Mewburn and Comcare
[2008] AATA 751
•26 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 751
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2006/262
DIVISION ) Re ALAN MEWBURN Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr M.D Miller AO, Member
Date 26 August 2008
Place Canberra
Decision
1. The decision of Comcare made 3 November 2006 denying liability to pay Mr Mewburn compensation for aggravation of unspecified lumbar disc disorder is affirmed.
.................[signed]...................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – whether ‘injury’ within meaning of the Act – whether contributed to in a ‘material degree’ by employment – whether surgical treatment was for an injury to which employment made material contribution – decision set aside and substituted.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14.
Comcare v Sahu-Khan [2007] FCA 15
REASONS FOR DECISION
INTRODUCTION
2. Mr Mewburn was employed by ACTION from 1990 until early 2008. In February 2005 he suffered a severe episode of back pain which caused him to be hospitalized. In June of that year he made a claim for compensation for a lumbar disc lesion which he said was caused by his employment, in particular by his duties in 2005 involving driving buses with inappropriate seating and cleaning buses.
3. Comcare has denied liability to compensate Mr Mewburn for the injury claimed. Mr Mewburn is seeking a review of this decision. For the reasons which follow we have decided that the decision will be affirmed.
BACKGROUND
4. Unless otherwise stated we make the following findings of fact based on the evidence of Mr Mewburn. We are satisfied of the facts found on the balance of probabilities.
5. Mr Mewburn is 55 years old. Over the years he has engaged in a number of different occupations involving heavy manual work. Between 1967 and 1990 these included general station hand, general mill hand, shearer and mechanic. During these years he suffered intermittent, but not persistent, backache. Between 1983 and 1990, whilst working as a mechanic, he suffered an episode of backache which caused him to seek chiropractic treatment and prevented his going to work for 2 or 3 days.
6. In 1990 he joined ACTION as a mechanic doing maintenance and repair work on buses. This was hard physical labour which involved heavy and awkward lifting. This caused his back to ache from time to time.
7. In early 2002 Mr Mewburn was transferred to part-time driving duties. In 2003 he moved to full-time bus driving. In this role Mr Mewburn drove buses fitted with a particular type of driving seat which was unsuitable for a driver of his build. As a result of using this type of seat he suffered backache and severe pain down his left leg. Notwithstanding the difficulties which he experienced Mr Mewburn continued driving these buses until mid-2005 when he was transferred to a different type of bus with a different type of seat. Notwithstanding the new seat Mr Mewburn continued to suffer pain in his back and left leg. The pain was continuous and worsened when he was driving a bus.
8. In December 2005 Mr Mewburn ceased driving duties by reason of an unrelated condition. He was placed on ticketing and cleaning duties. On 6 December 2005, the first day Mr Mewburn was undertaking cleaning, he experienced pain in his back. The following day he stopped cleaning duties. He continued with ticketing and office work which involved sitting at a computer. Mr Mewburn said that sitting at a desk, at times in a cramped position, worsened the pain in his back and left leg.
9. Sometime during the night of 27 February 2006 Mr Mewburn awoke with severe pain in his back and legs. The pain was so severe it caused him to take over two hours to reach the telephone in his house to call for assistance. Following this incident he was admitted to hospital. He was treated with medication and nerve block injections and was off work until 27 March 2006. On his return to work he was on part-time light duties.
10. On 25 May 2006 Mr Mewburn tripped and injured his back. He was again treated with medication and was off work for 2-3 weeks.
11. In June 2006 Mr Mewburn consulted Dr Fuller, Neurosurgeon. In August 2006 Dr Fuller performed a L4-5 interlaminar decompression with left L5 rhizolysis and an insertion of a Wallis device.[1] These procedures gave the nerve root more space and thus reduced the pain caused by the compression of the nerve root. Following this operation the pain in Mr Mewburn’s leg ceased but the backache continued. He underwent further surgery in August 2007 as a consequence of the earlier surgery.
[1] Ex.A16.
ISSUES FOR DETERMINATION
12. The following issues arise:
1)was the condition suffered by Mr Mewburn on 27 February 2006 an injury for which he is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth);
2)if so, was the surgical treatment received by Mr Mewburn in August 2006 and August 2007 treatment that it was reasonable for him to obtain in relation to this injury or another compensable injury?
