MAURICE HILLIER and COMCARE
[2009] AATA 188
•20 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2009] AATA 188
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4002
GENERAL ADMINISTRATIVE DIVISION
)
Re MAURICE HILLIER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member Robin Hunt and Dr M Thorpe, Member Date20 March 2009
PlaceSydney
Decision The decision under review is set aside and in substitution we decide that Comcare is liable to pay the applicant compensation pursuant to sections 14, 16, 19 and 124 of the Act. Further, Comcare is liable to pay the applicant’s costs in accordance with section 67 of the Act. ...................[sgd]...........................
Ms R Hunt
Senior Member
CATCHWORDS:
COMPENSATION – continuing liability for injury previously accepted – cessation of payment – onus on respondent - on balance applicant did not cease to suffer effects of accepted injury – decision set aside.
RELEVANT ACT/S:
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14 16, 19, 124, 132
Compensation (Commonwealth Government Employees) Act 1971
Administrative Appeals Tribunal Act 1975 (Cth) s 43
CITATIONS:
The Commonwealth v Muratore (1978)141 CLR 296
Comcare v Nichols [1999] FCA 209
Re Hocking and Australian Postal Corporation [2002] AATA 963
Watts v Rake (1960) 108 CLR 158
Purkess v Crittenden (1965) 114 CLR 164Comcare v Sahu-Khan [2007] FCA 15
REASONS FOR DECISION
20 March 2009 Senior Member Robin Hunt and Dr M Thorpe, Member Introduction
1. Mr Hillier sustained a back injury on 15 May 1979 for which he received compensation from Comcare and its predecessor, the Commissioner for Employees Compensation, for a continuous period, until 7 February 2007. On that date, Comcare determined it was not presently liable to pay compensation for medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) and it “was not presently liable to pay compensation [to Mr Hillier] for incapacity benefits under section 132(4) of the Act”. Section 132 of the Act deals with payments made to former employees under the age of 65 who are not in receipt of superannuation benefits and are unable to engage in any work.
2. Comcare's determination of 31 January 2007 and reconsideration decision of 28 May 2007 described the injury for the claim as “lower lumbar facet joint strain”. The reviewable decision made on 28 May 2007 to cease to accept liability for "lower lumbar facet strain" was based on a report from Dr Frank Machart, dated 27 September 2006. Dr Machart reported that the applicant's condition was a pre-existing constitutional osteoarthritis undergoing natural progression of increase in severity and compounded by obesity. In Dr Machart’s opinion, the injury sustained in 1979 was not a contributing factor to his current condition.
3. Mr Hillier had been in receipt of compensation payments for 28 years for the back injury sustained in 1979 with the obvious inference that the payments were because of the injury sustained 15 May 1979. To accord with Dr Machart's opinion requires the shifting of presumptions of fact on which liability has been accepted for 28 years. Review of Mr Hillier’s present entitlement to compensation raises queries about pre-existing evidentiary presumptions in relation to damages.
4. There is no onus of proof on either party in these proceedings, but the party that seeks to disturb the state of affairs existing before the date of the decision under review must establish to the satisfaction of the tribunal the factual basis on which the reviewable decision was made (The Commonwealth v Muratore (1978) 141 CLR 296; Comcare v Nichols [1999] FCA 209 (31 March 1999); Re Hocking and Australian Postal Corporation [2002] AATA 963 (22 October 2002)). Further, the coincidence of work-caused injury and onset of symptoms raises a presumption of related causation. Such an inference is open to us unless it is disturbed by evidence adduced by Comcare to the contrary (Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164.
Background events and evidence
5. The evidence is that Mr Hillier suffered a trauma to his spine at work. The original incident is not disputed and a delegate of the Commissioner for Employees Compensation determined, on or about 23 October 1979, that Mr Hillier was entitled to payment of compensation for “strain in lower back”. A delegate also determined to pay medical expenses incurred when Mr Hillier saw a specialist, Mr R C Hudson, for a consultation and report. A series of determinations followed under which various continuing medical expenses were paid for Mr Hillier’s treatment and investigation of his injury.
