibit R1, p 182)
Professor Kermode provided a report, dated 24 April 2012, to Dr Muller as follows:
“ DIAGNOSIS [sic]:
1.Subjective slurring of speech
1.1occurred when stressed and tired
1.2possibly physiological
2.Recovered alcoholic 26 years previously
3.Recovered smoker 2000
4.Treated hypothyroidism
5.Dyslipidaemia
6.Hypertension
7.Migraine with aura
8.Anxiety disorder
9.Bilateral carpal tunnel surgery
Thank you for referring this 64 year old woman who I recall from 5 years previously. She was doing the Census and in the context of some headache and left unilateral pain over that week developed some slurring of speech. Her supervisor noticed this symptom, but other people she knows ‘didn’t notice the difference.’ She feels this speech disturbance returns any time she is tired. She was fully investigated and have [sic] noted the MRI shows long term chronic deep white matter signal change consistent with her previous medical history of alcoholism, hypertension, and smoking.
On examination she is right handed. Her blood pressure was 150/90 supine after 5 minutes of rest. She tells me however that at the Pharmacy where she gets it checked that [sic] is usually lower than this. She is right handed. Cranial nerve and all 4 limb neurological examination was unrewarding. She has a slight sway on tandem walking but no other overt evidence of cerebellar signs.
I am unconvinced that her subjective slurring of speech represented an acute neurological event, and may have been a migrainous phenomena or perhaps a residua of the multiple comorbidity mentioned above. In any event no further investigations are necessary and I agree with the management of her current vascular risk factors with Thyroxine, Crestor, Renitec, and Aspirin 1 per day. The most important management feature from now on will be for good control of her blood pressure. I have not arranged to review her again but will of course see her at any stage in the future should it be necessary.” (Exhibit R1, p 183)
In his oral evidence Professor Kermode confirmed that the MRI of the applicant’s brain on 17 August 2011 did not indicate that any structural injury or stroke had occurred recently, including in the period 12– 13 August 2011. He confirmed that it is his opinion that the applicant’s slurring of speech was not caused by an acute neurological event such as a stroke. He added that he regarded her speech as within normal physiological limits for a female of her age.
Professor Kermode explained that “migraine without aura” refers merely to headache but that “migraine with aura” refers to migraine in conjunction with such neurological symptoms as blurred vision, slurred speech, clumsiness, and tingling. He referred, furthermore, to a third category, namely, “migraine equivalent”, which refers to the migrainous “aura”, that is, the presence of the abovementioned kinds of migrainous neurological symptoms, but without headache.
In response to questions from the applicant, Professor Kermode said that he recalled her telling him on 24 April 2012 about a dog incident in August 2011 but that he did not refer to it in his clinical notes or in his report of 24 April 2012. He accepted that the dog incident would have been “quite a stressful and frightening event” for her and that it “may well have produced some symptoms such as a marked increase in anxiety”. He added, however, that there is no scientific evidence to support the proposition that such an event could cause a stroke.
Asked whether the applicant’s carrying a heavy bag around her neck could have caused a “block in the neck”, Professor Kermode responded that that “would not be possible”.
In response to questions from the Tribunal, Professor Kermode confirmed that his diagnosis of the applicant’s condition is “subjective slurring of speech” and he added that that diagnosis represents the condition which the applicant suffered in the period 12–13 August 2011. He said that when he examined her on 24 April 2012 he did not find any neurological abnormality, apart from “some slight swaying when walking in a straight line”.
Professor Kermode said that his reference to “migraine with aura” in his report of 24 April 2012 relates to his previous diagnosis of the applicant on 24 July 2007, prior to which she had experienced blurring of vision, and not to her condition when he examined her on 24 April 2012.
Asked whether he had formed an opinion regarding the cause of the applicant’s subjective slurring of speech suffered on 12–13 August 2011, Professor Kermode said that he “felt that it was non-structural, either related to migraine equivalent or worsened by anxiety”. He added that he was “certain” that it was not caused by a transient ischaemic attack or a stroke. Asked whether, in his opinion, the applicant’s subjective slurring of speech in August 2011 was related to her employment activities at that time, Professor Kermode said that he “could not draw a direct link between the two issues” and that he regarded them as “separate”.
The Relevant Legislation
Section 14(1) of the SRC Act provides:
“ 14 Compensation for injuries
(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.”
The SRC Act also relevantly provides as follows:
“ 4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
...
disease has the meaning given by section 5B.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury has the meaning given by section 5A.
…
5A Definition of injury
(1) In this Act:
injury means:
(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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
…
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or 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.
…
54Claims for compensation
(1)Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2)A claim shall be made by giving the relevant authority:
(a)a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b)except where the claim is for compensation under section 16 or 17 – a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.
(3)Where a written claim, other than a claim for compensation under 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.
…
(5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.”
The Issues
There is no dispute that the applicant:
·was bitten by a dog on 10 August 2011; and
·experienced slurring of speech on 12-13 August 2011;
and the Tribunal, on the basis of the applicant’s evidence, so finds.