MR MEWBURN’S CONTENTIONS
13. Mr Mewburn says that he suffered severe pain on 27 February 2006 either caused by an aggravation of the pain arising from his degenerative back condition or alternatively caused by an aggravation of the degenerative condition itself. He says that the aggravation was contributed to in a material degree by his using the unsuitable driving seat, by his cleaning duties on 6 and 7 December 2005 and by his office work in December 2005 and in January and February 2006. Further he says that the surgery performed by Dr Fuller in 2006 and 2007 was necessitated by the aggravations he suffered at work. He relies upon his evidence as to the history of his back and leg pain and upon the evidence of Dr Bradfield (his general practitioner) and Dr Fuller.
DR BRADFIELD’S EVIDENCE
14. Dr Bradfield has been Mr Mewburn’s general practitioner since 1984. he provided the medical certificate in support of Mr Mewburn’s claim for compensation. In his certificate dated 28 March 2006 he expressed the opinion that Mr Mewburn was suffering from a lumbar disc lesion which was caused by “June 05 back pain following difficult posture in driving seat aggravated by bending in December 05.” [2]
[2] Ex. A4.
15. In his report of 6 August 2006 Dr Bradfield stated:
In June 2005 he reported Back and leg pain consistent with lumbar disc lesion.
…
In December 2005 he was seen with an exacerbation of his disc lesion pain which had been aggravated by bending over whilst cleaning buses.
He had a further severe episode in March 2006 at which time he was referred to a neurosurgeon, Dr Fuller.
…
Mr Mewburn’s current back problems are related in time to the period when he had problems with the unsuitable bus seating. He has subsequently has several incidents which have aggravated the problem for several time periods. These subsequent incidents, In December 05 and May 06 were also work related, and temporarily increased the problems which he was having with his disc lesion.”
16. In his report of 6 October 2007 Dr Bradfield expressed the opinion that even if Mr Mewburn had degenerative back disease “his work has caused further exacerbation and resulted in the need for surgical intervention”.[3] When he gave evidence he maintained this view. In his opinion the problems experienced by Mr Mewburn from June 2005 onwards were exacerbations which dated from that time rather than from the time of his previous episodes of back pain as his back condition had been stable for several years prior to his bus driving.
[3] Ex.A13.
DR FULLER’S EVIDENCE
17. In a report dated 7 November 2007 Dr Fuller said:
In regards to whether his employment at Action has contributed to his problems, he stated in the original consultation in June 2006 that he believed the development of his lower back and left leg symptoms were related to a period of time when they changed the seats in the bus that he had been driving. It is from that time that he had complained of symptoms. I suspect that even at that stage his symptoms are related to an aggravation of his underlying lumbar spondylosis.[4]
[4] Ex. A15.
When he gave evidence Dr Fuller was questioned as to this statement. He said that Mr Mewburn certainly had evidence of underlying lumbar spondylosis. In response to the question whether he accepted that Mr Mewburn’s employment was one of the causes of the aggravation of the underlying condition, Dr Fuller responded that all he could say was that his symptoms developed at the time when he was bus driving.[5]
[5] Transcript 19.5.08 p-76.
18. During cross-examination the following exchange took place between Dr Fuller and Counsel for Comcare:
Counsel: …what it is that’s caused the condition that you needed to operate on him in August 2006. Was it his underlying condition per se or was it something that was caused in February ’06 when he woke up in excruciating pain or was it the fact that he’d driven buses in 2005 etcetera?
Dr Fuller:The difficulty with all of this, as I’m sure you’re aware, is trying to attribute portions of how much a single or multiple incidences that may in fact [have] led to the development of someone’s problem. Lumbar spondylosis is an ongoing problem that develops over years. It’s related to incidents along the way which may in fact cause injury at whatever level.
…
Now, the difficulty is that it’s a cumulative problem. The incidents that have led to his - or the problem that led to his first operation in August of 2006, it’s not possible to put an exact incident on it, but all you can say that he developed symptoms related to specific activities or at the time of specific activities. Now, as you said some of it was a day of cleaning, some of it’s been sitting in a – what’s determined to be a confined space. Now, I can’t tell you whether those things exactly led to it, or they would have in fact developed had he not even been doing it. And that’s an impossible question to answer.[6]
[6] Transcript 19.5.08 p-81.