6. Mr Hillier was employed at the time of the injury on the civilian staff of the Department of Defence as a truck driver at Royal Edward Vittling Yard (REVY) at Pyrmont from about 1972. REVY was responsible for delivering the victuals to various naval bases where one of his tasks was to convey vegetables from the Markets to the Defence depot. This involved loading and unloading of trucks, including bags of onions, pumpkins and potatoes.
7. Comcare’s records show Mr Hillier injured his left ankle in 1973 jumping from a truck and for this injury he received a small compensation payment. On 15 May 1979, when loading vegetables onto the truck at Pyrmont to take to Nirimba, he suffered another injury. Mr Hillier described to us how he picked up bags of potatoes, weighing 150 pounds, placing them onto his hip and then spinning around and dropping the bag on the truck. On that day, having just made a spin, he felt as if someone had stabbed him straight in the side with a knife down the bottom of his back. He indicated the site of pain as at the belt line maybe 5 centimetres to the right of centre. He continued that day at work with the pain in the back "really ripping into me".
8. Next day, Mr Hillier went to South Sydney Hospital and was x-rayed. The following day he saw his own doctor, Dr Doran, who prescribed pain killers and he later went to an orthopaedic specialist, Dr Hudson. Both Dr Doran and Dr Hudson certified Mr Hillier unfit for work. Mr Hillier's evidence was that over the ensuing six months after the accident the pain remained in the same spot and was like a knife going into him.
9. In February 1980, Mr Hillier started rehabilitation at Mt Wilga Rehabilitation Centre. He attended the centre for five and a half months and during this period Mr Hillier told us the pain stayed about the same and the quality of the pain did not change.
10. His employment was terminated at the end of 1980. Mr Hillier continued to see various doctors depending in part on where he lived at the time. Reports before us show he started to see Dr Kalokerinos in Bingara in 1982. Mr Hillier went back to his childhood home in Bingara permanently in 1992 and continued to see Dr Kalokerinos as his general practitioner. Mr Hillier's evidence was that the pain stayed the same during the 1980s and he was on regular medication for the pain. As outlined in the medical evidence before us, Mr Hillier has been seen by numerous doctors and specialists over the past 28 years and has been under the constant care of a general practitioner, initially Dr Doran. After moving back to Bingara, Mr Hillier used to see Dr Kalokerinos and now sees Dr Coote.
11. Mr Hillier has some other injury problems as well as his back. Briefly, he has had a history of right shoulder problems for about five years before a shoulder reconstruction in 1998 which produced some improvement. He also was involved in a motor vehicle accident in 2001 leaving him with some residual neck problems. There is also a history of carpal tunnel problems.
12. In oral evidence Mr Hillier told us he has attempted to work on a few occasions including process work with cattle, helping to knock down a chimney, and driving a school bus. As to his driving ability, Mr Hillier thinks he can drive a car for up to an hour and he thinks he could do work involving driving but this would be limited by pain. Mr Hillier used to live on his Bingara property outside town but currently lives in town and walks around his son's farm watering the horses and cattle. He remains on pain killing medicine including digesic and panadeine forte.
13. There was no history before us of any back pain prior to the injury in 1979. Mr Hillier is unable to read or write according to the evidence.
Medical Evidence
14. There are many medical reports available to the tribunal about Mr Hillier’s back condition and treatment over the years since his 1979 injury. Dr JC Doran reported Mr Hillier attending his rooms 21 May 1979, stating that he had injured his back at work on 15 May 1979 and had brought with him a letter from South Sydney Hospital which read as follows:
“16.5.79 Dear Doctor, Herewith Mr Hillier with acute low back pain following turning with a heavy load yesterday” and diagnosed “as ? Apophyseal joint displacement with interspinous ligament (sic). X-rays today show no gross abnormality" (T22 pp 44-45).