The issues for the Tribunal’s determination are:
·whether the dog bite suffered by the applicant on 10 August 2011 is an “injury”, as defined in s 5A(1) of the SRC Act;
·whether the slurring of speech experienced by the applicant on 12-13 August 2011 is a “disease”, as defined in s 5B(1) of the SRC Act; and
·whether compensation is payable to the applicant under the SRC Act in respect of the abovementioned dog bite and/or slurring of speech.
Analysis
Is the dog bite suffered by the applicant on 10 August 2011 an “injury”, as defined in s 5A(1) of the SRC Act?
On the basis of the evidence before it, the Tribunal finds that the applicant was bitten by a dog on 10 August 2011 in the course of her employment by the ABS as an “Urban Collector”. The Tribunal also finds, on the basis of the applicant’s evidence, that the dog bite inflicted a small wound on the back of her lower left leg which was dressed by her supervisor, Ms Cameron.
Accordingly, the Tribunal finds that the abovementioned dog bite is an “injury”, as defined in s 5A(1)(b) of the SRC Act.
Is the slurring of speech experienced by the applicant on 12-13 August 2011 a “disease”, as defined in s 5B(1) of the SRC Act?
There is inconsistency in the medical evidence before the Tribunal regarding the appropriate diagnosis of the condition involving slurred speech suffered by the applicant on 12-13 August 2011. The relevant medical evidence may be summarised as follows:
·the Peel Health Campus Patient Discharge Summary, dated 23 August 2011, certified by Dr R Perry, indicates that the applicant was admitted on 13 August 2011 and discharged on 14 August 2011 and describes the “principal diagnosis” as “slurred speech”, “? TIA” (T27, p 80);
·a report of Dr Brett Sillars, Consultant Physician, who reviewed the applicant at Peel Health Campus on 14 August 2011, states that her presentation was “most consistent with a migraine” and that a “transient ischaemic attack is less likely …” (T 30);
·a report of Dr Goutam Sharma, general practitioner, refers to the applicant’s attendance at his surgery on 13 August 2011 complaining of “slurred speech”, and to her referral to the Emergency Department [of Peel Health Campus], and describes the diagnosis of her condition as “Transient ischaemic attack of brain” (T31, pp 93-94);
·Professor Allan Kermode, Consultant Neurologist, opined that the appropriate diagnosis of the relevant condition suffered by the applicant in August 2011 was “subjective slurring of speech” which was either “related to migraine equivalent” or “worsened by anxiety” but was not related to a transient ischaemic attack or a stroke.
As regards the relevant medical evidence, the Tribunal attaches the greatest weight to the opinions of Dr Sillars and Professor Kermode, and, having regard to their opinions, the Tribunal is satisfied that the appropriate diagnosis of the condition suffered by the applicant on 12-13 August 2011 is “migraine equivalent (slurred speech)”, and the Tribunal so finds.
In order to constitute a “disease”, as defined in s 5B(1) of the SRC Act, the “migraine equivalent (slurred speech)” (being an “ailment” as defined in s 4(1) of the SRC Act) suffered by the applicant on 12-13 August 2011 (“the relevant ailment”) must have been “contributed to, to a significant degree, by” her employment by the ABS. The phrase “significant degree” in s 5B(1) is defined, in s 5B(3), to mean “a degree that is substantially more than material”.
The medical evidence regarding the relationship (if any) between the relevant ailment and the applicant’s employment by the ABS is summarised in paragraphs 37–39 below.
In his report of 16 May 2012 (set out in paragraph 13 above), Dr Sharma relevantly stated as follows:
“…
6.In my opinion the employment can contribute to the condition in a significant way by being chased & bitten by a dog, she probably had a panic attack & she suffered a hypertensive episode.
7.Yes, I think that her Commonwealth employment with Australian Bureau of Statistics contributed of [sic] her being nipped by the dog. If she does not have this job, there was no chance of being nipped by the dog.
8.As I have mentioned in the answer to question number 6, the stress of being chased & bitten by a dog may have contributed significantly for [sic] her slurred speech.”
He concluded:
“I feel that there is no single factor that has contributed to this condition.”
In his report (set out in paragraph 14 above), Dr Sillars relevantly stated as follows:
“…
7.I do not feel that her employment with the Bureau of Statistics contributed to her condition beyond the potential stress associated with being ‘nipped by a dog’ contributing to the development of a migraine.
8The only plausible link between Ms Pickett’s presentation with a migraine and between [sic] being ‘nipped by a dog’ is with the stress resulting from having been ‘nipped by a dog’.
…”
In his oral evidence, Professor Kermode accepted that the dog bite in August 2011 would have been “quite a stressful and frightening event” for the applicant and “may well have produced some symptoms such as a marked increase in anxiety”. He added, however, that he “could not draw a direct link between” the applicant’s slurred speech in August 2011 and her employment activities at that time, and that he regarded those two matters as “separate”.