DR EATON’S EVIDENCE
19. Mr Mewburn was assessed by Dr Eaton, Occupational Physician, in November 2006 on referral by Dr Fuller. Dr Eaton provided a report dated 24 March 2007.[7]
[7] Ex.A14.
20. In his report Dr Eaton referred to Mr Mewburn’s employment as a shearer and as a mechanic and to the various incidents which affected his back whilst employed by ACTION. He expressed the following opinion:
The surgical treatment I believe was attributable, attributable, at least in part, to work place incidents and bus driving. As to the exact contribution it would be very difficult to say. It is possible that Mr Mewburn was genetically predisposed to developing problems with his lumbar discs and the aggravation occurred due to the bus seating and the various incidents contributed to the development of his condition to such a level that surgery was needed. It appears that multiple incidents and factors contributed to cumulative trauma to the spine over several years.
21. When giving evidence Dr Eaton said that in his experience and from his reading of medical literature bus drivers commonly experience back and neck problems. He confirmed his opinion that driving and other workplace incidents were components of the production of Mr Mewburn’s back pain. When questioned further as to the need for surgery he said that these factors would have made “some contribution”,[8] but that it is very difficult to separate out all the factors. The factors he considered included the natural degeneration of the spine and the effect of activities prior to the workplace incidents.
[8] Transcript 19.5.08 p-62.
22. Dr Eaton also said that back pain is a difficult condition to deal with in that there can be many contributors, including falls and possibly microscopic changes to the spine brought on by bus driving. In his opinion events can affect symptoms which are reported by the patient as pain, but the “effect … on the underlying structures is difficult to know and measure, because pain and damage are not the same thing.”[9]
[9] Transcript 1.5.08 p-66.
COMCARE’S CONTENTIONS
23. Comcare argued that Mr Mewburn has been suffering from constitutional disc degeneration for many years going back to his time as a shearer and that the severity of the symptoms of his condition has varied from time to time. Comcare agrees that the condition has been aggravated on occasions by Mr Mewburn’s employment by ACTION. However it says that the disc lesion which caused the severe symptoms on 27 February 2005 and the subsequent need for surgery were not materially contributed to by his employment but were a result of his underlying spondylosis. Comcare relied on the evidence of Professor Oakeshott, Consultant Surgeon, and Dr Miniter, Surgeon.
PROFESSOR OAKESHOTT’S EVIDENCE
24. Professor Oakeshott examined Mr Mewburn in March 2007 at the request of the solicitors for Comcare. In his opinion at that time Mr Mewburn’s back condition was related to constitutional degenerative changes in his lumbar spine and was not related to his employment by ACTION. He was of the opinion that on occasions his work may have caused a temporary aggravation but that at the time of examination there was no evidence that the aggravations caused by his work were persisting. Specifically, in relation to the incident of 27 February 2007, in his opinion the increase in symptoms was spontaneous and not related to work activity. He commented that the various investigations carried out since 2005 revealed significant multilevel constitutional degenerative changes in his spine. [10]
[10] Ex. R10, report dated 22.3.07.
25. When he gave evidence Professor Oakeshott said that disc bulge and facet and ligamentous hypertrophy, referred to by Dr Fuller as the cause of stenosis, are features of disc degeneration. In his opinion these changes do not indicate acute trauma.[11] Further it was his opinion that the symptoms experienced by Mr Mewburn in February 2006 were consistent with constitutional degenerative changes and spontaneous rupture of a degenerate disc without trauma.[12] Professor Oakeshott referred to the scan conducted after February 2006 showing a disc protrusion whereas the earlier scan did not.
[11] Transcript 19.5.08 p-91.
[12] Transcript 19.5.o8 p-93.
DR MINITER’S REPORT
26. At the request of his employer, Mr Mewburn was assessed by Dr Miniter, Surgeon, in September 2005. In his report of 9 September 2005,[13] Dr Miniter stated that Mr Mewburn gave a history that his problems associated with the bus seating had “largely resolved.” Although he had not seen x-rays of Mr Mewburn’s lumbo-sacral spine Dr Miniter was of the opinion that it was likely he had lumbar spondylosis. His prognosis was “guarded and it is likely that in the longer term he will continue to experience back pain … as a relatively normal part of his activities of daily living.”