15. Dr John Baggott, of South Sydney Hospital, on 16 May 1979 (T18 pp 40-41), reported Mr Hillier suffered a sacro-iliac strain especially L3- 4 region. Other practitioners examined Mr Hillier subsequently and gave further opinions. On file are a series of reports and certificates stating that Mr Hillier was unable to resume work for ensuing periods and determinations that he be granted sick leave on full pay.
16. Dr Richard Hudson, Orthopaedic Surgeon, on 13 July 1979 (T23 p 46), was uncertain of an accurate structural diagnosis but thought Mr Hillier had lower facet joint strain rather than an acute disc problem He reported some x-rays of his lumbar spine appeared normal. He observed that Mr Hillier’s main complaint was low back pain and stiffness. Dr Hudson prescribed a lumbo-sacral support with graduated exercises and swimming and prescribed Bilpin bd. In January 1980, he arranged for Mr Hillier to undertake rehabilitation at Mt Wilga. Dr Hudson was unable to obtain any history of back pain prior to May 1979. On the basis of Dr Hudson’s report, Mr Hillier received entitlement for compensation for the condition which Dr Hudson described as “lower lumbar facet joint strain”.
17. Dr Frederick Ehrlich on 27 November 1979 (T37 pp 70-71) saw Mr Hillier for the Department of Defence and considered Mr Hillier was suffering “lumbar spine strain, query disc disease”. Dr Ehrlich thought he was fit to undertake employment in occupations that do not involve frequent stooping or heavy lifting. He further suggested that Mr Hillier was unfit to be a truck driver as this occupation involved heavy lifting.
18. A handwritten report signed by one ‘Rod See’, on 17 October 1980 (T59 p 98), when Mr Hillier was about to complete his rehabilitation program at Mt Wilga, recommended that Mr Hillier be retired as he was not capable of redeployment. The letter states that Mr Hillier was planning to enrol at tech on the advice of a social worker in order to learn to read and write. The letter adds that clearly until he could read and write there would be no position to which he could be moved. No action appears to have been undertaken on this recommendation that Mr Hillier needed to learn to read and write to be employable. Subsequently, Mr Hillier continued to be assessed as unfit for work by his attending doctors and his services were terminated 17 October 1980. He has not undertaken any meaningful occupation since.
19. Mr Hillier has since been reviewed by orthopaedic specialists with differing opinions over the years for his ongoing low back pain that tends to radiate into the left leg. Apart from being overweight, opinions and physical findings are unremarkable. Dr John N Davies, on 8 June 1988 (T172 pp 256-257), considered Mr Hillier had a lumbo-sacral disc lesion, preventing him from truck driving, but that he was fit for semi-sedentary work. Dr John V Clery, on 11 February 1991(T208 pp 308-310), agreed that Mr Hillier suffered injuries to his low back when at work lifting potatoes on 15 May 1979 and that the present complaint of pain in his lower back was a direct result of that injury. Dr Clery did not anticipate any improvement in the condition in the future. He considered Mr Hillier was suffering from musculoligamentus injuries to his lower back giving rise to some instability of his lower back and osteoarthritis of the facet joints at the lumbosacral level and that he was still incapacitated for work.
20. Dr A F Bencsik, on 17 June 1994 (T226 pp 368-372), agreed with Dr Hudson that Mr Hillier’s major problem was facet joint degeneration and that his lumbar spondylitic condition could have been aggravated lifting potatoes. Dr Bencsik did not think any treatment apart from weight reduction and exercise would be of benefit.
21. Dr Coote, who had become Mr Hillier’s General Practitioner, on 5 February 1999, considered he remained unfit for work and, on 7 June 2000, recommended physiotherapy (T249 p 405).
22. Dr F.G Machart, orthopaedic surgeon, reviewed Mr Hillier for Comcare on 25 September 2006 (T285 pp 476-479). Dr Machart diagnosed Mr Hillier with osteoarthritis of his lumbar spine affecting multiple levels and with obesity. He was unable to confirm that Mr Hillier’s condition was related to a specific injury in 1979. On balance, he considered the condition was pre-existing constitutional arthritis with natural progression of increase in severity with the passage of time, and compounded by obesity. The basis of his opinion that the injury sustained in 1979 was not a contributing factor to his current condition was that it was not structural and not radiologically evident to Dr Hudson’s examination. Dr Machart further considered Mr Hillier fit for light duties.
