Morison and Comcare

[2008] AATA 292

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 292

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600589
  )          No Q 200600866

GENERAL ADMINISTRATIVE DIVISION		)
Re		Lindsay Morison

Applicant

And Comcare

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date11 April 2008

PlaceBrisbane

Decision The Tribunal affirms the decisions under review

......................[Sgd]........................

SENIOR MEMBER

CATCHWORDS

WORKERS’ COMPENSATION – applicant’s entitlement to compensation – applicant suffers neck pain and headaches – neck pain and headaches previously accepted as workplace injuries – applicant claims neck pain and headaches aggravated during subsequent work – whether applicant to be compensated for cost of household services – whether applicant to be compensated for medical expenses – whether applicant to be compensated in respect of permanent injury – aggravation temporary – decision affirmed

Safety and Rehabilitation and Compensation Act 1988 (Cth), ss 29, 16, 19

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253

Treloar v Australian Telecommunications Commission [1990] 26 FCA 511; (1990) 26 FCR 316

REASONS FOR DECISION

11 April 2008 Senior Member Bernard J McCabe         

1.      Mr Lindsay Morison has made claims under the Safety Rehabilitation and Compensation Act 1988 (“the SRCA”) following a workplace injury that occurred on 9 June 1999. He says he suffers from worsening neck pain and headaches as a result of the injury. It was not the first time Mr Morison had been injured at work. He sustained a neck injury while playing sport in the Army in 1988. The Department of Veterans’ Affairs accepted that earlier injury was related to the applicant’s service. The Tribunal must now consider whether the effect of the subsequent injury is such that Mr Morison should be compensated under the SRCA for:

·     the cost of household services (pursuant to s 29). The Commission affirmed the decision to reject that claim in its reviewable decision dated 4 July 2006 (Exhibit 1, at 377); and

·     medical expenses (pursuant to s 16) and compensation in respect of permanent incapacity (pursuant to s 19). The Commission affirmed the decision to deny compensation for these matters in its reviewable decision of 10 November 2006 (Exhibit 1, at 384).

2.      The respondent accepted liability for neck pain and headaches as a result of the workplace injury of 9 June 1999. It said those conditions were the result of an aggravation of any existing condition. The respondent says the aggravation was temporary, and has now ceased. I agree, for reasons I will explain.

The background

3.      The applicant is in his early 50s. He joined the Army after leaving school. He testified that he enjoyed a successful career as a soldier. He attained the rank of captain. Towards the end of his career, he was responsible for managing workshops and he sat on occupational health and safety committees.

4.      Mr Morison said he was injured in the course of a physical training session in June 1988. His statement of 11 January 2007 (Exhibit 6) says he had not experienced any back or neck pain prior to that incident. He said he began to experience neck pain and severe headaches soon after. The migraine-style headaches were occurring about twice a week by the mid-1990s. The Department of Veterans’ Affairs determined on 10 January 1990 that a soft tissue injury to the neck was related to the applicant’s defence service

5.      The applicant was discharged from the Army in 1991. He joined the public service and started work at the Family Court in Brisbane. He said in his statement that he was known as a hard worker and claims he was steadily promoted. He moved to the Child Support Agency and then the Australian Tax Office (“the ATO”). He transferred to Canberra in 1994 and took a new job at the ATO in 1999 as a project manager in the Commissioner’s office. His new role was stressful. He had to work against tight deadlines and often worked overtime. He said he had to spend extended periods in front of a computer at his desk. The computer was perched on a stack of phonebooks. There was no ergonomic furniture available. He said in his statement that he was constantly required to look down at material on the desk and then up at the screen. He said he might repeat this movement thousands of time each day. He also testified he would use the phone while typing, which he accomplished by cradling the phone between his neck and shoulder.

6.      Mr Morison said in his statement that he began to experience worsening neck pain a few weeks after he started the new job. He accepted there was no specific event or incident that caused the pain to increase. He said he began to have headaches every day, and the pain in his neck also became worse. He often had to go home early and occasionally had difficulty driving because of the headaches. He would sometimes have to pull over and vomit, and he might have trouble seeing out of one eye.

7.      Work became more and more difficult, Mr Morison explained. He said in his statement that his managers were sympathetic but they did not have the time or resources to provide relief. He said his health continued to deteriorate as he laboured away. He received more medical treatment and had to avoid any sort of physical activity that put a strain on his neck, because neck strain caused his headaches. He took annual leave in the middle of 1999. He said he noticed a small improvement in his condition, but it deteriorated as soon as he returned to work about three weeks later. He said it became increasingly hard to concentrate and function effectively. He went on sick leave in October 1999 and has not worked since.

8.      The applicant said in his statement that he continues to suffer from debilitating headaches and neck pain. He leads a sedentary lifestyle and has become withdrawn and depressed. He said the condition has not improved since 1999, although it occasionally worsens. He said none of the treatment he has received has worked, and some of it has been counterproductive.

The medical evidence

9.      The Tribunal was provided with reports from a number of medical witnesses. They were not all available to give evidence in person. The applicant was particularly concerned that Professor Balla and Dr Craven were not available to be cross-examined.