Having regard to the contemporaneous medical evidence in the period 10-13 August 2011, the Tribunal notes that:
·the applicant did not seek medical treatment for the dog bite she suffered on 10 August 2011;
·the applicant did seek medical treatment on 13 August 2011 for slurred speech and was referred to Peel Health Campus on that date;
·there is no reference in the general practitioners’ clinical notes (Exhibit R1, p 200), or in the records of Peel Health Campus (T4, T27), to the dog bite incident or to the applicant’s experiencing stress or anxiety symptoms in the period 10–13 August 2011.
In the Tribunal’s opinion, Dr Sharma’s assertion, in his report of 16 May 2012, that the applicant was “chased … by a dog” and “probably had a panic attack” and “suffered a hypertensive episode”, is speculative and is not supported by the contemporaneous evidence, and the Tribunal attaches little weight to it.
Likewise Dr Sillars’ reference, in his abovementioned report, to “the potential stress associated with being ‘nipped by a dog’ contributing to the development of a migraine”, in the Tribunal’s opinion, involves speculation and falls well short of constituting an opinion that the applicant suffered stress by reason of being nipped by a dog, which contributed, to a significant degree, to her suffering the relevant ailment.
Professor Kermode, on the other hand, clearly opined that there was no causal link between the relevant ailment and the applicant’s employment by the ABS.
Having regard to the whole of the evidence before it, the Tribunal is not satisfied that the applicant experienced significant stress or anxiety symptoms by reason of her being bitten by a dog on 10 August 2011; nor is the Tribunal satisfied that the relevant ailment was “contributed to, to a significant degree” (within the meaning of s 5B of the SRC Act), by the abovementioned dog bite incident or otherwise by her employment by the ABS.
Accordingly, the Tribunal finds that the relevant ailment is not a “disease”, as defined in s 5B(1) of the SRC Act. For the sake of completeness, the Tribunal adds that it also finds that the relevant ailment is not an “injury”, as defined in s 5A(1) of the SRC Act.
Is compensation payable to the applicant under the SRC Act?
It necessarily follows from the findings referred to in paragraph 45 above that the respondent is not liable under s 14(1) of the SRC Act to pay compensation to the applicant in respect of the relevant ailment.
The Tribunal has found, on the other hand, that the dog bite suffered by the applicant on 10 August 2011 is an “injury” as defined in s 5A(1)(b) of the SRC Act. Accordingly, that dog bite is an “injury” within the meaning of s 14(1) of the SRC Act. The Tribunal also finds that that injury resulted in “impairment” (as broadly defined in s 4(1) of the SRC Act), namely, a small wound on the back of the applicant’s lower left leg. It necessarily follows from those findings that the respondent is liable under s 14(1) of the SRC Act to pay compensation, in accordance with that Act, to the applicant in respect of the dog bite suffered by her on 10 August 2011.
Pursuant to s 54(1) of the SRC Act, however, compensation is not payable to the applicant in respect of the abovementioned dog bite unless a claim for compensation is made by her or on her behalf under that section.
Although a Comcare “Claim for Workers’ Compensation” form, completed by the applicant, in respect of (inter alia) the abovementioned dog bite, was given to the ABS on 11 April 2012 (see paragraph 2 above), the applicant (as previously mentioned) did not seek treatment from a medical practitioner in respect of that dog bite; nor did she obtain and give to the ABS a workers’ compensation medical certificate (as referred to in s 54(2)(b) of the SRC Act) in respect of that dog bite.
Pursuant to s 54(3) of the SRC Act, therefore, the applicant’s claim for compensation in respect of the dog bite suffered by her on 10 August 2011 – other than (relevantly) a claim for compensation for the cost of medical treatment under s 16 – is “taken not to have been made”.
It is common ground that the applicant:
·has not obtained medical treatment or incurred any medical expenses in relation to the dog bite suffered by her on 10 August 2011;
·was not incapacitated for work, and did not take any time off work, by reason of that dog bite.
Accordingly, the Tribunal finds that, although the respondent is liable under s 14(1) of the SRC Act to pay compensation in accordance with that Act to the applicant in respect of the dog bite suffered by her on 10 August 2011, no compensation has been, or is presently, payable to the applicant, pursuant to s 16 (medical expenses) or s 19 (incapacity for work) of the SRC Act, in respect of that injury.
Decision
For the above reasons, the decision under review is varied as follows:
·the description of the ailment suffered by the applicant on 12-13 August 2011 is changed from “migraine” to “migraine equivalent (slurred speech)”;
·the respondent is liable under s 14(1) of the SRC Act to pay compensation in accordance with that Act to the applicant in respect of an injury, namely, dog bite suffered by the applicant on 10 August 2011, but no compensation has been, or is presently, payable to the applicant, pursuant to s 16 or s 19 of the SRC Act, in respect of that injury.
In all other respects, the decision under review is affirmed.
I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
................[sgd B Mitchell].................................
Dated 23 July 2013
Date of hearing 2 July 2013 Representative of the Applicant In person (unrepresented) Counsel for the Respondent Ms S Callan Solicitors for the Respondent Sparke Helmore
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