23. Dr Peter Conrad, the surgeon for the applicant, on 15 December 2006 (T293 pp 494-496) considered Mr Hillier’s condition not adequately investigated and required an MRI of the lumbosacral spine. The reason for the MRI was to exclude a disc prolapse of L4/L5 or L5/S1 which Dr Conrad considered the most likely cause of Mr Hillier’s ongoing back pain, being left sided radiculopathy caused by a disc prolapse. Dr Conrad did not doubt this man had a significant back injury in 1979 which had continued since and prevented him from working. The doctor’s prognosis for recovery was poor.
24. Dr Neil McGill, Rheumatologist, on 9 November 2007 (Exhibit R1) saw Mr Hillier for the respondent and took into account various reports, x-rays and a CT scan performed on 10 May 2004. This doctor considered Mr Hillier’s current conditions relevant to his lower back symptoms were obesity and mild degenerative change in the lumbar spine. Dr McGill thought the exact nature of the injury suffered in 1979 remained uncertain and he could conclude with confidence that Mr Hillier did not suffer a disc injury. Dr McGill nevertheless reported there was no relationship between his current condition and his previous employment.
25. Dr K Wilding, Orthopaedic Surgeon for the applicant, on 8 April 2008 (Exhibit A1), agreed with Dr McGill that the CT scan did not show a frank disc prolapse but, on balance, opined that the symptoms in 1979 were due to an internal disc lesion (that is, tear of the annulus fibrosis) but without frank prolapse of the disc. He added that this lesion was not seen on the CT scan but could have been seen on MRI scanning if such had been available.
Radiology
26. We have a series of radiology studies and reports. Dr Hudson arranged a plain x-ray of the lumbar spine in July 1979 and noted the report was relatively normal (T18 p 39).
27. On 5 September 1988 (T183 p 270), the CT Lumbar spine was reported as ‘Mild facet joint arthrosis. No evidence of disc protrusion or spinal stenosis.’
28. On 6 August 1991 (T210 p 312), there was another CT Lumbar spine report. There was again no CT evidence of lumbar disc protrusion. Moderate changes of facet joint arthrosis were again noted at each level.
29. On 7 May 2004, Ct Lumbar spine was examined again and the following observations were made (T274 p 446):
At the L3/4 level, some degenerative change with some osteophytes noted. Minor bulging of the discs. A little narrowing of the exit foramina. At L4/5 level, similar appearances with degenerative changes in the apophyseal joints. At the L5/S1 level, some minor degenerative changes, a little more marked central posterior bulging of disc material but only minor indentation on the thecal sac. Dimensions of the bony canal appear to be adequate.
30. On 10 May 2004, a further x-ray of Lumbosacral spine resulted in another report which showed (T275 p447):
Five lumbar vertebrae have been shown with mild disc degeneration at all levels and moderate lower level facet osteoarthritis, worse at the lumbosacral junction. There is mild narrowing of the L4/5 and lumbosacral exit foramina. Vertebrae otherwise intact. No spinal canal stenosis … There is “no” evidence of moderate lower thoracic disc degeneration, with large irregular osteophytes, and there is greater than 20% height loss of several lower thoracic vertebral bodies, most markedly of T11, with T7/8. This maybe due to compression fracturing or be developmental.
31. The radiologist reported on 10 May 2004 that comparison with the study of 1998, performed at Tamworth Base Hospital, showed mild progression of degenerative change in the lumbar region, with more progression of thoracic degenerative change. The radiologist in May 2004 further observed wedging of T11 was a little worse. He raised the possibility of osteoporosis.