[13] Ex.R8.
REASONING
27. Under section 14 of the Act Comcare is liable to pay compensation to Mr Mewburn in respect of an injury suffered by him if the injury results in incapacity for work or impairment. “Ínjury” is defined in section 4 to include a “disease”. In the same section ”disease” is defined to mean:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
28. Following the decision of the Federal Court in Comcare v Sahu-Khan [14] the words “in a material degree” require a stronger causal relationship between the employment and the ailment than was previously thought to be the case. In that matter Finn J said:
“in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question …whether this will be so in a given case will be a matter of fact and degree.[15]
[14] [2007] FCA 15.
[15] [2007] FCA 15, [16].
29. There is no dispute that Mr Mewburn suffers from the degenerative condition of spondylosis in his lumbo-sacral spine and that he suffered this condition prior to his employment by ACTION. Also it is not in dispute that the spondylosis is an ailment within the definition of disease. We are satisfied on the evidence of all of the medical practitioners that the condition suffered by Mr Mewburn on 27 February 2006 was an aggravation of his spondylosis and/or the pain caused by it. This is how Mr Mewburn puts his claim. In our view, based on the facts before us, this is appropriate.
30. We are not satisfied on the balance of probabilities that any of the workplace incidents described by Mr Mewburn contributed in a material degree to the aggravation of the spondylosis and/or the pain suffered by reason of that ailment. The evidence relied upon by Mr Mewburn, when considered along with the evidence called on behalf of Comcare, does not permit us to reach the required level of satisfaction.
31. Dr Bradfield was firm in his view that the pain suffered by Mr Mewburn arose from a disc lesion caused by Mr Mewburn’s bus driving and aggravated by subsequent events in the workplace culminating in the need for surgery. He excluded the effects of the underlying condition on the basis that Mr Mewburn’s condition had been stable for several years before the onset of problems associated with the driving. However, Dr Fuller did not support this view. He said that whilst specific symptoms arose at the time of work activities he could not say that the activities led to the onset of pain in February 2006 and/or the need for the operation in August 2006.
32. Dr Eaton qualified his view that the surgical treatment was attributable at least in part to the workplace incidents by saying that the effect of events (which are reported as giving rise to pain) on underlying structures of the spine are difficult to know and measure. We also take into account his opinion that multiple factors contributed to the trauma to Mr Mewburn’s spine but that he could not say to what extent any of those factors contributed.
33. On the other hand we have the opinion of Professor Oakeshott that work caused aggravations of Mr Mewburn’s spondylosis were temporary and that the onset of severe pain in February 2006 was consistent with the degenerative condition and the spontaneous rupture of a disc. Professor Oakeshott’s opinion is supported by Dr Miniter’s view in September 2005 (based on the history given by Mr Mewburn) that his back problems arising from his bus driving had largely resolved, but that he was likely to continue to experience back pain. These views are consistent with the history of Mr Mewburn experiencing episodes of pain from time to time. Even accepting that Mr Mewburn experienced some degree of ongoing pain from the time he was driving in the inappropriate seat, on his own evidence the extent of the pain varied. We accept that he advised Dr Miniter in September 2005 that the episode of pain which was caused by the bus driving had largely resolved.
34. On the basis of the evidence before us we cannot be satisfied that Mr Mewburn’s employment contributed in a material degree to his lumbar disc lesion or to the aggravation of the pain or underlying degenerative condition he suffered at the time of the onset of the severe pain he experienced on 27 February 2006. For the same reasons we are not satisfied that the surgical treatment received by him was treatment for an injury to which his employment had made a material contribution.
DECISION
35. The decision of Comcare made 3 November 2006 denying liability to pay Mr Mewburn compensation for aggravation of unspecified lumbar disc disorder is affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.
Signed
……….…….............................................................................
Peter Horobin
AssociateDate of Hearing 3 April and 19 May 2008
Date of Decision 26 August 2008
Counsel for the Applicant Stuart Pilkinton
Solicitor for the Applicant Bill Redpath
Pamela Coward Higgins
Counsel for the Respondent Elenne Ford
Solicitor for the Respondent Peter WoulfeDibbs Abbott Stillman
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