10.     It appears to be accepted that the symptoms of the applicant’s pre-existing neck condition were aggravated by the circumstances of his work at the ATO. The precise description that should be applied to that condition is open to question. The respondent pointed out I am not in any event bound to accept the description contained in the reviewable decisions, provided the diagnosis I accept refers to the condition the applicant has been suffering from all along: Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253 at [11] per Heerey J and at [58] per Conti J.

11.     The medical evidence suggests the applicant had earlier experienced a soft tissue injury to the neck. He is now experiencing cervical spondylosis. The respondent acknowledges the applicant’s condition has deteriorated, and will probably continue to do so. But it says the aggravation occasioned by the applicant’s work at the ATO merely caused a temporary worsening of the symptoms. Once Mr Morison left the work environment, the aggravation of his symptoms ceased and the underlying condition continued to deteriorate. The respondent says the symptoms that the applicant is currently experiencing are wholly attributable to the course of the pre-existing condition. It relies on the evidence of Professor Balla and Drs Craven and Edwards in this regard.

12.     I found the evidence of Dr Edwards to be particularly persuasive. Dr Edwards is an expert in dealing with migraine and other headaches. His evidence was presented in a methodical way. His explanations in cross-examination reflected careful and objective analysis, and appeared to result from a thorough examination of the applicant. Dr Edwards pointed out that some of the medication the applicant had been prescribed was specific to migraines. It would not have been any use in treating muscle contraction or tension headaches. He explained in his testimony that the muscle contraction or tension headaches (as well as migraines) could arise out of the neck condition. If the headaches were not accurately diagnosed and treated, that would explain the continuing symptoms.

13.     Dr Edwards doubted the applicant continued to suffer from a soft tissue injury. He said there was no physical evidence that the applicant aggravated that injury. He said the circumstances of the applicant’s work would have temporarily aggravated the symptoms of his underlying condition, however that was described. Dr Edwards also suggested the anxiety associated with finishing work and conducting litigation might have exacerbated those symptoms, and may continue to do so. But he insisted there was no sign of an aggravation of the underlying condition, and no reason to believe the circumstances of the applicant’s work had anything more than a temporary effect.

14.     I note Dr Edwards’s evidence was broadly consistent with the evidence of Professor Balla and Dr Craven, although I had the benefit of hearing his opinions explained and tested under cross-examination.

15.     I prefer the evidence of Dr Edwards to Dr Campbell. I accept Dr Campbell is an experienced neurosurgeon, but his evidence was given without the benefit of the applicant’s full clinical history. That history, which was considered by the Department of Veterans’ Affairs, showed a history of headaches and pain in the mid-1990s. Dr Campbell’s explanation for his view that the work at the ATO was responsible for a permanent deterioration in the applicant’s condition also appears to have been premised on the fact that the applicant did not return to work after 1999.

16.     I also prefer the evidence of Dr Edwards to that of Dr Smethills. Dr Smethills is a general practitioner with experience in sports medicine. He is not a specialist, unlike Dr Edwards. I note Dr Smethills has previously referred to the applicant’s severe symptoms in the 1990s in connection with the applicant’s claim made to the Department of Veterans’ Affairs. I think Dr Smethills’s objectivity may have been affected by his role as Mr Morison’s treating general practitioner.

17.     That leaves only the evidence of Dr Low. Dr Low is an occupational physician. He suggested the applicant’s ongoing symptoms are really the product of a somatoform disorder. It is an intriguing prospect, and there are hints in the opinion of Dr Edwards that the applicant’s emotional state might play a role in his illness. I note Dr Low is not a psychiatrist, so he is not necessarily equipped to make a psychiatric diagnosis – merely to refer his suspicion to a psychiatrist for assessment. That might be a wise course, but the evidence as it stands does not justify me accepting that diagnosis. I therefore prefer the evidence of Dr Edwards.

The legal issues

18.     Ms Scott-Mackenzie, for the applicant, pointed out I must ask whether the applicant’s condition has been aggravated in the sense of being made worse by the circumstances of his work at the ATO in 1998: see, for example, Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316 at 323 per Sweeney ACJ, Sheppard and Foster JJ. While conceding the applicant was ill before he worked as a project manager, Ms Scott-Mackenzie said his sudden and severe deterioration could only be explained by an intervening event. The only intervening event referred to in the evidence was the stressful and physically uncomfortable work he was doing at the ATO.

19.     I am satisfied from the evidence of Dr Edwards that the applicant was not made worse by his work at the ATO. I accept the applicant’s symptoms were temporarily worsened, but I also accept there was no impact on the steadily deteriorating underlying condition. That condition is the real cause of the ongoing problems. The symptoms should have abated. It is not entirely clear why the problems are not resolved, but I am not satisfied the evidence points to an ongoing connection with the applicant’s workplace.

Conclusion

20.     The decisions under review are affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ................................[Sgd].....................................................
  Michael Buckingham, Associate

Dates of Hearing  31 October 2007
  1 November 2007
  2 November 2007
Date of Decision  11 April 2008
Counsel for the applicant          Ms S Scott-Mackenzie

Solicitors for the applicant        D’Arcys, Military Compensation Division of Slater and Gordon

Counsel for the respondent     Mr R King-Scott
Solicitors for the respondent     Dibbs Abbott Stillman Lawyers