Consideration and findings
32. The injury to Mr Hillier’s back was sustained in 1979 and the Commissioner, then Comcare, continued to accept that Mr Hillier remained unfit for work for the next 28 or more years. Among his physical health conditions, Mr Hillier has had problems with his right shoulder, right arm and neck and carpal tunnel, which is of no particular consequence concerning work capacity. The plethora of different specialists who have examined Mr Hillier over the years, both for the applicant and the respondent, may be partly explained by the passage of time, but is remarkable in that almost every consultation features a new and different specialist proffering an opinion.
33. The most useful assessments of the injury, in our opinion, are those carried out in 1979 by medical attendants who saw Mr Hillier at the time of the event, namely Dr Baggott, Dr Doran and, in particular, the orthopaedic specialist, Dr Hudson. Dr Hudson’s conclusion was that, while he was uncertain of an accurate structural diagnosis, he thought Mr Hillier had lower facet joint strain rather than an acute disc lesion. The only radiology available to Dr Hudson was plain x-ray of the lumbar spine. He unfortunately did not have the benefit of CT scan or MRI in 1979.
34. The crucial point is that Dr Hudson assessed Mr Hillier proximate to the incident. The difficulty for other specialists seeing Mr Hillier up to 29 years later is that they are reliant on various medical reports and opinions, the initial plain x-rays and subsequent CT scans and Mr Hillier’s recall of events. On balance, we can find no reason not to accept Dr Hudson’s diagnosis at that time, that Mr Hillier suffered lower facet joint strain in 1979.
35. The next question is whether the effects of the 1979 injury continued in 2006 and 2007 to such degree as to prevent Mr Hillier from working. Since those of 1979, medical opinions are reliant on the past history of the event and the applicant’s current recollection, a record of the physical findings then and now, and radiology over the years. Varying opinions as to suitability for employment may also be flavoured by the fact the applicant is illiterate and, as expressed by his GP, Dr Kalokerinos, on 20 October 1988 (T187 p 275), “He therefore cannot hold down a full time job and will never be able to do so. He cannot read or write”. Dr Coote, his current general practitioner, appears to be of the same opinion.
36. For the purposes of finding liability in Comcare, it is necessary only to show some kind of contribution that was not insignificant in order to establish a liability issue. See Comcare v Sahu-Khan[2007] FCA 15 . The contribution by the employment required under section 4(1) of the Act must be more than a mere contributing factor and an evaluation of all contributing factors. We note there is some medical opinion before us that degenerative osteoarthritis may be a contributing factor but this was not such a contribution as to displace causation due to the injury in the opinion of those who saw Mr Hillier in 1979. As that was the position as far as an injury happening in 1979, it has not become necessary to reprove liability. The respondent has to show that something has happened which takes liability away. See cases cited above, Watts, Purkess etc.
37. Dr Machart’s opinion in 2006 was that the 1979 injury did not contribute to the current osteoarthritis of the spine and any limitation on work was due to osteoarthritis. However, his opinion does not in our view displace contemporaneous opinions that the lifting of the heavy sack of potatoes in 1979 produced the injury accepted at that time by several doctors.
38. We are not persuaded that Comcare’s review of the file some 29 years later and a recent opinion from Dr Machart attributing the applicant’s lower back problems to pre-existing constitutional arthritis have replaced as causation the injury in 1979. That the degenerative arthritis has overtaken the facet joint strain is not reasonable especially bearing in mind the presumptions existing from 1979.
39. There is no evidence that Mr Hillier was unable to work before the 1979 incident. He was leading an active life and was coping with the heavy physical work involved in loading trucks for REVY. This was despite some previous minor ankle injuries. The respondent concentrated on the current radiology showing degenerative arthritis affecting different levels that was not present in 1979. Dr Machart made a point of the fact that there was no radiological abnormality in 1979. The respondent attached importance to the radiology as a record of structural change that could provide a record of events that could with hindsight extrapolate back to the nature of the structural change at the time of the injury. This is notwithstanding the CT scans consistently show facet joint arthrosis consistent with Dr Hudson's original diagnosis and supported by Dr Clery who considered there was osteoarthritis of the posterior joints particularly at the L/S level.
40. Considerable debate centred on the question that a disc lesion, could have accounted for the original pathology. The only radiology in 1979 was a plain x-ray and Dr Hudson relied principally on clinical judgement. The later CT scans did not show any frank disc prolapse. At best, the 2004 CT scan showed some minor disc bulging with some central protrusion of disc material at L5/S1 but only minor indentation of the sac. Dr Conrad and Dr Wilding considered an MRI was necessary to exclude a disc lesion with certainty. Dr Wilding believed Mr Hillier had sustained an internal disc lesion in 1979 which could only be demonstrated on MRI. He was alone in this opinion and opposed by Dr McGill. As there is no other support for Dr Wilding’s opinion, we do not rely on it as determining causation.
41. We are unable to find any evidence of a lumbar disc lesion at the time of the injury or subsequently. We do however find radiological evidence of spinal degeneration from at least 1998, but not evident at the time of the injury.
42. The plain x-rays performed in 1998 and 2004 demonstrate progressive degeneration of the lumbar and thoracic spine alerting Dr McGill and Dr Machart to the possibility or likelihood that any current back problems were due to chronic degeneration of the spine related to his age, compounded by his obesity. The degenerative changes were in addition to the apophyseal joint degeneration
43. We accept that the applicant now has degenerative arthritis consistent with age. On the other hand, we do not accept the degeneration was present in 1979. On the history obtained from Mr Hillier we have difficulty with Dr McGill’s proposition that the physical effects of the injury in 1979 would have resolved within four months, in particular as Mr Hillier was referred by Dr Hudson to Mount Wilga in January 2000, eight months after the initial injury. Mr Hillier underwent constant review and examination by orthopaedic specialists for the next 27 years for consistent ongoing back symptoms without the initial diagnosis being challenged by the respondent until 2006, when Dr Machart, with the benefit of the age onset osteoarthritis, diagnosed osteoarthritis. The later onset of the osteoarthritis does not explain the back problems in the 1980's and 1990’s.
44. Taking the medical evidence set out above into account we are not persuaded that Mr Hillier’s back problems are caused by osteoarthritis but are reasonably satisfied on balance that the injury sustained in 1979 was the cause at the time of the injury and continued as a material contributing factor to his back problems at the time of the reviewable decision. As Dixon CJ said in Watts v Rake, at page 160, if there is more than one cause of the applicant’s problems, it is the respondent who should do the disentangling and exclude the previously accepted contributory cause, not the applicant. The burden of introducing evidence may shift, as held in Purkess v Crittenden. As Windeyer J pointed out at page 171, if it is suggested that not all consequences attributed to an event are causally related to it, then the burden of adducing this evidence is on the defendant.
45. Comcare has not overcome the presumption in Mr Hillier’s favour that the cause of his back injury and continuing inability to work is attributable to the work caused injury in 1979. It follows that we find the reviewable decision was wrong and that Mr Hillier is entitled to compensation under section 14 of the Act.
46. We further find that Comcare is liable to pay Mr Hillier medical expenses under section 16 of the Act and incapacity payments in accordance with sections 19 and 124 of the Act. Section 124 is called upon as it deals with the application of the Act to pre-existing injuries. Mr Hillier’s case invokes this transitional provision as his injury occurred in 1979 when a previous Act applied, the Compensation (Commonwealth Government Employees) Act 1971.
DECISION
47. The decision under review is set aside and in substitution we decide that Comcare is liable to pay the applicant compensation pursuant to sections 14, 16, 19 and 124 of the Act. Further, Comcare is liable to pay the applicant’s costs in accordance with section 67 of the Act.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms R Hunt, Senior Member and Dr M Thorpe, Member.
Signed:................................[sgd].........................................
Associate
Date/s of Hearing: 9 and 10 July 2008
18 November 2008
Date of Decision: 20 March 2009
Representative for the Applicant: Mr G Egan, Lee Sames Egan
Counsel for the Applicant: Mr L Grey
Representative for the Respondent: Ms B Audsley, AGS
Counsel for the Respondent: Mr M Gollan
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